Johnston v McCallum

[2005] NSWSC 17

CITATION:	Johnston & Anor v McCallum [2005] NSWSC 17
HEARING DATE(S):	18, 19, 20 October and 10 November 2004
JUDGMENT DATE :	18 February 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 71

CATCHWORDS:	Family Provision. Application by two daughters in respect of a modest grazing estate left to the deceased's sons. Further provision granted.
PARTIES:	Joan Elizabeth Johnston & Helen Margaret Attwell v David Robert McCallum & Stuart Allexander McCallum
FILE NUMBER(S):	SC 3923 of 2002
COUNSEL:	Mr J.S. Drummond for plaintiffs Mr J.R. Wilson SC for defendants
SOLICITORS:	Harris Lieberman Boyd for plaintiffs Francis Kelly & Grant for defendants

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 18 February 2005

3923/02 Joan Elizabeth Johnston and Helen Margaret Attwell v David Robert McCallum and Stuart Alexander McCallum

JUDGMENT

1 Master: This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Duncan David McCallum who died on 29 September 2001 aged 86 years. His five children being the four parties to the present proceedings and a son Ronald John McCallum survived the deceased. By his will the deceased disposed of his various farming and other interests amongst the four parties to these proceedings and a grandson. No provision was made for his son Robert apparently because they had a falling out some years ago. Robert has been given notice of the proceedings and makes no claim.

The last Will of the deceased.

2 The deceased made his last will and testament on 10 March 1997. Probate of the Will was granted to the defendants on 22 March 2003.

3 By the terms of his will the deceased disposed of his estate as follows:

(i) His property at 80 Hardinge Street, Deniliquin to his daughters Joan and Helen in equal shares.
(ii) His one third interest in a Case International 2188 header to Stuart and his share of the one third share held with his grandson John to John.
(iii) His interest in jointly owned plant and equipment to the surviving joint owner.
(iv) His share in the DD and JD McCallum Partnership to his grandson John McCallum.
v) He established a trust in respect of his property at Oakleigh East, his shares and water entitlements with Murray Irrigation and stock together with the rest and residue of his estate for a period of 10 years and in the events which had happened he directed that income be distributed to David and Stuart.
(vi) His water entitlements with Murray Irrigation (being those acquired in 1996) upon the winding up of the trust to Joan.
(vii) He directed that the rest and residue of the trust be distributed to David and Stuart equally.
(viii) He gave his shares in DD McCallum Constructions Pty Limited to David subject to certain conditions. At the date of death he had no shares in this company having transferred his shares to David in 1999.
(ix) He gave his plant and equipment to David and Stewart equally.
(x) He gave his residuary estate in the event of the failure of any gift to Helen, Joan, David, Stewart and his grandson John.

Assets in the estate

4 During the hearing of the proceedings the parties were able to agree on the assets in the estate and the values of a number of parcels of real estate held by the estate or the parties. The inventory of agreed property is exhibit 2 in the proceedings and the agreed values are set out in exhibit 3.

5 Accordingly the value of the estate at the time of the hearing is as follows:

Oakleigh East $ 790,000.00
80 Hardinge Street $ 140,000.00
180 Murray Irrigation Limited shares
attaching to Oakleigh East $ 99,000.00
Bank Accounts in total $ 43,694.88
Investment in total $ 145,732.79
Machinery Plant and Equipment in total $ 44,751.54
Total $1,263,179.21
Liabilities
Trade creditors $ 64,042.50
Australian Taxation Office $ 20,993.00
Debt owed to Stuart McCallum $ 16,342.00
Debt owed to Joan Johnston $ 50.00
Deniliquin Council $ 1,614.00
D & I Refrigeration and Electrical $ 1,285.00
Total $ 104,326.50

Net value of estate $1,159,753.00

6 There is a dispute over the amount of the debt owed to Stuart McCallum. It represents half the value of the money in the deceased's Elders account.

7 The deceased owned number of items of property in jointly with his sums and others as a result of the various share-farming activities over the years. The deceased share of the jointly owned assets is $128,210 and the details of the jointly owned assets are as follows:

Description	Joint Owner	Value of Asset
RCL shares	JD McCallum (half share)	$7,674.00
RCL Bonds	JD McCallum (half share)	$1,352.00
RCL Equities	JD McCallum (half share)	$14,128.00
AWB shares (83 at $4.62)	Racecden (half share)	$383.00
AWB shares (2497 at $4.62)	JD McCallum (half share)	$23,072.28
CASE 8940 tractor	SA McCallum (half share)	$90,500.00
Miscellaneous plant	DR McCallum (half share)	$2,736.00
Debt owed by DD McCallum Constructions	JD McCallum (half share)	$7,526.00
Rice pools	SA McCallum (half share)	$47,073.00
New Holland TX64 Header	DR McCallum (one third share only)	$92,964.00

8 By the terms of the will the estate at the date of hearing is to be distributed as follows:

Joan

(a) ½ interest in 80 Hardinge Street $ 70,000 Clause 3
(b) Water entitlement on winding up trust $ 99,000 Clause 8(a)
(c) 1/5 share of residue $ Nil Clause 13

Total $169,000

Helen
(a) ½ interest in 80 Hardinge Street $70,000 Clause 3
(b) 1/5 share in residue $ Nil Clause 13

Total $ 70,000

David
(a) Miscellaneous plant $ 1,368 Clause 4(c)
(b) New Holland TX 64 Header $ 30,988 Clause 4(c)
(c) Interest in trust $444,500 Clause 7
(d) ½ share in machinery $ 21,335 Clause 10

Total $498,191

Stuart
(a) Case 8490 Tractor $ 30,166 Clause4(c)
(b) Interest in trust $444,500 Clause 7
(c) ½ share in machinery $ 21,335 Clause 10

Total $496,000

John
(a) Case 8940 Tractor $15,083 Clause 4(c)

Trust Clause 6
(a) Oakleigh East $790,000
(b) 180 MIL shares $ 99,000
(c) Residuary estate (below) ________

Total $889,000

Residuary Estate
Moneys in bank accounts $ 43,695
Investments $145,733
Mazda Utility $ 1,500
Deceased’s share of jointly owned assets $ 50,604
Subtotal $241,532
Less liabilities $104,326
$137,206

9 Clearly the amount of the residuary estate will be reduced to nil by the costs that have been incurred in these proceedings. The plaintiff's solicitor and client costs to the conclusion of the hearing amounted to $101,126.59 and those of the defendants on a similar basis amounted to $105,000. This is a total of $206,126.59. In the figures above it is assumed that there will be no residue to add to the trust.

A family history

10 The deceased was born on 5 October 1914 and he married his wife Esma on 18 September 1944. Their son David was born on 19 December 1945, a daughter Joan on 7 November 1946, a son Stuart on 5 February 1949 and a daughter Helen on 9 February 1954.

11 The deceased incorporated DD McCallum Constructions Pty Limited. “Constructions”, as it was known in these proceedings commenced operations during the Second World War. That business was initially involved in road construction, providing services to the local shire council. The road construction business began to decline during the 1960s and was closed down by 1968 if not 1972.

12 In 1972 Constructions purchased a farming property known as “Sand Hills” (“Sand Hills”). That property comprises approximately 648 acres and is located 49kms west of Deniliquin. Sand Hills stood possessed of 523 Class “M” Murray Irrigation shares and water entitlements which entitled Sand Hills to an allocation for 434 megalitres from the Murray Irrigation channel. In addition it had a bore capable of producing 2 megalitres per day. The property consisted of 10 acres of laser levelled contour irrigation land, 111 acres of natural contour irrigation land and 40 hectares of land with contour banks for irrigation. The balance of the property was used for dry land cropping and grazing. The property was suitable for “rice on rice production”.

13 From approximately 1972 to 1995 Ronald McCallum and David McCallum share-farmed “Sand Hills” with Constructions.

14 On 27 May 1999 the Deceased transferred to David McCallum for no consideration 13,600 shares in Constructions thereby giving to David McCallum virtually sole ownership of the assets of Constructions including Sand Hills.

15 On 25 July 1999 David McCallum sold 252 shares granting to Sand Hills certain water entitlements for $100,800 (see Ex. Q).

16 Sand Hills has an agreed value of $425,000.

17 In or about 1952 the deceased purchased Oakleigh East. That property consists of approximately 399 hectares comprising:

147 hectares of laser levelled irrigation land;
115 hectares water check and contour irrigation land; and
137 hectares of dry land grazing.

18 From approximately 1968 to 1997 the deceased share-farmed Oakleigh East with his sons David and Stuart or his grandson John McCallum ( a son of David McCallum). In March 1997 the deceased and Stuart McCallum entered into a Share farming Agreement pursuant to which Stuart was to share farm Oakleigh East. That arrangement continued until the death of the deceased. Since 29 September 2001 Stuart has continued to share-farm Oakleigh East to the present day.

19 Prior to 1962 the deceased lived on “Oakleigh East”. In that year he moved with his family to reside in the premises at 80 Hardinge Street, Deniliquin.

20 In about 1959 the deceased commenced a business known as Riverina Truck and Tractor Company Pty Ltd that being a machinery dealership holding a franchise from International Harvesting Co. That dealership operated from land situated at the corner of Hardinge and George Streets, Deniliquin.

21 In about the early 1970s the deceased essentially retired from the day to day operations of the dealership so as to enable him to become more involved in the farming activities being conducted on “Oakleigh East” and “Sand Hills” and the share-farming and other arrangements that he had with the defendants and his grandson John McCallum. He however retained control of the business. He held 7,020 ordinary shares which together with that held by Constructions (6,650 shares) amounted to 80% of the issued ordinary shares. Both plaintiffs gave evidence, which I accept that the deceased at all times retained control of the Dealership, he attended on a regular if not daily basis to make decisions and provide instructions to the staff including the plaintiffs.

22 The plaintiff, Joan Johnston, commenced her employment in the dealership in 1972. The plaintiff Helen Attwater commenced employment in 1974 and ceased her employment in 1985.

23 In the late 1980s the profitability of the Dealership commenced to decline due to a persistent drought and a downturn in farming activity. The Dealership was finally closed on 24 December 1987 with its assets being disposed of at a clearing sale in February 1988. The land was sold for approximately $270,000 and stock for approximately $90,000. Most of the proceeds were used to retire debt.

24 The deceased’s wife, Esma, was moved into a nursing home in 1995 and she died in October 1998. The deceased himself was moved into a hospital in Deniliquin in July 1997.

Eligibility of the plaintiffs

25 All the children are eligible persons. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate [210] 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 determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The situation in life of Joan Elizabeth Johnston

26 It is necessary of course to consider the situation in life of the plaintiffs and the details of the plaintiffs’ financial position is helpfully summarised in submissions. The plaintiff, Joan Johnston, was born on 27 November 1946. She is presently aged 58 years. She is no longer married and resides at 72 Butler Street, Deniliquin. Brian McCleary & Co has employed her as a bookkeeper since August 1988. Prior to 1988 she had been employed by the Dealership performing bookkeeping and administrative duties from 1972. Joan Johnston had therefore worked for the Dealership for 16 years. In addition, the evidence disclosed that since 1972 Joan Johnston had performed bookkeeping services for Constructions, the deceased, David McCallum and the multitude of partnerships to which the Deceased was a party. She was paid for this bookkeeping work. The plaintiff, being a member of the family, was paid by the deceased at a rate which was less than the rate paid for the person she replaced. This appears to have been the deceased’s practise.

27 The plaintiff, Joan, is presently working only four days per week although she is being paid on the basis of five days. The extra day is presently being deducted from her sick leave and long service leave.

28 For the year ended 30 June 2004 the plaintiff received from her present employment a gross income of $42,000. The plaintiff presently works 4 days per week causing her gross income to be reduced to approximately $33,600 per annum. Once her leave entitlements have been exhausted, it is unlikely that Joan will be able to return to employment working 5 days per week. It is likely that she will be required to cease work some time in the near future.

29 In addition, for many years the plaintiff has undertaken private bookkeeping services for which she receives approximately $2,500 per annum. The plaintiff ceased that work in June 2004 as a consequence of her poor health. The plaintiff has had a number of major health problems. In 1987 she had an operation as a result of symptoms of cervical cancer and a bladder problem. The surgery was not carried out correctly and the plaintiff had to have further major surgery in January 1988. In January 1999 she had a laminectomy performed. Now she can only sit for short periods of time without having to take a break. At times her back gives way and this forces her to take time off work. She also has a problem with incontinence which causes her difficulties at work. These health problems make it difficult for her to do housework and gardening. She has been advised to have physiotherapy but she cannot afford to have this treatment because of the costs and the distance from the physiotherapist.

30 The plaintiff’s present expenses total $59,379 per annum.

31 The plaintiff, Joan, has the following assets:

(i) 72 Butler Street, Deniliquin $250,000
(ii) Furniture and fittings $ 10,000
(iii) Vacant land on Decimus Street, Deniliquin $ 20,000
(iv) 1998 Hyundai Sonata sedan $ 10,000
(v) Superannuation entitlements $ 23,000
Total $313,000

32 The plaintiff, Joan, has the following liabilities:

(i) Mortgage in respect of Butler Street, $177,000
(ii) Loan from A Johnston and Sandee Rush $ 20,000
(iii) Loan from G E Credit Line $ 6,215.03
(iv) Loan from G E MasterCard $ 6,327.56
(v) Loan – ANZ Visa $ 1,374.79
(vi) CBA Bankcard $ 3,513.10
(vii) HSBC Visa card $9,090.24
Total liabilities $223,520.00
Net Assets $89,480.00

33 Under the will of the deceased the plaintiff, Joan, is to receive:

(i) One half of 80 Hardinge Street $ 70,000
(ii) Water entitlements valued at $ 99,000
$169,000

34 The plaintiff, Joan, had a good relationship with the deceased and there was extensive contact throughout the deceased’s life. Clearly, the deceased trusted the plaintiff and this is evident from her role in administering his finances. For example, from 1982 onwards she held his Power of Attorney.

35 I have already mentioned the work which the plaintiff did for the deceased for a lesser wage than he would have paid to an outsider. However, the deceased did take care to see that she was fully reimbursed for what she did for him outside work at the dealership. There was a substantial involvement throughout the plaintiff’s life. Prior to his death the deceased made it plain that he was going to leave his two girls the Hardinge Street property; and after he moved out the plaintiff carried out work on the property to make it habitable. The deceased had not looked after his property. Although the deceased paid for the work which was done by contractors the plaintiff carried out a lot of the repair work herself and she tidied up the garden. She lived in the property rent free for three years after the deceased had moved out.

36 During the latter years of the deceased’s life, the deceased gave the plaintiff a block of land which was then worth some $10,000. The land was actually transferred for $10,000 and a gift was made by the plaintiff to the deceased in respect of that amount. On that block of land was an old workshop which was used by the family from time to time. Over the years the plaintiff has paid all the rates and has received from the deceased, or one of his companies, an amount equivalent to the rates by way of rent. The plaintiff will have to sell the property but the building on it is dilapidated and the concrete floor is cracked. In these circumstances, it is likely that the building and the rubbish on the land will have to be removed and this will be an expense on sale.

37 It will be noted from her assets the plaintiff, Joan Johnston, has recently purchased a property in Deniliquin which is subject to a substantial mortgage. She would like to do some minor renovations and install air conditioning to that property at a cost of some $4,655. In addition, she would like to replace her old car at a cost of some $20,000.

The situation life of Helen Margaret Attwell

38 Helen Atwell is presently 50 years of age. She is employed part time by Tieco International Pty Ltd the employer of her husband. From that employment she receives approximately $5,400 p.a.

39 Julian is the National Marketing Manager for Tieco. From that employment he receives $50,000 net p.a. and their expenses are $56,000 p.a. They have two children who are not dependent upon them.

40 Helen Atwell commenced part time work in the Dealership in 1974. Shortly thereafter she commenced full time work performing clerical duties. In 1978 Julian took up the position as Sales Manager for the Dealership. In July 1985 Julian left the Dealership to take employment in Melbourne with Helen following in December 1985. Apart from a short period, from November 1987 until February 1988, Helen did not perform further work for the Dealership prior to its sale in February 1988. In total she and her husband worked for the Dealership for a total period of 18 years. Generally they were paid as family members an amount which was less than the staff they replaced.

41 Helen and her husband have the following assets:

(i) Poictiers Street, Deliniquin $260,000
(ii) Motor vehicle 16,000
(iii) Savings 7,789
(iv) Telstra shares 4,820
(v) House contents 20,000
(vi) Superannuation 124,000
(vii) AMP shares 3,700
$ 436,309
Less liabilities:
(i) Mortgage 139,000
(ii) Westpac Visa Card 1,400
140,400
Net Assets: $295,909

42 The property at Deliniquin was purchased by Helen and her husband with the proceeds which they received from the sale of their Melbourne property some time earlier. They purchased the property at Deliniquin because they could not afford to buy again in Melbourne. At this stage, they wish to rent the Deliniquin property and in due course retire there. They have no plan to retire at the moment.

43 The property at Deliniquin is an old home and needs some $67,150 spent on it to renovate it. A substantial part of the necessary repairs will have to be done before it can be rented. In addition, the plaintiff will need to purchase various appliances for the house at a cost of $12,149.

44 The plaintiff, Helen had a good relationship with the deceased. Although the plaintiff and her husband moved to Melbourne and Albury, contact with the deceased continued. From time to time the plaintiff would come to Deliniquin to clean the home and assist the deceased. When the deceased was in Albury hospital, the plaintiff would visit him on a daily basis while she was living in Albury.

45 There were no particular benefits which the plaintiff, Helen, received from the deceased. I have already mentioned that she and her husband worked for somewhat less than other people in the business would be paid. It is clear she assisted the deceased and her mother.

46 It is also necessary to consider the situation in life of others having a claim on the bounty of the deceased. In this case, it is the two sons of the deceased who are the defendants in the proceedings.

The situation life of David Robert McCallum

47 Until recently David owned directly or by his majority shareholding in Constructions, the following farming properties:

(i) Morland $800,000
(ii) Sand Hills $425,000
Plant and equipment:
Morland (wdv) $ 57,196
Constructions (wdv) $328,591
Total $1,610,787

48 On 30 September 2003 David sold part of Morland for the sum of $763,411. He used the sale proceeds to pay off his debts and build a kit home on Sand Hills, where he now lives. He retains 754 acres of Morland, which is the subject to a contract of sale to his former second wife, Judith, for the sum of $264,000. That sale has not yet been completed despite it having been entered into in April 2003. It is part of a property settlement with her and she will not have to pay the consideration. She will also receive some part (not yet agreed) of the plant and equipment and 263 shares in Murray Irrigation Ltd.

49 Sand Hills is free of debt and has plant, equipment and stock. It is difficult to get a true picture of David’s income situation. Apart from a War Pension resulting from his Vietnam service of about $121 per week, his income has come in the past from Morland and Sand Hills. Following upon the split up with his second wife and the sale of a large part of Morland he has now become debt free and lives on Sand Hills. His former second wife lives on the remaining part of Morland which she has agreed to take under the property settlement. In recent years there have not been any operating profits and his remaining property will not be large enough to be a viable enterprise which will support him.

Relationship with the deceased

50 It is clear that the defendant, David, got on well with his father and he did assist him from time to time in his father’s grazing operations. Like his brother, Stuart, he was involved in many share farming ventures and in the operation of the property owned by Constructions which was ultimately for his benefit.

51 David received a number of benefits from the deceased during his life. They included the transfer of the majority shareholding in Constructions which passed to him, the property Sand Hills and its stock, plant and equipment. In 1999 the deceased gave him a header valued at $45,000 so that he could trade it in and buy better equipment. David also conceded that at times, when he bought equipment through the dealership as a family member, he got it a little above cost price. What benefit this amounted to is not really quantified.

The situation life of Stuart Alexander McCallum

52 Stuart McCallum is 55 years of age. He and Sandra own two properties, they being:

Willum Park and Fairfield (agreed value) $847,500
Plant and Equipment (wdv) $457,724

53 In addition to the above, Stuart share farms “Oakleigh East”, which he has done since July 1997. The estate receives approximately one half of the net profit from that arrangement, Stuart receiving the remaining 50%.

54 From May 1996 the deceased, his grandson John, together with Stuart and his wife operated what became known as McCallum Harvesting. At the commencement of the business there were a number of items purchased. These included:

A 2188 Header $187,000
A shoreborn combine $48,000
A ten ten header $31,976
A header trailer $ 4,500

55 The last item was purchased outright and the others were purchased on finance. Apparently payments were made to the leasing company until August 1998, when the partnership was dissolved. This was with the consent of the deceased because apparently his grandson, John, had been away and was not available to help Stuart who was doing all the work in the partnership. Clearly the partnership did not involve the deceased doing anything. The partnership paid for the repayments on the equipment, except for the last couple of instalments which were paid for by Stuart after the dissolution of the partnership. It is clear that Stuart retained the benefit of the equipment after the dissolution without accounting either to the deceased or to the deceased’s grandson, John.

56 It was suggested that there was income due to the estate which had not been accounted for in the respect of McCallum Harvesting. That was for the year ended 30 June 1998, when there was a net profit of $62,521. However, that does not take into account losses of $35,972 for 30 June 1997 and $15,618 for 30 June 1996. In these circumstances there would seem that up to the date of dissolution there were only minimal profits due to the deceased. However Stuart has had the benefit of the machinery, including its further depreciation after 1998. In the year ended 30 June 2004, Stuart’s partnership with his wife had an operating profit of $54,469. It is plain that his property will not support him so he, like his brother, David, share farms and harvest crops to get sufficient income.

Relationship with the deceased

57 Clearly the deceased and the defendant, Stuart, had a long relationship and they were involved in many ventures together. There was no criticism of that relationship.

58 In May 1998, some nine months after the commencement of the share farming agreement between the deceased and Stuart in respect of Oakleigh East, it was decided to purchase a new Case 8940 tractor for approximately $120,000. Although the purpose was to laser level the remaining part of Oakleigh East, it was in fact hardly used for this purpose and mostly used for other farming work. The deceased contributed his share of the payments on the finance for the tractor until his death amounting to $59,774.54. In due course Stuart used the tractor to trade in on another tractor which replaced it and he did not account to the estate for the estate’s share of the asset. In effect, he was anticipating his entitlement under the will. On these trade-ins, and the same applies to a number of other items, there were often substantial profits on sale shown in the accounts. This is because the written down value was substantially less than the actual value of the item. Of course these profits were not realisable profits and in fact led to more income and thus potential tax liabilities.

59 There was a matter that arose in respect of the stock, once share farming commenced between the deceased and Stuart, in July 1997 on Oakleigh. There was a problem with foot rot and the stock had to be disposed of. Precisely how Stuart became entitled to stock, as he has suggested in his evidence on the commencement of that share farming, is not clear. Given the distributions during the life time of the deceased to Stuart, it may well be that this was by some arrangement with the deceased. In the circumstances although there is a dispute about the entitlement to the remaining $16,000, I do not think that this is a matter of great consequence.

60 It is plain that contrary to his assertions, Stuart obtained substantial benefits from the deceased in his lifetime. Although there were many share farming agreements and joint enterprises undertaken by the deceased and Stuart, Stuart was only employed for three years by the deceased and Stuart also had his own properties which he had to manage and farm. This has to be taken into account when considering the extent of the help which Stuart gave to the deceased over his lifetime.

Consideration of the application

61 There are some fundamental problems about the deceased’s approach to provision for his children as evidenced by his will. Clearly, the evidence discloses that he had a strong desire for his sons to have his farming property and it was for this reason that his sons received the majority of the assets in the estate. The deceased has taken the view that the same level of provision should not be made for his daughters. Although this view of the moral obligation which a farmer has towards his children has been common in the past, it is not one which should have any influence on a Court when exercising its jurisdiction under the Family Provision Act. The Act requires the Court to consider the individual circumstances of a child and what is the proper provision for that child without differentiating between children because of their sex.

62 There is also a suggestion in the evidence that the deceased thought that he had given the girls their share in advance by employing them in the Dealership. It is plain that they worked in the dealership for somewhat a less a wage than that paid to other employees and they did not ultimately receive that inheritance. The reason is obvious, namely, that the dealership could not be continued for a number of reasons. Those reasons included the downturn of the economy and Joan’s illness which prevented her from continuing in the business.

63 In submissions the plaintiff, Joan, sought a legacy of $460,000 being the amount needed, after she receives her existing share of the estate, to do the following:

Repay debts $60,000
A fund to protect her against loss of income $250,000
A fund to meet vicissitudes of life $150,000

64 In submissions the plaintiff, Helen, sought a legacy of $295,000 being made up as follows:

Fund to pay off mortgage $65,000
Fund to renovate home $80,000
Fund to meet vicissitudes of life $150,000

65 Under the deceased’s will Joan will receive $169,000 and she can sell Decimus Street and receive, say, $15,000. This will reduce her liabilities to $39,520. It is critical, given her short remaining working life, that she be able to discharge these liabilities. She also needs to do some renovations and needs to replace her car which will incur further expenses of $24,655.

66 Joan is 58 years of age and, as I have pointed out, she will have to cease work at some time in the near future. Although she will soon be eligible to received an aged pension, in my view, she should have a sum to assist her cope with her reduced income in the future.

67 Under the deceased’s will Helen will receive $70,000 and this will reduce her liabilities to $70,000. Given her family’s reduced income it is unlikely that she will be able to save sufficient to repay that loan. She therefore does have a need to repay this mortgage. There is a need to spend $79,299 on repairs to the family home in Deniliquin.

68 Given the age of Helen and her husband they have some years during which they can earn an income and they will receive rent until they retire from their home in Deniliquin. Helen’s need is thus some fund to help in emergencies.

69 Although Stuart’s and David’s properties will not provide a living they have equipment which enables them to earn other income. Because Joan and Helen have obvious needs, some provision should be made for them. The only part of the estate such provision can come from is the trust in respect of Oakleigh East and shares. Most likely, these will have to be sold and some of the proceeds will become available to Stuart and David.

70 Bearing in mind all of the evidence and the situation of the plaintiffs, I think that appropriate legacies are $250,000 for Joan and $175,000 for Helen.

71 The orders that I propose to make are:

1. That in addition to the provision made for them in the will of the deceased, that Joan Elizabeth Johnston receive a legacy of $250,000 and that Helen Margaret Attwell receive a legacy of $175,000.

2. That the legacies in order 1 above be charged upon the property passing under clause 8(b) of the will of the deceased.

3. Such legacies are to carry interest at the rate provided for under the Wills Probate and Administration Act 1898 if not paid within four months from this date and on and from the expiration of the period of four months.

4. The plaintiffs’ costs on a party and party basis and the defendants’ costs on an indemnity basis to be paid or retained out of the estate of the deceased.

72 I will hear submissions as to the proposed orders.

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