Iles v Iles - [2010] WASC 381

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ILES -v- ILES [2010] WASC 381

CORAM: JENKINS J

HEARD: 30 & 31 AUGUST 2010

DELIVERED : 14 DECEMBER 2010

FILE NO/S: CIV 1404 of 2009

BETWEEN: ALLAN GERALD ILES
First Plaintiff
ALLANA JAYNE LOCKWOOD
Second Plaintiff
PAULA RENEE LIMACHER
Third Plaintiff
AND
COLIN ARTHUR ILES as Administrator of Estate of Hilda Dorothy Iles
First Defendant
COLIN ARTHUR ILES
Second Defendant

Catchwords:

Family provision and maintenance - Jurisdiction to grant relief - Adult son of the testator - Adult daughter of the deceased daughter of the testator - Whether testator made sufficient provision for the applicants - Principles upon which relief granted

Legislation:

Inheritance (Family and Dependant's Provision) Act 1972 (WA), s 6

Result:

Provision out of the estate of Hilda Dorothy Iles is made for Allan Gerald Iles in the sum of $120,000, and for Allana Jayne Lockwood in the sum of $60,000 in substitution for the provision made for the plaintiffs in the will dated 15 January 2002.

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr L A Tsaknis
Second Plaintiff            :     Mr F Sammut
Third Plaintiff              :     No appearance
First Defendant            :     Mr M A Tedeschi
Second Defendant        :     Mr M A Tedeschi

Solicitors:

First Plaintiff                :     Gibson Tovey & Associates
Second Plaintiff            :     F Sammut & Co
Third Plaintiff              :     No appearance
First Defendant            :     Slee Anderson & Pidgeon
Second Defendant        :     Slee Anderson & Pidgeon

Case(s) referred to in judgment(s):

Milne v Kendall [2010] WASC 338

JENKINS J: Allan Gerald Iles, the first plaintiff, is the adult son of Hilda Dorothy Iles who died on 1 September 2007. Allana Jayne Lockwood, the second plaintiff, is the adult grand‑daughter of Mrs Iles. Allana's mother, Pauline Marjorie Lockwood, was the daughter of Mrs Iles and predeceased her. Allan and Allana seek orders that adequate provision be made for them out of Mrs Iles' estate.
Colin Arthur Iles, the second defendant, is the other surviving child of Mrs Iles and he is also the administrator of her estate. He defends this action on the basis that Mrs Iles made adequate provision for the plaintiffs in her last will made on 15 January 2002 (the will).
As the first plaintiff and the second defendant share the same last name, for the sake of clarity, I will refer to each of the parties by their first names. It is also necessary for me to refer to Allan and Colin's father, Gerald Arthur Iles. To distinguish him from Allan and Colin I will refer to him as Mr Iles. I will refer to Allana's mother as Mrs Lockwood.

General family history

Mr and Mrs Iles married in 1954. They had three children, Colin, Mrs Lockwood and Allan. Colin was born in 1958, Mrs Lockwood was born in 1955 and Allan was born in 1967.
Mrs Lockwood and her husband, Brian Lockwood, had two daughters, Allana and the third plaintiff, Paula Renee Limacher. Allana was born in 1984. Paula took no part in the hearing of this matter. Prior to trial, she settled her claim against the estate.
When Allan, Colin and Mrs Lockwood were children they lived with Mr and Mrs Iles on their farm property in Forest Grove, near Witchcliffe. Mr and Mrs Iles also conditionally purchased an adjoining block of land of approximately 209 acres from Landcorp. The conditional purchase required Mr and Mrs Iles to clear the land of timber, seed the pasture and fence it on an annual basis. In approximately 1984, Mr and Mrs Iles, finding it difficult to keep up with their obligations for the conditional purchase of the land, arranged with Colin and Allan that they could each have an area of the land, provided that they cleared and fenced it. The land was not subsequently transferred to either Colin or Allan. This led to a falling out and litigation between Colin and Mr Iles.
Mr and Mrs Iles divorced in 1995. Mrs Iles built a house on a residential block which she owned in Witchcliffe. She lived there until 2002. The home is the main asset in her estate.
In about 1999, Mrs Iles was diagnosed with diabetes. In 2002, she had an operation to amputate one of her legs. After this she was admitted to a nursing home in Busselton. She remained living there until her death in 2007. The home at Witchcliffe has not been occupied since Mrs Iles was admitted to the nursing home in 2002.

The will

In the will Mrs Iles made a specific gift of $50,000 to Allan and $10,000 each to Mrs Lockwood, Paula, Allana and her (Mrs Iles') sister, Kathleen. She also made a specific gift to Allan of a pine chest of drawers and a jarrah burl table. She left the residue and bulk of her estate to Colin. As Mrs Lockwood predeceased Mrs Iles, Paula and Allana each received $5,000 of Mrs Lockwood's bequest.

The estate of Mrs Iles

On 22 August 2008, in support of an application for the grant of letters of administration, Colin swore an affidavit which included a statement of Mrs Iles' estate's assets and liabilities as at the date of her death. It asserted that the net value of the estate was $960,471.45 made up of the value of the home estimated to be $720,000 and moveable property valued at $247,210.20, less sundry debts.
This statement included an estimated $10,000 for Mrs Iles' piano. There was a dispute over the ownership of the piano and it has subsequently been deducted from the assets of the estate.
Since that time a sworn valuation has been obtained in respect of the home which states that as at 22 October 2008, the market value of the home was $370,000.
On 23 June 2010 Colin deposed that the current assets and liabilities of Mrs Iles' estate were comprised of a bank term deposit valued at $60,055.76, interest, furniture and personal effects valued at $6,000 and the home valued at $375,000, less sundry debts of $876.35. Thus, the net value of the estate was $440,179.41. I understand that all the specific gifts in the will had been distributed. In addition, Paula has received an additional $15,000. It appears that Colin's legal fees have also been paid out of the estate and the above value of the estate is net of those fees.

The law

The legal principles relevant to an application of this type made under the Inheritance (Family and Dependants Provision) Act 1972 (WA) s 6 are well‑known. I have recently re‑stated them in Milne v Kendall [2010] WASC 338 [8] ‑ [20]. I will not repeat these principles but I incorporate them, by reference, into these reasons.

Allan Gerald Iles

At the date of Mrs Iles' death, Allan was 40 years of age. He was then in a de facto relationship with a woman with two teenage children. He also had a daughter born in February 2006 as a result of a brief relationship with another woman, when his then de facto partner and he were temporarily separated. He paid child support of $3,500 per annum ($270 per month) for his daughter, who did not reside with him.
At the date of Mrs Iles' death, Allan lived and worked in Carnarvon. He and his de facto lived in rented accommodation. They did not own any real estate. Allan worked for a Carnarvon supermarket. This was a full‑time position but it was night work. His annual salary was approximately $37,000 gross. His partner also worked full‑time with an annual salary of a similar quantum. She had two motor cars valued at approximately $13,500. They had household furniture to the value of $2,500. Allan had approximately $3,500 in superannuation. They had no other assets. Allan had an outstanding credit card debt of approximately $3,000 which required monthly repayments of approximately $300. His partner had a credit card debt, a personal loan and car and household goods loans valued at $44,100. Allan said that his weekly expenses were $2,018.66. This was not an expenditure that could be met from their combined incomes. Allan said that they could not afford private health insurance or comprehensive car insurance for one of his partner's vehicles. He said that they had to make arrangements with their creditors to pay off their debts over time.
As at the date of the hearing of this matter, Allan and his partner had separated, apparently permanently. He was living in a house owned by his employer but was shortly going to have to leave that accommodation and find alternative rental accommodation in Carnarvon. His weekly net wage was $604.45. From this, his employer deducted $250 for rent, a credit provider deducted a $100 loan repayment and a further deduction of $74.70 was made for child support. This left approximately $180 per week for other expenses. Allan estimated his other fixed expenses to be $60 for telephone, $25 for his credit card repayment and $15 for the internet. He said he spent the remainder of his income on food, transport, clothes and entertainment. He said that he did not have any savings and lived day to day. It is not clear to me why his telephone bill is $60 per week, which appears to be a lot of money for a single man living in a small town. He estimated that he had furniture and personal items valued at $700. He said that he did not have any other assets. He currently has $14,487.97 in superannuation.
Allan left school at the end of year 10 in 1981. He worked with his father for nine years in his fencing business. During that time he lived at home with his parents. He also worked the land which was provided to him in about 1984. He ran stock on that land and retained the moneys from the sale of the stock.
In approximately 1990, Allan left his home and father's employ and went to live and work on a dairy farm in Busselton as a farm/dairy hand. He visited his parents at weekends and on holidays. After approximately 14 months he left the dairy farm and went to work as a tree planter for another firm. This involved him working all over the south‑west of Western Australia until August 1992. After living at home for about a month, he moved to Carnarvon and obtained work on a sheep station where he worked for approximately five years as a station/leading hand. After that he moved into the Carnarvon Township where he worked on plantations and at packing sheds. In approximately 2000, Allan moved back to the station where he worked as a leading hand for another two years. Since then he has lived in the Carnarvon Township and has worked for his current employer since 2004.
Mr Iles is still alive and lives on a farm property in Forest Grove. He was called to give evidence on behalf of Colin. He is aged approximately 78 years and has not remarried. As at early 2009, he was still running his fencing business. Mr Iles does not have a will. He said that he had not given any thought to what he might do in regard to the disposition of his estate. He said he had to see what finances he 'had left'. He acknowledged that he owns a property which has been for sale for a number of years at $1.3 million. It has not sold.
Allan and Mr Iles acknowledge that they have a fairly close relationship. Mr Iles said that he had recently funded a six‑day fishing trip to the Monte Bello Islands for himself and Allan. The trip cost approximately $4,600. Mr Iles testified that in about 1996 he gave Colin approximately $100,000. At the same time he gave Allan a Nissan Patrol vehicle worth about $40,000.
Allan appears to have had a normal mother‑son relationship with Mrs Iles whilst he was growing up. Even after Allan moved to the north of the State, they maintained some contact by telephone and if Allan was in the south‑west he would visit his mother in Witchcliffe and his father on the farm.
In 2002, Allan took time off from mustering to visit Mrs Iles in Royal Perth Hospital. He says that Mrs Iles did not give him a warm welcome which both 'surprised and upset' him. He says that he did not know why that was. He says that he spent about an hour with her but then had to leave as her doctors wanted to carry out more tests. This was the last time he saw Mrs Iles.
Allan says that he asked Mrs Lockwood where his mother had moved to after she left hospital. He says that Mrs Lockwood told him that Colin had told her that Mrs Iles did not want any contact with Allan or the Lockwood family. Allan claims to have no idea why his mother would have said that. He said that he made enquiries of Mr Iles as to where his mother had gone and he was told that Mr Iles had heard that she was in a nursing home but did not know which one. Allan says he did not have a contact number for Colin and so he did not know who else to ask to locate his mother.
Allan says that he found out that his mother had died when Paula telephoned him whilst he was at work the night before his mother's funeral and told him that she had seen Mrs Iles' death notice in a newspaper. Allan says that because his shift did not end until midnight, he could not attend his mother's funeral, even if he could have got time off at such short notice.
Allan was not an impressive witness. He dissembled and avoided directly answering questions, the answers to which may have put him in a unfavourable light. An example of this approach was his refusal to directly answer questions relating to his ability to contact his mother when he was living in Carnarvon. He repeatedly answered questions by saying he did not have access to telephone books. Not only did these answers disclose that he was unwilling to directly answer the questions, but the answers themselves were not credible. It is clear that had Allan wished to contact his mother during the relevant period he could have done so. His explanation for not contacting her, being that relatives had told him that she did not wish to speak to him and on the last occasion he had seen her in hospital she had appeared non‑communicative, were not convincing reasons for his complete failure to attempt to contact his mother for approximately five years before her death.
Another factor which impacts on his credibility is his failure to disclose prior to cross‑examination how he had spent the $50,000 bequest he received from Mrs Iles' estate. When he was cross‑examined on this issue, he said that he had used some of it to purchase a motorbike and he said he still had the bike. Later, when pressed as to why, in his most recent affidavit, he had not disclosed the bike as an asset, he claimed to have given the bike to his former de facto partner's son. There was a clear inconsistency in his evidence which was not explained. It can only be explained, in my view, by his reluctance to testify about matters which were not favourable to him.
This is not to say that I reject all of Allan's evidence. I accept that he is a person of very limited means, both financial and intellectual. He earns a modest income from his exertions as an employee of a supermarket in Carnarvon. He has no assets of significant value and a number of debts. He has never sought, by careful management, to accumulate wealth. It is doubtful that he has the personal, as in non‑financial, resources to do so. I gained the impression that he is somebody who lives day to day. He tries to live within his means and he does not have an extravagant lifestyle.

Allana Jayne Lockwood

At the date of Mrs Iles' death, Allana was nearly 23 years of age. A few weeks after Mrs Iles' death, Allana gave birth to her daughter. At that stage she was in a de facto relationship which had commenced in early 2005. However, it ended in February 2008.
Allana completed her schooling at the end of year 12 in 2001. In 2003 she commenced a traineeship as a childcare worker in a childcare centre. She had to leave that employment at the end of July 2004 because the centre was sold by its then owners. She found employment delivering flowers for a florist and subsequently worked full‑time as a parcel courier for Australia Post for a period of approximately nine months in 2004/2005. After that she returned to work for a short period of time for the florist but for the most part she was unemployed until November 2006. She then obtained work for a courier company until May 2007 when she found that she was pregnant. She returned to work for the florist until August 2007. Shortly, afterwards she had her baby. In May 2008, she recommenced work as a casual/relief worker at a childcare centre. She was made permanent and full‑time in July 2008. She terminated her employment in January 2010. This was as a result of a dispute between Allana and her then employers over time she was required to take off work because of her daughter's illness.
When Allana left work to have her baby, she was earning approximately $500 net per week. At that time she was living with the father of her child and he was working as a warehouse supervisor. He earned approximately $700 net per week. He paid the rent of about $240 per week but otherwise Allana supported herself and, after her birth, her daughter.
Allana is now in receipt of Centrelink benefits. She receives $490.89 per week, inclusive of rent assistance of $51.56 per week. She is still entitled to receive maintenance from her daughter's father in the sum of $340 per month. However, as at the date of trial, she had received only $1,281 for the whole of the year to date.
Allana does occasional relief work at a childcare centre. She earns $50 ‑ $60 per week but this does not affect her Centrelink entitlements as the pay is low and the work is sporadic.
After the birth of her daughter, Allana received a baby bonus from the Commonwealth government of $4,000. She expended this on items such as a pram and car seat for the baby. On 30 June 2009, she received the bequest of $15,000 from Mrs Iles' estate. She spent all of that money on motor vehicle repairs, the repayment of loans from various family members, the repayment of other outstanding debts and childcare needs. She has no savings and just manages to get by on her current income. She has little, if any, money available to her for discretionary spending. This situation is unlikely to change whilst she is the primary care‑giver of a young child.
Allana gave evidence that when she was working full‑time in childcare, after the birth of her daughter, she was receiving something in the order of $688.00 per week. It is her intention to try and get a job which would enable her to receive the same sort of income. She would then have expenses which she does not have at the moment, such as childcare and extra petrol costs.
Allana never had a close relationship with Mrs Iles. When she was a young child at primary school she and her family visited Mrs Iles regularly but Allana formed the view that Mrs Iles was prone to idiosyncratic behaviour. She also noted that her grandmother was not warm towards her grandchildren and appeared distant with everybody except Colin. When Allana went to high school she would occasionally telephone Mrs Iles and ask if she could go and see her or stay the night with her. She says that she formed the view that Mrs Iles would make up excuses for her not to go and see her. In her high school years, Allana did not see Mrs Iles apart from a very occasional weekend visit and on one occasion for one week during the school holidays. After Allana finished school she attempted to keep up contact with her grandmother. When Allana visited her grandmother in hospital after she had her leg amputated, she (Allana) offered to live with her grandmother. Mrs Iles refused her offer. Allana says that every time she telephoned the nursing home to speak to Mrs Iles, she was told by the staff that she was unavailable or indisposed. Allana says that she formed the opinion that Mrs Iles was refusing to take her calls. She says that she also attempted to visit Mrs Iles at the nursing home on a few occasions but was unable to see her. She says that on one occasion when she was approximately 19 years of age she visited Mrs Iles at the nursing home with her father. She says she tried to keep up a normal conversation with Mrs Iles but it was obvious that Mrs Iles was not interested in her and she continually changed the subject by talking about Colin. She had not seen Mrs Iles for about five years before she died. She says that this was not from want of trying and that she rang the nursing home regularly but the phone would just ring out. Allana's daughter was due the weekend of Mrs Iles' funeral and so she did not attend her funeral.

Allana would like to and intends to complete her qualifications as a childcare worker. This would involve the completion of a TAFE course which is likely to cost in the order of $3,000 ‑ $4,000. The course takes six months and she would have to put her daughter into full‑time care which, without government assistance would cost approximately $550 per week.
She currently drives a 1992 model motor vehicle which needs work done on it. She cannot afford to upgrade it to a newer more reliable model which she says would cost her in the order of $10,000.
Allana would also like to try to obtain more permanent accommodation for herself and her daughter. She says that a suitable unit could be acquired for between $300,000 ‑ $400,000 but that given her low income, she would need a deposit equal to 20% ‑ 30% of the purchase price in order to be able to acquire a home of her own. She believes that if she had full‑time employment as a childcare worker, she would be able to meet the repayments on a mortgage.
At present, her financial circumstances are such that she sometimes has to borrow money from her relatives to pay for food or for petrol.
Colin denies that Mrs Iles was distant from her grandchildren, including Allana. He says that she loved children. He says that if Allana had shown any interest in Mrs Iles, then Mrs Iles would have reciprocated.
It is difficult for me to assess whose opinion is correct as I did not know Mrs Iles. However, I did not gain the impression that Allana was lying about these matters. It is possible that for an unknown reason or reasons Allana misunderstood Mrs Iles and misinterpreted her attitude towards her or visa versa. There were clearly conflicts between other members of the family at a time when Allana was young and impressionable. It would not surprise me if Allana and Mrs Iles' relationship was tainted because of things which had nothing to do with Allana.
Allana gave evidence in an acceptable manner. She appeared to be a reasonable, straightforward and honest person. Allana was in her late teenage years when she lost contact with Mrs Iles, apparently through no fault of her own. She tried to maintain contact with her grandmother, but these attempts were unsuccessful.
Allana has very few assets and only just manages to get by on a day to day basis. Even with careful financial management, she has to sometimes call on the generosity of her family to make ends meet. She wishes to advance in life by obtaining a childcare certificate but she does not currently have the means to do so.

Colin Arthur Iles

At the time of Mrs Iles' death, Colin was 49 years of age. He was self‑employed as a farm contractor. He was unmarried and without any dependants. He lived alone in a caravan. He did not own any real estate.
By the date of trial his circumstances had changed little.
Colin was living on his parents' farm when he took up his father's offer to work the land which was the subject of the conditional purchase. Around 1999 Colin and his father had a falling out which resulted in Colin suing Mr Iles to obtain moneys which Colin said were owed to him by his father in respect of work done by him on his farm over a long period of time. At around the same time Mr Iles evicted Colin from his property. The two men have not spoken since that time. In September 2002, Colin settled his action against his father for the sum of $49,816.81.
Even before that, during the unhappy divorce proceedings between Mr and Mrs Iles, Colin supported Mrs Iles rather than his father. It was in the context of those proceedings that Mr Iles gave Colin $100,000 and Allan received the motor vehicle.
In 1999, Colin commenced living in a caravan at Karridale. He also commenced his own business as a farming contractor. His business is involved in fencing and earthmoving. He owns a truck and a bulldozer for use in the business.
In June 2006, Colin had a very serious work accident in which his left arm was nearly severed. He was unable to work for seven months after the accident. Surgeons were able to save his arm, although it is still possible that he will have to have it amputated at some point in the future. I accept that the injury has resulted in permanent substantial loss of use of his left arm. He suffers continual pain from the injury. Much to Colin's credit, he resumed his work and apparently continues to be able to work full‑time in his business despite his incapacity.
In 2006, Mrs Iles gave Colin $16,000 to purchase a quick hitch for his bulldozer which assists him in his work to hold things that he is now unable to hold with his left arm. He says that Mrs Iles was very concerned about his future and she wished him to have her house.
After Colin left home in 1999, he continued to see his mother. It was he who took her to hospital in 2002 when she had to have her leg amputated. He would visit Mrs Iles up to twice a week and speak to her by telephone every second or third night. This continued up until her death.
Colin says that his income for the financial year ending 30 June 2007 was $9,569 and for the financial year ending 30 June 2008 it was $6,996. He has produced financial statements and tax returns for those years. He says that in 2009 he purchased another truck for use in his business as his then truck was no longer driveable. He purchased a second‑hand Nissan Diesel CW350 for $104,000. He borrowed the full purchase price and makes repayments of about $1,577 per month. He is able to meet those repayments from his gross income.
Colin gave evidence in a straightforward manner, but there are aspects of his evidence which caused me to conclude that he has not been entirely honest about his financial position. Further, there are aspects of his past behaviour which show an obstinacy that does him no credit. For example, in relation to his obstinacy, he has not leased or maintained (other than doing basic gardening) Mrs Iles' home since her death because he says that she did not want anyone else living in her house. That may be so, but that attitude denies the reality of his obligations as administrator of the estate given that this litigation has meant that there has been a delay in finalising the distribution of it. Further, he took legal proceedings against his father to obtain what he said were his rights. It is an unusually stubborn person who would take such a step, knowing that it was likely to result in the further breakdown of his relationship with his father.
I have also concluded that Colin has not been entirely honest in his statements made in affidavits concerning his income. I am satisfied from his evidence when he was cross‑examined and a closer examination of the accounts of his business that he has drawn money from the business, presumably to fund his own lifestyle, well above the declared profit of the business. He has also claimed as expenses of the business, contract fees. He could not explain what these were and told Allan's counsel that he would have to speak to his accountant about that claim. Even accepting that Colin is not a sophisticated or educated man, he runs his business single‑handedly and I would have expected him to have some explanation for the large sums claimed in contracting fees if they had been entirely genuine. His inability to give any kind of an explanation as to what these fees were and also why they fluctuated substantially between years leads me to believe that Colin receives greater income from the business than he has acknowledged. It also leads me to believe that the business is worth more than the value Colin ascribes to it.
Having said that, I accept that Colin now has a major disability, being the permanent injury to his left arm. His ability to earn an income is limited to what he can earn from his own personal physical exertions. The disability to his left arm compromises his ability to earn such an income and places a question mark over his ability to do so in the long term. To his credit, he is managing to run his business with his current disability and there does not seem to be any reason why he should not continue to do so into the foreseeable future. Colin lives a very simple life and does not seem to desire the modern day conveniences and consumer goods favoured by many people.

The jurisdictional issue

At the date of Mrs Iles' death, Allan had a secure but relatively low paying job. He had responsibilities in respect of a de facto partner and her children. He was not meeting his day to day living expenses. He had no assets of note. His prospects were that that situation would continue into the foreseeable future.
At the date of Mrs Iles' death, Allan did not have a relationship with his mother and had not had one for a considerable period of time. Neither he nor his mother had made any significant attempts to rectify that situation.
Mrs Iles left Allan $50,000 in her will. It is difficult to know exactly what proportion of her estate this sum represented as the house was not valued at that time. Assuming that it was worth about $370,000 and that the other assets were valued at approximately $240,000 as per the statement of assets and liabilities which accompanied Colin's application for the grant of letters of administration, the total value of the estate was about $610,000. Thus, it represented only about 8% of Mrs Iles' estate.
Allan has a relationship with his father and it is possible that if his father makes a will he will choose to leave the bulk of his estate to Allan. If that occurred, after Mrs Iles died, Colin could choose to make an application under the Act. However, if his father dies intestate Allan and Colin will share the estate. Either scenario is possible. Thus, it is not possible for me to ascribe any particular value to Allan of his father's estate.
Even accepting that Mrs Iles wished to and has a right to leave the bulk of her estate to Colin who had substantial needs given his injury to his left arm, Allan's financial position was such that the will left Allan without adequate provision for his proper maintenance, support and education.
As at the date of Mrs Iles' death, Allana was a young woman in a de facto relationship with a partner who was not providing adequate support for her and her soon to be born child. Given her responsibilities in respect of her daughter, she was unable to support herself in anything other than a subsistence manner. Unless she is able to gain further qualifications, that will be her position into the future.
Allana received $15,000 from Mrs Iles' estate. History has shown that this sum was insufficient to make adequate provision for Allana's proper education or advancement in life.
I find that both Allan and Allana have met the jurisdictional test.

The discretionary judgment

I am next required to determine what is the fitting provision out of the estate for each of the plaintiffs.
Colin has a significantly greater claim on the estate of Mrs Iles than either of the plaintiffs because of the close relationship between he and Mrs Iles and because she wanted him to have the bulk of her estate.
Allan's counsel's submission was to the effect that as neither of the plaintiffs nor Colin had a moral claim to Mrs Iles' estate because none of them had a special relationship with her or had contributed to the accumulation of her assets, they all stood in the same position and should share somewhat equally in the distribution of the estate. In my opinion, this submission misconstrues the law. The question for me is whether the will is not such as to make adequate provision from the estate for the proper maintenance and support of each of the plaintiffs. If it does not, the next question is what would be adequate provision. There is no rule of law or practice that absent special factors, applicants under the Act and other beneficiaries who are children or grandchildren of a deceased person should share equally in his or her estate. Whilst a special relationship with the testator or unrewarded effort to build up the testator's estate may be a determining factor in making the discretionary decision, the absence of such factors in the circumstances of the applicants or a beneficiary under the will does not mean that the applicants and the beneficiary should be considered equal, if they otherwise qualify under the Act as being children or grandchildren of the testator.
In this case, Mrs Iles had a duty towards Allan given his relationship to her as her son and given that he struggles to meet his needs for maintenance and support. However, that duty was not such that her testamentary freedom to exercise her testamentary capacity in favour of her other son, Colin, should be entirely negated.
Allan's needs as a single man with a full‑time job are relatively modest. He does have responsibilities as a father towards his young daughter and these will continue for some considerable time. He was left $50,000 by Mrs Iles and he has failed to account for what he has done with all this money and why he permitted his former de facto's son to keep a bike which he apparently purchased with some of the inheritance. Whilst it is entirely a matter for him what he does with his money, his failure to show that he used all that money for his proper maintenance, support or advancement indicates to me that it would be wrong for me to make any substantial further allowance to him out of the estate of Mrs Iles. I consider that I should make a further provision for Allan of $70,000, making a total gift to him from the estate of $120,000.
I am aware that this sum represents a considerably lower proportion of Mrs Iles' estate than will be left to Colin. However, my assessment takes into account the fact that he is an able‑bodied and apparently healthy man with a full‑time job and with only one partial dependant. He has not shown throughout his life that he has any great need or want for material assets. He had no relationship with his mother and had not made any significant attempts to have one. He has already received $50,000 from his mother's estate and he has not proven that he has put all this money to any particular good use for his maintenance, support or advancement.
Allana is a single woman who has the primary care‑giving role for her very young daughter. She receives little and unreliable financial support from the father of her daughter. She has shown that she has put to good use for her maintenance, support and advancement in life the $15,000 which she has already received from Mrs Iles' estate. In order for her to advance in life she needs to obtain, at the very least, her childcare qualification. In my view, it is appropriate that she receive from Mrs Iles' estate a further sum of money which will enable her to obtain her childcare worker qualification and to pay for her daughter's care whilst she does so. Further, it would be for her maintenance, support and advancement to provide funds from the estate to enable her to obtain a more reliable vehicle. I do not accept that the size of the estate is sufficient to enable me to provide her with sufficient funds for a deposit on a home, particularly given the competing claims of Colin and Allan. However, I will make an additional allowance to her in the knowledge that it is required for and that she will use it for her maintenance, support and advancement in life. An appropriate and adequate provision for Allana is a further $45,000, making a total of $60,000 which she will obtain from the estate.
In making these allowances, I have assumed that the usual costs order will be made. That is, that the plaintiffs' taxed costs will be paid out of the estate, as will Colin's taxed costs as the second defendant. Colin's costs as the administrator of the estate will also be paid out of the estate. The parties should bear this in mind when seeking costs orders.