Jee v Jee
[2010] QSC 485
•23 December 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Jee v Jee [2010] QSC 485
PARTIES:
DIANA MARIA JEE
(applicant)
v
THOMAS JEE as the executor of the estate of FOOK NENG JEE deceased
(respondent)FILE NO:
BS4145 of 1999
DIVISION:
Trial Division
PROCEEDING:
Originating application
DELIVERED ON:
23 December 2010
DELIVERED AT:
Brisbane
HEARING DATE:
29 and 30 November 2010
JUDGE:
Mullins J
ORDER:
That further provision be made for the proper maintenance and support of Diana Maria Jee out of the estate of Fook Neng Jee deceased by the transfer to Diana Maria Jee of the real property situated at 8 Woodsiana Street, Robertson, and the payment of a lump sum of $170,000.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – claims by children – where applicant is a daughter of the deceased who was survived by eight children – where applicant resided with and cared for the deceased for 21 years to the deceased’s death in the home owned by the deceased – where applicant left the same benefit under the deceased’s will as the deceased’s other daughters – where applicant had no assets or means of income, other than the pension or distributions under a family discretionary trust and health problems – where most other children of the deceased in comfortable financial circumstances – whether applicant left without adequate provision for her proper maintenance
Succession Act 1981, s 41
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494, considered
Singer v Berghouse (1994) 181 CLR 201, followed
Vigolo v Bostin (2005) 221 CLR 191, followed
White v Barron (1980) 144 CLR 431, consideredCOUNSEL:
C Newton for the applicant
RD Peterson for the respondent executor
DR Murphy SC and GR Dickson for the respondent beneficiary Dennis Meng Kit JeeSOLICITORS:
James Watt & Co for the applicant
Hatzis Lawyers for the respondent executor
Gleeson Lawyers for the respondent beneficiary Dennis Meng Kit Jee
[1] Fook Neng Jee (the deceased) died on 8 August 1998. The deceased who was born in 1909 was the mother of eight children who survived her. The deceased’s last will was made on 29 June 1995. After a proceeding to prove the will in solemn form, probate was granted of the will to the deceased’s eldest son, Thomas Jee, as executor: Jee v Goodman [2001] QSC 474. For ease of reference, I will refer to each of the children of the deceased by his or her first name. Thomas is a long term resident of the United States.
[2] Under clause 3 of her will the deceased gave the share which she owned in Sun Neng Nominees Pty Ltd (Sun Neng) to Thomas. Sun Neng is the trustee of the family discretionary trust known as the Sun Neng Family Trust.
[3] Clauses 4 and 5 of the will provide:
“4. I GIVE AND BEQUEATH free of all duties all money which I own at the date of my death whether the same shall be in my bank accounts, deposited on call, invested for a period of time or in cash about my person to such of my daughters-in-law and my grandchildren as shall be living at the date of my death and attain the age of eighteen (18) years and if more than one in equal shares as tenants in common.
5. I DIRECT my trustee that after the payment of all probate succession and estate duties payable on or in respect of my estate or in respect of any succession arising on my death and all debts and testamentary expenses payable by law to divide the rest and residue of my estate both real and personal of whatsoever kind and nature and wheresoever situate into eleven (11) parts AND I GIVE DEVISE AND BEQUEATH 2 of such parts to my said son THOMAS JEE, 2 of such parts to my son DENNIS JEE, 2 of: such parts to my son GERALD JEE, 1 of such parts to my daughter CATHERINE GRAHAM, 1 of such parts to my daughter DIANA JEE, 1 of such parts to my daughter ELIZABETH FONG, 1 of such parts to my daughter JENIFER SUNDERLAND and 1 of such parts to my daughter THERESA GOODMAN.”
[4] This proceeding was originally commenced by the deceased’s daughter Elizabeth in May 1999. In August 1999 another daughter of the deceased, Diana, gave notice of intention to apply for further provision when s 41 of the Succession Act 1981 (the Act). Elizabeth discontinued her application for further provision and an order was made on 26 September 2003 substituting Diana as the applicant in this proceeding.
[5] There were delays with the prosecution of Diana’s application. In February 2009 the deceased’s son, Dennis, filed a notice of address for service on the basis that he elected to be separately represented in the proceeding. It appears that late in 2009 the executor had reached an agreement in principle with Diana as to the terms on which her application for further provision could be resolved, subject to the sanction of the court. Dennis did not consent to the terms of the proposed settlement and Diana’s application for further provision therefore proceeded to a hearing.
[6] Prior to the hearing, documents on the court file that related to the application for the sanction of Diana’s application were sealed, pending the resolution of the hearing of the application. The details of the executor’s proposed settlement of Diana’s application were not disclosed in the course of this hearing.
[7] In addition to her one-eleventh interest in the residue, Diana seeks the transfer in her favour of the ownership of the house property at Robertson in which she has resided since 1977 and a legacy of $200,000 to enable her to renovate the Robertson property and to assist her with her anticipated medical bills, repayment of existing debts and future income support. At the hearing, the executor’s position was that Diana should succeed in her application and be given the Robertson property and a legacy up to $100,000, with her costs to be paid from the estate. Dennis submitted that if the applicant were successful with her application, it should be to the extent only of receiving a life interest in the Robertson property.
Relevant background
[8] The deceased and her husband resided in Papua New Guinea where they built up their assets and raised their children. Diana was born in 1946. The deceased’s husband died in 1971 and the deceased relocated to Sydney in 1975 with her daughter Theresa and Diana. Diana’s first son was born in 1975. In mid 1977 the deceased purchased the Robertson property and relocated to Brisbane with Diana’s son. Diana’s younger son was born in July 1977 and she then relocated to Brisbane to live with the deceased and both sons at the Robertson property. The applicant did not resume her relationship with the father of her sons. The deceased paid the household and living expenses and the school fees and uniforms for Diana’s sons.
[9] Some of the evidence was directed at the contributions that each of the deceased’s children (apart from Thomas who went to the United States as a teenager) made to the Papua New Guinea businesses and their activities when the deceased was in Sydney. It is not necessary to recite this evidence, as there is nothing significant in any of the contributions of the siblings during this time to either the building up of assets or the deceased’s welfare that is significant for the purpose of this proceeding.
The deceased spoke a Chinese dialect. She also spoke pidgin, but did not have sufficient command of the English language to communicate in English. The deceased was therefore dependent on her children, and particularly the applicant, in interpreting for her, when she visited a doctor or solicitor. The deceased preferred to remain at home and the applicant did her shopping and banking.
The deceased suffered from diabetes and became insulin dependent in the late 1970’s. The deceased was in ill health for 10 years before her death. She had an enlarged heart, high blood pressure, arthritis, lack of bowel and bladder control and glaucoma. The applicant noticed that the deceased had difficulties in reliably taking her medication from about 1992 and assisted her in this regard. Diana sat with the deceased when she had her cataracts removed and stayed at the Wesley Hospital to be with the deceased during her four weeks as an inpatient.
Dr Simon Locke, the general medical practitioner whose practice was next to the Robertson house, set out in his letter dated 28 August 1998 his observations of the care that Diana provided for her mother. Dr Locke saw Diana, her sons and the deceased as patients from 1982. Dr Locke described Diana as the principal carer for her mother and stated:
“She has been totally responsible for the care of her mother. She was responsible for overseeing her mother’s medical and personal needs. She supervised the care of her mother’s insulin dependant diabetes and was responsible for the monitoring of her blood sugar levels and administering insulin and dealing with the complications.
She looked after her mother and was the sole carer. Over the recent past as her mother’s health declined and her independence decreased, Diana had an increasing responsibility to bear. This was carried out by her and her own needs, including medical, came second at times.”
The deceased was the matriarch of the family and her children tended to fit in with her wishes. Although the Robertson house had four bedrooms, the deceased used one bedroom and kept locked another bedroom which she used for storage and one was kept for visiting guests. Diana used the smallest of the four bedrooms which she shared with her eldest son. Her youngest son slept on a mattress at the foot of the deceased’s bed. Diana did not have access to the built-in wardrobe in her bedroom while the deceased was alive, as that was also locked. In the last 10 years of the deceased’s life, she also kept the bedroom in which Diana slept locked during the day and only unlocked it for her use during the night. The deceased kept the telephone locked up and had possession of Diana’s passport and birth certificate. The deceased’s bedroom and the other bedroom that the deceased used for storage have remained locked since the deceased’s death and Diana has had no access to those rooms whilst she has remained in the Robertson house.
Diana found it difficult bringing up her sons in her mother’s home, because her mother was such a dominant and manipulative person. Diana’s sons rebelled while they were living at the Robertson home and moved away at the first opportunity.
The deceased’s estate
It was common ground that at the date of the deceased’s death the value of moneys held in bank accounts was $1,393,697. Those moneys were the subject of the specific bequests under clause 4 of the will to the deceased’s three daughters-in-law and her 21 grandchildren.
According to exhibit 7 (which was tendered by consent), the other assets that were owned by the deceased and fell into residue, with their estimated values as at the date of the deceased’s death, were:
Assets Value Robertson house $200,000 Land Capalaba 66,000 Land Karalee 54,000 Apartment Hong Kong 50,000 Fangalawa Plantation PNG 0 Lemacott Plantation PNG 0 Shop/house lease Nugaria Street, Kavieng PNG 120,000 Shop/house lease Rose Street, Kavieng PNG 0 Warehouse Daisy Street, Kavieng PNG 0 Loan to Sun Neng 424,109 600 Telstra shares 0 Debt – Diana Jee 500 Total $1,014,609
Despite the fact that this list of assets and the values of those assets at the date of the deceased’s death was agreed, it is inaccurate. Mr Woo who was the deceased’s accountant and the accountant for the family trust and who continues to be the accountant for the family trust and the deceased’s estate explained that the item “Loan to Sun Neng” with a value of $424,109 was taken from the accounts for the family trust and was not an asset of the estate. The amount represented distribution to beneficiaries of the family trust (primarily the grandchildren of the deceased who lived overseas) that had been made, but not paid. No values were included in this list for the two Papua New Guinea plantations and the shop/house lease at Rose Street. Those Papua New Guinea properties are given values that total about $800,000 in exhibit 7, as at 2010. If the loan of $424,109 is removed that would be compensated for by allowing for some values to be given to the three Papua New Guinea properties, as at the date of the deceased’s death. In summary, exhibit 7 gives a rough estimate of the total value of residuary assets at the date of the deceased’s death of about $1m.
It became apparent on the hearing of this application that the administration of this estate has been delayed. It was not appropriate to investigate those delays for the purpose of this application. The probate proceeding significantly diminished the estate, because all parties’ costs on an indemnity basis were paid from the estate and amounted in total to of $964,758.
As at the date of the hearing, the estimated value of assets that passed under clause 4 of the will was agreed at $1,880,822 and the estimated value of the assets available in the residuary estate (before allowing for any costs in respect of this proceeding) was agreed at $606,214. The market value attributed to the Robertson house was $420,000. Its statutory valuation with effect from 30 June 2010 is $305,000.
Diana’s current solicitors estimate her costs incurred in respect of this proceeding are $100,421. In addition, Diana has not paid costs incurred when she retained the solicitors who acted for her in the proceeding to prove the will in solemn form. The firm of DM Wright & Associates claims the sum of $33,502.64 plus interest at 10 per cent per annum from 31 December 2009. There are also unpaid counsel’s fees of $2,475. The executor’s costs of this proceeding are estimated at $62,000. Dennis’ costs of this proceeding are estimated at $98,000.
The family trust
While the deceased was alive she and Diana each held one share in Sun Neng. Upon Thomas taking the transfer of the deceased’s share in Sun Neng, he became a director with Diana of Sun Neng. The trust owns two blocks of units in Sydney at McMahon’s Point and Randwick. At the date of the deceased’s death those properties had a total value of about $3.35m. Appraisals tendered at the hearing (exhibits 8 and 9) estimated the current total value of those properties at between $7.35m and $7.9m.
During the deceased’s lifetime, distributions of income were made in each year to her children and their families. Apart from the first three years after the deceased’s death when no income distributions were made, that practice has continued after the deceased’s death with the decisions on the quantum of the distributions and the beneficiaries who received the distributions made by Thomas and Diana who have preferred the children of the deceased. It is that distribution of income which has been the primary means of support for Diana, since the deceased’s death. She does not qualify for social security benefits, because Centrelink determined in August 2002 that she is in a position to determine her level of income under the family discretionary trust. Since August 2002, Diana’s source of income has primarily been the distributions she receives from the family trust.
Diana’s circumstances
Diana continued to live in the Robertson home after the deceased’s death. She has not paid rent and the estate does not intend to claim any payment from Diana for her occupation of the premises. The Robertson home is in disrepair and was in such state when the deceased died. Diana obtained a quote in January 2003 for bringing the house back to a proper living and saleable condition. The quote was for a total amount of $85,000 to $100,000. Some of the most urgent items have been attended to in the meantime. None of the appliances worked in the kitchen. Diana uses a portable plug-in double hotplate purchased by one of her sons. At the time the quote was given, Diana had to flush the upstairs toilet using buckets of water. That has since been fixed. The downstairs toilet has to be flushed using buckets of water, so that is not used by Diana. The other items in the quote that have been attended to by the estate are the repointing of ridges and replacing of some tiles on the roof and the replacement of the air-conditioner in the dining room. The value of the items in the quote that have been attended to, since the quote was given, is $9,000. Apart from structural repairs, Diana would need to spend money on replacing whitegoods and furniture and furnishings to bring the house into a liveable condition. The cost of that is debatable, as it would not be necessary to furnish four bedrooms for use as bedrooms.
Diana set out the nature and extent of her assets and liabilities in the affidavit that was filed on 29 August 2003 (the August 2003 affidavit). Apart from her personal effects and clothes, at the date of that affidavit her assets were limited to her interest in the family trust, 175 shares in the Commonwealth Bank and $9,500 in her funeral account. Her liabilities were a debt to her son of $1,700, the legal costs owing to DM Wright & Associates, a debt of $426 for dental work, a debt of $500 owed to the deceased and an amount of $4,000 owed to the estate for funds lent to her for living expenses.
Since swearing the August 2003 affidavit, Diana gave $5,000 from her funeral account to one of her sons for major surgery that he required and has used the balance to subsidise her living expenses. Diana gets some financial assistance from her sons from time to time. The family trust has also advanced her $19,300 to assist with her living expenses. Her income distribution from the family trust for the year ended 30 June 2009 was $19,752.
Diana also has a significant number of health issues which include depression, back problems, osteoarthritis, vascular problems, asthma, incontinence and high blood pressure. She has been advised to have surgery to deal with the problems with her spine. As an indication of the extent of her medical issues, Diana spent $2,119.40 in the year ended 30 June 2010 on prescription medication and believes that she spent as much again purchasing non-prescription medication and associated health items. Diana feels that the depression from which she suffers relates in part to difficulties that arose while looking after her mother and the lack of appreciation of her role by her siblings. She also suffered mentally and physically from the abusive relationship she endured with the father of her sons. On occasions whilst her mother was still living, she was an inpatient at Belmont Private Hospital, in order to obtain some respite for herself. When Diana was hospitalised, other family members had to provide assistance to the deceased.
A number of the witnesses referred to the untidy state of the Robertson house as a result of the storage of boxes of goods in the rumpus room and the garage. Some of the boxes belong to Diana, but others belonged to the deceased. Despite the dilapidated condition of the Robertson house, Diana is keen to remain living there. She does not drive and the Robertson house is close to shops and transport and has been the centre of her activities since 1977.
The law
Section 41(1) of the Act provides:
"(1) If any person (the ‘deceased person’) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person's spouse, child or dependent, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant."
The two stage process that provisions such as s 41(1) of the Act require the court to undertake was explained in the joint judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201, 208-209 (Singer):
“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the ‘jurisdictional question’.”
The two stage process was confirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191 at [5], [37], [74], [82]-[83] (Vigolo).
What is involved in the jurisdictional question was described in Singer at 209-210:
"The determination of the first stage in 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."
The jurisdictional question is one of fact determined at the date of the hearing, even though it involves the making of value judgments on whether the applicant has been left without adequate provision for his proper maintenance, education and advancement in life: Singer at 210, 211.
The second stage of the process involves similar considerations to the jurisdictional question: Singer at 210. Section 41(1A) of the Act becomes applicable:
“(1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependent was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.”
In determining the second stage, the court exercises its discretion on whether to order adequate provision for the proper maintenance of an applicant by reference to the circumstances, as they exist at the date of the order: White v Barron (1980) 144 CLR 431, 444. The question remains, however, one of adequate provision for proper maintenance and support as at the date of the deceased’s death: Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494, 508.
Whether the deceased made adequate provision for the applicant
The only siblings of Diana who have put any material before the court about their financial circumstances are Dennis and Theresa, but Theresa has not elected to appear to oppose Diana’s application actively in the same way that Dennis has. Theresa’s financial circumstances are modest, but not necessitous. The matter proceeds on the basis that otherwise the deceased’s siblings, other than Dennis, are in comfortable financial circumstances.
When the deceased died, Dennis was still married and owned two taxis and his home. His matrimonial home was about 250 metres from the Robertson home. Although Dennis did not concede that he did not visit his mother regularly, there was implied acceptance of that proposition by his repeated statements that he would ring his mother and his evidence at Transcript 1-61:
“Well, counsel, I am operating a cab business. I have to work and the cab business involve 24 hours of the day driving and seven days a week. So I have to do it myself on my own. My mum respect my work.”
In this proceeding, Dennis refused to acknowledge the extent of the care provided by Diana to their mother, even though Diana was the one who was living with their mother. Dennis’ attitude was that Diana should have given assistance to their mother, such as accompanying her on visits to the doctor and other appointments, because Diana lived at the Robertson home.
Catherine who resided in Papua New Guinea, but also owned houses in Cairns and Brisbane, would visit the deceased when she was in Brisbane, but also refused to acknowledge the support that was given by Diana to their mother. Catherine’s daughter, Laine Graham, had regular contact with Diana and the deceased and her observations contradicted her mother’s evidence that made repeated reference to the assistance provided to the deceased by all her children and grandchildren (and not just Diana):
“I was very close to the applicant between 1988 and 1997. I was the only person in the family who could reason with her and the only person the applicant would permit to help in her dealings with my grandmother. The applicant refused any offer for help from her brothers and sisters yet she was often upset with her brothers and sisters for not helping her.
Eventually the atmosphere in my grandmothers home became so tense and so unpleasant and the applicants attitude towards them so unfriendly that they stopped coming to see my grandmother and spoke with her by telephone only. My aunts and uncles usually visited my grandmother only on special occasions such as Christmas, New Year and Chinese New Year which almost always coincided with my grandmother’s birthday.”
Both Dennis and Catherine appeared to resent the benefits that Diana gained by way of support from their mother whilst living with their mother, but did not wish to acknowledge the assistance that their mother was given by Diana on a consistent basis, because Diana did live with her. To the extent that these witnesses would not acknowledge the deceased’s deterioration in health and manner in the last 10 years of her life or concede that Diana contributed positively to their mother’s welfare, I reject their evidence in favour of Diana’s evidence which was supported by the evidence of Diana’s sister, Jennifer, the objective evidence from Dr Locke, and the circumstances in which Diana and her mother lived together in the Robertson house. Because of Diana’s daily contact with the deceased, she was in the best position to describe the deceased’s condition and relationship with her.
Diana’s contingent interest under the family discretionary trust was no greater than any other child of the deceased. In view of the express wishes of the deceased about the preservation of the family trust properties and the pattern of distributions of trust income since the deceased’s death, it was unlikely that any decision would be made by Sun Neng in the short to medium term that would significantly improve Diana’s circumstances.
There was evidence of an offer that the deceased had made to Diana to build a house on land that the deceased owned at Capalaba. Diana refused that offer because she did not believe that her mother would be able to remain at the Robertson home without her. The making and the refusal of that offer in no way affects Diana’s claim in this proceeding.
The deceased had the benefit of increasing levels of care from Diana in the last 10 years of her life, as the deceased’s health deteriorated, and the deceased was fully cognisant of Diana’s lack of independent means. By living with the deceased from 1977 and remaining there after her sons had left the Robertson home, Diana did not make an independent life for herself, in contrast to what her siblings were able to do. In view of Diana’s age and health and lack of assets, the jurisdictional question must be answered in Diana’s favour. One-eleventh of the residuary estate at the date of the deceased’s death would not have been sufficient to provide Diana with the means to accommodate herself and supplement her modest income (whether from the pension or the family trust) which was the nature of the provision that would have been expected to have been conferred by the deceased on Diana in the circumstances in order to adequately provide for her. The benefits that had accrued to Diana by her residing with the deceased in not having to outlay money for rent or food and some of her son’s expenses could not displace the need that Diana had for ongoing financial support after the deceased’s death.
Whether further provision should be made for the applicant
The second stage of the process under s 41(1) of the Act requires account to be taken of the diminution of the estate since the deceased’s death and the changed circumstances of any beneficiary that might impact on whether an order for further provision is made in favour of Diana.
Although Dennis is not an applicant for further provision from the deceased’s estate, the change in his financial circumstances since the deceased’s death makes it relevant to consider the preservation of any benefit that he is entitled to receive under the deceased’s will.
Dennis and his wife separated in 2004 and have since divorced. Dennis gave his wife one of the taxis and he kept the other. He no longer has any interest in any real property. His health has deteriorated. He is in receipt of a pension that varies according to the distribution that he also receives from the family trust. He likes to gamble, but does not accept that he has a gambling problem. He has virtually no net assets and suffers from significant health problems including insulin dependent diabetes, high blood pressure, high cholesterol and anxiety panic attacks.
It is patent that the deceased should have provided for accommodation for Diana under her will. The proceeding has been conducted on the basis that Diana was seeking the transfer to her name of the Robertson home plus a lump sum to allow her to bring that house into a liveable condition and to pay her outstanding debts and supplement her income.
There was no evidence of what it would cost for Diana to be provided with the means to purchase alternative accommodation that did not require the repairs that are essential for the Robertson home. The possibility of provision of that nature was raised by Mr Murphy of senior counsel in submissions, but was not supported by evidence.
It is an issue of concern that the quantum of provision for Diana may have been less, if it did not include the transfer of the house, but allowed a lump sum for the purchase of suitable accommodation and for the repayment of Diana’s debts and to supplement her income.
The fact that Diana has remained living in the Robertson home in unsatisfactory conditions has contributed to her expectation that she will remain in the place that she has lived for over 30 years.
It may be that there are benefits to the estate, if it is Diana to whom the Robertson property is transferred. That would avoid the cost to the estate of clearing out and repairing the Robertson property.
In view of the course which this proceeding has taken in conjunction with the manner in which the deceased’s estate has been managed in the meantime, I have concluded that the appropriate provision for Diana is the transfer in her favour of the Robertson property together with a lump sum for the purposes for which she seeks that lump sum. Having regard to her debts and likely future expenses in relation to the Robertson property and for medical purposes, the sum of $170,000 should be sufficient additional provision. I have reduced slightly what Diana has sought by way of a lump sum from $200,000 to $170,000, in view of the current value of the estate.
A life interest in the Robertson property would not have given Diana the level of provision that her circumstances and her relationship with the deceased warrant.
On the current value of the residuary assets, there will only be about $180,000 remaining after the exclusion of the Robertson property from the residue. The executor’s costs of this proceeding must be paid from the residue. There is likely to be little remaining of the residue for ultimate distribution. In those circumstances it is unnecessary to make any order in respect of Diana’s interest in the residue or in relation to Dennis’ interest. The lump sum for which provision is now made for Diana will fall rateably upon the whole of the deceased’s estate without further order under s 41(3) of the Act. There is no purpose in making any alternative order.
Orders
An order should be made in the following terms:
“That further provision be made for the proper maintenance and support of Diana Maria Jee out of the estate of Fook Neng Jee deceased by the transfer to Diana Maria Jee of the real property situated at 8 Woodsiana Street, Robertson, and the payment of a lump sum of $170,000.”
There will need to be an opportunity for the parties to make further submissions on the issue of the costs of the proceeding, after considering these reasons. Apart from Dennis’ opposition, the proposed settlement by Thomas of Diana’s application would have been the subject of an application to the court for its approval without a contested proceeding. That is why Thomas did not proceed to challenge the applicant’s evidence in this proceeding, but endeavoured to assist by providing whatever information was required by the other parties and the court, in order to deal with Diana’s application.
As the costs of the solemn form probate proceeding were dealt with in that proceeding, it is not appropriate in connection with the current application to revisit the decision made in the probate proceeding for all parties’ cost to be paid from the estate.
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