Henderson v Henderson

[2009] VCC 538

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

COMMERCIAL - FAMILY PROPERTY DIVISION

Case No. CI-08-02242

IN THE MATTER OF Part IV of the Administration and Probate Act 1958

AND IN THE MATTER of the Estate of Honora Dorothy Henderson, deceased

MARGARET ELIZABETH HENDERSON	Plaintiff
(who brings this proceeding by her Administrator, State Trustees Limited)
v
RICHARD JOHN HENDERSON	Defendant
(who is sued as the Executor of the Will of Honora Dorothy Henderson, deceased)

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2009
DATE OF JUDGMENT:	20 May 2009
CASE MAY BE CITED AS:	Henderson v Henderson
MEDIUM NEUTRAL CITATION:	[2009] VCC 0538

REASONS FOR JUDGMENT

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Catchwords: TESTATOR'S FAMILY MAINTENANCE – application by adult intellectually disabled daughter – whether provision made by the deceased in the will was inadequate – small estate – competing interest of a needy grandson for whom the deceased had been the primary care giver: Administration and Probate Act 1958, section 91(1), (3) and (4)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Isles	Judge & Papaleo
For the Defendant	Mr R Phillips	Rose
HIS HONOUR:

Introduction

1          Before the Court is a proceeding brought by Originating Motion filed 6 June 2008, by which the plaintiff seeks an order for further provision for her maintenance and support out of the estate of the deceased.

2          Mr J Isles of counsel appeared for the plaintiff, and Mr R Phillips of counsel appeared for the defendant.

3          The plaintiff and the defendant were content to tender the Court Books representing the whole of the evidence they wished to put before me:

(a)	the plaintiff's Court Book (“PCB”) pages 1-107: Exhibit A
(b)	the defendants Court Book (“DCB”) pages 1-47: Exhibit 1

The Deceased and the Estate

4          The deceased, Honora Dorothy Henderson, died on 4 August 2007. She left a Will dated 23 February 1987 by which she appointed the defendant, Richard John Henderson, the executor and trustee of her estate, and she gave, devised and bequeathed the whole of her estate to her three children and her grandson as tenants in common in equal shares.

5          The estate comprises a house and land at 46 Steane Street, Reservoir (“the family home”) which has a current valuation of approximately $350,000.[1] It is unencumbered. There is a sum of $1196.97 held in the defendant's solicitor's trust account which is the balance of cash moneys standing in the name of the deceased at the time she died, from which funeral expenses were paid, leaving that balance.

[1]             DCB 13

6          The beneficiaries referred to in the testator's Will are:

(a)	Richard John Henderson (“Richard”) (the son of the deceased and the executor and trustee of the estate), who was born 19 June 1954. He is now fifty-four years of age.
(b)	Margaret Elizabeth Henderson (“Margaret”) (a daughter of the deceased and the plaintiff), who was born on 3 July 1956. She is now fifty-two years of age.
(c)	Jennifer Joy Kazakis (“Jennifer”) (a daughter of the deceased), who was born on 26 April 1960. She is now forty-nine years of age.
(d)	Mark Bradley Henderson (“Mark”) (the son of the plaintiff and the grandson of the deceased), who was born on 8 August 1978. He is now thirty years of age.

7          Probate was granted to the defendant on 6 December 2007.[2]

[2]             PCB 24

Margaret's Position

8          At approximately the age of eighteen years, Margaret suffered a psychotic episode and was subsequently diagnosed with chronic paranoid schizophrenia. She presently resides at Reservoir Gardens Retirement Home, Reservoir (“the home”) where she receives 24-hour care.[3]

[3]             PCB 2

9          However, she is in receipt of a notice from the manager of the home dated 5 May 2009 as a prelude to her eviction. The notice provides the reasons for the proposed eviction are that she refuses to share a twin room with anyone; she disregards non-smoking within the building; she knocks on other residents’ doors in the middle of the night looking for cigarettes and confronts residents during the day for the same purpose; she upsets her neighbours in the home; she has been caught stealing and opening other people's mail, and was caught attempting to cash cheques belonging to the home at a bank.[4]

[4]             PCB 107

10        Margaret was assessed by Ms Gina Robinson, Consultant/Director of ARNICA Community Care Consultancy Services, in May 2008.[5] Subsequently, Ms Robinson compiled a comprehensive report which, among other things, assessed Margaret's needs and included a costing of ongoing support requirements for Margaret.[6]

[5]             PCB 28-55

[6]             PCB 21

11        The defendant did not contest the facts gathered by Ms Robinson contained in the report nor the opinions expressed by Ms Robinson, save for the issue of whether the costing associated with Margaret's needs should be given much weight given the size of the estate and the competing needs of Mark.

12        Margaret continues to experience symptoms of her paranoid schizophrenia which Ms Robinson has summarised in her report.[7] She is reviewed by a consultant psychiatrist approximately every four to six weeks and has psychiatric services provided through the North West Mental Health Service. She has a case worker provided by the Darebin Community Mental Health Centre.

[7]             PCB 12-13

13        Margaret is currently prescribed Diazepam, Lipitor, Quetiapine and Risperidone.[8] Margaret is apparently non-compliant with her medication requirements which has resulted in her being placed on a community treatment order.[9]

[8]             Diazepam is an anti-anxiety medication and Risperidone is an anti-psychotic medication used in the treatment of schizophrenia.

[9]             PCB 13

14        It is very obvious that she experiences a parlous state of health because of her severe psychiatric condition, and must live in the sort of accommodation she is in at present.

15        Margaret's financial state is also parlous. She receives a Centrelink pension of $543.50 and rent assistance of $105.40, making a total income of $655.33 per fortnight. The fees she pays to the home and other small expenses amount to $599.91 per fortnight. Therefore, she has a modest amount available to her in excess of her expenses.

16        The one-quarter share to which Margaret is entitled presently amounts to about $87,500, but, of course, that figure is artificial because it does not take into account the costs of sale of the family home which will inevitably be incurred if Margaret is to realise her one-quarter share.

Mark’s Position

17        Mark presently lives in the family home. He has lived there all his life. He is single and unemployed. He receives a disability allowance.

18        Mark was diagnosed with idiopathic generalised epilepsy in 2006. He has recently experienced three seizures and according to a medical certificate provided by Dr Sathianathan, general practitioner, arrangements were being made as at March 2009 for him to see a neurologist.[10] The medical certificate also certifies Mark unfit for work from 4 March to 4 June 2009.

[10]           DCB 43 and 44

19        Mark also suffers from serious depression. In a medical report dated 15 April 2009, Dr Thomas, Mark’s treating psychiatrist, recorded that this proceeding and the prospect of the sale of the family home has led him to become depressed and angry. He feels hopeless, and scared that he will be homeless, and he has recurrent thoughts of killing himself and killing the plaintiff as well. Dr Thomas made a diagnosis of major depression with mood swings. Dr Thomas also asked that Mark’s position be taken into consideration because “a decision” made in this proceeding may push him over into severe depression with suicidal and homicidal tendencies.[11]

[11]           DCB 46-47

The Position of Richard and Jennifer

20        Richard is employed as a business analyst by VicRoads. He earns $910 net per week. He has a superannuation entitlement of $499,000.

21        Richard’s wife is employed as a chief operating officer of Lincoln Indicators. She earns $1500 net per week. She has a superannuation entitlement of $140,000.

22        Richard and his wife own their own home, which they value at $480,000. It is mortgaged to the extent of $91,800. They own motorcars and a small shareholding.[12]

[12]           DCB 18-19

23        Jennifer is employed as a personal carer on a permanent part-time basis. She earns $600 net per week. She has a superannuation entitlement of $25,000.

24        Jennifer's husband is employed as a bus driver with the Dysons Group. He earns $640 net per week. He has a superannuation entitlement of $70,000.

25        Jennifer and her husband own their own home, which they value at $330,000. It is mortgaged to the extent of $152,000. They also own motorcars.[13]

[13]           DCB 35

Was the Deceased the Primary Provider for Mark?

26        Mr Phillips submitted that I should not treat Mark any differently from the other beneficiaries even though the distinction between them is obvious, and that is, Margaret, Richard and Jennifer are children of the deceased, whereas Mark is a grandchild.

27        In MacEwan Shaw v Shaw,[14] Dodds-Streeton J considered a claim made by grandchildren who contended that their grandparents had assumed the primary responsibility to provide for them.

[14] (2003) 11 VR 95

28        Dodds-Streeton J considered a number of authorities of the Supreme Court and from other jurisdictions which established that there is no moral obligation on a grandparent to provide for the maintenance and support of grandchildren simply by virtue of that relationship, with that moral obligation resting upon the parents of the grandchild not on the grandparents.[15]

[15]           Paragraphs 57-95, and particularly, Sherlock v Guest [1999] VSC 431; Leahey v Trescowthick [1999] VSC 409, and Harris v Bennett and O'Brien [2002] VSC 139

29        After considering these authorities and the facts on which the application was based, Her Honour made the following observation:

“In my opinion, however, where children are in the primary care of their own parents, who are capable of fulfilling their basic needs, prevailing community standards would not, in the absence of some special factor or unusual circumstances, impose on a grandparent a responsibility to provide.

In the present case, nothing establishes any direct dependency by the

infant plaintiffs upon the deceased.”[16]

[16]           Paragraphs 223-224

30        And applying the foregoing principle to the facts of the case before her, Her Honour then observed:

“The evidence does not establish any peculiar emotional or social dependency by the infant plaintiffs upon the deceased. Rather, the relationship was a good but not unusual relationship enjoyed with both grandparents. Social contact was regular, if not exceptionally frequent, prior to the breakdown of the parents' relationship. The grandparents did not purport to usurp the parents' authority or role within the family unit.”[17]

[17]           Paragraph 226

31        At around the time of Mark’s birth, Margaret began exhibiting symptoms of paranoid schizophrenia. Mark's father refused to acknowledge that he was his father and has not assumed any responsibility for Mark at all. The deceased, then aged fifty-six years, gave up work and assumed the role of primary carer for Mark, and indeed, raised him in the family home.[18]

[18]           DCB 14

32        These facts were not contested by Margaret. It is abundantly clear that the deceased did establish a relationship with Mark which was as close as a grandparent could assume consistent with that of a parent. Therefore, the conclusion I have reached is that the relationship of the deceased to Mark is clearly distinguishable from the principles stated in the authorities to which Dodds-Streeton J referred.

The Legislation and the General Legal Principles

33        Part IV of the Administration and Probate Act 1958 ("the Act") governs the Court's power to make provision for the maintenance and support of a claimant from the estate of a deceased person.

34 Section 91 of the Act provides as follows:

"(1)

Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

(2)

The Court must not make an order under subsection (1) in favour
of a person unless—

(a)	that person has applied for the order; or
(b)	another person has applied for the order on behalf of that person.

(3)

The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by—

(a)	his or her will (if any); or
(b)	the operation of the provisions of Part I, Division 6; or
(c)	both the will and the operation of the provisions—

does not make adequate provision for the proper maintenance
and support of the person.

(4)

The Court in determining—

(a)	whether or not the deceased had responsibility to make provision for a person; and
(b)	whether or not the distribution of the estate of the deceased person as effected by—

(i)      the deceased's will; or

(ii)     the operation of the provisions of Part I, Division 6; or

(iii)    both the will and the operation of the provisions—

makes adequate provision for the proper maintenance and

support of the person; and

(c)	the amount of provision (if any) which the Court may order for the person; and
(d)	any other matter related to an application for an order under subsection (1)—

must have regard to—

(e)	any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f)	any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g)	the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h)	the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

(i)       any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(j)	the age of the applicant;
(k)	any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l)	any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m)	whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n)	the liability of any other person to maintain the applicant;
(o)	the character and conduct of the applicant or any other person;
(p)	any other matter the Court considers relevant."

35        In Blair v Blair,[19] Chernov JA made a number of observations relevant to whether a deceased had fulfilled his moral obligation to make adequate provision given the criteria which a court must consider under section 91(4)(e)-(p), including the following:

“Given, however, that the court is now directed by the legislation to have regard to the matters specified in paras (e) to (p) of s 91(4) when determining the jurisdictional issues, characterisation of the deceased’s relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Pt IV of the Act. Be that as it may, it should be noted that while the criterion in each of paras (e)-(o) of s 91(4) is concerned with a specific matter, para (p) is open ended, enabling the court to consider ‘any other matter [it] considers relevant’ and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding subparagraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator’s moral obligation to the claimant.[20]

[19] [2004] 10 VR 69

[20]           at 76

36        Nettle JA made the following observations regarding the continuing relevance of the concept of moral duty:

“… To reason from the matters mentioned in ss 91(e) to (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant.”[21]

[21]           at 84

37        In Bosch v Perpetual Trustee Co (Ltd),[22] Lord Romer made the following observations relevant to the nature of the moral duty and what a court must do where there is a breach of a testator’s moral duty:

“Their Lordships agree that in every case the court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.”[23]

[22] [1938] AC 463

[23]           at 478-479

38        Similarly, in Re Allen (decd), Allen v Manchester,[24] Salmond J observed:

“The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.”[25]

[24] [1922] NZLR 218

[25]           at 220. I was also referred to White v Barron (1980) 144 CLR 431, per Stephen J, at 440; Collicoat v McMillan [1999] 3 VR 803, per Ormiston J, at 818-819

39        And also in Grey v Harrison,[26] Callaway JA made the following observations relevant to the process of reasoning in quantifying any further provision made by a court:

“As Fullagar and Menzies, JJ said in their dissenting judgment in Blore v Lang (1960) 104 CLR 124 at 135, the purpose of testator's family maintenance legislation is to remedy ‘breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family’. The breach is objective, being measured against all the relevant facts, which may include facts that were unknown to the testator. … Any provision made by the court is determined according to the circumstances obtaining at the time of the order. …”[27]

[26] [1997] 2 VR 359 and Collicoat v McMillan (supra) at 819

[27]           at 364-365

40        The foregoing principles must be tested against the observation made by Callaway JA in Grey v Harrison[28] where His Honour referred to the importance of not underestimating the significance of the freedom of testation.[29]

[28]           (supra)

[29]           at 363 and 366

Evidence of Need

41        Mr Phillips conceded that the deceased had a moral obligation to provide for Margaret, and indeed, for all of her children, including her grandson, Mark.

42        He submitted that the primary position of the defendant was that no further provision should be made for Margaret, but if I was persuaded that further provision should be made for Margaret, that it should be modest and not exceeding $100,000.

43        The manner in which Mr Phillips was instructed to put the case for the defendant had inherent in it a concession that the deceased had breached her moral duty to Margaret, however, given that the concession was qualified, I propose to attack this matter from first principles.

44        There is no doubt that Margaret is in a parlous state of health and is entirely dependent upon the care that is presently provided for her at the home. The evidence put before me can lead to no other conclusion than it is highly probable that she will continue to require that degree of care for the balance of her life.

45        Although Margaret has a surplus of income over expenditure, it is of the most modest degree and would is unlikely to provide her with any of the basic comforts in life. The cost of her residential care and her source of income are entirely derived through government sources.

46        As a matter of public policy it is wrong to deflect the moral obligation of the deceased to make adequate provision for the maintenance and support of Margaret onto the public purse. In King v White,[30] Hedigan J said as much, adding that reliance on the continued receipt of social services by a testator was fraught with problems.[31]

[30] [1992] 2 VR 417

[31]           at 424, and also Lieberman v Morris (1944) 69 CLR 69, per Rich J, at 85-86; Shah v Perpetual Trustee Co (1981) 7 Fam LR 97; Bondelmonte v Blanckensee [1989] WAR 305 and Ross v Ross; McLean v Ross [2002] VSC 544

47        It occurs to me that Margaret is in somewhat of a precarious position. She has a modest income provided from government sources. The cost of her accommodation is met by government sources. Her modest surplus of income over expenses would not provide her with any comforts of life even at a most basic level. Her reliance on income from government sources crystallises the risk referred to by Hedigan J in King v White[32] that any number of matters may occur in the future, such as a different type of testing of the means of individuals, an inability of revenue to maintain income for someone like Margaret, and whether the income she receives will keep pace with inflation and other factors affecting the value of its purchasing power.

[32]           (supra)

48        Mr Phillips submitted that the plaintiff's family, and in particular, Richard, evidence every sign of true altruism. He and his sister, Jennifer, visit the plaintiff, and it is clear that Richard has subsidised his family's financial needs on a number of occasions.[33] It is abundantly clear that they are a close family. However, Mr Isles submitted that if the fabric of the family commitment changed then inevitably Margaret's position would suffer.

[33]           DCB 16-18

49        It is clear that Margaret is in need of accommodation. In her advancing years that need will become even more apparent, and according to Ms Robinson, the cost of a bond for nursing home accommodation is in the vicinity of $220,000.[34]

[34]           PCB 21

50        Ms Robinson also referred to the cost of providing Margaret with other comforts,[35] which Mr Phillips submitted was unrealistic simply by reason of the fact that the estate is so modest and could not possibly provide for those expenses even if the whole of the estate were provided for Margaret because after the payment of a bond the investment of the balance of the funds from the sale of the family home would not generate sufficient income to meet the cost of those comforts.

[35]           PCB 21, such as case management fees; the engagement of a carer; a hairdressing allowance; an allowance for manicure, pedicure and massage; a yearly holiday; a clothing and personal items allowance and a recreational activity allowance.

51        Mr Phillips submitted that the modesty of the estate would not permit further provision to be made which would provide Margaret with a financial resource to meet the cost of the items referred to by Ms Robinson. I agree.

Margaret's Claim

52        What now arises for my consideration is whether the provision made by the deceased for the maintenance and support of Margaret measures up to the standard of what a wise and just testator ought to have done?

53 I now turn to consider the facts of this proceeding in the light of the criteria laid down by section 91 (4) of the Act.

54        Paragraph (e):

“Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship.”

55        Margaret is the daughter of the deceased and a person for whom the deceased recognized that she had a moral duty to provide for Margaret's maintenance and support.

56        Paragraph (f):

“Any obligations or responsibilities of the deceased person to the

applicant, any other applicant and the beneficiaries of the estate.”

57        There is no question that the deceased had both an obligation and a responsibility to Margaret which she recognized in her Will of the extent I have described above.

58        Paragraph (g):

“The size and nature of the estate of the deceased person and any

charges and liabilities to which the estate is subject.”

59        The estate is of relatively modest size. It is not subject to any charges or liabilities.

60        Paragraph (h):

“The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future.”

61        The financial resources of Margaret are modest, as I have described them above, and so are the financial resources of Mark. Of Richard and Jennifer, there is no doubt that Richard is in the best financial position. Jennifer's position is reasonably sound.

62        Paragraph (i):

“Any physical, mental or intellectual disability of any applicant or

any beneficiary of the estate.”

63        Both Margaret and Mark are in a parlous state of health. Margaret’s state of health seems to be incapable of being improved. Mark's state of health, according to Dr Thomas, is very worrying, and to a large part it seems to centre around his vision of what will happen to him if the family home is sold. The most worrying feature is his suicidal and homicidal tendencies which has some risk of becoming manifest depending on the outcome of this proceeding and whether it results in the family home being sold.

64        Paragraph (j):

“The age of the applicant.”

65        Margaret is middle-aged. She is now fifty-two years of age. There is no evidence to suggest that she does not have a normal life expectancy.

66        Paragraph (k):

“Any contribution (not for adequate consideration) of the applicant to building up the estate or for the welfare of the deceased or the family of the deceased.”

67        I think I can infer that because of the earlier onset of Margaret's paranoid schizophrenia that she did not contribute to the building up of the estate or the welfare of the deceased or any members of the family of the deceased, including Mark.

68        Paragraph (l):

“Any benefits previously given by the deceased person to any

applicant or to any beneficiary.”

69        There is no evidence that the deceased gave any benefits to Margaret. She provided benefits to Mark by assuming the role of primary carer for him until she died.

70        Paragraph (m)

“Whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility.”

71        The deceased herself was a person of modest means. She was in receipt of a pension in the latter part of her life and had no other financial resources. The deceased did not maintain Margaret before her death, however, it is clear that the fabric of this family was such that the deceased and Margaret's siblings cared for Margaret, certainly in an emotional sense, and also to the extent that Richard and Jennifer see to Margaret's immediate and simple needs, for instance, purchasing her clothing and paying for hairdressing.[36]

[36]           PCB 18

72        Paragraph (n):

“The liability of any other person to maintain the applicant.”

73        The only other person with any liability to maintain Margaret are the agencies of government which presently provide for her accommodation in the home and provide her with her income.

74        Paragraph (o):

“The character and conduct of the applicant or any other person.”

75        There are no factors in this proceeding which would go to disentitle Margaret by reason of any aspect of her character or her conduct generally or specifically in relation to the deceased.

76        Paragraph (p):

“Any other matter the Court considers relevant.”

77        The matters of particular significance in this proceeding have essentially been dealt with by me in my summary of the position of Margaret, her son and her siblings and in the evidence of Ms Gibson.

Should the Deceased have made Further Provision for Margaret?

78        I have no jurisdiction to interfere with the terms of the deceased's Will unless I am satisfied, on the balance of probabilities, that the fulfilment of the terms of the deceased's Will would amount to a breach by her of her moral duty to provide for Margaret's maintenance and support.

79        I am required to determine what the deceased ought to have done in all the circumstances, not only on the facts as known to the deceased at the time when she made her Will, but also on those facts unknown to the deceased, and in accordance with the circumstances apparent at the time when an order is sought for further provision for maintenance and support.[37]

[37]           Grey v Harrison (supra) at 363; Dun v Dun (1957) 99 CLR 325, at 331, and Goodman v Windeyer (1980) 144 CLR 490, at 499

80        The factors which have persuaded me that the deceased was both unwise and unjust and in breach of her moral duty are as follows:

(a)	The deceased treated her children and Mark equally when it is very clear that, for instance, Margaret's position is in stark contrast to that of Richard and Jennifer. To have treated her children and Mark in that way was to have seriously failed to recognize Margaret's needs.[38]
(b)	The deceased failed to foresee the position which Margaret would find herself in, ultimately requiring nursing home accommodation at some cost which a one-quarter share in the family home would never permit Margaret to achieve that result. Furthermore, I am entitled to rely on the notice which Margaret has received, that shortly her accommodation at the home will end, bringing her closer to needing nursing home accommodation which the deceased should have anticipated was likely to be required.
(c)	Furthermore, the deceased also failed to foresee that not only would Margaret require nursing home accommodation, but income to hedge her against the risk that her income from government sources might not provide her with a viable financial resource.
(d)	Although Richard and Jennifer have evidenced every intention to care for Margaret to the extent of their ability, the deceased should nonetheless have foreseen that some eventuality might arise which might prevent Richard and Jennifer continuing to care for Margaret in that way through a turn of events in their own life or an inability to continue to do that for some reason.

[38]           Cooper v Dungan (1976) 50 ALJR 539, at 540

81        Mr Phillips submitted that the objectives of the deceased were always going to be met by Margaret having a financial resource from the deceased’s estate on which she could call, with the deceased having a sound expectation and confidence that Richard and Jennifer would continue to be as caring for Margaret as they were during the deceased's lifetime.

82        Weighing up the competing submissions, and bearing well in mind the deceased’s right to freedom of testation, I consider that the deceased breached her moral duty to make adequate provision for the maintenance and support of Margaret for the reasons outlined above.

83        In remedying the breach of a deceased's moral duty to make adequate provision for the proper maintenance and support of Margaret, I am required to make provision for Margaret which is sufficient to provide for her proper maintenance and support, having regard to the value of the estate and the position of Richard, Jennifer and Mark.[39]

[39]           Cooper v Dungan (supra) per Gibbs J, at 540

84        Margaret and Mark both require accommodation. That cannot be achieved unless provision is made for Margaret's proper maintenance and support which is sufficient to fund a bond for nursing home accommodation leaving sufficient funds to enable Mark to purchase accommodation.

85        In order to reach that position it inevitably means that Richard and Jennifer will be denied the provision made under the deceased's Will in their favour.

Conclusion

86        The conclusion I have reached, therefore, is that assuming the family home has a value of $350,000, and taking into account the costs of sale estimated by Mr Isles and Mr Phillips at about $15,000, that leaves $335,000 from which solicitor-client costs need to be deducted, which I have estimated at $50,000, (until I am informed otherwise). That leaves $285,000.

87        I consider that the sum of $175,000[40] should be provided as further provision for the maintenance and support of Margaret as sufficient to go toward funding nursing home accommodation, leaving $105,000,[41] and the cash monies of $1196.97 for Mark to purchase a suitable flat as a substitute for the family home.[42]

[40]           Sixty-one percent

[41]           Forty-nine percent

[42]           The percentages will apply irrespective of the sum returned on the sale of the family home.

88        I also consider that of the $175,000 provided for the maintenance and support of Margaret, the residue must revert to Mark upon her death.

89        I propose to hear further submissions from counsel before making final orders.

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