Hoare v Dubois

[1999] NSWSC 1066

CITATION:	HOARE v DUBOIS [1999] NSWSC 1066
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	1945/92
HEARING DATE(S):	23/09/99
JUDGMENT DATE:	25 September 1999
PARTIES :	IOLANDA HOARE v EDWARD DUBOIS (Estate of the late John Smyth)
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr J. Armfield for plaintiff Mr B. Ralston for defendant
SOLICITORS:	Greg Walsh & Co for plaintiff Robert D West & Associates for defendant
CATCHWORDS:	Family Provision. Application under Family Provision Act by a defacto partner of many years. Large estate. Order made for an additional legacy of $600,000.
CASES CITED:	Singer & Berghouse (1994) 181 CLR 201 Goloski v Goloski unreported 5/10/93 C.A. Anasson v Phillips Young J 04/03/88
DECISION:	Paragraphs 82, 83, 85.

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

FRIDAY 25 SEPTEMBER 1999

1945/92 - IOLANDA HOARE v EDWARD DUBOIS (ESTATE OF THE LATE JOHN SMYTH)

1510/99 - EDWARD GEORGE DUBOIS v ISABELLA HODGSON & 3 ORS

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late John Smyth who died on 6 January 1991. The deceased was survived by the plaintiff who had lived with him for many years. 2 The deceased was also survived by Isabella Hodgson who had lived with the deceased for a short time prior to his death. There is some suggestion in the evidence of Isabella that the deceased may have had a wife. 3 Further evidence has been given by the plaintiff who, it will be appreciated from what I say later, had lived with the deceased from the mid 1960s. 4 According to her the deceased in fact never had a wife and he joked on one occasion about how no one would ever have him. 5 In the circumstances it would seem to me that it is safe to assume that he did not have a wife but even if he did the estate is of such a size that any such claim from a former wife may well be accommodated. In any event, the claim would be substantially discounted because it must relate to some relationship prior to the 1960s, more than thirty years before the death of the deceased. 6 Other relevant people who take under the deceased's will are the plaintiff's daughter, Yvonne Hoare, and the defendant, who was a friend of the deceased for a few years prior to his death. 7 The estate of the deceased is substantial. At the time of probate it was valued at $2,220,874.52. It is now presently valued at some $3,162,970.80 The major assets are real estate and their value is as follows:

A 71 Helen Street, Sefton $ 210,000
B 344 Albury Street, Murrumburrah -
Post office 30,000
C 7 Walker Place, Church Point 2,000,000
D 42, 44, 46 & 48 Neill Street, Harden 75,000
E 146 Neil Street, Harden 5,000
F 27 Neill Street, Harden 50,000
G 96 Waldron Road, Chester Hill 300,000
H 34 pacific Highway, Mooney Mooney 280,000

8   Other assets which the deceased has include an interest in the estate of his step brother Alex Felby of $169,713.47 and there are various moneys on deposit and shares of between $60,000 and $70,000. 9   The will of the deceased was a home-made will. There has been a construction suit in respect of that will which I heard the day before yesterday and I gave judgment yesterday on the result of that suit. I will not repeat the matters that I dealt with in it but reference can be made to that judgment for the background for the provisions of the will of the deceased. 10   Having regard to the result of the construction suit, the position of the beneficiaries before payment of costs, expenses and any further provision for the plaintiff is as follows:

ISABELLA
71 Helen Street, Sefton 210,000.00
44 Albury Street, Murrumburrah 40,000.00
7 Walker Place, Church Point
(half share) 1,000,000.00
Renovation Fund (half share) 33,558.50
Rentals received from Mooney
Mooney, Waldron Road and
Murrumburrah Post Office 99,045.00 1,382,603.50

IOLANDA
42-48 Neill Street, Harden 65,000.00
146 Neill Street, Harden 6,500.00
27 Neill Street, Harden 40,000.00
Net rentals received from
42-48 Neill Street, Harden,
146 Neill Street, Harden and
27 Neill Street, Harden 71,816,00 183,316.00

EDWARD DUBOIS
96 Waldron Road, Chester Hill 300,000.00 300,000.00

YVONNE
7 Walker Place, Church Point
(half share) 1,000,000.00
Renovation Fund (half share) 33,558.50
34 Pacific Highway, Mooney Mooney 280,000.00
Interest in Filby Estate 169,713.00 1,483,271.50
3,349,191.00

11   There are a number of proceedings including the construction suit and there are substantial costs in this regard. There have also been expenses relating to the maintenance of particular assets. In particular Church Point, which is an asset having a value of $2 million, has required moneys to be spent on it and I determined yesterday in my judgment that those particular expenses should be born by the asset in question. If one deducts or allocates to the particular properties the relevant expenses and if one takes the costs of the proceedings to date, including the defendants' costs of these proceedings, out of residue, the net position of the beneficiaries is as follows:

ISABELLA

Gross interest
as per page 3 hereof 1,382,603.50

Less expenses:- Walker Place
(1/2 share of
f $51,902.33) 19,538.77
Helen Street, Sefton 371.16
Total expenses 19,855.93 Nett interest 1,362,747.57
YVONNE Gross interest
as per page 3 hereof 1,483,271.50 Less:- Residuary Expenses 179,927.10
Walker Place
(1/2 share
of $51,902.33) 19,538.77 199,465.87 Nett interest 1,283,805.63

EDWARD DUBOIS
(Subject to payment of future rent) 300,000.00

IOLANDA 183,316.00

12 It can be seen from the above that substantially residue has borne the whole of the costs of the defendant in these proceedings and the costs of all the other parties to the construction suit. 13 The provision for Iolanda, the plaintiff, includes the sum of $718,616 which is the net rental which has been received from the Harden shops since the date of death and of this she has already received about $46,000. 14 There will be some other costs if an order is made in favour of the plaintiff and these would probably be in the order of some $48,000. In the ordinary course those costs will fall on residue and there is still sufficient residue to meet those costs. 15 It is necessary to put a little of chronology in context. The plaintiff was born on 19 January 1921 at Ciate in Italy. She is now aged seventy-eight. In 1948 she migrated to England and married the following year. Their daughter Yvonne was born on 22 October 1949. 16 Little is known or given in the evidence of the early life of the deceased. What we do know is that on 29 September 1959 the deceased and his half brother, Alex Filby, purchased a property at Church Point as joint tenants. 17 In 1960 the plaintiff and her family emigrated to Australia and she separated from her husband shortly thereafter. She met the deceased. At that time he was living at Leichhardt and she was living at Carlton. On 22 September 1997 the deceased purchased a property at Mooney Mooney. It is apparent that the deceased and the plaintiff moved into that property and at least from this time they commenced a de facto relationship. 18 Thereafter the deceased commenced painting and he started his business of picture framing. In June 1971 the deceased acquired a property at 71 Helen Street, Sefton. The deceased and the plaintiff moved into that property and thereafter for a while Mooney Mooney was used as a weekender and some time later it was rented. 19 The deceased seemed to have been able to acquire properties probably using rental and also the income from his business. In 1969 the deceased purchased 60 Walton Road, Chester Hill in which he and the plaintiff set up a picture framing and art business. The plaintiff worked in the business at that location. 20 A business name was obtained and the business conducted as Fine Art Picture Framing. It was in 1973 that the actual transfer of 96 Walton Road was made to the deceased. Apparently in 1970 there was a purchase of Torrington Avenue. It might have been a little bit after but around 1975 they moved into the property. At that time a deed was executed which provided for the transfer of that property to the plaintiff. The deed was expressed to be in consideration of the work which the plaintiff had done in the business of the deceased for some years prior to that date and there was also provision for some payments under the deed which apparently were not made or otherwise taken into account between the parties. 21 For a while in 1977 and 1979 the plaintiff conducted a gallery but eventually that stopped and at some stage, probably in the early 1980s, there was a shop leased at Mona Vale and the deceased, with the help of the plaintiff, conducted a picture framing business in those premises as well. 22 By 1980 the deceased had finished paying off Torrington Avenue and it was transferred to him. Pursuant to the arrangements of the 1975 deed, the property was transferred to the plaintiff on 4 November 1993. 23 In 1988, the plaintiff's step brother, who had obviously used the Church Point resident as his home, became disabled. He had a stroke moved from Church Point to the property, 71 Helen Street, Sefton. He died on 13 May 1989. 24 Some time prior to this, the deceased had met Isabella Hodgson. This was put by her as in 1986. Apparently they both attended a church, being the Assembly of God, and would meet each weekend at church. At that stage Isabella was living in a flat at Parramatta. In mid-1990 the deceased was diagnosed with cancer of the liver and admitted to hospital. 25 Isabella's situation also changed because on 5 June 1990 she was retrenched from her job at Parramatta. It seems that after coming out of hospital for the first time the deceased then went and lived with Isabella at the property at Helen Street, Sefton. 26 The deceased made his last will on 14 September 1990 and died on 5 January 1991. Probate was granted in 1992 and the proceedings commenced within time. During the extraordinary length of time it has taken these proceedings to come on for trial, the property at 146 Neill Street, Harden was destroyed by fire. Apparently it was not insured. 27 There were proceedings apparently before Cohen J brought by the plaintiff to enforce her entitlement under the will. On 20 March 1998 consent orders were made for the payments and transfers to her. Those transfers have not yet occurred so she has not yet received the Harden properties as required by those orders. 28 It is necessary for the plaintiff to establish that she is an eligible person. Even on the plaintiff's case she was not living in a de facto relationship with the deceased at the date of death and accordingly it is necessary for her to have been part of the household and dependent upon the deceased. Clearly, in the admitted circumstances of this case, that applies. 29 There is a dispute about the end of the period when she was living with the deceased. According to Isabella he ceased living with her in 1989, some months after the death of Alex but, even if one takes the deceased as having lived with the plaintiff up until that time, there is clear evidence of the plaintiff being part of the household and dependent upon the deceased. 30 It is necessary under s 9(1) to see whether there are factors warranting the making of the application. The evidence that I have referred to is subject to one qualification, namely, that there are submissions that have been made that perhaps the relationship of the deceased and the plaintiff started to deteriorate in the early 1980s. 31 Be that as it may, the situation still is that the plaintiff was the deceased's de facto spouse from 1967 for a long time. It is also clear that she made contributions to the acquisition, conservation and improvement of the property through her work in the business. She obviously was the homemaker and effective wife of the deceased. 32 In these circumstances it seems to me that there are appropriate factors warranting the making of the application and indeed that is not disputed in respect of the proceedings. 33 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a court must take. At page 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-sage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

34 I turn to consider the position of the plaintiff. She is aged seventy-eight and although married was separated from her husband at a time prior to her commencing her relationship with the deceased. Her daughter is not dependent upon her. Her present assets are as follows: she has the house at 9 Grafton Avenue, Sefton which has a value at $190,000. She has a half-share in a house in George Street, Gayley which she owned with her husband and her half-share is worth $30,000. He resides in that and it is his home since he has retired. She has furniture of some $2500 and moneys in the bank of $13,600. 35 Importantly it should be noted that the house which she has at Torrington Avenue, Sefton is not in a good state. In the will she received some $12,000 to fix the roof but, even leaving that aside, the building inspection report indicates the many defects in the house and substantial costs which would be involved in fixing it. Clearly it is old and not in good condition. 36 She exists on the pension of $350 per fortnight and manages to cover her expenses. She does not have any substantial expenses. She is not in good health and has suffered from dislocated hips from birth. She has had three operations in Italy and says she may need other operations on her hips. As a result she cannot walk very far and she was very dependent on the deceased during her lifetime for transport. The difficulty she has with walking was obvious in Court. She has to use taxis as she finds it difficult to use public transport and she has difficulty walking up and down stairs. 37 It is necessary to deal with the relationship between the plaintiff and the defendant in order to form a view as to what is an appropriate provision. The difficulty in the case is that the plaintiff was not a very satisfactory witness. At times she was evasive in the witness box. She was also argumentative and advocated her case. At times she changed her evidence from what was in her affidavit evidence and thought of matters that had not been put in the affidavit. She did not properly address critical questions when they touched upon her case, such as questions about from where the deceased was taken to hospital. 38 Be that as it may, the Court has to look at what evidence there is to try to determine when the relationship finished. There is no doubt about the start of it and I am satisfied that the de facto relationship commenced when the deceased and the plaintiff started living together at Mooney Mooney. The plaintiff's version of what happened at the end of the relationship is set out in paragraphs 21 to 24 of her affidavit of 8 October 1998. 39 Effectively, she says that just before the deceased left Westmead Hospital after his first treatment he said to her that he was going to go to Helen Street rather than come back to the plaintiff. He said that he wanted to have his friends with him. 40 This apparently was a reference to Isabella, her family and others no doubt in the group in which the deceased was mixing. 41 Apparently he continued, on the plaintiff's version, still living at Helen Street and on one occasion about six months before the deceased died she visited there and saw another woman who, apparently, was Isabella Hodgson. 42 The plaintiff occasionally visited the deceased thereafter in hospital and last saw him at the hospital about Christmas time in 1990. 43 Isabella's story is set out in her affidavit. In essence she says that after having met the deceased she had also at some stage met Alex. Initially she was a friend of Alex but came also to know the deceased fairly well. 44 She says that after Alex died on 13 May 1989 the deceased moved to live with Isabella, her son and daughter in a unit at Parramatta where they had moved. She talks of him purchasing a microwave oven, a refrigerator and a freezer. 45 She also says that it was on 5 June that she was retrenched from her employment and her son had gone back to New Zealand. She says that there were discussions between the deceased, herself and her daughter. As a result the three of them moved out of the flat into the deceased's property at Helen Street, Sefton. 46 In other words the suggestion is that there was a relationship between Isabella and the deceased from some time after the middle of 1989 until the date of death. Even on the plaintiff's story it would seem clear that there was such a relationship, certainly from the middle of 1990. 47 It is difficult to precisely resolve this matter. There are some other items of evidence, for instance, the defendant, Mr Dubois, has given evidence of what he observed at the shop from 1988 onwards and that gives some insight into the assistance the deceased was giving to his half brother and the fact the plaintiff was not working at the shop. Mr Dubois was in fact in the next door premises to the deceased's shop. 48 There is other evidence of an occasion when the husband of the plaintiff was picked up by the deceased and taken to Moss Vale to obtain a car which had apparently broken down. 49 The evidence he gives of picking up Isabella at Parramatta would perhaps indicate the deceased was not living there. 50 The submissions that have been put suggest that there may have been an earlier break down in the relationship. 51 Particular reference is made to the terms of the 1975 deed suggesting that perhaps there was some suggestion of parties each going their own way. I do not think that is the case. The plaintiff's evidence is that she continued working for a long time after 1975 when the deed was signed. 52 Another person who gave evidence was the husband of the plaintiff. Admittedly they are separated but he seems fairly clear that in 1990 the plaintiff and the deceased were still together. 53 In these circumstances it seems to me that it is likely that the relationship between the plaintiff and the deceased had commenced to break down, certainly in 1989. If that had not happened one would not find the sudden change that occurred in the middle of 1990. It is not as though there is a specific event that precipitated the leaving. Whether or not Isabella was in fact living in a de facto relationship is hard to determine. I am satisfied that she was living in such a relationship from the middle of 1990 onwards. Obviously she was a friend to and assisted the deceased in the period to his death. 54 There is evidence from the plaintiff of her working in the deceased's business, certainly for a period up until the early 1980s. Given the evidence of the defendant, it seems that the work in the business had ceased by at least 1988. However, all this work was done without any recompense apart from the transfer of the Torrington Road property in 1975. It certainly continued on for a long period after that. There is no doubt that such assistance, together with the rentals which the deceased had from various properties, enabled him to build up his assets. 55 It is necessary to look and see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. 56 She has a property at Torrington Road, Sefton which is in bad repair and needs work doing to it. She quite frankly talks of wanting to move to the seaside and buying a unit at Manly. The reason for that is expressed to be so that her daughter could visit her but, given that her daughter is living in Coogee, that does not seem to be a valid reason. However, she does wish to move away from Sefton and acquire a unit at that place. Her daughter supports that move. To acquire a unit there would require the expenditure of between $350,000 and $590,000, depending upon the unit purchased. The lower end relates to older style units and the higher to newer style units. 57 It is necessary to consider also the situation of others having a claim on the bounty of the deceased. In the present case there are a number and the first I will deal with is Yvonne. 58 She is fifty and is single and has no dependants. She has no assets, apart from some furniture and personal effects. She has debts of some $4500 and has difficulties with work and her medical condition. In 1992 in Queensland she contracted Ross River fever. That left her unable to work and on sickness benefits for over a year. She was then unemployed for two years. That has left her with a disability of arthritis in her feet, neck, back and hands which causes her considerable pain. 59 She needs to have a job which enables her to sit for a while and then stand and move around. She had one but that has been lost and she now survives on a Newstart allowance of some $305 per fortnight. A report from Doctor Deakin deals with her disabilities. 60 The doctor indicates that because of her difficulties she can only work part-time in a capacity that permits some flexibility in her work activities. He talks about the fact that the arthritis is degenerative and will worsen with age. He also indicates that any treatment is not likely to have a dramatic impact on her condition. Clearly, she is in fairly straightened circumstances. 61 Yvonne has had a fairly close contact with the deceased. She was twenty-one when they were living at Mooney Mooney and obviously was taken in as part of the family by the deceased. Although she was overseas between 1978 and 1981 she continued contact with the deceased after that time. 62 The deceased was particularly supportive when she commenced university studies in 1987 and bought her a computer in order to help her in her Honours year. 63 She also apparently fulfilled some role in the life of the deceased in that the deceased would ask her to ring and check to see how he was from time to time. Another matter that indicates the closeness between them was the fact that the deceased certainly discussed with Yvonne what he intended to do with his property on his death. He initially indicated that he was going to leave the whole of Church Point to Yvonne's mother, the plaintiff. 64 At another stage he suggested that he might leave her half the Church Point property. She was non committal because she was surprised and did not want to talk about such matters. 65 There was then a later conversation when he indicated that he was thinking of leaving Church Point half to her and half to Isabella. Clearly there has been a long contact over a period with Yvonne. 66 Mr Dubois is a friend of the deceased. His friendship goes back to 1988 when he started to work next door and his circumstances are not particularly outstanding. He has a house, a property at Regents Park, worth $180,000 upon which he has a mortgage of some $90,000. He has a 1983 Sigma vehicle worth $1600, a leased truck with a value of $6000, stock in his business of $40,000 and some insurance policies. His income per year is modest, being $35,000 and this comes from the furniture business which he runs at 96 Walton Road, Chester Hill. That is, of course, part of the estate property and in the will he is to receive the premises after the death of Isabella but in the meantime is to pay rent indexed with the CPI. The present rent that he pays is $11,851. In the event that he pre-deceases Isabella the property would pass, according to his will, to his next of kin or to those whom he might specify. 67 Clearly, his circumstances are ordinary and fairly modest. His relationship with the deceased was as a friend and I have referred to this. 68 The other person to whom consideration has to be given is Isabella Hodgson. She had a large family of children originally and that marriage has finished. She had another short marriage which is also finished. All her children are not dependent upon her although one of her daughters is living with her now. She has no assets of any substance and is in good health, apart from her hearing. 69 So far as her relationship with the deceased is concerned, I think I have dealt with this earlier. I accept they were friends from 1986. From the latter half of 1984 she formed a relationship with the deceased which ultimately, in mid-1990, became a de facto relationship. 70 The balancing of these claims is always a difficult matter. One must bear in mind that the deceased was not married but for a substantial part of his life he lived with the plaintiff in a de facto relationship. Effectively it was of about twenty-two years' duration. 71 Widows' claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said:

"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring."

72   Here, as we have seen, there is a long relationship and there has been a contribution to the estate of the deceased. In part it has been recognised in 1975 but there is obviously a period after that, probably running up until the mid-1980s, when there was further help and assistance by the plaintiff in the deceased's business. Although she has Torrington Street, probably it would be preferable for her to sell it and move. Her desire to move to Manly is one which I do not doubt is real on her part. Whether it is appropriate is another matter. Clearly, however, the plaintiff does need some contingency and she needs housing. The evidence does not really address in detail her income needs and the submission that was made on behalf of the plaintiff was that she should receive a legacy of some $2 million. That submission was put on the express instructions of the plaintiff. Clearly, that is not appropriate. What is appropriate is that the plaintiff should have some sum to purchase new accommodation. 73   There is probably no reason why it should not be in the Manly area. The estate is a large one and the question of what is an appropriate provision in respect of a large estate is dealt with by Young J in Anasson v Phillips, 4 March 1988, where he said the following:

"... with a very large estate ... there is a great temptation on a court to be over-generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.

74 If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. IN particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealth testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412." 75 If the plaintiff sells her property at Torrington Road and receives $190,000, she will have that plus she will have the estate properties worth a little over $100,000 which produce an income at the moment. That would be a fund and it would no doubt help supplement her income. 76 When one looks at the evidence, clearly a reasonable unit can be purchased for something under $600,000 and the plaintiff probably, given the largeness of the estate, ought to have some flexibility in choosing a unit which would suit her, particularly in her advanced years. She should also have a reasonable sum to provide for contingencies and supplement her income. 77 One of the things that needs to be considers is where the burden of the legacy will fall. The defendant, Mr Dubois, is not in an extravagant situation. His situation is modest and he, under the terms of the will, will be paying $11,000 a year to Isabella. That is something additional that Isabella has even if, for instance, her provision is substantially reduced. 78 Yvonne has the difficulties that I have referred to. She has had a long association with the deceased since her late childhood and she was obviously close to him. Her health causes her enormous difficulties and will continue to do so and she will have great problems obtaining employment. 79 So far as Isabella is concerned, the relationship that she had with the deceased was no doubt of great assistance to the deceased. Clearly they had their life together for the short time left, at least as a de facto couple for six months and probably as an assisting friend for somewhat longer. 80 However, the provision in the will of just under $1.4 million seems to be out of all proportion.. Even if some substantial legacy is given in favour of the plaintiff out of Isabella's share, Isabella will still have, for instance, the property at Helen Street, Sefton and funds left over. 81 Given the extent of the estate and given the position of the other beneficiaries, who are Yvonne and the defendant, it seems to me that the burden of an additional legacy which I should give should be borne by the share of Isabella which she receives from the Church Point property. 82 Accordingly, the orders that I make are as follows:

1. In addition to the provisions that the plaintiff receives under the will of the deceased, the plaintiff is to receive a legacy of $600,000 which is to be paid out of the half-share of the deceased's Church Point property bequeathed to Isabella Hodgson.

2. The plaintiff's costs on as party and party basis and the defendant's on an indemnity basis are to be paid or retained out of the estate of the deceased. As I have indicated earlier, the costs will come out of residue.

83   On the question of interest the property will have to be sold to enable the legacy to be paid and, accordingly, I order that interest under s 83A of the Wills Probate and Administration Act should run on the legacy if not paid within three months of today's date. 84   The other matter that was raised is the question of enforcement of the orders, the only evidence that is before me is that there has been a delay from 1991 until the present time when these proceedings have come on for hearing. It is quite extraordinary. It was necessary for orders to be made for the plaintiff to receive particular properties and they have not yet been transferred. 85   Normally in the event of there being no proper payment, it would be usual for the beneficiary to start proceedings for administration. However, what I will do is reserve liberty to apply in respect of enforcement in case that is of assistance.

Last Modified: 10/27/1999