Hoobin v Hoobin - [2004] NSWSC 705

CITATION: Hoobin v Hoobin [2004] NSWSC 705

HEARING DATE(S): 21/06/04, 22/06/04, 23/06/04, 24/06/04, 25/06/04

JUDGMENT DATE:
6 August 2004

JUDGMENT OF: White J

DECISION: See paras 165-167.

CATCHWORDS: Probate - Whether will made in contemplation of marriage. - Family Provision Act - Extension of time for the making of application under s 7 - Inadequate provision on intestacy - Bladwell v Davis applied. - Wills, Probate & Administration - Orders to be made depending on whether plaintiff exercises her election under s 61D - Designation of matrimonial home after s 61D election as notional estate.

LEGISLATION CITED: Wills, Probate and Administration Act 1898 (NSW)
Family Provision Act 1982 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Rules Pt 78 r 61

CASES CITED: Marston v Roe de Fox and Halton (1838) 8 Ad & E 14; 112 ER 742
Layer v Burns Philp Trustee Co. Ltd (1986) 6 NSWLR 60
Burton v McGregor [1953] NZLR 487
Public Trustee v Crawley [1973] 1 NZLR 695
Keong v Keong [1973] QdR 516
In the estate of Gray, deceased (1963) 107 SJ 156
re Taylor deceased (1949) VLR 201
re Hamilton deceased [1941] VLR 60
Burton v McGregor [1953] NZLR 487
Smallacombe v Elder's Trustee & Executor Co. Ltd [1963] WAR 3
Dufficy v Mollica [1968] 3 NSWR 751
Conway v Wade [1909] AC 506
NSW Law Reform Commission, Report No. 47 "Community Law Reform Program: Wills - Execution and Revocation"
Sallis v Jones [1936] P 43
Leue v Reynolds (1986) 4 NSWLR 590
Warren v McKnight (1996) 40 NSWLR 390
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Luciano v Rosenblum [1985] 2 NSWLR 65
Bladwell v Davis [2004] NSWCA 170
Re Seery & Testator's Family Maintenance Act (1969) 90 WN (Pt 1) (NSW) 400
Kleinig v Neal [1981] 1 NSWLR 462
Cantrell v Williams [2004] NSWSC 579
Hodges (dec'd), Re Estate of; Shorter v Hodges (1988) 14 NSWLR 698
Re Bardon v Florence; Shekelton v Bardon (15/12/1983 SCNSW unreported)
Giunti v Cavallaro [2004] NSWCA 62
Moore v Moore [2004] NSWSC 587

PARTIES :
Margaret Rae Hoobin v Tina Louise Hoobin & 4 Ors
Tina Louise Hoobin & 4 Ors v Margaret Rae Hoobin
Margaret Rae Hoobin v Tina Louise Hoobin & 4 Ors

FILE NUMBER(S): SC 114192/02; 1230/03; 2009/02

COUNSEL: Plaintiff: Mrs M Bridger
Defendant: Mrs M Gilmour

SOLICITORS: Plaintiff: O'Neill's Solicitors
Defendants: Budd & Piper

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 6 August 2004

114192/02 MARGARET RAE HOOBIN v TINA LOUISE HOOBIN & 4 Others
1230/03 TINA LOUISE HOOBIN & 4 Others v MARGARET RAE HOOBIN
2009/02 MARGARET RAE HOOBIN v TINA LOUISE HOOBIN & 4 Others

JUDGMENT

1 HIS HONOUR: These proceedings concern the estate of the late John Patrick Hoobin who died on 10 June 2000 aged 72. There are three proceedings between the deceased’s second wife, Margaret Rae Hoobin, and his children.

Background

2 The deceased was born on 23 January 1927. He married his first wife Valerie Jean Dalton in 1954. They separated in 1990 and were subsequently divorced. There were five children of the marriage: Carole, who is 49; Christine, 46; Leanne, 44; Anthony, 37; and Tina, 36.

3 The deceased’s second wife, Margaret Rae Hoobin, is 73. They were married on 7 June 2000 barely three days before he died. They had known each other since 1994 and had lived in a domestic relationship since 1996.

4 In these reasons I shall call Mrs Margaret Hoobin the plaintiff, although she is the plaintiff in only two of the three proceedings. Where I refer to the defendants I mean the deceased’s children.

5 The plaintiff commenced Proceedings No. 114192/02 by statement of claim on 6 September 2002. She applied for the grant of probate of a will made by the deceased on 27 January 1999. By that will, and in the events which happened, the deceased appointed the plaintiff his executrix and trustee. Save for a specific legacy of his golf buggy to a friend, Mr Robert Edwards, the deceased left the whole of his estate to the plaintiff. In his will he described the plaintiff as “his de facto spouse”. He recorded that he made no provision for his children, but did not give his reasons in the will.

6 The issue in the first proceeding is whether the will was revoked by the deceased’s marriage to the plaintiff shortly before he died. The resolution of that question depends upon the application to the circumstances of this case of ss 15(3) of the Wills, Probate and Administration Act 1898 (NSW). Section 15 relevantly provides:

15 Effect of marriage

(1) Every will made by any person shall be revoked by the person’s marriage...

Conveyancing (Amendment) Act 1930

(3) A will made after the commencement of this subsection in contemplation of a marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated.

(4) A will made after the commencement of subsection (3) which is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.”

7 Hence the issue in the first proceeding is whether the deceased’s will of 27 January 1999 was made in contemplation of a marriage to the plaintiff, being the marriage which was solemnised on 7 June 2000.

8 If the will was not made in contemplation of such a marriage, the deceased died intestate. Pursuant to s 61B of the Wills, Probate and Administration Act the plaintiff is entitled on the intestacy to the household chattels of the deceased; $150,000 plus interest; and one half of the remaining estate. On intestacy the deceased’s children are entitled to equal shares of the remainder of the estate to which the plaintiff is not entitled. However the plaintiff will be entitled to exercise her right under s 61D of that Act to require the administrator to hold the beneficial interest in the dwelling house at 72 Lochlomond Drive, Banora Point, which was their shared home at the deceased’s death on trust for her. As the value of the home exceeds the interest she would otherwise obtain on an intestacy, if she exercises her right under s 61D, her right to a share of the deceased’s intestate estate will be exhausted.

9 By summons filed on 25 March 2002 the plaintiff applied under s 7 of the Family Provision Act 1982 (NSW) for provision out of the estate of the deceased. That application was made against the possibility that the will might not be admitted to probate. At that time the plaintiff was seeking a grant of probate in common form. In the course of final submissions I was told by Mrs Bridger of counsel, who appeared for the plaintiff, that having regard to s 61D, the plaintiff did not seek any order for additional provision under the Family Provision Act in the event I found the deceased died intestate. Nor of course does she seek that provision if she is entitled to the whole of the estate under the will. Accordingly if probate is granted to her, or, if probate is refused but she exercises her election under s 61D, her proceedings for provision under the Family Provision Act will be dismissed.

10 By summons filed on 28 January 2003 the deceased’s children applied under s 7 of the Family Provision Act for provision out of the estate of the deceased. The plaintiff puts forward her legitimate claims on the deceased’s estate as a competing claim to be considered when the Court deals with the claims made under the Family Provision Act by the defendants.

11 Initially Mrs Gilmour of counsel, who appeared for the defendants, advised me that no claim was made by them for an order for provision under the Family Provision Act if it were held that the deceased died intestate. However after the operation of s 61D of the Wills, Probate and Administration Act was discussed during final submissions, that position was modified. It seems that both counsel had until that time been calculating the rights of their clients on an intestacy without giving consideration to s 61D. Subsequently Mrs Gilmour advised that if it were held that the deceased died intestate, three of the children pressed claims under the Family Provision Act for greater provision than they would obtain on an intestacy. The three children making such claims are Carole Sarahan, Christine Soden, and Tina Hoobin. They are the three children with the greatest financial need. If probate is granted of the will, all of the defendants press claims for provision out of the estate of the deceased under the Family Provision Act.

The deceased’s estate

12 It was common ground that at the date of the hearing the value of the deceased’s estate was $860,796. The agreed value of the particular assets were as follows:

72 Lochlomond Drive Banora Point	$482,500
48 Castlecrag Avenue Banora Point	$330,000
Other Assets	$ 39,259
Moneys in Trust Account	$ 9,037
$860,796

13 The plaintiff’s costs of the proceedings are estimated to be $103,345 of which $21,033.65 has been paid. The defendants’ costs of the proceedings are estimated to be $86,592 of which $4,380 has been paid. All of the deceased’s liabilities and the testamentary expenses have been discharged.

14 The costs and tax which would be incurred on the sale of 48 Castlecrag Avenue, Banora Point are agreed in the amount of $56,000. If the property at 72 Lochlomond Drive, Banora Point is sold, it is agreed that the costs of sale would amount to $9,600, and that no capital gains tax would be payable by the estate.

15 On the above figures, if the will is admitted to probate, if all of the parties’ costs are paid from the estate, (a large assumption), if there is no order for provision under the Family Provision Act, and if 48 Castlecrag Avenue, Banora Point is sold the plaintiff will inherit an estate valued at $614,499.

16 If there is an intestacy, if all of the parties’ costs are paid from the estate, if no orders for provision are made under the Family Provision Act, if the plaintiff exercises her right under s 61D of the Wills, Probate and Administration Act, and if 48 Castlecrag Avenue, Banora Point is sold, the plaintiff will receive the property at Lochlomond Drive, Banora Point valued at $482,500. The balance of the distributable estate of $131,999 will be divided equally between each of the deceased’s children. They would each inherit $26,400. One of the consequences of a s 61D election is to throw onto the defendants the entire or greater part of the burden of any order directing that the plaintiff’s costs be paid out of the estate.

17 The figures are calculated as follows:

Gross value of estate:
$860,796

Less costs of sale and taxes on sale of 48 Castlecrag Avenue
$56,000

Less costs of both parties on indemnity basis
$190,297

$614,499

Plaintiff’s share pursuant to s 61D election
$482,500

Defendants’ share on intestacy
$131,999 / 5

Per child
$26,400

18 If the plaintiff did not make an election under s 61D and the Lochlomond Drive property were sold but the Castlecrag Avenue property was retained to be transferred by transmission to the plaintiff, the net distributable estate and the parties’ share interest on intestacy, assuming all costs were paid from the estate would be:

Gross value of estate:
$860,796

Less costs of sale of Lochlomond Drive
$9,600

Less costs
$190,297

$660,899

Plaintiff’s share on intestacy
$423,950

Defendants’ share on intestacy
$236,949 / 5

Per child
$47,390

19 However the above figures assume that no capital gains tax would be payable if the plaintiff took the Castlecrag Avenue property by transmission. No submission was made about that issue and I have not investigated it myself. If both properties were sold, if all costs were paid from the estate on an indemnity basis and the plaintiff did not make an election under s 61D the net distributable estate would be:

Agreed value of assets:	$860,796
Less costs of sale and taxes on sale of both properties	$65,600
Less costs	$190,297
$604,899

On intestacy the plaintiff would receive $187,000 plus half of ($604,899 – $187,000) = $395,950.

20 The first question to be decided is whether the deceased’s will should be admitted to probate.

Probate Proceedings

21 The plaintiff and the deceased first met on 12 January 1994. Not long after they met they started to spend most of their time together. The deceased had separated from his wife Valerie in 1990. He was living by himself in his property at Castlecrag Avenue, Banora Point. According to the plaintiff, about two weeks after their having met, the deceased asked her to marry him but she declined. She said that later in the year he repeated his offer of marriage which this time she accepted.

22 I accept that in 1994 the deceased asked the plaintiff to marry him. At about this time he told a golfing friend, Mr Edwards, that he wanted to marry her. The plaintiff says that the reason they did not then marry was that when she accepted the proposal she was recovering from a broken wrist and they waited until she was fit and well for the wedding. Thereafter, she says, the deceased suffered from repeated bouts of ill health requiring his regular admission to hospital, and the wedding was put off.

23 After the plaintiff broke her wrist the deceased developed an infection in his toe. The plaintiff helped him medicate his toe and treat the infection. In 1996 he was admitted to hospital in Brisbane and underwent heart surgery. Shortly after he was discharged from hospital the plaintiff moved permanently into his home. She did not rent out her own home. That was partly because her furniture was in it. It was also because she thought that things might not work out with the deceased and she might have to move back to her own home. Speaking of this time she said “I didn’t know the man”. Nonetheless the plaintiff and the deceased continued to live together in a domestic relationship from 1996 until the deceased’s death.

24 Later in 1996 the deceased was admitted to Tweed Heads Hospital. In 1997 he underwent surgery to his left shoulder. In this year he had a new home built at Lochlomond Drive in Banora Point. During 1997 the plaintiff and the deceased regularly visited Lochlomond Drive to liaise with the builder and tradesmen. They moved into the property in late 1998.

25 During 1998 the deceased’s health generally improved. In 1998 he developed a dry cough. In January 1999 he was diagnosed with cancer. It was at this time he made his will. He was to be admitted to hospital for exploratory surgery, which he underwent in February 1999. Thereafter he underwent chemotherapy and radiotherapy. Later in 1999 he suffered from a golden staph infection. There is some evidence that after his diagnosis with cancer in early 1999, the deceased was told that he probably had only 6 months to live. He died on 10 June 2000.

26 I do not accept the plaintiff’s evidence that she accepted the deceased’s proposal of marriage in 1994. On 6 July 2000 the plaintiff made a formal statement in which she said that she had declined his proposal when it was first made and that although he kept asking her over the years that followed if she would marry him, she was frightened to do so because she thought that if she did his children would not come to see him. She said “Over the years right up to his death the testator asked me at least five or six times to marry him and I always tried to put it off because I was frightened of his children”. That evidence, coupled with the fact that the parties did not marry until 2000, although there was ample opportunity to do so during the periods the deceased was not ill, together with what the deceased told his solicitor Mr James in January 1999 to which I refer below, indicates that the plaintiff had not agreed to marry the deceased at the time he made his will in January 1999. Her oral evidence was that she finally agreed to marry the deceased because the doctor said to her that that was all he was hanging on for.

27 The deceased saw his solicitor, Mr James, on 21 January 1999 to make his will. Mr James had acted for the deceased on his divorce and was aware of his relationship with the plaintiff. After the initial conference he saw Mr James again the next day. As a result of the instructions which the deceased gave him, Mr James prepared the deceased’s will which the deceased executed on 27 January 1999. Mr James made file notes of the conferences on 21 and 22 January. He made a statement shortly after the deceased’s death. He was a witness with no partiality to either the deceased’s widow or his children. He was a witness of obvious integrity whose evidence I accept.

28 When Mr James saw the deceased on 21 January the deceased told him that he was to be operated on on 1 February 1999 for cancer at the Prince Charles Hospital in Brisbane. He told Mr James that he was thinking about marrying Margaret Mackay, his de facto partner, and asked what Mr James thought. Mr James told him that he was a “big boy” and it was his own decision as to whether he married Margaret. I interpolate that this conversation is inconsistent with the deceased and the plaintiff being then engaged to be married.

29 Mr James knew that the deceased and the plaintiff were in a relationship. He told the deceased that although the “contemplation of marriage rules” had been relaxed by amendments in 1989, if there was going to be some sort of marriage date, or something like that, he would prefer to do a will in contemplation of marriage. There were other matters discussed at that time including who should inherit his estate if Margaret Mackay pre-deceased him, and why there was no provision for Mr Hoobin’s children. Mr James asked Mr Hoobin how he wanted Margaret to be described in his will. Mr Hoobin said that she should be described as his de facto wife.

30 On the following day Mr James obtained instructions on the matters he had previously raised. His file note of 22 January records the following:

“Not to marry so no will in contemplation of marriage. Will to her”.

“He (Mr Hoobin) indicated to me that the will was not to be made in contemplation of marriage. He was fairly dispirited at the time. I said to him ‘Well, it could open up problems’. He said to me ‘I am not coming out of hospital next week’. “

31 The deceased did not say to Mr James that he had no intention of marrying Margaret. However he did say to Mr James that he had given the marriage question thought and he did not want the will to be in contemplation of marriage because he did not expect he would be available to marry Margaret once he went into hospital. He told Mr James that he firmly believed he would die in hospital.

32 The plaintiff relied not only on her own evidence but also upon the evidence of her daughter, Mrs Harrison, of a friend of the deceased, Mr Luttrell, and of the plaintiff’s brother and sister-in-law, Mr and Mrs Curran, to establish that when the deceased made his will he contemplated marriage to the plaintiff. Mrs Harrison said that over the years she knew the deceased he told her a number of times that he and her mother were to get married. Mr Luttrell said that on several occasions the deceased indicated to him that he intended to take Margaret as his wife. The most recent of those occasions was on 18 May 2000. Mr Luttrell did not say when the earlier occasions were. He did not give oral evidence and was not cross-examined. Both Mr and Mrs Curran said that they were present in April 2000 when the deceased told the plaintiff that they could not put off getting married any longer. None of this evidence directly relates to the deceased’s state of mind at the time he made his will.

33 The plaintiff also relied upon evidence that both before and after the deceased made his will, he and the plaintiff were described as man and wife by newspaper reporters, friends and tradesmen. Such description does not show whether the deceased made his will in contemplation of marriage to the plaintiff.

34 At the time the deceased made his will he did not expect to survive his admission to hospital. If he had intended marriage, he would have given instructions to Mr James to state in the will that it was made in contemplation of marriage to the plaintiff.

35 Mrs Bridger submitted that as the deceased had been advised on the amendments to s 15 of the Wills, Probate and Administration Act, he would have appreciated that it was not necessary to state in the will that it was made in contemplation of marriage. Thus his instructions to his solicitor were consistent with his contemplating marriage to the plaintiff but not wanting to state that in the will. However that is not what he said to Mr James. If that was his reasoning, it is inconceivable he would not have discussed it with his solicitor.

36 The deceased had contemplated the possibility that he would marry the plaintiff. It was something he was thinking about. If he survived his forthcoming admission to hospital, he may have liked to marry the plaintiff if he could secure her consent.

37 However at the time he made his will he did not expect or intend to marry the plaintiff. He intended to leave his property to the plaintiff and in the light of the matters discussed with his solicitor, his instructions that the will should not be expressed to be made in contemplation of the marriage are only explicable on the basis that he did not then expect or intend to marry her. He may have thought that if he survived his imminent surgery, and if the plaintiff agreed, he would wish to marry her. But I am not satisfied at the time he made his will that he turned his mind to what might happen if he survived his surgery. He did not think he would do so.

38 What then is required for a will to be made in contemplation of marriage? Is it enough that at the time instructions for the will are given, the testator has been conscious of the possibility that he might marry a person for whom provision is made in the will and whom he later marries? Must he intend or propose at the time he makes his will to marry that person? Must he at least have the possibility of marriage in mind when he makes the will as a contingency to be provided for, or an end to be aimed at? As long ago as 1838 Baron Parke said “Contemplation of marriage is a vague phrase. He might not know that she would accept him.” (Marston v Roe de Fox and Halton (1838) 8 Ad & E 14 at 28; 112 ER 742 at 747). That aptly describes, but does not resolve, the present case.

39 To contemplate something does not necessarily import the intention to bring it about. In Layer v Burns Philp Trustee Co. Ltd (1986) 6 NSWLR 60 at 67 Mahoney JA said:

Shorter Oxford English Dictionary

Conway v Wade

Scene Estate Ltd v Amos

40 In Layer v Burns Philp Trustee Co. Ltd the issue was whether a will was expressed to be made in contemplation of the marriage which was later solemnised. In his will the testator described the legatee as “my wife Gail Layer”. He and Ms Layer had lived together for two years and were married immediately after the execution of the will when the testator was in hospital and terminally ill. The issue in the case was whether the words used in the will, together with admissible extrinsic evidence, were sufficient to establish that the will was expressed to be made in contemplation of the marriage which was immediately solemnised after the will was made. The Court of Appeal held that the description in the will of the legatee as “my wife Gail Layer” coupled with the admissible extrinsic evidence was sufficient to show that the phrase was used in the sense of “my intended wife” and hence to show that the will was made in contemplation of marriage (at 69). The Court of Appeal did not consider whether a testator’s contemplation of marriage as a conscious possibility was sufficient for the purposes of s 15 if the testator did not expect or intend to marry. It was clear that the testator did intend to marry.

41 Mahoney JA cited the Shorter Oxford English Dictionary for an ordinary dictionary meaning of the term “contemplation” being merely ”having in view or taking into account as a contingency”. That was and is a definition given by the Shorter Oxford English Dictionary of the verb to “contemplate”. The Oxford English Dictionary, however, defines “contemplate” as including “having in view” or “taking into account as a contingency to be provided for”. The difference between taking marriage into account as a contingency, and as a contingency to be provided for, is important in this case. On 21 January 1999 (that is, six days before he made the will), the deceased had marriage in view as a contingency. He thought about it. He discussed it with his solicitor. If he survived his hospitalisation and if he could persuade the plaintiff to marry him, it was something he would have wished for. However by 22 January, and I infer at the time he made his will, it was not something which he proposed or intended or expected to happen. It was not a contingency for which he wished to make provision. He did not think he would survive his admission to hospital. It was no longer something he had in view when directing his mind to making his will.

42 As a matter of grammar, there is a difference between making a will having contemplated marriage and making a will in contemplation of a marriage. “In” expresses a relation between the act of making the will and the state of mind of contemplating a particular marriage. This suggests that there must be a more definite state of mind than a mere consciousness of the possibility of a particular marriage. The testator must have the marriage in mind when he makes his will, although he need not make the will because he proposes to marry (Layer v Burns Philp Trustee Co Ltd at 67-68).

43 Although none of the cases to which I was referred or which I have reviewed decide the question of what state of mind is denoted by the phrase “contemplation of a marriage”, they are all consistent with the last definition of “contemplation” in the Oxford English Dictionary. To revert again to the Oxford English Dictionary, the last two definitions of “contemplation” are:

“6. The action of taking into account, thinking of, or regarding; consideration, regard; view.

in contemplation:

44 Layer v Burns Philp Trustee Co Ltd (at 67) is authority that the deceased need not intend nor understand that his contemplation of a particular marriage will preserve the will from revocation if that marriage takes place. The contrary view, which was the basis for the decisions in Burton v McGregor [1953] NZLR 487 at 492, Public Trustee v Crawley [1973] 1 NZLR 695 at 700 and Re Whale (deceased) [1977] 2 NZLR 1 at 2, is not the law in this State.

45 Layer v Burns Philp Trustee Co Ltd is also authority for the proposition that there is no requirement that the will be made because the deceased proposes a particular marriage. No causal connection is required between the making of the will and the proposal to marry. It is enough that at the time the will is made the testator contemplates the marriage which is later solemnised. (At 67-68).

46 Layer v Burns Philp Trustee Co Ltd does not decide what state of mind is sufficient to amount to “contemplation of the marriage”. In the circumstances of that case the relevant fact which the deceased had to have in mind and sufficiently express in his will was that the particular marriage was proposed. However the Court left open at least the possibility that other and less stringent meanings may suffice.

47 In those cases where it has been held that the testator made his will in contemplation of a marriage and the testator’s state of mind has been described otherwise than in terms of what he contemplated, that description has been in terms of what was intended or what was proposed (Burns Philp Trustee Co. Ltd v Layer [1984] 3 NSWLR 41 at 51; Layer v Burns Philp Trustee Co. Ltd at 67, 68, 69; Keong v Keong [1973] QdR 516 at 524.) None of the cases in which it has been found that a will was expressed to be made in contemplation of a marriage applied a less stringent standard.

48 In cases where it has been held that the expressions in the will were insufficient to show that the will was made in contemplation of marriage the courts did not consider that something as indefinite as a conscious possibility of a particular marriage would suffice. In some of the cases, particularly In the estate of Gray, deceased (1963) 107 SJ 156 (which is inadequately reported); re Taylor deceased (1949) VLR 201; and re Hamilton deceased [1941] VLR 60, the facts were such that if that were considered a sufficient standard, it should at least have called for discussion.

49 Burton v McGregor [1953] NZLR 487 and cases which followed it, in which the expression “my fiancée” was held to be an insufficient expression of contemplation of a marriage, are inconsistent with a standard of conscious possibility. But as the reasoning in those cases has not been followed in this State, they cannot be relied upon as authority against such a standard.

50 The phrase “in contemplation of” has been used in diverse contexts. For example, a donatio mortis causa must be made in contemplation of death. In that context contemplation need not necessarily amount to expectation (Smallacombe v Elder’s Trustee & Executor Co. Ltd [1963] WAR 3 at 4; Dufficy v Mollica [1968] 3 NSWR 751 at 755, 758). A business record is not admissible under s 69 of the Evidence Act 1995 (NSW) if made in contemplation of legal proceedings. An act done in contemplation or furtherance of a trade dispute is one done in expectation of a dispute which is imminent and with a view to it or in support of an existing dispute (Conway v Wade [1909] AC 506). However, ultimately I have not found any assistance in the authorities on such disparate areas for the resolution of the issue in this case.

51 Sub-section 15(3) of the Act was introduced as a result of recommendations made by the NSW Law Reform Commission in its report No. 47 “Community Law Reform Program: Wills – Execution and Revocation”. On the present issue, I do not think that the Commission intended to go further than to recommend that extrinsic evidence be admissible in all cases to establish whether the testator or testatrix made his or her will in contemplation of a marriage. It did not expressly consider what state of mind was denoted by the expression.

52 As a result of the Report, ss 15(4) was introduced. It reverses the position laid down in Sallis v Jones [1936] P 43, that a will expressed to be made in contemplation of marriage generally, rather than in contemplation of a particular marriage, is revoked by the testator’s subsequent marriage. No argument was addressed as to whether the words in ss 15(4) “in contemplation of” have the same operation as those words in ss 15(2) and (3) notwithstanding the different object of contemplation. It may be, and I express no view about this, that the general object in ss 15(4) widens the concept of what is required by the testator’s “contemplation” for the purposes of that sub-section. However I do not regard the possible widening of the conception of “contemplation” of marriage generally in ss 15(4), as indicating the meaning to be given to the phrase “in contemplation of a marriage” in ss 15(2) and (3).

53 In my view the phrase in ss 15(2) and (3) of the Act “in contemplation of a marriage” means intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at. That was not the deceased’s state of mind at the time he made his will. Even if, contrary to my view, the phrase carries a vaguer connotation of something the deceased has in mind as a possibility, I am not satisfied that when he made his will the deceased had marriage to the plaintiff consciously in mind as a possibility. At that time he was not looking beyond his impending hospitalisation, from which he did not expect to emerge.

54 Accordingly his will was revoked by his marriage on 7 June 2000. The application for a grant of probate should be refused. I will direct that letters of administration be granted to the plaintiff and refer the matter to the Registrar to complete that grant.

Defendants’ Family Provision Act Claims

55 Section 7 of the Family Provision Act provides:

7 Provision out of estate or notional estate of deceased person

Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.”

Extension of Time

56 Before I can consider the defendants’ applications under s 7, they must obtain an extension of time for bringing the applications. Section 16 of the Family Provision Act provides:

16 Time for application for provision

(b) in any other case – the period of 18 months after the death of the deceased person.

(2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow.

(3) the Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless:

(a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or

(b) sufficient cause is shown for the application not having been made within that period.

(4) The Court may make an order under subsection (2) with respect to an application in relation to a deceased person whether or not :

(a) the prescribed period in respect of the application in relation to the deceased person has expired,

(b) the application for the order under that subsection was made before that period expired, or

57 The Court may not make an order for extension of time under ss 16(2) unless sufficient cause is shown for the application for extension of time not having been made within the period of 18 months after the death of the deceased. In the present case, sufficient cause is shown for the application not having been made within that period. It is also appropriate to extend the period for making the application up to the date of the filing of the defendants’ application under the Act.

58 Provision may only be made out of an estate of the deceased under s 7 where the deceased is a person “in respect of whom administration has been granted”. Section 41A of the Wills, Probate and Administration Act permits application to be made for the grant of administration in respect of a deceased person in order to permit an application to be made under the Family Provision Act. An application could have been made within the 18- month period by the defendants seeking both an order for the grant of administration under s 41A of the Wills, Probate and Administration Act and an order for provision under s 7 of the Family Provision Act (Leue v Reynolds (1986) 4 NSWLR 590). However there was good reason for the defendants not to have done so in the circumstances of this case.

59 Whether any or all of the defendants wished to proceed with applications under the Family Provision Act depended upon whether the deceased’s will should be admitted to probate or whether there was intestacy, and, if the latter, upon whether the plaintiff would choose to exercise her rights under s 61D of the Wills, Probate and Administration Act, which in turn would depend upon the valuation of the various assets of the estate. As I have said, initially the position of all of the defendants was that they would proceed with their claims under the Family Provision Act only if there was a grant of probate of the will. At the time that position was enunciated it seems that no question had been raised that the plaintiff might make an election under s 61D. What arrangements, if any, the defendants might have had between themselves as to the sharing of monies which they would receive on an intestacy if no such election were made I do not know. Suffice it to say that whether applications would proceed under the Family Provision Act and how they would proceed was very much dependent upon whether or not probate would be granted of the will.

60 There was extensive delay in the proceedings being commenced. Much of the responsibility for the delay which has affected this estate can be attributed to inappropriate procedural steps taken by the plaintiff’s solicitors. Because the procedural history is relevant not only to the application for an extension of time under s 16 but also to questions arising under s 28(5) and in relation to costs, I will deal with it more fully than would otherwise be warranted.

61 Although the deceased died on 10 June 2000, the plaintiff did not apply for a grant of probate until 5 April 2001. The application which was then made was by summons under Pt 78 r 8 of the Supreme Court Rules, for a grant of probate in common form. That is the appropriate procedure where the will is not contested and there is no doubt as to its validity. It was not the appropriate application to make in the circumstances of this case unless the next of kin consented to a grant of probate to the plaintiff and the evidence could clearly satisfy the Registrar that the will was made in contemplation of marriage to the plaintiff. Neither condition obtained.

62 On 24 August 2000, Messrs Budd & Piper, solicitors for the defendants, asked the plaintiff’s then solicitor whether or not an application had been made for probate and if so whether probate had been granted. They expressed the view that their clients had excellent prospects of success in claims under the Family Provision Act and asked if the plaintiff would be prepared to enter into negotiations to settle those claims without the necessity of court proceedings. It appears that matters were delayed from the plaintiff’s end because her current solicitors were awaiting receipt of the file from the plaintiff’s previous solicitors. On 1 December 2000 they advised that they would be in a position to apply for probate. On 7 March 2001 Messrs Budd & Piper advised that they had instructions to commence proceedings under the Family Provision Act. They confirmed that advice on 1 June 2001.

63 The summons for probate filed on 5 April 2001 was supported by an affidavit of the plaintiff sworn on 16 March 2001. It was filed pursuant to Pt 78 r 24 and was in accordance with Form 97. The plaintiff swore that the deceased did marry after the will was made. She annexed a copy of the marriage certificate. She nonetheless deposed that she was not aware of any circumstances which raised doubt as to her entitlement to a grant of probate.

64 Unsurprisingly, on 10 April 2001 the Registrar raised a requisition that: “the application in its present form is rejected – note the operation of sec 15 of the Probate Act”.

65 On 9 May 2001 the plaintiff swore a further affidavit in the proceedings commenced in the Probate Division No. 105349/01. In that affidavit she annexed statements from Dr Berger, Mr Luttrell, Mr James, Mr Edwards and her own statement of 6 July 2000. She asserted on the basis of those statements that she believed it was always the intention of the deceased at the time of signing his will for them to be married despite the fact that the contemplation of that marriage was not expressed in his will. The affidavit was filed on 17 May 2001. On 18 May 2001 further requisitions were raised. They included that notice of the application, a copy of the will and copies of the two affidavits be served on persons entitled on intestacy and that affidavits of service be filed. Another requisition invited submissions as to whether the will was made in contemplation of marriage, irrespective of whether the application for probate was opposed by the next of kin.

66 It should have been obvious to the plaintiff’s legal advisers that unless the deceased’s children consented to a grant of probate the plaintiff should make an application for grant of probate in solemn form. Instead, there was a long delay and unnecessary costs were incurred in pursuing the application for a common grant.

67 Between June and August 2001 settlement proposals were made between the parties. There was debate between the solicitors as to whether the will had been revoked by the plaintiff’s marriage.

68 On 16 November 2001 the defendants’ solicitors expressed concern as to the delay in the administration of the estate. They advised they had instructions to make application pursuant to the Family Provision Act and said that unless they heard within 14 days that the plaintiff intended to seek administration of the estate they would apply for a grant of administration pursuant to s 41 of the Wills, Probate and Administration Act for the purpose of making the application under the Family Provision Act. That letter was responded to on 29 November. In the response the plaintiff’s solicitors advised that they were dealing with requisitions on the probate application and they intended to proceed with that application. They also advised that should the probate application be rejected, the plaintiff would apply for letters of administration and would herself make an application under the Family Provision Act. They provided information about the assets and liabilities of the estate.

69 The period of 18 months from the deceased’s death expired on 10 December 2001. At that time the defendants had given notice of their intention to apply under the Family Provision Act and to seek a grant under s 41A of the Wills, Probate and Administration Act of representation to enable them to do so. However the plaintiff had said that she was proceeding with her application for probate and that if that were refused she would apply for a grant of letters of administration and would make her own application under the Family Provision Act. There had been substantial delay by the plaintiff in applying for a grant of probate and in proceeding with that application. Part of the delay may have been due to the negotiations with the defendants for the resolution of the dispute. Whether that is so or not, no prejudice was caused to the plaintiff by the defendants not themselves making an application. That remained the position during 2002.

70 A submission in response to the last requisition of the Registrar made on 18 May 2001 was not filed with the Supreme Court until 4 March 2002. On 11 March 2002 a further requisition was raised noting that there was still outstanding the requisition of 18 May 2001 that affidavits of service of the application upon the persons entitled on intestacy be filed. Those applications were served on the defendants between 6 March 2002 and 6 April 2002. This was almost a year after the application for a grant of probate in common form was filed and about 21 months after the deceased’s death.

71 On 19 March 2002 Messrs Budd & Piper advised Messrs O’Neill that they acted for all of the children of the deceased and that all of their clients had objected to what was described as the plaintiff’s “intended application for probate”. They sent to Messrs O’Neill a copy of the letter which they sent on the same date to the Registrar in which they asked for a copy of the court record of the current probate application including a copy of the requisitions and the plaintiff’s responses.

72 On 5 April 2002 Tina Louise Hoobin lodged a caveat in the Registry against a grant of probate in the estate of the deceased. The caveat was lodged pursuant to s 144 of the Wills, Probate and Administration Act and Pt 78 r 61 of the Supreme Court Rules. Subrule 61(3) required the caveator to serve a copy of the caveat within seven days of its being lodged.

73 On 16 April 2002 the defendants’ solicitors served a copy of the caveat by sending a copy to the plaintiff’s solicitors. On 20 June the plaintiff’s solicitors asserted that because the caveat was not served within the period of seven days it was invalid. The delay in service was occasioned by the delay of the Sydney agents for the defendants’ solicitors advising them that the caveat had been filed. It was however only a delay of four days which was de minimis in the context of the delays which attended the plaintiff’s application for probate.

74 As a result of the plaintiff’s solicitor’s objection to the validity of the caveat on the basis of its late service, the defendants’ solicitors arranged for a further caveat to be filed and lodged by Tina Hoobin on 28 June 2002. This caveat was served on 1 July 2002.

75 The second caveat was unnecessary. However it was prompted by the assertion of the plaintiff’s solicitors that because the first caveat was not served within the time described by Pt 78 r 61(3) it was invalid. Given the extensive delays and costs attendant on their misguided attempt to obtain a grant of probate in common form, the assertion of the plaintiff’s solicitors, for which no justification was attempted, should be roundly condemned. It was productive of more delay and more costs.

76 Both caveats lodged by Tina Hoobin were lodged pursuant to Pt 78 r 61. Part 78 rule 70 provides that where there is in force a caveat under rule 61(1) in respect of any grant being made in an estate, proceedings for a grant shall be commenced by statement of claim. Unless the Court otherwise directs, the caveator shall be a party in the proceedings. Such proceedings as required by Pt 78 r 70 were not commenced by the plaintiff until 6 September 2002.

77 In the meantime the plaintiff’s solicitors also issued documents described as “citation to see proceedings” addressed to each of the defendants. These were filed on 12 September 2002. They involved a further waste of costs.

78 On 6 September 2002 the plaintiff also filed a Notice of Motion claiming an order that the caveat filed by Tina Hoobin on 5 April 2002 cease to be in force and for an order restraining her from filing any further caveat. That application was unwarranted. It was mentioned on at least four occasions between 21 October 2002 and 12 May 2003 until ultimately it was dismissed and the plaintiff was ordered to pay the defendant’s costs of the Notice of Motion.

79 On 4 October 2002 the plaintiff’s solicitors advised that the plaintiff would oppose any leave being granted to the defendants to apply under the Family Provision Act as the defendants were out of time. This was the first notice that the defendants’ solicitors had received that the defendants’ Family Provision Act claims would be opposed on the basis that they were out of time. On 10 December 2002 the defendants’ solicitors endeavoured to file summonses seeking provision under the Family Provision Act and a summons seeking a grant of administration under s 41A of the Wills, Probate and Administration Act. Requisitions were received from the Supreme Court in relation to those documents requiring their amendment. Both summonses were ultimately filed on 28 January 2003. Later, on 12 May 2003, the Court noted the parties’ agreement that the s 41A applications did not need to be made.

80 The plaintiff has not suffered any prejudice from the delay in the defendants’ filing their applications for provision under the Family Provision Act. The claims which are being pursued have substance. The delay in the proceedings coming on for hearing has not been caused by the defendants’ delay in commencing proceedings under the Family Provision Act. Although both parties must bear some responsibility for the delay, it is the plaintiff’s legal representatives who are primarily responsible for the delay. The delay by the defendants has been sufficiently explained. There is no question of there having been unconscionable conduct by the defendants in delaying their application under the Act. (As to these factors see Warren v McKnight (1996) 40 NSWLR 390 at 394).

81 A considerable part of the hearing time was devoted to cross-examination of the defendants as to whether they understood (as they had been advised) that there was an 18-month time limit for bringing claims under the Act. This cross-examination was relevant to the defendants’ credit, although their credit was not shaken. However apart from questions of credit, their understanding or lack of understanding of the time limit is of little moment in the circumstances of this case on their application for an extension of time. Their solicitors certainly understood the time limit. They made a decision that it was not appropriate in the circumstances prior to October 2002 for their clients to commence proceedings when the issue of the grant of administration was unsettled and when, for at least part of that period, negotiations were on foot to seek to resolve the dispute between the parties. I do not think that in the circumstances of this case the judgment which they made was unreasonable.

82 For these reasons I will make an order under ss 16(2) extending the time for the making of an application under s 7.

Deceased’s reasons for making no provision in his will for the defendants

83 The deceased told Mr James that his own children were not to benefit from his will. He told Mr James that he had no contact with his children any more; he had received no card or telephone call from them over the preceding Christmas. He told the plaintiff that his children had not visited him when he was on his own. He also made statements to the same effect to Mr Edwards, but I am satisfied that this was not the case.

84 He told his doctor, Dr Berger that he was determined that his relationship with his children was over and that he was not going to leave anything in his will to them. I accept that he had this attitude towards his children prior to forming his relationship with the plaintiff. Shortly after he met the plaintiff he told her that he didn’t see his children very much, they were a disappointment to him and they did not have very much to do with him. He also said that his children did not want him; and that they only wanted him when there was something to be got from him.

85 A number of the deceased’s children made efforts to keep in contact with him. The deceased did not respond favourably to these efforts. He took steps to cut himself off from his children. He did not answer the telephone. When his children phoned, the telephone was answered by the plaintiff. The deceased told her to say that he was not there. He did not respond to cards sent to him by his children. He did not send cards on birthdays or Christmas to his children or grandchildren. He did not encourage enquiries about his health from his children.

86 Another reason the deceased made no provision for his children was that he loved the plaintiff. He wanted her to inherit all his property.

The plaintiff’s financial position

87 The evidence of the plaintiff’s financial circumstances independent of the moneys which she will inherit from the deceased’s estate was unsatisfactory. She receives a pension of $469 per fortnight. Her expenses are modest. She estimates that they are $248 per week. There is thus a shortfall of about $14 per week between her income from the pension and her everyday living expenses.

88 Prior to April 2003 the plaintiff had a 50% interest as tenant in common with her daughter and her daughter’s husband (who together held the other 50% interest) in a property at 14 Reynolds Avenue, Labrador on the Gold Coast. That property was sold on 28 April 2003 for $291,000. From that sale she received at least $138,000. She may also have received her half share of the deposit of $14,550. In her oral evidence the plaintiff confirmed that she received a half share of the proceeds of sale and said that from those proceeds she paid $20,000 to her daughter and her daughter’s husband and $4,000 to her brother to repay debts which she had incurred to them to fund the costs of the proceedings.

89 In her affidavit sworn on 10 July 2003 she swore that she had a one third interest as tenant in common in that property and that that interest had a value of $75,000. That evidence was shown to be incorrect to a significant degree. The property had been sold when she swore her affidavit. She had a one half interest, not a one third interest in the property. She had received at least $63,000 more than the value she attributed to her interest.

90 The plaintiff’s credit was challenged in the course of cross-examination not only on this issue, but also on her failure to produce bank statements as required under a notice to produce. She gave oral evidence that she had $60,000 in a bank account with the National Australia Bank and no other accounts. She said that she had left the bank statements at home. After the evidence had closed the plaintiff was given leave to re-open her case to tender additional documents. The documents tendered showed that in July 2003 the amount of $138,000.38, being the same amount as had been distributed to her from the sale of the Labrador property in May 2003, was deposited into a joint account of the plaintiff and Mr Harrison (her son-in-law). Thereafter two withdrawals in the amounts of $4,000 and $138,000 were made, but there was no evidence of where the moneys went. There was also tendered a bank statement with the National Australia Bank showing a credit balance of $60,542.75. The account was in the name of “Louisa Discretionary Trust care of Donna Harrison”.

91 I infer from this evidence that the plaintiff is an object of a family discretionary trust in which her daughter and son-in-law have an involvement either as trustees or discretionary objects, or both, and that the plaintiff has taken steps to ensure that she does not have substantial cash assets recorded in her own name. I am not satisfied that the only cash deposit to which she is beneficially entitled amounts to approximately $60,000. Given the plaintiff’s failure to adduce evidence as to how the balance of $138,000 received from the sale of the Labrador property was dealt with after paying debts of $24,000, I think it probable that she has assets either in cash, or as debts owed to her by persons to whom money has been transferred, of about $114,000. She may have other valuable rights as an object of a family discretionary trust, but no evidence about that trust or any other financial dealings she has had with her daughter and son-in-law was adduced.

Family Background to Children’s Claims

92 The deceased carried on business as a newsagent in Melbourne until about 1968. He and his first wife then moved with their family to Hervey Bay in Queensland where he bought a milk run and leased his newsagency business in Melbourne to his brother. The deceased became a professional fisherman. In about 1975 or 1976 they returned to the newsagency business in Melbourne.

93 That business was sold in 1987. The deceased and his wife Valerie and their two younger children Anthony and Tina then moved to Banora Point near Tweed Heads on the North Coast of New South Wales. The deceased and Valerie separated in 1990. They had acquired two properties at Banora Point. As part of the property settlement Mrs Valerie Hoobin kept the family home, which was only two blocks away from where the deceased lived in Castlecrag Avenue, Banora Point. It is clear that the deceased’s attitude to at least some of his children is attributable to his view that they had supported their mother, rather than him, in and following the separation.

94 In the next section of this judgment I describe the circumstances of the three claimants. I have generally accepted their evidence where it conflicted with the plaintiff’s evidence. I did not consider the plaintiff to be a reliable witness. I have already commented on the unsatisfactory nature of her evidence concerning her financial position. At times she affected a distress which I did not think was genuine.

Claim of Carole Sarahan

95 Carole Sarahan is the deceased’s eldest child. She has three children aged, 20, 17 and 7. The younger two are financially dependent on her. In 2002 she married an Egyptian citizen, Mr Sarahan. According to Mrs Sarahan her husband does not have assets with which to support her. At the time of the hearing he was in Egypt but was due to be coming out shortly to take up residency with his wife in Australia. He is a young man of 23 who has studied in hotel management and tourism and hopes to find employment on the Gold Coast where Mrs Sarahan lives.

96 Mrs Sarahan finished school at the end of first term in Grade 10. She has no other educational qualifications. Apart from working in her parents newsagency business when she was a child and subsequently, from the time she was 14, in the milk run which her father purchased in Hervey Bay, she has had only casual employment from time to time as a waitress. She and her former husband managed her parents’ newsagency business for about three months of each year between about 1977 and 1987 to enable her parents to travel to Queensland. At that time Carole was married and living at Hervey Bay. She and her husband visited Melbourne from time to time and helped out in the newsagency business.

97 The deceased represented Australia in cycling at the 1948 Olympic Games. He won the 1950 World Championship in cycling. In about 1991 Carole arranged for an introduction which resulted in his being inducted in Melbourne into an organisation called the Hall of Fame. I infer that this is an enterprise devoted to the glorification of sporting success. He and three of his daughters, Carole, Christine and Leanne (who lived in Melbourne), attended a dinner in honour of his induction in Melbourne in 1991. It appears that whilst his health permitted the deceased attended these dinners annually, or at least regularly. They were a source of pride for him.

98 For about two years after her parents’ separation in 1990, Carole and her children regularly visited her father. Carole lived about 45 kilometres from Banora Point. He made Carole aware that he was unhappy about her visiting her mother at this time.

99 For two years after her parents separated Carole spent every weekend with her father helping with the housework, washing, ironing and cooking and talking to him. Until about 1994-1995 there was regular contact between them.

100 From 1994 until her father died Carole’s contact with him became very limited. She sent cards to her father for a couple of years after 1994 but received no response. She visited her father when he was in hospital in 1996 in Tweed Heads. She was advised by her sister Christine not to telephone her father when he was in hospital in Brisbane in 1996 with heart surgery. She was told that the plaintiff had said that the deceased’s children should keep away and that no phone calls were allowed into the hospital at that time.

101 The reasons why Carole lost contact with her father from about 1994-1995 were not made clear. One reason was that her father disapproved of a man with whom she was then living (Errol), who was the father of one of her children. In about 1995 her father refused to come to her house because Errol was living there.

102 Carole Sarahan receives a Centrelink pension of $235 per week. She receives monthly allowances for maintenance of her younger son of between $200 and $380. As a result of a property settlement with her first husband she owns the house in which she lives which has a value of about $250,000 and is subject to a mortgage of $72,000. That loan was taken out in 2000 and has since been reduced from $80,000 to its present level. The house needs painting inside and out and the stove is in need of repair. She has no savings, no superannuation and a credit card debt of about $1,500. She owns a motor vehicle with an estimated value of $1,500. Her household appliances are nearing the end of their working life. She has a need for clothes and shoes for herself and her children. She says that she spends her income only on absolutely essential items.

103 Mrs Gilmour submitted that adequate provision for Mrs Sarahan’s maintenance and advancement in life would be approximately $86,500, being a sum sufficient to pay off her mortgage and credit card debt and to provide her with a capital sum for clothes, household appliances and a replacement car. Counsel accepted that the size of the estate and the competing claims on it were such that a proper provision for Mrs Sarahan’s maintenance and advancement in life would be less than what was adequate.

Christine Soden

104 Christine Soden is the second eldest daughter of the deceased. She has four children aged 28, 23, 8 and 6. She has recently divorced her husband. There has been a property settlement, but there was little property to divide. In October 2003 when she swore her affidavit in these proceedings and at the time of hearing, she was living with her mother because she did not have the money for a rental bond. She receives social security payments by way of parenting payments, family assistance and a carer’s allowance totalling $959.30 per fortnight. She receives child support of $102 per month. The rent which her mother charges her has been reduced from $180 to $120 per week. She says that she and her children struggle to make ends meet, that they have to buy the cheapest food available and cannot afford to buy the clothing and shoes they need. She has a TV that is almost twenty years old. She does not have a washing machine or a dryer. Such whitegoods as she has need replacing. She needs beds and most of her furniture needs replacing. Her car is fifteen years old.

105 Her marriage broke down in March 1999. Shortly afterwards her son Ben was diagnosed as suffering from autism. He attends a public school at Banora Point which has a special education unit. Although the government covers most of the cost, Mrs Soden says that he has needs, on which she did not elaborate, for his education and development which she cannot afford.

106 Christine was 11 when the family moved from Melbourne to Hervey Bay. She helped her father in his milk-run and when he later became a fisherman she, along with the other children, helped in pulling fish from nets and packing them for the markets. She married in 1974. In 1976 her parents returned to Melbourne. In 1977 she moved to Brisbane from Hervey Bay where she lived until 2000. She continued to see both her parents after their separation in 1990. In the year that the deceased met the plaintiff, 1994, the deceased spent a week with Christine whilst he played in a golf tournament in Brisbane. The plaintiff also stayed at Christine’s house at this time. In February 1995 the deceased attended her son’s christening. When her father was admitted to hospital in Brisbane for heart surgery in 1996 she visited him at least once a day usually with her family. She kept in contact with him after his release from hospital. Later that year, in November 1996, the deceased and the plaintiff stayed in her home in Brisbane to care for her children when she was in hospital having her youngest daughter. The plaintiff and the deceased saw Christine and her family at Christmas time in 1996. She was the only one of the deceased’s children whom the plaintiff invited to the deceased’s 70th birthday party in 1997.

107 Christine became pregnant again in 1998. The plaintiff gave evidence that at that time she tried to help Christine but Christine became annoyed with her. The deceased then became annoyed with Christine and told the plaintiff that he wanted to sever all contact with her. Whatever passed between the plaintiff and Christine Soden, it is difficult to understand how it could have justified the deceased’s reaction. Christine Soden lost her baby at 22 weeks on 19 August 1998. Her child lived for about an hour after his birth. One can understand that she would be highly distressed. The deceased’s attitude showed no sympathy for, or understanding of, his daughter.

108 In March 1999 Christine Soden’s marriage broke down. Shortly after this her second youngest child was diagnosed as suffering from autism. Christine tried to telephone her father on numerous occasions in 1999 but on each occasion the plaintiff spoke to her and she was not able to speak to her father. She did not visit her father at this time. She was not aware that he had been diagnosed with cancer.

109 Mrs Gilmour described Christine Soden as cheerful, honest and uncomplaining. So far as these qualities can be assessed in a witness I am inclined to agree. I am less certain of the relevance of this submission. However it is clear that the wish of the deceased to sever his relationship with his children could not reasonably have been due to any lack of attention which Christine showed him. His reaction to her plight following the loss of her child in 1998 was not that of a man who could be relied on to make a fair assessment in his will of the needs and merits of those with claims on him.

110 Mrs Gilmour submitted that adequate provision for Christine’s financial needs would extend at least to $6,500 to clear her debts, a further $4,500 to repay her debt to her mother to the extent that that was not covered for any order for costs, $15,000 towards the cost of a new car, and further provision up to a total of about $80,000 to $100,000 towards part payment of a house or otherwise to provide her with a capital sum to meet her future needs to support herself and her two infant children. Mrs Gilmour submitted that as Christine Soden has a child of 8 who is autistic she faces the prospect of looking after that child for the rest of her life. It was submitted that she has no prospect of obtaining employment.

Tina Hoobin

111 Tina Hoobin is the youngest of the deceased’s children. She is unemployed. She also left school in Year 10. Her only training is that she did a bar course. Since leaving school she has worked in her parents’ newsagency and has also worked in the hospitality industry, as a barmaid. She has a casual cleaning job once a fortnight. She has three children, aged 13, 11 and 5. She receives a carer’s allowance for her youngest child, but there was little evidence about the circumstances of that child except that she has needed surgery to correct an abnormal growth in her skull. Her children are entirely dependent upon her. She receives no maintenance from their father who is himself unemployed and on sickness benefits. She receives $50 per fortnight after tax from her work as a cleaner. Her after tax income from social security payments consisting of parenting payments, family assistance and carer’s allowance is $1,120.16 per fortnight: a total of $1170.16 per fortnight. Her family expenditure usually exceeds her income although she spends only on essential items. She has no motor vehicle. She has savings of about $120. She has a computer, furniture and personal effects valued at $3,000. She has credit card debts of about $11,000. She owes her mother $4,200 for legal expenses. Her rent is $200 per week. Her expenses include money for school uniforms, school excursions and children’s sport. She says, and I accept, that she cannot afford to buy her children new clothes and shoes which they need. Most of her whitegoods are old and need replacing. She says she urgently needs a new car.

112 Tina Hoobin was about 8 when her parents left Hervey Bay in Queensland to return to Melbourne. She worked in the newsagency business from the time she was about 9. (All of the children worked in their parents’ businesses from time to time during their childhood.) After she left school she found paid employment in another newsagency but worked for her parents in the business on weekends in lieu of board. When she was 18 or 19 her parents and Anthony moved to Banora Point. She moved back to Melbourne for eighteen months but was homesick for her family and returned home to Banora Point in about 1989. When her parents separated in 1990 she was about 21 or 22. She rented a flat with her boyfriend Chris Mainwaring, the father of her children. Her first child was born in November of that year. After her parents separated her mother lived in the flat with them until the property settlement in 1991. Under the property settlement her mother obtained the family home and her father moved into the Castlecrag Avenue property. Tina visited her father about once a week at this time but also kept in close touch with her mother. It is the plaintiff’s evidence that the deceased told her that after his property settlement with his first wife Valerie, he went to the bank to sort out his affairs and that he there found Tina and her mother trying to withdraw all the money that was in Valerie’s and the deceased’s joint account. He said to the plaintiff “I will never forgive or forget what Tina did that day”.

113 This incident suggests that the deceased formed the view that as Tina provided support for her mother, by accompanying her to the bank, she was not to be forgiven, and her transgression in his eyes would not be forgotten.

114 Tina continued to see her father during 1994 and 1995. She estimates that she visited him about once a week although the plaintiff says that she came to see her father from time to time but not regularly or frequently. As Tina was living in Banora Point I think it likely that she did visit her father regularly. She also visited him on Father’s Day, his birthday and on Christmas Day at this time.

115 In 1996 before the plaintiff commenced living with the deceased, Tina Hoobin continued to visit her father in his house. After the deceased’s admission to hospital in 1999 she visited him regularly.

116 I am conscious that I have not heard the deceased’s story and do not know all the circumstances (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20). Nonetheless, I think it would be wrong to attribute the fact that in the last six years of the deceased’s life he had diminishing contact, and at times little contact, with a number of his children as being due to a failure on their part to act towards their father in a way which the community would expect children to do.

Inadequate Provision on Intestacy

117 Section 7 and ss 9(2) of the Family Provision Act require a two-stage enquiry. The first question is whether the provision made out of the estate of the deceased on intestacy for each of the three applicants is inadequate for her proper maintenance, education and advancement in life. (ss9(2)). In Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209 Mason CJ, Deane and McHugh JJ said:

“The determination of the first stage of the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for 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.”

118 If the Court concludes that at the time of the determination the provision made for the applicant out of the estate of the deceased is inadequate for her proper maintenance, education and advancement in life then, and only then, may it determine under s 7 what order ought, having regard to the circumstances at the time the order is made, be made for the maintenance, education or advancement in life of the claimant. The second stage involves similar considerations to the first.

119 In a case such as the present involving a comparatively small estate, and competing claims on it, proper provision for the applicants’ maintenance, education and advancement in life may well be less than what is adequate.

120 Both Christine Soden and Tina Hoobin have great financial need. Each has young children including a child with a disability. They have almost nothing in the way of assets and are dependent on social security payments to support themselves and their children. They barely make ends meet. Their financial needs are such that they could not be adequately met out of the estate. Carole Sarahan’s needs are not so great. She has a house and is meeting mortgage repayments. However she has no savings and has a need for a capital sum which would enable her to buy a replacement car and whitegoods and provide a buffer against the vicissitudes of life.

121 In considering the competing claim of the plaintiff upon the bounty of the deceased, Mrs Bridger submitted that the plaintiff had a paramount claim on the estate as the deceased’s widow and that no provision should be made which would disturb her ownership of the matrimonial home which she and the deceased shared at his death. If that submission is made good, the burden of any order for provision of the three claimants would have to fall entirely on the other two children and would be limited to the amount they will inherit on intestacy.

122 I was referred to the observations made by Powell J in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69-70, and later decisions in particular that of the Court of Appeal in Bladwell v Davis [2004] NSWCA 170. In Luciano v Rosenblum Powell J said that as a broad general rule it was the duty of the testator to his widow, to the extent to which his assets permitted, and absent special circumstances, that she be “secure in her home”. Mrs Bridger submitted that the reference to “her home” in this and other cases dealing with the claims of widows meant that a widow should be secure in the matrimonial home, not merely that she should have secure accommodation in a suitable home.

123 In this case the deceased and the plaintiff lived in the property in Castlecrag Avenue, Banora Point until 1998. It is a three-bedroom home whereas the property in Lochlomond Drive is a four bedroom home. It has established gardens. It is a split-level property. The living areas are on the bottom level and there are five steps to the bedrooms and bathroom. There is no evidence that the plaintiff is unable to manage steps, or suffers from any medical condition which is likely to mean that within any particular time frame she could not manage the steps. I can infer that as she gets older the steps will become more difficult for her to manage. But as Mrs Gilmour submitted, by such a time, wherever the plaintiff is living, she might have to move to a retirement village necessitating the sale of whichever property in which she then lived.

124 The reason the plaintiff gave for preferring the Lochlomond Drive property was that it was the home which she and the deceased bought together. Also the additional bedroom was advantageous when her family came down to visit her. The evidence did not support the claimed need to have an additional bedroom for family visits. Both properties are in the same area. The property at Castlecrag Avenue would provide suitable accommodation for the plaintiff.

125 In Bladwell v Davis [2004] NSWCA 170 the Court of Appeal rejected the notion that there was a general rule that the claims of widows had paramountcy over the claims of children or others. As Bryson JA said at [12] the Court cannot resign the functions which it has under s 7 of the Act in favour of rules of thumb. His Honour said:

“…….there is an inconsistency between an approach, in the context of competing claims, to treating the claims of widows as paramount, and the application to the facts and circumstance of each case of s 7 and the approach established by

. Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982.”

126 Stein JA agreed with these comments whilst also agreeing with the following additional observation of Ipp JA:

“… where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.”

127 The reasons of Bryson JA have particular point in this case where the relationship between the deceased and his widow was not of longstanding. They lived together for about four years and had known each other for about six and a half years. The fact that the plaintiff obviously had a close and loving relationship with the deceased and that she provided comfort and care to him, together with the fact that the deceased intended that she inherit all his property, are important considerations in weighing her competing claim. So also is her own financial position upon which I have already commented. However, I do not think that the plaintiff’s claim has paramountcy over the claims of the deceased’s children such that I should refuse to make what would otherwise be proper provision for the financial needs of the three claimants, because the consequence may be that the plaintiff has to move to the Castlecrag Avenue property. Regrettably, there is little prospect of the three claimants materially improving their financial position in the future. It is quite possible to make provision for the three claimants and still ensure that the plaintiff has secure accommodation in an adequate house which she will own, to provide her with a capital sum which will make up the current deficit between income and expenditure and also provide a further, albeit modest, sum to meet contingencies, being a sum additional to the money she already beneficially holds.

128 In considering the matters referred to in Singer v Berghouse and set out in s 9(3) of the Act, those which are of the most significance are the financial needs of the three children, particularly Christine Soden and Tina Hoobin. I also take into account the relationship of all three children with the deceased not just over the last six years of his life but throughout their lives. There was no evidence of his having provided for them otherwise than in maintaining them in their childhood. For their part they worked without payment during their childhood in the family’s businesses. Their conduct towards the deceased was not such as to disentitle them from being considered as proper objects of his testamentary bounty.

129 In the case of all three, on the basis of the figures and assumptions made by the parties in calculating their entitlement on intestacy, I am satisfied that a provision which they would obtain from the estate on intestacy if the plaintiff exercises her right under s 61D of the Wills, Probate and Administration Act is inadequate for their proper maintenance, education and advancement in life. I shall assess the provision which would be proper for their maintenance, education and advancement in life having regard to the size of the estate and the competing claims on it on the basis of those agreed figures. That determination cannot be reasoned to reach a precise figure. It involves a discretionary judgment which is essentially instinctive, but which has regard to all of the matters to which I have referred.

130 As I have noted in paragraph 79, the parties had previously agreed that it was not necessary for any of them to obtain a grant of administration under s 41A of the Wills, Probate and Administration Act. Presumably they reasoned that orders for provision could be made to take effect immediately after the grant of probate or letters of administration. However there is a difficulty in the way the proceedings have been brought, which does not depend only on the fact that as yet there is no grant of administration. The difficulty is that the plaintiff has not yet made an election under s 61D.

131 No order can be made until a grant of representation is obtained. It is however appropriate that I indicate what orders I will make on the basis that the plaintiff does or does not make her election under that section. It is appropriate to do so because the proposed orders for provision may influence the plaintiff’s decision.

132 If these proceedings had been commenced after a grant of representation had been made and after the plaintiff had made her election under s 61D, no order for provision could have been made which could compel the plaintiff to sell the Lochlomond Drive property unless an order were made designating that property as notional estate. Such an order could be made under s 24 of the Family Provision Act, as the property would then be distributed estate. However before an order could be made designating the Lochlomond Drive property as notional estate the Court would have to be satisfied as to the matters in ss 27 and 28 of the Act.

133 So far as relevant, ss 27 and 28 provide as follows:

27 Designation of property as notional estate – matters to be considered

(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

…..

(e) any other matter which it considers relevant in the circumstances;

28 Designation of property as notional estate – powers and restrictions

(1) On an application in relation to a deceased person for an order for provision in favour of an eligible person, the Court shall not make an order designating property as notional estate of the deceased person unless the deceased person left no estate or unless it is satisfied:

(a) that the estate of the deceased person is insufficient to allow the making of provision that, in its opinion, should be made, or

(b) that, by reason of the existence of other eligible persons or the existence of special circumstances, provision should not be made wholly out of the estate.

(2) On an application in relation to a deceased person, the Court shall not make an order designating as notional estate of a deceased person property in excess of that necessary to allow the making of provision that, in its opinion, should be made;

…..

(5) On an application in relation to a deceased person, being an application:

(a) made pursuant to an order under section 16 allowing the application to be made, or

(b) …..

The Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied:-

(i) the property was the subject of the prescribed transaction or distribution;

(ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only; and

(iii) the property is not vested in interest in any beneficiary under the trust; or

(d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property.

Orders to be made if plaintiff were to exercise her election under s 61D

134 I shall first deal with the provision which I would order if the plaintiff were to exercise her election under s 61D. For the purpose of indicating what order I would make in that event, I shall assume that a grant of letters of administration has been made to the plaintiff and she has exercised her right under that section.

135 In the case of Christine Soden and Tina Hoobin I consider that a further provision from the estate or the notional estate of $50,000 each, whilst still inadequate, is the proper provision which, having regard to the present circumstances, and the competing claims upon the deceased’s bounty, ought to be made for their maintenance and advancement in life. In the case of Carole Sarahan I consider that a further provision of $15,000 from the estate or notional estate of the deceased would be proper provision for her. In reaching those figures I have had regard to the totality of their relationship with the deceased as I have described it, as well as their financial position. I have also had regard to how the burden of the provision should be borne, the claims upon the estate of the deceased’s other two children and their financial position, and also the claim of the plaintiff and her financial position. Those sums will go some way to enabling the applicants to discharge their debts and to pay for some of life’s necessities, such as household appliances and clothing for themselves and their dependent children. Christine Soden will be able to afford a rental bond. The provision may enable each applicant to acquire a needed replacement car, or in the case of Tina Hoobin, a car. Depending on their level of expenditure on such items, there should be a modest capital sum available to Christine Soden and Tina Hoobin to meet life’s contingencies. Carole Sarahan has such capital in the equity in her house.

136 It will be necessary to make an order under s 14 of the Act that the provision not take effect by way of a legacy. The provision has been assessed having regard to the three children’s likely shares on intestacy on the assumption that the plaintiff has exercised her right under s 61D of the Act. Were the provision to take effect as a legacy the calculations would be thrown out. The legacies would reduce the value of the intestate estate by $115,000 and that burden would be borne by the children. Each of the children’s share on intestacy would be reduced from $26,400 to $3,400.

137 I am only able, under s 14, to direct that an order for provision out of the estate of the deceased take effect otherwise than as if the provision had been made in the deceased’s will if I am satisfied that compliance with the order would not adversely affect any creditor of the deceased. I am so satisfied. In this case there is no question of any creditor’s right being affected by the order.

138 If orders for provision in favour of the three children are made, interest should not run on the provision until 30 days after the date orders are made. Thereafter interest should run at the rate prescribed from time to time under Regulation 6(2) of the Wills, Probate and Administration Regulation 2003 as the rate of interest payable on legacies.

139 Section 13 of the Family Provision Act provides that where the Court makes an order for provision out of the estate of a deceased person it may specify the beneficial entitlements in the estate which shall bear the burden of the provision and, in relation to each of those entitlements, the part of the burden which it shall bear. The discretion is a wide one. In an appropriate case weight may be given to what the particular testator or deceased person would have wished. (Re Seery & Testator’s Family Maintenance Act (1969) 90 WN (Pt 1) (NSW) 400 at 408-409; Kleinig v Neal [1981] 1 NSWLR 462 at 464-5; Cantrell v Williams [2004] NSWSC 579 at [7]-[8].) However the discretion should be exercised having regard to “rules of reason and justice” with due regard to the whole of the surrounding circumstances. Where, as here, the Court is not satisfied that the deceased’s likely preference would be informed by those rules, his likely actual preference carries little weight. Postulating a hypothetical wise and just testator does not provide particular guidance as to how the discretion should be exercised. In this case I make the assessment principally, but not solely, by reference to the proper claims on the deceased’s bounty of the plaintiff, Anthony Hoobin and Leanne Pritchard, which in turn includes a consideration of their financial circumstances.

140 Anthony Hoobin is married and has one daughter aged 10 or 11. He did not complete his secondary school education and has no other educational or trade qualifications. Nonetheless he obtained full-time regular employment from 1991 until 2003 with a chain of clothing stores becoming the general manager of the business. In 2003 he lost that employment but in January 2004 obtained employment as a salesman for a BMW Motor Dealer. At the time of hearing he was paid a salary of $30,000 per annum plus a $5,000 car allowance and was entitled to commission upon cars sold. He had not been employed in his position long enough to assess what was the likely amount of monthly or annual income he would receive by way of commission. He believed that the average commission would be about $200 to $250 per car sold. At the time of hearing his wife worked one day a week. He lives in a house which has an estimated value of $350,000 and is subject to a mortgage of about $220,000. He and his wife own two motor vehicles with an estimated value of $70,000, but subject to a debt of the same amount. In addition to the family home, they own land valued at about $185,000 and have $113,000 in savings. He has other debts of $55,000. He intends to build on the block of land and intends that he and his family will move to that property when the house is built.

141 After he left school in 1985 Anthony Hoobin worked for a year in the family’s newsagency business in Melbourne. He moved with his parents and his youngest sister to Banora Point in 1987. He lived with his parents for about eight months at Banora Point and then returned to Melbourne for about twelve months. He then returned to Banora Point and lived with his parents until he was 23, that is, until about 1990 or 1991.

142 He was married in 1993. His father refused to attend his wedding. He played golf with his father from the time he was about 17 but during the 1990s, as his work commitments grew, he was able to play less frequently. Mr Hoobin impressed me as a frank witness. I accept his evidence in preference to that of the plaintiff as to the extent of contact which he had with his father after 1994. It is not necessary to go into the details of that evidence. He stopped playing golf with his father before his father’s heart operation in 1996. He continued to see him on average about eight to ten times a year. He was not guilty of any conduct which should disentitle him from consideration as an object of his father’s testamentary bounty.

143 Leanne Pritchard resides in Melbourne. Her husband is a builder. She has three children aged 27, 16 and 13. The latter two are financially dependant on her and her husband. Her family home is valued at $840,000 and is subject to a mortgage of about $17,000. She and her husband own a holiday house valued at about $280,000. The combined family income for the year ended 30 June 2003 was about $75,000. She and her husband own shares, furniture and motor vehicles, and have superannuation to a combined value of more than $110,000. They owned a boat which they sold in about February 2004. They received about $30,000 or $40,000 on the sale of the boat. It seems that the money was used to reduce their mortgage. She was separated from her father by distance, but within that constraint had continued contact with him. She did not act towards her father in a way which should disentitle her from being a proper object of his testamentary bounty.

144 For reasons which I explain below, I am of the view that the substantial part of the burden of the additional $115,000 provision to be made in favour of the three children should be borne by the plaintiff. It will be recalled that on the assumptions on which I am working she would be entitled to an asset valued at $482,500, or $472,900 if sold, and that Anthony Hoobin and Leanne Pritchard would each inherit $26,400.

145 On the assumption that the plaintiff exercised her election under s 61D, I could not make an order which would have the effect that the plaintiff bore such a burden without designating the Lochlomond Drive property as notional estate. If that election is made, I will make an order designating the Lochlomond Drive property as notional estate. I have considered each of the matters in ss 27(1)(a) and (b) and the value and nature of the Lochlomond Drive property as required by s 27(2)(a). The other relevant matters which I have considered are as set out in these reasons.

146 If the plaintiff exercises her election under s 61D, the estate of the deceased will be insufficient to allow the making of the provision which I think ought to be made in favour of the three children. Further, the situation of Anthony Hoobin and Leanne Pritchard is such that it is not appropriate that the whole of the estate in which they would otherwise share be applied to making provision in favour of the three applicants. Accordingly I am satisfied of the matters in s 28(1).

147 Subsection 28(5) would however preclude the making of an order designating the Lochlomond Drive property as notional estate under an application made pursuant to an order for the extension of time under s 16 unless there are “other special circumstances” which justify the making of an order so designating the property.

148 I am satisfied that there are such special circumstances. For the reasons that I have previously given, the primary responsibility for the delay in the bringing of the applications is attributable to the plaintiff or her legal advisers. It would be unconscionable for the plaintiff to obtain an advantage from that delay and from an election under s 61D, so as effectively to defeat the applicants’ claim for provision.

149 For these reasons, if the plaintiff exercises her election under s 61D, the orders which I will make will include an order designating the Lochlomond Drive property as notional estate.

150 On the sale of the Lochlomond Drive property the plaintiff, on the agreed figures, would receive $472,900. She could purchase the Castlecrag Avenue property from the estate for $330,000 plus the costs of purchase. The costs of purchase, including stamp duty, should not exceed $13,000. Were she to purchase the Castlecrag Avenue property for that amount, or were she to buy an equivalent property in the area, she would have a property which was suitable for her needs plus a sum of about $130,000. If an order were made that her costs be paid on an indemnity basis from the estate, she would recoup the sum of $21,034 which she has already paid as part of the costs of these proceedings. As noted in paragraph 91, she has financial resources of her own in the order of $114,000.

151 The average life expectancy of a female of the plaintiff’s age is fourteen to fifteen years. On the 3% tables a capital sum of $25,000 will yield $40 per week after tax for that period. Such a sum would move the plaintiff to a position where her income exceeded her everyday expenses.

152 I regard the competing claims of the deceased’s children as sufficiently strong as to displace the plaintiff’s claim on the estate beyond an amount of $375,000 plus the benefit of an order for indemnity costs in relation to the proceedings. Such a provision would be sufficient for her to acquire a suitable house at a purchase cost of $343,000, together with a capital sum of $25,000 to address the deficiency between her income and expenditure, whilst supplementing her existing resources by a further $28,000.

153 As on the exercise of her rights under s 61D she would receive property she could sell for $472,900, I am of the view that if the plaintiff makes her election under s 61D, the burden of the provision for the three children should be borne as to $97,900 by the plaintiff and that the Lochlomond Drive property should be designated as notional estate to the extent necessary to enable that amount of provision to be paid. That would leave the plaintiff with $375,000 from the estate plus the benefit of the indemnity costs order.

154 That leaves an amount of $17,100 required to meet the balance of the provision to be made for the three applicants. The burden of that provision should be borne by Leanne Pritchard. As between her and Anthony Hoobin, she is in the better financial position to bear the burden. The effect would be to reduce her share of the intestate estate from $26,400 to $9,300.

155 In assessing how the burden of the provision should be borne as between the plaintiff, Anthony Hoobin and Leanne Pritchard, I have also taken into account that after her husband’s death the plaintiff assumed the role of executor de son tort in dealing with the property of the estate.

156 Prior to the deceased’s death the property at Castlecrag Avenue had been let at a rent of $50 per week, well below the market rent. I understood the reason for this was to ensure that her husband did not earn income from the property which might interfere with their pension entitlements. The plaintiff took over the management of the rental property after his death. For two years she continued to allow the tenant to pay only $50 per week. During that period the property fell into disrepair such that about $7,000 had to be spent from the estate funds to put it into a proper condition. Since October 2002 it has been let at a market rent of $230 per week. Had she taken steps to ensure that the property was let at an appropriate rent to a suitable tenant, the estate would have been better off by up to $25,000.

157 Having taken that matter into account as a relevant factor in determining what provision should be made and how the provision should be borne, it would be inappropriate for any of the deceased’s children to commence proceedings against the plaintiff to recoup any of the rent foregone by the estate or costs incurred by the estate in connection with the property at Castlecrag Avenue. It will be a condition of the order for provision in favour of the three children that they not commence any such proceeding. I shall invite Anthony Hoobin and Leanne Pritchard to give an undertaking that they will not institute any such proceeding. In the absence of such an undertaking I will have to reconsider my assessment as to how the burden of the provision should be borne so as not to expose the plaintiff to double jeopardy in this respect.

Orders to be made if Plaintiff were not to exercise her election under s 61D

158 As noted in paragraph 11 the defendants did not maintain a claim for provision under the Family Provision Act if there were an intestacy and if the plaintiff did not exercise her election under s 61D. Thus if the plaintiff decides not to make that election, I will make no order for provision in favour of any of the defendants. There may well be arrangements of which I am unaware between the defendants as to how as between themselves they will divide their shares of the estate on an intestacy.

159 However if the plaintiff does not exercise her election under s 61D, she propounds her claim for provision unde the Act. There was no objection to an extension of time under s 16 of the Act for her claim.

160 As set out in paragraph 19 above, on an intestacy and assuming that all of the estates assets are sold, and assuming that all of the costs are paid from the estate, on the agreed figures the plaintiff would receive a distribution of $395,950. This is $20,000 more than she would receive if I were to make orders for provision in favour of the three children on their application.

161 For the reasons previously given, I do not consider that such a provision is inadequate for the proper maintenance, education and advancement in life of the plaintiff having regard to the competing claims on the estate. I would therefore dismiss the plaintiff’s claim for provision.

Conclusion

162 It may be that as a result of these reasons, the plaintiff will not make an election under s 61D. Pursuant to Schedule D of the Wills, Probate and Administration Act she has twelve months after the grant of letters of administration to make that election. However, the resolution of the estate should not wait that long. I will stand over the proceedings until after the grant of letters of administration to the plaintiff. I direct the plaintiff to re-list the proceedings before me within 28 days after the grant has been made. On that occasion, if the plaintiff undertakes to the Court that she will not make an election under s 61D, I will make orders dismissing all claims under the Family Provision Act. If the plaintiff at that time has already made her election under s 61D, I will make orders for provision and for the designation of the Lochlomond Drive property as notional estate and other ancillary matters as set out in these reasons. If the plaintiff does not give the undertaking and has not made the election, I will make orders for provision on the basis that she will make that election. In those circumstances it will not be necessary to make orders designating property as notional estate, but it will be necessary to make orders in accordance with these reasons as to how the burden of the provision should be borne. Depending on what course the plaintiff takes counsel should bring in their proposed short minutes of order in accordance with these reasons.

163 Finally, it is necessary to say something further about costs.

164 The paramount consideration is that future costs be minimised so far as possible. The parties have presented figures on an agreed basis and I have had no other basis on which to calculate a proper provision. The costs assessments have not discriminated between the Probate and Family Provision Act proceedings. The first matter of concern is whether all of the plaintiff’s estimated costs relate to the three proceedings. I do not think that the defendants should bear either directly or indirectly any of the plaintiff’s costs in relation to the misguided application for a grant of probate in common form, or the proceedings which arose from it (other than the three current proceedings), or that the costs order already made be disturbed. On any assessment of the plaintiff’s costs of the Probate proceedings, only the costs of and reasonably incidental to those proceedings (which will include the costs of obtaining the statements annexed to the plaintiff’s affidavit of 17 May 2001), and costs necessary for the obtaining a grant of letters of administration, should be included.

165 Because it was common ground between the parties that the costs of all parties of the three proceedings on a trustee basis should be paid from the estate, and because the intricate calculations of shares on intestacy under s 61B and on the plaintiff making an election under s 61D would be disturbed if I proceeded otherwise, with a consequent need for further evidence and submissions and therefore further costs, I am reluctantly prepared to act on that basis, although it involves a departure from the usual practice of the Court. (See Hodges (dec’d), Re Estate of; Shorter v Hodges (1988) 14 NSWLR 698 at 709-710; Re Bardon v Florence; Shekelton v Bardon (Holland J, 15/12/1983 unreported at p 3); Giunti v Cavallaro [2004] NSWCA 62 at [69]; Moore v Moore [2004] NSWSC 587 at [43]-[44]). This course is not to be taken as a precedent for future cases. See Moore v Moore [2004] NSWSC 587 at [43]–[44]. However, the only parties affected are those before the Court. To depart from the common basis on which the parties presented their cases would result in the further diminution of this modest estate in costs or the further incurring of costs from the parties’ own pockets. The costs orders to be made on the disposition of the proceedings under the Family Provision Act should include an order that the parties’ costs of all three proceedings payable out of the estate be capped at the figures referred to in paragraph 13.

166 I therefore order that in the Probate Proceedings No. 114192 of 2002 the application that probate of the will of 29 January 1999 be granted to the plaintiff be dismissed; that there be a grant of letters of administration to the plaintiff and that the proceedings be referred to the Registrar to complete the grant. The costs of both the plaintiff and the defendants of those proceedings are to be paid from the estate on a trustee basis.

167 No orders can be made under the Family Provision Act until there is a grant of letters of administration.

168 I stand over the proceedings No. 2009 of 2002 and No. 1230 of 2003 until a date to be arranged with my associate within 28 days after the completion of the grant of letters of administration. I direct the plaintiff to re-list the proceedings accordingly. At that time I will make orders for the final disposition of those proceedings in accordance with these reasons.

*****

Last Modified: 08/09/2004

CITATION:	Hoobin v Hoobin [2004] NSWSC 705
HEARING DATE(S):	21/06/04, 22/06/04, 23/06/04, 24/06/04, 25/06/04
JUDGMENT DATE:	6 August 2004
JUDGMENT OF:	White J
DECISION:	See paras 165-167.
CATCHWORDS:	Probate - Whether will made in contemplation of marriage. - Family Provision Act - Extension of time for the making of application under s 7 - Inadequate provision on intestacy - Bladwell v Davis applied. - Wills, Probate & Administration - Orders to be made depending on whether plaintiff exercises her election under s 61D - Designation of matrimonial home after s 61D election as notional estate.
LEGISLATION CITED:	Wills, Probate and Administration Act 1898 (NSW) Family Provision Act 1982 (NSW) Evidence Act 1995 (NSW) Supreme Court Rules Pt 78 r 61
CASES CITED:	Marston v Roe de Fox and Halton (1838) 8 Ad & E 14; 112 ER 742 Layer v Burns Philp Trustee Co. Ltd (1986) 6 NSWLR 60 Burton v McGregor [1953] NZLR 487 Public Trustee v Crawley [1973] 1 NZLR 695 Keong v Keong [1973] QdR 516 In the estate of Gray, deceased (1963) 107 SJ 156 re Taylor deceased (1949) VLR 201 re Hamilton deceased [1941] VLR 60 Burton v McGregor [1953] NZLR 487 Smallacombe v Elder's Trustee & Executor Co. Ltd [1963] WAR 3 Dufficy v Mollica [1968] 3 NSWR 751 Conway v Wade [1909] AC 506 NSW Law Reform Commission, Report No. 47 "Community Law Reform Program: Wills - Execution and Revocation" Sallis v Jones [1936] P 43 Leue v Reynolds (1986) 4 NSWLR 590 Warren v McKnight (1996) 40 NSWLR 390 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Luciano v Rosenblum [1985] 2 NSWLR 65 Bladwell v Davis [2004] NSWCA 170 Re Seery & Testator's Family Maintenance Act (1969) 90 WN (Pt 1) (NSW) 400 Kleinig v Neal [1981] 1 NSWLR 462 Cantrell v Williams [2004] NSWSC 579 Hodges (dec'd), Re Estate of; Shorter v Hodges (1988) 14 NSWLR 698 Re Bardon v Florence; Shekelton v Bardon (15/12/1983 SCNSW unreported) Giunti v Cavallaro [2004] NSWCA 62 Moore v Moore [2004] NSWSC 587
PARTIES :	Margaret Rae Hoobin v Tina Louise Hoobin & 4 Ors Tina Louise Hoobin & 4 Ors v Margaret Rae Hoobin Margaret Rae Hoobin v Tina Louise Hoobin & 4 Ors
FILE NUMBER(S):	SC 114192/02; 1230/03; 2009/02
COUNSEL:	Plaintiff: Mrs M Bridger Defendant: Mrs M Gilmour
SOLICITORS:	Plaintiff: O'Neill's Solicitors Defendants: Budd & Piper

Gross value of estate:	$860,796
Less costs of sale and taxes on sale of 48 Castlecrag Avenue	$56,000
Less costs of both parties on indemnity basis	$190,297
$614,499
Plaintiff’s share pursuant to s 61D election	$482,500
Defendants’ share on intestacy	$131,999 / 5
Per child	$26,400

Gross value of estate:	$860,796
Less costs of sale of Lochlomond Drive	$9,600
Less costs	$190,297
$660,899

Plaintiff’s share on intestacy	$423,950
Defendants’ share on intestacy	$236,949 / 5
Per child	$47,390