Jones v Public Trustee

[2010] NSWSC 350

CITATION:	Jones v Public Trustee [2010] NSWSC 350
HEARING DATE(S):	23 and 24 November 2010
JUDGMENT DATE :	28 April 2010
JUDGMENT OF:	McLaughlin AsJ
DECISION:	1. I order that, in lieu of the benefit given to her by the will of the late Marjorie Gladys Miriam Ward (“the Deceased”), Janice Margaret Jones receive a legacy in the sum of $287,000; and that, in lieu of the benefit given to her by the will of the Deceased, Lynda Anne Ward receive a legacy in the sum of $350,000; each such legacy not to bear interest if paid on or before 28 May 2010, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898; and each such legacy to be paid out of the residue of the estate of the Deceased (being described in clause 12.00 of the will of the Deceased as “the remainder of my property”). 2. I order that the costs of each Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 3. The exhibits may be returned.
CATCHWORDS:	SUCCESSION - Family provision - claims by two adult daughters - financial and material circumstances of each Plaintiff - whether each Plaintiff has been left without adequate provision for her proper maintenance - written statements by Deceased concerning, inter alia, reasons for her testamentary dispositions - competing claims of residuary and other beneficiaries.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Shearer v Public Trustee, 29 March 1998, unreported, Young J; Morton v Little [2005] NSWSC 36 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
PARTIES:	Janice Margaret Jones (First Plaintiff) Lynda Anne Ward (Second Plaintiff) Public Trustee (Defendant)
FILE NUMBER(S):	SC 1255 of 2009
COUNSEL:	Mr L. Ellison, SC (Plaintiffs) Mr A. Hill (Defendant)
SOLICITORS:	TressCox Lawyers (Plaintiffs) Anthony Lentini (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 28 April 2010

1255 of 2009 JANICE MARGARET JONES and ANOR –v- PUBLIC TRUSTEE

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 27 January 2009, Janice Margaret Jones and Lynda Anne Ward each claims an order for additional provision out of the estate of their late mother, Marjorie Gladys Miriam Ward (to whom I shall refer as “the Deceased”).

3 The Deceased died on 28 July 2008, aged 89 years. She left a will dated 16 December 2002, probate whereof was on 16 October 2008, granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings). The Deceased was a widow at the time of her death (her first husband, Malcolm Rodmell having been divorced from her in 1950 and having subsequently died in 1959, and her second husband, Geoffrey Philip Ward, having died in 1992).

4 The inventory of property discloses the following assets and the respective estimations of value thereof:

House property at Lane Cove $700,000
Furniture and personal effects $500
Moneys in banks or financial institutions
on deposit $43,670
Centrelink pension entitlements $305
Shares in companies $170,139
Public Trustee, Power of Attorney Account $118,000
Health insurance refund $1,046
Total $1,033,662

5 Liabilities of the Deceased at the time of her death totalled about $1,253.

6 In calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration, since each Plaintiff, if successful, will normally be entitled to an order that her costs be paid out of the estate of the Deceased, whilst the Defendant, irrespective of the outcome of the proceedings, will normally be entitled to an order that his costs be paid out of the estate.

7 It was estimated on behalf of the Plaintiffs (who were represented by the same solicitor and Counsel) that their costs will total $68,000, whilst it was estimated on behalf of the Defendant that his costs will total $56,000.

8 The Deceased’s house property at Lane Cove has now been sold, for $671,000 (that sale price being somewhat less than the value of $700,000 attributed in the inventory of property). The current ledger of the Defendant in respect to the estate of the Deceased has a credit balance of $1,000,881. From that amount, taxation, administration, expenses, and the Defendant’s costs of the present proceedings (in an amount of $56,000), those items totalling $67,940, must be deducted.

9 After deducting the Plaintiff’s costs of the proceedings, in an estimated amount of $68,000, it is estimated that the distributable estate will be in the order of $865,000.

10 By her will the Deceased provided for the establishment of a trust of $100,000, upon which the First Plaintiff, Janice Margaret Jones should receive the income for her life. At its termination the capital of that trust fund is given to Janice’s three children. Clause 9.00 of the will provides that the trustee must not advance any part of the capital to Janice.

11 By her will the Deceased also provided for the establishment of a trust of $100,000, upon which the Second Plaintiff, Lynda Anne Ward should receive the income for her life. At its termination the capital of that trust fund is given to the Children’s Hospital at Westmead. Clause 5.00 of the will provides that the trustee must not advance any part of the capital to Lynda.

12 The Deceased by her will gave a number of pecuniary legacies, totalling $140,000.

13 The residue of the estate, after payment of estate liabilities (which phrase is defined in the will) is divided into three equal parts, of which one part is given to the Guide Dogs Association and two parts are given to Barnados Australia.

14 Upon the basis that the distributable estate will be about $865,000, then, after the payment of the legacies, and the establishment of the two trusts, there will remain a residuary estate of about $525,000. Of that residue, the Guide Dogs Association is entitled to receive one third (about $175,000) and Barnados Australia is entitled to receive the remaining two thirds (about $350,000).

15 I shall for convenience, and without intending any disrespect, refer to each Plaintiff by her first given name.

16 Janice is the only child of the first marriage of the Deceased, to Malcolm Rodmell. Janice was born in 1945 (and is presently aged 65). The Deceased and Mr Rodmell separated shortly after Janice’s birth. Lynda (who was born in 1955, and is presently aged 55) is the only child of the marriage of the Deceased to her second husband, Geoffrey Philip Ward.

17 Mr Rodmell died when Janice was aged 14. Janice left home in 1964, at the age of 19. She gave evidence of constant family disharmony, and of the difficult personality of her mother, the Deceased.

18 When Janice married her husband, Robert Frederick Gain Jones, in 1967, the Deceased did not attend the wedding, and gave no explanation for her absence, although only weeks previously she had hosted an engagement party for Janice and Mr Jones.

19 There were similar irregularities and inconsistencies in the Deceased’s attendances at and absences from the baptisms and weddings of various children of Janice.

20 Written and telephonic communications from the Deceased to Janice were not particularly friendly (Janice used the description, “abusive”).

21 Despite the inconsistent and apparently volatile attitude manifested by the Deceased towards Janice, their relationship improved from 2002, when the Deceased’s health began to deteriorate and she allowed Janice to give assistance to her. It was at about that time that Janice’s daughter Henrietta and her family returned to Australia, and the Deceased appears to have enjoyed a relationship with her granddaughter and her great-grandchildren. From 2002 Janice was in contact with the Deceased on a daily basis, either in person or by telephone, until the latter’s death on 28 July 2008.

22 In her primary affidavit of 29 January 2009, Janice set forth the various activities and duties which she performed for the Deceased throughout the last six years of the Deceased’s life. Janice and her husband assisted the Deceased in achieving her desire that she remain in her own home until her death.

23 Janice after marrying and having three children obtained a Bachelor of Arts degree as a part-time student from the University of New England. She then taught art history at TAFE Colleges in Goulburn and Moss Vale on a part-time basis throughout the past 12 years. Janice retired from teaching in 2007, partly in consequence of the demands required by the services she was performing for her mother, and partly in consequence of her own ill health.

24 At the present time Janice and her husband own the following assets (to which the following respective estimations of value are attributed):

House property at Moss Vale $365,000
Investment property at Taralga $185,000
Honda motor vehicle, 2000 model $2,000
Ford utility motor vehicle, 1996 model $2,500
Tools and mowers $3,000
Superannuation of Janice $6,852
Superannuation of Robert Jones $27,782
Shares in listed companies $1,947
Joint bank account $376
Credit union account in name of Janice $92
Joint credit union account $29
Business account in name of Robert Jones $3,097
Business account in name of non-trading company
controlled by Robert Jones $141
Total $599,816

25 Janice and her husband have the following liabilities:

Commonwealth Bank of Australia home loan $117,197
Credit card indebtedness of Robert Jones $12,127

26 Janice assists her husband in his gardening/handyman business, in which she is a partner. In the year ended 30 June 2008 they received from that business income in an estimated amount of $53,000.

27 Janice also received income from TAFE of $3,653 in that year.

28 Janice supplied a schedule of expenses of herself and her husband (annexure R to her affidavit of 29 January 2009). Although no totals were provided in that schedule, upon my calculations the various items of outgoings and expenditure of Janice and her husband total in the order of $72,800.

29 The most significant items in that schedule were for food and grocery ($20,800) and for mortgage repayments ($14,352).

30 Janice suffers from a number of medical problems, in connection with her neck, back and musculo-skeletal system. She requires physiotherapy treatment. Throughout 2007, she suffered severely from benign positional vertigo, that being a balance disorder for which she was treated at the Royal Prince Alfred Hospital. She still experiences occasional manifestations of that condition. Janice has suffered from tinnitus for about 15 years. She also suffers permanent macular damage to her left eye (with the consequence that she has no central vision in that eye). Apparently, there is a possibility that her right eye might also develop the same condition. Janice, in addition, suffers from mild late onset asthma, which is controlled by medication.

31 According to Janice, over about the last 15 to 20 years, she has suffered from an obsessive compulsive disorder. Her general medical practitioner has attempted to treat that condition with medication, and has subsequently referred Janice to a psychologist.

32 It was the evidence of Janice that the investment property at Taralga is in a dilapidated condition and requires repair. She and her husband have obtained a quotation from a building contractor to effect necessary repairs for a total cost of $26,601.

33 It was the evidence of Janice that repairs are also required to the family residence at Moss Vale. She and her husband have obtained two quotations, being for amounts of $3,230, and $3,400 respectively, to carry out the necessary work.

34 According to Janice, various household appliances and items of furniture require replacement, those including a washing machine, a clothes drier, a dishwasher and a bed. The estimated cost of such replacements is in the range of $3,600 to $4,950.

35 Janice provided details of the costs of medication which she needs for her various medical problems. The costs of those items of medication, as well as of medication required by her husband, total about $2,500 a year. On account of the osteoporosis from which Janice suffers, she had been recommended by her medical advisers to undertake a program of specialist exercise sessions, at a cost of $90 a month, but she has not yet commenced this program. Janice also attends physiotherapy sessions, at an annual cost of $840. Her husband requires hearing aids, which will cost about $8,000 and also requires replacement of his false teeth, at a cost of $2,500.

36 It was the evidence of Janice that she and her husband require replacement of their motor vehicles. She provided information concerning the estimated cost of a reliable motor car as being $35,000 and of a utility motor vehicle for her husband as being $20,000.

37 Janice also provided details of domestic holidays which she and her husband were desirous of undertaking, at a cost of $3,000, and of annual holidays to visit their son and grandson in Victoria, at a cost of $800 per trip.

38 It is the desire of Janice to obtain postgraduate qualifications, by completing a Master of Arts degree, in fine arts, or in art history, at the University of Sydney. She said that such a qualification would assist her to obtain work as a reviewer and part-time lecturer. The cost of that degree is $14,160.

39 Similarly, Mr Jones, who has a TAFE certificate in project management would like to obtain a diploma in that field, at a cost of $1,200. It was said that that additional qualification would increase his potential to find work, since he became redundant from his last employer in 2005.

40 Janice also provided evidence of various memberships and subscriptions (essentially in cultural and artistic spheres) which she and her husband would like either to continue or to commence.

41 In 2009, Janice and her husband each received from the Commonwealth Government a stimulus package payment of $900. Janice invested her $900 in Macquarie Office Trust shares, whilst her husband’s $900 was expended by them on a holiday to Victoria.

42 Although neither Janice nor her husband was eligible for any Centrelink benefits at the time when the present proceedings commenced, Janice, in June 2009 qualified for a part aged pension, in an amount of $198 a fortnight. She also receives a share of the income from the two businesses which she and her husband conduct in partnership, being All Seasons Strata and Commercial Garden Care, and Robert Jones Project Management.

43 In the three months period from 1 July 2009, to 30 September 2009, the former business received a net income before tax of $878, whilst the latter business received a net income before tax of $13,144. Janice receives a share of the income in each of those two businesses. She also receives income from occasional publication of her writings in various art magazines.

44 It was Janice’s evidence that shortly before the hearing of the present proceedings, her model digital camera, which she uses her to illustrate articles for publication in art journals, broke down. The cost of replacement of such a camera is almost $1,400.

45 Mr Jones’s physical health has deteriorated in recent months preceding the hearing. He has been receiving treatment for bursitis, which causes him severe pain in his shoulder, and requires treatment by way of cortisone injections. In addition, he has undergone carpal tunnel surgery to each wrist in September 2009, which has prevented his performing physical work for three months from that time. In consequence, it has been necessary for Janice and her husband to employ two men on a part-time basis to carry out the gardening and lawn mowing work of their home gardening and maintenance business. Such employment reduces the income which Janice and her husband receive from that business.

46 It was Janice’s evidence that if she were to receive further provision from the estate of her mother, she proposed to apply it as follows,

Discharge the home loan with the Commonwealth Bank of Australia, $137,000
Carry out the necessary maintenance and repairs to the two residential properties, $34,000
Replace two motor vehicles, $55,000.
Enable Janice to complete a Master of Arts degree, $14,160
Enable Mr Jones to complete a diploma, $1,200
Total $241,360

47 According to Janice, she also requires additional funds from the estate in an amount of between $130,000 and $150,000, which sum she would invest in a superannuation fund, or some other income-producing investment, to supplement her income, and to provide her with a fund for the present and future needs, the retirement, and any future contingent needs of herself and her husband.

48 It was Lynda’s evidence that, although they were never estranged, she had a difficult relationship with her mother throughout her life. Nevertheless, apart from the period 1984 to 1990, when she worked in Papua New Guinea, she maintained close contact with the Deceased throughout her life, particularly from 1990 until the Deceased’s death in 2008.

49 According to Lynda, the Deceased attempted to prevent any contact between Lynda and Janice from the time when Janice married Mr Jones.

50 Linda, who is a librarian by profession, and is unmarried, has also qualified as a teacher. At various times she has been employed by religious and educational entities and institutions.

51 Since 1994 Lynda has been employed as a librarian at Tabor College at Miranda (where Christian workers are instructed in counselling, inter-cultural studies, ministry and theology). At the time of the hearing, that employment (which formerly was for five days a week) had been reduced by Lynda’s employer, on account of financial exigencies, to four days a week. (For some time until about September or October 2009 Lynda had, in fact, been working for only three days a week).

52 Lynda gave evidence of her contact with and services to her mother, throughout the latter years of the Deceased’s life.

53 Lynda resides in a very small one bedroom flat attached to a Christian retreat house at Bundeena, for which she pays rent. That arrangement is not of a permanent nature, and Lynda expressed a need and a desire to secure her own accommodation.

54 Lynda has the following assets

Honda motor car, 2008 model
(given to her by a friend) about $19,000
Furniture $500
Bank account about $2
Credit union share $10
Superannuation entitlement $24,161

55 At the commencement of the proceedings Lynda had the following liabilities,

Coles Myer $1,000
Credit Union of Australia $2,000
National Australia Bank $1,000

56 However, in July 2009 Lynda obtained a personal loan in an amount of $8,000 from the National Australia Bank, which was applied towards discharging debts on credit cards and other liabilities. That personal loan, which Lynda is repaying at the rate of $200 a month, is now her only liability.

57 Lynda’s gross income for the year ended 30 June 2008, was about $21,000. However, as a result of working for up to five days a week, her income has now increased to about $30,000 after tax.

58 Lynda gave evidence of her estimated monthly expenses, in a total amount of about $2,217 (of which the largest items are rent, $260; and petrol, $450).

59 Lynda, who suffers from asthma and depression, and requires dental treatment, does not have private health insurance. The estimated cost of the required dental work is $7,430. She also requires new prescription spectacles, which will cost about $375. She said that private health cover would cost her $2,107 a year.

60 According to Lynda, her essential need is to secure suitable accommodation, especially when she ceases to be able to live in her current temporary accommodation at the Christian retreat house. It is her desire to purchase a two bedroom home unit, preferably at Miranda, close to her place of employment. Lynda provided details of an internet search of home units and town houses in Miranda, some for sale by auction, others at prices from $340,000 to in excess of $400,000. In addition, Lynda will require about $3000, to meet legal costs and expenses associated with the purchase of any such property, apart from stamp duty. It is her understanding that she would qualify for an exemption from stamp duty as a first home buyer. Presumably, also, she would be entitled to a first home buyer’s grant.

61 Lynda also said that she required to furnish any such residence which she might acquire. She estimated that she would require at least $15,000 for white goods and appliances, as well as for basic dining room and bed chamber furniture. Lynda provided details of the costs of such appliances, furniture and household items, which are currently for sale at Harvey Norman, at a total cost of $10,428.

62 There was placed before the Court a considerable quantity of letters and other written statements from the Deceased. That material was admissible in evidence pursuant to section 32 of the Family Provision Act. Nevertheless, the Court is not required to accept unquestioningly the truth or accuracy of that material (much of which was denied by the Plaintiffs). Testators, like living witnesses, can make untrue or inaccurate statements, either deliberately or unintentionally. One of those documents written by the Deceased (a letter addressed to the Public Trustee, dated 8 January 1998) contains the following,

Should any member of my family contest my will, their share is to be revoked and given to the named charities.

63 That direction, being an attempt to oust the jurisdiction of the Court under section 7 of Family Provision Act, is, of course, of no effect.

64 In addition, the Defendant placed before the Court some thirteen wills (and instructions sheets in respect to all but one of the those wills) made by the Public Trustee for the Deceased in the period from 25 October 1990 to 16 December 2002.

65 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of each Plaintiff. I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.

66 Each Plaintiff, as a daughter of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of Family Provision Act. As such, each Plaintiff has the standing to bring the present proceedings.

67 The Plaintiffs are the only eligible persons in relation to the Deceased.

68 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 – 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for his or her proper maintenance.

69 The High Court in Singer v Berghouse (at 209 – 210) said that the determination of the first stage

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.

70 I shall proceed first to a consideration of the claim of Janice.

71 It should be appreciated that an order for provision is not made as a reward for services or good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of the applicant.

72 In the instant case it is quite apparent from the letters and other written statements of the Deceased herself that she had a difficult relationship with Janice, and that, through no fault of Janice, there were estrangements during the period of their relationship. I do not consider that the nature of the relationship during the periods of such estrangements, constitutes conduct which would have the effect of disentitling Janice from the benefit of any order for provision an entitlement to which she might otherwise have established.

73 Janice and her husband live in far from affluent financial circumstances. A trust from which she is entitled to receive only the income for her life (the amount of such income probably being presently in the order of $5000-$6000 per annum) does not discharge any maternal obligations of the Deceased. I am satisfied that Janice has been left without adequate provision for her proper maintenance.

74 The essential question is what order for provision should be made in her favour.

75 The health problems of Janice and her husband are such that, at their respective ages, it is unlikely that they will be enabled significantly to increase their income.

76 Nevertheless, it seems to me that their outgoings appeared to be excessive, and that many of the asserted needs were more in the nature of a wish list than of essential requirements. However, it should be emphasised that it is not for the Court to direct how an applicant for provision should conduct her lifestyle.

77 The Court, nevertheless, is entitled to give consideration to what are the appropriate needs (as distinct from the desires and wishes) of an applicant, in exercising its discretion to make an order for provision of the nature contemplated by section 7 of the Family Provision Act.

78 It seems to me that Janice, in lieu of the income upon the trust fund given to her by clauses 7.00 and 8.00 of the will, should receive from the estate of the Deceased a benefit which will enable the mortgage loan upon her residence to be discharged (such discharge will significantly reduce the outgoings of Janice and her husband, who presently pay an amount of $14,352 a year upon that loan). The amount presently outstanding on that mortgage loan is $137,000. In addition, I consider that she should receive a fund which will enable her to carry out necessary maintenance and repairs to their family home at Moss Vale. These appears to be no reason why the estate should bear the costs of repairs to their investment property at Taralga. If that property is not a remunerative investment, then, presumably, Janice and her husband would be better off if it were disposed of.

79 The total cost of $55,000 for the replacement of two motor vehicles seems to me to be somewhat excessive. However, it is appropriate that Janice should be enabled to pursue post-graduate qualifications, at a cost of a little over $14,000, with a view to improving her ability to earn income. Although the tertiary qualifications sought by her husband at a cost of $1200 may enhance the business prospects of Janice and her husband, it should be recognised that the present is a claim by Janice, not by her husband.

80 I consider that, in addition, to the foregoing amount of $137,000 (to discharge the mortgage loan), Janice should receive from the estate a further amount of $150,000 That latter amount will constitute a fund available for repairs to their home, or, if they wish, for the purchase of two motor vehicles, or to provide a fund to meet unforseen contingencies and to enhance the lifestyle of Janice and her husband. I am satisfied that Janice has established an entitlement to receive from the estate of the Deceased, a legacy of $287,000, in lieu of the benefit given to her under the will of the Deceased.

81 I turn now to the claim of Lynda.

82 Lynda is in far more difficult financial circumstances than is Janice. Although Lynda is qualified as a teacher and as a librarian, her income is quite small. She has chosen during her working career to accept positions with religious and missionary entities and organisations, the financial remuneration from which appears to have been less than she might otherwise have obtained if she had worked for other or secular employers. In a document headed “To be left with my last Will and Testament”, but bearing no date, the Deceased said, concerning Lynda,

Unfortunately Lynda whilst I was working to support her became involved with a fanatical religious group and wanted to go to New Guinea supposedly for two years as a teacher librarian at Dauli Teacher’s College, Tari, N. Guinea run by this group of missionaries.
…
The reason for not giving her a lump sum of money is because it would be taken over by these fanatical people as they control her life, and there is nothing we can do except to hope one day she will come to her senses.

83 It is not for either the Deceased, or the Court, to criticise Lynda’s motives in choosing the career path which she has followed. It is for the Court to look to the circumstances which obtain at the present time, not to look to circumstances which might have obtained if Lynda had chosen other careers or had chosen to work in other fields of employment.

84 At the age of 55 Lynda’s primary and most significant need is for security of accommodation. Indeed, the Deceased, not long before her death, recognised that Lynda had such need, and offered to purchase a home unit for her, costing in excess of $300,000, in circumstances which have been outlined in Lynda’s affidavit. The Deceased then reneged upon that promise.

85 Nevertheless, it is only in most unusual circumstances that an adult daughter, in employment, is entitled to look to her mother for the total cost of a residence (see Shearer v Public Trustee, 29 March 1998, unreported, Young J; Morton v Little [2005] NSWSC 36, 7 February 2005, Master Macready).

86 I am satisfied, first, that Lynda has been left without adequate provision for her proper maintenance. Further, that she is entitled to receive from the estate of the Deceased, in lieu of the benefit given to her by way of the income upon the trust, a legacy in an amount which will assist her in acquiring a home unit of the nature which she desires (a two bedroom residence near her place of employ), costing in the vicinity of $300,000. The estate should not, however, be required to bear the entire cost of such a residence. Presumably, Lynda will be enabled to obtain a housing loan, secured by mortgage, for a significant part of the purchase price. In addition, Lynda should also receive a further amount, which will assist her in acquiring furniture and furnishings for that residence, and to provide a fund to meet unexpected contingencies.

87 I am satisfied that Lynda has established an entitlement to receive from the estate of the Deceased a legacy in the sum of $350,000.

88 Each of the foregoing benefits, an entitlement to which I am satisfied that each Plaintiff has otherwise established, must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only competing claims are those of the three children of Janice, and of the Children’s Hospital at Westmead, and of the two residuary beneficiaries. No evidence has been placed before the Court concerning Janice’s three children, who under the terms of clause 10.00 of the will receive the capital in the trust fund of $100,000 upon Janice’s death; or concerning the Children’s Hospital, which under the terms of clause 6.00 of the will receives the capital in the trust fund of $100,000 upon Lynda’s death.

89 Neither has any evidence been placed before the Court regarding one of the residuary beneficiaries, being the Guide Dogs Association. However, evidence has been placed before the Court on behalf of the other residuary beneficiary, Barnados Australia.

90 The evidence discloses that that latter entity has in the last financial year suffered a trading loss of $2,400,000.

91 Under the terms of the will of the Deceased Barnados would receive about $350,000. No evidence has been placed before the Court as to how that amount would be used by that beneficiary.

92 It should not, however, be overlooked that a benefit to charities has been common to all the earlier wills of the Deceased (the Guide Dogs Association being named as a residuary beneficiary in six of those wills, and Barnados (or an entity apparently associated therewith) being named as a residuary beneficiary in four of those wills).

93 Neither should the Court disregard the fact that the Guide Dogs Association and Barnados Australia are the chief chosen objects of the testamentary beneficence of the Deceased.

94 Neither should it be overlooked that, since the proposed legacy in favour of each Plaintiff will be received in lieu of the benefit given to that Plaintiff by the will, there will be brought into residue an additional sum of $200,000. Upon my calculation, if the distributable estate be regarded as being about $865,000, and if the specific legacies provided by clause 1.00 and clause 2.00 be preserved, there will remain $725,000 to meet the benefits to which I consider the Plaintiffs have established an entitlement. Those benefits total $637,000. Thus there will remain in residue about $88,000 (of which the Guide Dogs Association will receive about $22,000, and Barnados Australia will receive about $58,000).

95 Neither was any evidence placed before the Court concerning the situation of any of the persons or entity who or which under the will receive the capital of the trusts set up for respectively Janice and Lynda. It should not be overlooked, however, that those persons, being the three children of Janice, each also receive a legacy of $10,000, and that that entity, the Children’s Hospital at Westmead, also receives a legacy of $100,000.

96 I am satisfied that the competing claims of the beneficiaries who are respectively entitled to the capital of the trust funds and the competing claims of the two residuary beneficiaries are not such as would have the effect of reducing, let alone extinguishing, an order for provision for each of Janice and Lynda, of the nature which I have earlier indicated.

97 Accordingly, I make the following orders:

1. I order that, in lieu of the benefit given to her by the will of the late Marjorie Gladys Miriam Ward (“the Deceased”), Janice Margaret Jones receive a legacy in the sum of $287,000; and that, in lieu of the benefit given to her by the will of the Deceased, Lynda Anne Ward receive a legacy in the sum of $350,000; each such legacy not to bear interest if paid on or before 28 May 2010, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898; and each such legacy to be paid out of the residue of the estate of the Deceased (being described in clause 12.00 of the will of the Deceased as “the remainder of my property”).

2. I order that the costs of each Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

3. The exhibits may be returned.
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