Halton v Clayton; McGrath v Clayton

[2005] NSWSC 1269

CITATION:	Halton v Clayton; McGrath v Clayton [2005] NSWSC 1269
HEARING DATE(S):	1, 2 and 3 November 2005
JUDGMENT DATE :	9 December 2005
JURISDICTION:	Equity
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	In each proceedings: 1. I order that the summons be dismissed. 2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis. 3. I order that the Defendant be entitled to recoup from the estate of the late Joyce Ellen Clayton (also known as Mavis Clayton) (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis. 4. The exhibits may be returned.

CATCHWORDS:	Succession. - Family Provision. - Claims by two adult daughters. - Financial and material circumstances of Plaintiffs. - Asserted needs of Plaintiffs. - Whether each Plaintiff has been left without adequate provision for her maintenance. - Competing claim of Defendant. - Defendant was chief chosen object of testamentary beneficence of Deceased. - Statements by Deceased in her will concerning benefits given to Defendant. - Plaintiffs must establish their claims upon their own merits. - Claims of Plaintiffs cannot be established, or enhanced, by proving that Defendant, had he been an applicant for provision, might have been defeated on account of conduct disentitling.
LEGISLATION CITED:	Family Provision Act 1982 Testator’s Family Maintenance and Guardianship of Infants Act 1916
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731
PARTIES:	Elaine Gladys Halton (Plaintiff) June Valerie McGrath (Plaintiff) Sydney Alfred Clayton (Defendant)
FILE NUMBER(S):	SC 4854 of 2004; 4856 of 2004
COUNSEL:	Dr J. Kildea (Plaintiffs) Mrs M. Gilmour (Defendant)
SOLICITORS:	Jennifer E. Darin (Plaintiffs) L. P. Alidenes & Company (Defendant)

LOWER COURT JURISDICTION:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

FRIDAY, 9 DECEMBER 2005

4854/04 ELAINE GLADYS HALTON –v- SYDNEY ALFRED CLAYTON

4856/04 JUNE VALERIE McGRATH –v- SYDNEY ALFRED CLAYTON

JUDGMENT

1 HIS HONOUR: These are two proceedings under the Family Provision Act 1982.

2 By summons 4854 of 2004 Elaine Gladys Halton claims an order for provision for her maintenance out of the estate of her late mother, Joyce Ellen Clayton (also known as Mavis Clayton) (to whom I shall refer as “the Deceased”). By summons 4856 of 2004 June Valerie McGrath also claims an order for provision for her maintenance out of the estate of the Deceased.

3 The Deceased, who was a widow at the time of her death, died on 6 March 2003, aged 86. She left a will dated 25 October 2001, probate whereof was on 1 October 2003 granted to Sydney Alfred Clayton, the executor named in such will (who is the Defendant to the present proceedings).

4 At the commencement of the hearing an order was made in each matter that the two matters be heard together and that evidence in the one be treated as evidence in the other.

5 The two Plaintiffs and the Defendant are three of the six children of the Deceased and her husband Sydney Alfred Clayton (who died on 31 January 1971, aged 54). Those children were:

June (Mrs McGrath), born 4 June 1938

Elaine (Mrs Halton), born 12 December 1939

Sylvia (Mrs Stramko), born 19 May 1941
Carole (Mrs Wright), born 11 April 1943
Helen (Mrs Kelman), born 26 October 1944
Sydney, born 17 August 1950

6 Of those children Sylvia died on 9 February 2001.

7 It should here be recorded that one of the other children, Helen Kelman, by summons 4855 of 2004, claimed an order for provision for her maintenance out of the estate of the Deceased. On 1 November 2005, the first day of the hearing of the present proceedings, orders were made by consent in proceedings 4855 of 2004 that those proceedings be discontinued and that that Plaintiff pay the costs of the Defendant. Mrs Kelman was, however, a witness in the present proceedings.

8 The inventory of property discloses the assets of the Deceased as being a house property situate at and known as 13 Malleny Street, Ashbury, to which an estimated value of $670,000 was ascribed; and jewellery and personal effects, to which an estimated value of $20,000 was ascribed. No liabilities of the estate were disclosed. The house property (to which I shall refer as “the Ashbury property”) had been the family home of the Deceased, her husband (until his death) and their children. The Defendant had resided in the Ashbury property with the Deceased until her death, and has continued to reside in that property since that time.

9 By her will the Deceased gave the Ashbury property to the Defendant during his lifetime, he to pay all rates, taxes and outgoings, including any necessary repairs and maintenance, and from his death “for such one or more of them my daughters”. The will provided that the Defendant should have the right at any time during his occupancy of the Ashbury property to purchase that property at the Valuer General’s valuation at the date of the purchase. In the event that the Defendant wished to cease occupation in the Ashbury property, then it should be sold. In that event, or in the event that the Defendant himself purchased the property, then the net proceeds of sale were to be divided into four equal shares, of which the Defendant should receive three such shares and the Deceased’s daughters should receive the remaining one share.

10 The Deceased directed that her jewellery should be sold and the net proceeds of such sale be divided among the Defendant and the Deceased’s daughters in equal shares.

11 The will also made provision for the disposition of the contents of the Ashbury property. The residue of the estate was given to the children of the Deceased in equal shares.

12 The will contained the following provisions:

3 . IT IS MY WISH that if any of my beneficiaries contest this Will for any reason then any gift to that person fail and that person’s bequest be reduced to $50.00 only.
4. I HAVE LEFT the bulk of my estate to my son SYDNEY ALFRED CLAYTON for the reason that without my son’s support during my lifetime I would not have been able to maintain, pay for and remain in my house for a period in excess of the last 30 years.

13 There was no agreement between the parties as to the present value of the Ashbury property. However, evidence of an estate agent indicated that the present value of that property was in the low to mid $600,000s. I consider it prudent to adopt a conservative estimate of $600,000.

14 Although the inventory of property disclosed the value of jewels and personal effects as being $20,000, that estimation was substantially reduced during the course of the hearing. There had been a dispute between Mrs Halton and the Defendant as to whether certain items of jewellery which had been entrusted to her by the Deceased shortly before the Deceased’s death had, in fact, been a gift to Mrs Halton, or whether those jewels remained assets of the estate of the Deceased. Ultimately, during the course of the hearing, it was accepted by the Defendant that he should not attempt to retrieve those jewels or to treat them as assets of the estate. In consequence, the value of the jewellery and personal effects should now be treated as being $5,000.

15 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since the Plaintiffs, or either of them, if successful, will be entitled to their or her costs from the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to his costs from the estate. It was estimated on behalf of the Plaintiffs that their costs (in the two sets of proceedings) total almost $32,000, whilst it was estimated on behalf of the Defendant that his costs (in the two sets of proceedings) total $74,724. However, it would appear that, in performing that calculation, the Plaintiffs have not taken into account GST in respect to certain items and, in consequence, the foregoing estimation of the Plaintiffs should be increased by $690, bringing the total costs of the Plaintiffs to almost $32,700. That is, the total costs of all parties in the two proceedings will be in an amount of about $107,400.

16 If the figure of $600,000 is accepted as a realistic value of the Ashbury property, then, after allowance for the totality of the costs of the proceedings, the value of the estate available for distribution (upon the assumption that it might be necessary for the Ashbury property to be sold) would be about $498,000 (that figure including $5,000 for jewellery and personal effects). It will be appreciated, however, that in the event that it were necessary for the Ashbury property to be sold, there would be additional legal costs and estate agent’s charges, which would have the effect of reducing somewhat the foregoing figure of $498,000.

17 The Plaintiff Elaine Gladys Halton (to whom I shall refer, without intending any disrepect, as Elaine) is a married woman, living with her husband, Thomas Francis Halton (whom she married in November 1961). They have three children Thomas Francis Halton junior (known as Tommy), aged 39, who is living at home; Catherine (Mrs Battiato), aged 36; and John, aged 34. Tommy Halton suffered brain damage resulting from a motorcycle accident 16 years ago and is dependent upon his parents. However, from the compensation moneys which he received on account of that accident (which moneys are held by the Protective Commissioner) he receives $500 a week, of which he pays to his parents $200 by way of board.

18 Elaine’s husband, who is aged 65, was formerly a butcher, but has now retired.

19 Elaine has the following assets:

real property situate and known as 27 Jacaranda Avenue, Patonga, having an estimated value at $650,000

one half share (with her husband) in their residence at 8 Burmah Road, Denistone, having an estimated value at $305,000

one half share of credit in joint account with her husband at Commonwealth Bank, $143

354 shares in IAG Limited, $1830

one half share of household contents and personal property, having an estimated value at $4500

MLC Masterkey rollover superannuation, $1898

jewellery, having an estimated total value of $20,650.

Total assets, $984,022

20 Elaine’s liabilities are as follows:

one half share (with her husband) of a personal loan from Doreen Smith (in a total amount of $69,500), $34,750

21 Elaine’s husband has the following assets:

one half share with Elaine in their residence at 8 Burmah Road, Denistone, having an estimated value of $305,000

584 IAG shares, $2,721

1981 Holden Commodore motor vehicle, $2450
one half of credit in joint bank account with Elaine at Commonwealth Bank, $143
one half share of household contents and personal property (having a total value of $4500), $2,250
aluminium fishing boat, having an estimated value of $500
Total assets, $313,064

22 Elaine’s husband has the following liabilities:

one half share with Elaine in personal loan from Doreen Smith (in total amount of $69,500), $34,750.

Upon my calculation Elaine and her husband have net assets totalling in excess of $1,227,000.

23 Elaine’s current average weekly income is as follows:

aged pension, $48.44 a fortnight/$24.22 a week
board from Thomas Francis Halton junior, $200 a week
Total average weekly income, $224.

24 Elaine’s husband’s average weekly income consists of an aged pension in an amount of $48.44 a fortnight, being $24.22 a week.

25 According to Elaine’s affidavit evidence, the outgoings of herself and her husband in respect to their two residences, their two motor vehicles, their boat, their household expenses, food, health insurance, and general living expenses total about $738 a week. That amount is considerably greater than their joint average weekly income (including board from their son Tommy), totalling $248 a week. It was Elaine’s evidence that she and her husband were unable to make ends meet, and that since 1999 they have been more and more frequently borrowing from Doreen Smith, who is an aunt of Elaine’s husband.

26 It should, however, be observed that the average weekly outgoings disclosed by Elaine in her primary affidavit, that of 2 September 2004 were in an amount of $345, that being a far cry from the $738 asserted by her in her affidavit of 18 October 2005.

27 The outgoings in respect to Elaine’s Patonga property total $98 a week. That property (which consists of a principal residence and a smaller separate dwelling, referred to as “the pad”) is not rented out, and Elaine said she would not consider renting it out. She said that she had always resisted the temptation to sell that property, which had been left to her by the late John William Lytton, who died on 5 May 1982. The late Mr Lytton, by his will of 20 March 1978, giving that property to Elaine, stated in regard thereto, “without creating a trust I request that the said Elaine Halton do not sell the property for a period of thirty years from the time of my death”.

28 The Plaintiff June Valerie McGrath (to whom I shall refer, without intending any disrespect, as June) is a married woman living with her husband, whom she married in 1967.

29 June has the following assets:

one half share (with her husband) in their residence at 19 Ballynin Street, Ferny Grove, Queensland, having an estimated value of $160,000.

money in investment accounts, totalling $73,997

money in a joint investment account with her husband at Commonwealth Bank, $2,520
one half share with her husband in a 2004 Toyota Corolla sedan motor car, $8,500
household contents, having an estimated value of $10,000
jewellery, having an estimated value of $3,000
Total, $256,337

30 June has no liabilities.

31 June’s husband owns the other one half share in their residence, having an estimated value of $160,000, and the other one half share in their motor car, $8,500.

32 Upon my calculations June and her husband have assets totalling almost $425,000.

33 June has an income from investments averaging $83 a week, together with an aged pension of $118 a week. Her total weekly income is $201.

34 June’s husband, who was formerly a bank manager, retired in 1989. He receives an average gross weekly income of $576, consisting of a Commonwealth Bank Super Pension in an average amount of $458 a week, together with an aged pension in an average amount of $118 a week. Thus the total weekly income of June and her husband averages about $777. According to June their average weekly outgoings total $466. That is, their income exceeds their outgoings by about $311 a week.

35 According to June, on account of problems with their mobility, she and her husband are proposing to move out of their house, and into a retirement village. June said that she and her husband had looked at various retirement homes within their immediate area, and that the cost of new deluxe units began at $400,000. Although cheaper units could be acquired at about 20 minutes distance away (from about $300,000 to $350,000), neither June nor her husband wished to move into that area. In the meantime, however, they desire to attend to refurbishment of their residence, by way of replacement of the carpet and curtains, internal painting and remodelling of the kitchen. It was June’s evidence that she had obtained quotations for replacement of the kitchen, from almost $10,000 to about $10,600, and that she had obtained quotations for painting, from $7,630 to $8,635.

36 June suffered a cerebral haemorrhage in late 2002 and said that her memory has deteriorated. She takes medication for high blood pressure.

37 June’s husband, whom she married in 1967, is a Queenslander, and they have resided in Queensland throughout the greater part of their marriage. However, June stated in her affidavit evidence that, in the event that her husband, who is now aged 74, predeceased her, and in the event that her younger daughter, currently residing in Brisbane, relocates interstate (as June stated to be her daughter’s present intention), she would have no immediate family in Queensland, and that she would in those circumstances desire to relocate to Sydney, where not only do her elder daughter and her family reside, but also June’s own siblings reside. In such circumstances June expressed a desire to acquire a residence in the Epping-Eastwood-Marsfield area. She said that from recent enquiries she had ascertained that a two bedroom home unit in those suburbs would cost between $375,000 and $500,000. She said that a one bedroom unit, which would be cheaper, would be unsuitable, since she would require the extra bedchamber for storage and for sleepovers by family, friends and grandchildren.

38 The Defendant, who is unmarried and is presently aged 55, is a self employed builder by occupation. He has two private companies, being Clayton Constructions Pty Limited, through which he conducts his building work, and Jands Consultancy Pty Limited, through which he conducts consultancy work. The Defendant’s only income is derived through that latter company. In recent years the gross turnover of that company has been within the range of about $4,000 to about $40,000.

39 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of each Plaintiff. I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties and a chronology from Counsel for the Defendant. Those documents will be retained in the Court file.

40 Each of the Plaintiffs, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, each Plaintiff has the standing to bring the present proceedings. It will be appreciated that the Defendant is also an eligible person within the same paragraph of the foregoing definition, as is each of the other surviving children of the Deceased.

41 There are no other eligible persons in relation to the Deceased.

42 In performing the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210 the Court must first consider whether, in consequence of the testamentary dispositions of the Deceased, each Plaintiff has been left without adequate provision for her proper maintenance (see, also, Vigolo v Bostin (2005) 79 ALJR 731, in which the High Court affirmed the correctness of the foregoing test in Singer v Berghouse.)

43 A great deal of affidavit evidence was filed in these proceedings, especially on behalf of the Plaintiffs. A very large part of that evidence was directed to the relationships between the Deceased and her six children, especially between the Deceased and the Defendant. Much of that evidence was directed to what was perceived by each Plaintiff as shortcomings on the part of the Defendant in his relationship with their mother.

44 It cannot be emphasised too strongly that it is for each Plaintiff to establish her claim upon its own merits. The claim of each Plaintiff cannot be enhanced, let alone established, by her attempting to prove that, if the Defendant, who is the chief chosen object of the testamentary beneficence of the Deceased, had himself been omitted from provision under the will, he might have been deprived of an order for provision in consequence of what was formerly known as conduct disentitling. That is essentially what the Plaintiffs have been attempting to do in the present proceedings. It does not advance their claims in any way. The Defendant does not need to justify the benefits given to him by the will of the Deceased. He does not have to prove anything. (The Defendant’s financial and material circumstances are, however, relevant to the claims of the Plaintiffs, in that they may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which one or other, or both, of the Plaintiffs might otherwise have established.)

45 But, indeed, the express statement by the Deceased in clause 4 of her will (which is admissible in evidence pursuant to section 32 of the Act) is sufficient and adequate answer to those allegations made by the Plaintiffs. In any event, I am satisfied from the evidence given in the proceedings that the Defendant was a devoted and dutiful son to the Deceased, with whom he had a close and loving relationship, and that the Deceased, clearly a strong minded woman of determined views, recognised that it was proper that her only son, who had never married, and who had been the constant companion and, in her later years, the carer, of the Deceased, should be entitled to remain in what had been his home for almost all his life, since he had been aged about twelve.

46 It should also here be recorded that in her will of 15 May 1997 the Deceased had disposed of the Ashbury property in almost identical fashion to that in which she dealt with that property in her final will, of 25 October 2001, and that in an even earlier will, made on 24 July 1979, she had given to the Defendant a one half share in the Ashbury property, with the right to purchase the other one half share.

47 It should be emphasised that an order for provision is not made as a reward for good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived misconduct on the part of an applicant.

48 Regarding the affidavit evidence of the Plaintiffs concerning the relationship between the Defendant and the Deceased, it is appropriate that I should set forth the following salutary admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testator’s Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

49 Most of the evidence proffered by the Plaintiffs, especially that concerning the respective relationships between the Deceased and her various children, was totally irrelevant to the claims of the Plaintiffs. Much of that evidence, by way of affidavit, was objected to and was rejected.

50 I should, however, refer to the fact that, although Mrs Kelman consented to an order for discontinuance of her claim, together with an order that she pay the costs of the Defendant, she was a witness in the present proceedings. Her affidavits were read on behalf of the Plaintiffs and she was cross-examined. Mrs Kelman in her affidavit evidence included totally irrelevant allegations concerning the marriage of her sister Carole (who is not a party to the present proceedings, but who had provided an affidavit in support of the Defendant). Mrs Kelman, when asked by Counsel for the Defendant why she had included material concerning alleged marital problems of her sister in 1984, replied by making scandalous allegations against her sister’s husband, which allegations, of course, were not responsive to the question which she was asked.

51 It should in this regard be also recorded that Counsel for the Plaintiffs did not cross-examine Carole on any of these matters.

52 It is difficult to resist the conclusion that Mrs Kelman was using the present proceedings as a vehicle for settling old scores against her sister and her brother-in-law. Quite apart from revealing Mrs Kelman in a most unfavourable light, that evidence in no way assisted the claims of the Plaintiffs.

53 It should also be observed that when cross-examined as to what she might have expected to receive had she proceeded with her claim, Mrs Kelman said that she had not given any thought to that matter, but that she wanted what she considered she was entitled to, being one sixth of the estate of the Deceased.

54 It was submitted on behalf of Elaine that her immediate needs were a sum sufficient to enable the replacement of furniture and appliances and to effect kitchen renovation. Further, it was submitted that there was a need for the Plaintiff to reduce the joint indebtedness of herself and her husband to her husband’s aunt. In this latter regard, it should be observed that Elaine’s husband is an only son, who has a close relationship with his mother, Mrs Lorna Halton, and with his mother’s sister, Doreen Smith. Mrs Lorna Halton is a widow, aged in her 90s, who owns two substantial properties. In the unlikely event that Mr Thomas Halton did not inherit from his mother’s estate, and should he have a requisite need, he would be entitled to apply for an order for provision under the Family Provision Act. But, in any event, there is no pressure upon Elaine or her husband to repay the loans from Miss Doreen Smith, and no interest is paid upon those loans. It would appear that there is an understanding between Mr Thomas Halton and his aunt that the borrowings can continue and can be set off against his share in his mother’s estate when she dies.

55 I do not consider that the financial arrangements between Elaine’s husband and his aunt, or the indebtedness to her of Elaine and her husband, constitute any relevant need which would activate the discretion of the Court in the application of Elaine.

56 In any event, even if the liability to Doreen Smith did constitute such a need, and even if the desired refurbishment of Elaine’s kitchen and a desire to replace furniture in their house constituted a need, those needs could immediately be satisfied through Elaine’s own assets. She owns a rural property at Patonga, consisting of a principal residence and a smaller separate dwelling (referred to as “the pad”), which she uses as a holiday home for herself and for members of her family. That property has a present estimated value of $650,000. Not only does Elaine, although under no legal restraints in that regard, choose not to sell that property, but, although the outgoings in regard thereto total $98 a week, she chooses never to rent out either the principal dwelling or the pad upon that property.

57 If (contrary to my conclusion in that regard) Elaine has the needs which she has attempted to identify, then the solution is a matter under her own control. The needs can be met by the sale of the Patonga property. That would not only give her a capital sum of about $650,000, but would reduce her weekly outgoings by $98. Even if she does not wish to sell that property, she could substantially increase her income if she were to let part or all of that property, even if only during the holiday seasons. She chooses not to do so.

58 It will also be appreciated that Elaine is a beneficiary under the will of the Deceased. Upon the purchase by the Defendant of the Ashbury property, or upon the sale of that property, Elaine would expect to receive an amount of about $40,000.

59 I am not satisfied that Elaine has established that, in consequence of the provisions of the will of the Deceased, she has been left without adequate provision for her proper maintenance.

60 June has identified her immediate needs as being a sum of about $20,000 for kitchen renovation and house painting. She also identifies a need which will arise when she and her husband move into a retirement village. The purchase of a desired deluxe unit in such a village for at least $400,000 and the sale of their present residence will result in there being a shortfall of about $100,000. If she later removes to Sydney, she might require something in excess of that amount.

61 As I have already observed, the present income of June and her husband exceeds their outgoings by about $311 a week. They have been able to maintain a very comfortable lifestyle, having travelled on six holidays away from Brisbane in 2005 alone. Whilst on holiday they are accustomed to rent motor vehicles. In 2004 they were able to effect refurbishments to their residence (a substantial and well presented two-storey dwelling in a good and convenient suburb of Brisbane), by the acquisition of new carpet and curtains and furniture. They can afford assistance in housecleaning and in mowing of lawns. In 2004 they purchased a new motor vehicle for about $20,000, and they are enabled to purchase gifts for their grandchildren. Yet they are still able to save.

62 Since swearing her first affidavit on 2 September 2004 June’s financial position had improved considerably. At that time she and her husband had joint savings totalling $42,183; whilst at the time of her most recent affidavit, that of 19 October 2005, June had savings of $73,977 in her own name alone. No explanation was offered for this considerable increase in June’s savings. The contents of the residence of June and her husband are insured for $106,000.

63 Like her sister Elaine, June will, upon the purchase of the Ashbury property by the Defendant, or the sale of that property, expect to receive about $40,000.

64 I am not satisfied that June has established that, in consequence of the provisions of the will of the Deceased, she has been left without adequate provision for her proper maintenance.

65 My foregoing conclusions are sufficient to dispose of the claims of the Plaintiffs. Were it necessary, however, for me to proceed to a consideration of the competing claim of the Defendant, I would have no hesitation in expressing the view that, since the practical consequence of any order for provision in favour of either Plaintiff would be to dispossess the Defendant of his residence, I would not be disposed to make such an order. In summary, it can be said that Elaine, owning two residences, and June, owning one residence, each wishes to receive a benefit from the estate of her mother, the practical effect whereof would be to deprive the Defendant of his right of occupation in what has been his residence for more than the entirety of his adult life. I consider that the competing claim of the Defendant, who is the chief chosen object of the testamentary beneficence of the Deceased, and whose services to and relationship with the Deceased were expressly recognised by the statements made by the Deceased in her will, would have the effect of entirely extinguishing any order for provision which either Plaintiff might otherwise have established.

66 In these circumstances, therefore, I propose to dismiss the claim of each Plaintiff.

67 For completeness I would observe that the Defendant did not attempt to rely upon the provisions of clause 3 of the will. It was the submission of the Plaintiffs that that clause would not have the effect of reducing the provision made for each Plaintiff under the will by virtue of her having brought the current application. That submission was based upon the grounds, first, that the Plaintiffs were seeking not “to contest this Will”, but to obtain further provision for their maintenance, pursuant to the Family Provision Act; further, that such a clause would be void as contrary to public policy; and, finally, that the words are merely precatory and would not defeat a vested right.

68 It is not necessary for me here to express any concluded view concerning those submissions. If the Defendant ultimately wishes to rely upon the terms of clause 3 in the will, in order to defeat the benefit which would otherwise pass to each of Elaine and June upon the purchase by the Defendant of the Ashbury property or upon the sale of that property, then it will be for the Defendant to make the appropriate application to the Court, either in respect to the construction of clause 3 or in respect to the disposition of the purchase price or of the proceeds of sale of the Ashbury property. Clause 3 has no bearing upon my decision in the present proceedings.

69 Accordingly, in each of proceeding 4854 of 2004 and proceeding 4856 of 2004 I make the following orders:

1. I order that the summons be dismissed.

2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

3. I order that the Defendant be entitled to recoup from the estate of the late Joyce Ellen Clayton (also known as Mavis Clayton) (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis.

4. The exhibits may be returned.