Kennedy v Dymond

[2003] NSWSC 602

CITATION:	Kennedy v Dymond [2003] NSWSC 602
HEARING DATE(S):	24 March 2003, written submissions to 15 May 2003.
JUDGMENT DATE:	3 July 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I order that, in addition to the benefits given to her by the will of the late Elspeth Anne Melville Dymond ("the Deceased"), the Plaintiff receive a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 3 September 2003, and if not so paid to bear interest at Supreme Court rates; (2). I order that the costs of the 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 - Claim by adult daughter - Financial and material circumstances of Plaintiff - Health problems of Plaintiff - Competing claims of other beneficiaries (especially Defendant) - Health problems of Defendant, and his financial and material circumstances - Practical effect of order for provision - Probable result would be for Defendant to be dispossessed of home in which he has resided for virtually his entire life - Statements by Deceased in her will and otherwise giving reasons for her testamentary dispositions.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Charmaine Julianne Kennedy (Plaintiff) Melville Russell Eric Dymond (Defendant)
FILE NUMBER(S):	SC 4266/01
COUNSEL:	C. Simpson (Plaintiff) L.J. Ellison (Defendant)
SOLICITORS:	L. Rundle & Co, Solicitors (Plaintiff) Paul C. Fabian & Co, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 3 July 2003

4266/01 CHARMAINE JULIANNE KENNEDY -v- MELVILLE RUSSELL ERIC DYMOND

JUDGMENT

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

2 By summons filed on 30 August 2001 Charmaine Julianne Kennedy claims an order for provision for her maintenance, education and advancement in life out of the estate of her late mother Elspeth Anne Melville Dymond (to whom I shall refer as “the Deceased”).

3 The Deceased died on 1 April 2000, aged eighty. The Deceased left a will dated 1 June 1995 and a codicil thereto dated 27 July 1995, probate whereof was on 18 October 2000 granted to Melville Russell Eric Dymond, the executor named in such will (who is the Defendant to the present proceedings).

4 The only significant asset in the estate of the Deceased was the house property situate at 250 Bexley Road, Earlwood, which had been the residence of the Deceased at the time of her death. In the inventory of property an estimated value of $490,000 was ascribed to that house property.

5 The present value of the Earlwood property is $480,000 (as disclosed by the valuation annexed to the affidavit of Stuart Rowan sworn 16 August 2002). It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration. Irrespective of the outcome of the proceedings the Defendant will be entitled to an order that his costs be paid out of the estate of the Deceased. It is estimated that those costs will total $27,000. In the event that she be successful in her claim, the Plaintiff will also be entitled to an order that her costs be paid out of the estate. It is estimated that the Plaintiff’s costs will also total $27,000. Accordingly, the value of the estate available for distribution is $426,000. The practicalities of the nature of the estate are such, however, that the house property would require to be sold (or a mortgage to be raised on the security of the house property) in order to meet the foregoing costs.

6 The Deceased was survived by her four children, being:

Charmaine Julianne, the Plaintiff (who was born on 7 June 1950 and is presently aged 53)
Melville Russell Eric (who was born on 7 June 1950 and is presently aged 53)

Francis Marlon (who was born in 1952 and is presently aged 51).

David Malcolm (who was born on 9 November 1953 and is presently aged 49)

(It will be appreciated that the Plaintiff and the Defendant are twins.)

7 By the terms of her will and in the events which have happened the Deceased gave her piano to the Plaintiff absolutely (subject to the condition that “she shall first, and within eighteen (18) months from the date of my death, reimburse MELVILLE the amount of Four thousand dollars ($4,000.00) provided by him for improvements on her St Clair home before its sale”) and gave to Melville her household furniture, furnishings and effects, and her residuary estate.

8 The Deceased then gave the house property at 250 Bexley Road, Earlwood “to my son MELVILLE for his lifetime” and after his death to her children David, Francis and Charmaine absolutely as tenants in common in equal shares.

9 It is appropriate that I should here set forth the terms of clauses 3 and 6 of the will, they being relevant to the present proceedings.

3. I DECLARE that in making this my Will I have carefully considered the needs of each of my children and the assistance given to me by each of them (particularly since my husband died in 1958) and, as well, to the dependence of each upon me. I ask that the statement I make later in this Will be taken into account in rejecting any challenge to the provisions of this my Last Will and Testament.

6. FOR THE PURPOSE of defeating a challenge to any bequests herein pursuant to the Family Provisions [ sic ] Act I say that I have bequeathed my estate with preference to MELVILLE for the following reasons:

(a) MELVILLE suffers disabilities preventing him making his way through life independently, the most serious being that he enjoys very limited vision (in fact classified as having only 10% sight);

(b) in consequence of his disability, MELVILLE has not had available opportunities enabling him to move away from the family home. This in turn has had the effect of making him extremely dependent upon both the shelter and security, and the familiarity it provides him;

(c) whilst continuing to live in the family home, MELVILLE and I have grown dependent upon each other, each of us supporting the other in various ways, physically, emotionally and financially, particularly since the death of my husband in 1958;

(d) MELVILLE’s sole source of income is his disability pension, and it is impossible for him to have even the potential of any other. We have pooled our pensions within my lifetime to thus be each able to improve our material comforts;

(e) I feel MELVILLE deserves recognition and allowance for his companionship and regard for my welfare during my lifetime;

(f) My sons FRANCIS and DAVID , although not wealthy, are comfortable with their material needs adequately satisfied and have no needs in priority to those of MELVILLE ;

(g) CHARMAINE , although not having her own home, suffers no serious disabilities as would prevent her from seeking and acquiring suitable accommodation other that the family home. Although MELVILLE and CHARMAINE can be said to have an equal financial dependency upon the family home, MELVILLE has, regrettably but inevitably, physical and emotional dependencies upon it in addition.

(h) CHARMAINE , it must be said, has regrettably not been on good terms with me or the rest of the family and has already made it clear that upon my death she will challenge any bequest as does not result in the sale of the home and the distribution of its proceeds among the children equally. CHARMAINE has not spoken to me in agreeable terms for some considerable time.

10 The Deceased was a widow at the time of her death, her husband having died in 1958. The house property at Earlwood had been the residence of the Deceased and her husband and their children, the house apparently having been constructed in the early 1950s, shortly after the Second World War (in which the Deceased’s husband had served in the Army Signal Corps).

11 Shortly after her father’s death (when she was aged about eight) the Plaintiff went to reside with her maternal grandparents for about six years, whilst her three brothers remained in the family home with their mother. Throughout that period the Plaintiff remained in regular and frequent contact with her mother. Legacy gave some material assistance to the Plaintiff during that period.

12 The Plaintiff returned to the family home when she was aged about fourteen, and remained there until she left home permanently when she was aged twenty. The Plaintiff left school at the age of sixteen, having achieved the School Certificate. She immediately commenced in employment as a cookery demonstrator with the Sydney County Council, and studied home economics at the East Sydney Technical College three nights a week.

13 In 1975, when she was aged about twenty-five, the Plaintiff married. However, that marriage lasted only about six months, and no children were born of that marriage. After the breakdown of her marriage the Plaintiff returned to live with the Deceased at the Earlwood residence for about six months. The Plaintiff remained in full-time employment, essentially in the food and catering industry, until 1984. Since then she has devoted her time to the care of her children.

14 The Plaintiff’s first child, Cherie, was born in 1979, her second child Cassandra was born in 1981, and her son Cameron was born in 1987. The Plaintiff received emotional support and care from her mother after the birth of each child.

15 The Plaintiff has received only minimal child maintenance from the father of Cherie and Cassandra.

16 In about 1983, after the Plaintiff had separated from the father of her two daughters, she purchased a house at St. Clair, with the assistance of a Home Fund mortgage, and resided there with her children. Michael Boyles, the father of her son Cameron, left her before the birth of that child. The Plaintiff has received no emotional support and no child maintenance from him for many years. The Plaintiff continued to live in the St. Clair residence with her three children until about 1989, when, as a result of inability to meet mortgage repayments, that house had to be sold.

17 According to the Plaintiff, shortly thereafter she reconciled with Michael Boyles, and together with her three children she moved in with him in a residence at Leeton. However, according to the Plaintiff, Mr Boyles became violent towards her, and after he had been convicted of assaulting her and apprehended violence orders had been made against him the Plaintiff and her children departed Leeton. For a short period they resided in a women’s refuge at Armidale.

18 From 1991 until early 2002 the Plaintiff and her children resided in rented accommodation at Port Macquarie. According to the Plaintiff, the Deceased gave her help and support in raising her children and took a great interest in them as they were growing up. The Plaintiff and her children frequently stayed with the Deceased or visited her. She said that she and the Deceased wrote to each other on many occasions.

19 At the commencement of the proceedings and until early 2002 the Plaintiff was residing in a modest two bedroom home unit at Port Macquarie, together with her son Cameron, who was attending Port Macquarie High School. The Plaintiff’s two daughters are now living independently. Each is in employment and resides in Sydney. The Plaintiff has a good relationship with her daughters and sees them regularly.

20 In early 2001 the Plaintiff met a Mr Karl Muller, who resided at Moss Vale. They began to see each other socially, Mr Muller travelling on occasion to Port Macquarie, whilst the Plaintiff travelled by train to Moss Vale. According to the Plaintiff, in early 2002, at the invitation of Mr Muller, she and Cameron moved into Mr Muller’s residence at Moss Vale, on the basis that the Plaintiff was responsible for her own food and other expenses. In accordance with that arrangement, the Plaintiff had her furniture and household items placed in storage at Mittagong and surrendered the tenancy of her apartment at Port Macquarie. However, according to the Plaintiff, difficulties soon arose between herself and Mr Muller, and in June 2002 the Plaintiff and Cameron departed Mr Muller’s residence and went to a women’s refuge conducted by the St Vincent de Paul Society at Mittagong.

21 The Plaintiff is currently residing in that women’s refuge, where she shares a bedchamber with her son Cameron (who is in Year 11 at Bowral High School). The Plaintiff said that she cannot afford to reside anywhere else. She pays $50 a week for her accommodation at the refuge, but if she is unable to pay that amount she is not required to do so.

22 At the present time the Plaintiff’s income consists of a social security pension of about $370 a fortnight and a family allowance of about $116 a fortnight. In addition, the Plaintiff receives child support from Cameron’s father in an amount of $300 a fortnight. Thus the Plaintiff’s total weekly income is $786 a fortnight (or $393 a week).

23 The family allowance which the Plaintiff presently receives will terminate when Cameron attains the age of sixteen years.

24 The Plaintiff has no assets, apart from some furniture and household items (which are still in storage) and her personal effects.

25 The Plaintiff set forth details of her various outgoings, including payments of $30 a month in respect of two credit card indebtednesses (one in an amount of about $2,000 and one in an amount of $1,700).

26 The Plaintiff suffers from a number of medical problems, both of a physical and of a psychological nature. Those problems include visual problems (from which the Plaintiff has suffered since birth); gall bladder polyps; damage to the tendon/muscle of her right arm; back problems; arthritis; migraine headaches; pelvic pains and adhesions; urinary tract infection; post-traumatic stress disorder; anxiety-panic-depressive symptoms. She also has a history of having experienced a detached retina. She suffers bilateral hearing loss/tinnitus. The Plaintiff suffers recurring abdominal pains due to the gall bladder polyps, and requires ongoing assessment in this regard. She experiences difficulty with sleeping, due to pain levels, and extreme difficulty in walking up and down stairs, due to sciatica. She is unable to mow lawns as a result. In addition, scoliosis, spondylitis, disc protrusion and Scherman’s Disease all aggravate and limit her mobility and flexibility. She suffers chronic pain which limits her lifestyle, as well as causing her difficulty with sleep. The Plaintiff has arthritis in both hands, as well as in her right knee. She often finds it difficult to handle objects, to grasp and carry objects including utensils, which results in her at times dropping objects.

27 The mental and emotional problems from which the Plaintiff suffers had their onset when she was mugged in the street in Port Macquarie in April 2000, and when she was approached by the same aggressor some months later. Those two incidents (which were the subject of complaints by the Plaintiff to the police) have resulted in a post-traumatic stress disorder, with symptoms of anxiety, depression, panic, claustrophobia, withdrawal, shyness, tremors, flashback memories of the attack, obsessiveness and mistrust in people.

28 The Plaintiff takes a number of medications, being Endone, Panadene Forte, Valium and Noroxin on a daily basis; in addition, she takes Temaze, Avrill and Zelmac when necessary; and takes Imigran on an irregular basis for migraines; and in addition she has testosterone implants.

29 On account of her limited vision the Plaintiff does not hold a driver’s licence.

30 The Plaintiff gave evidence that she had been experiencing problems with her hearing for about the past ten years and that that condition has progressively worsened. She said that she would like to use a hearing aid, but that she was not able to afford to acquire such equipment.

31 A very considerable quantity of evidence was placed before the Court concerning the relationship between the Plaintiff and the Deceased and between the Plaintiff and her three brothers. Further, and somewhat curiously, a considerable quantity of evidence was placed before the Court by the Plaintiff concerning the relationship between the Deceased and the Plaintiff’s brothers (in particular the Defendant). That latter evidence is largely irrelevant.

32 It will be appreciated that the Plaintiff must establish her claim upon its own merits. She cannot establish, or enhance, her claim by establishing, if such be the case, that the Defendant, or the other children of the Deceased, had they been left without adequate provision, would, on account of the nature of their relationship with the Deceased, have failed in an application under the Family Provision Act.

33 It must be recognised that the Defendant is the chief chosen object of the testamentary beneficence of the Deceased. Whatever may have been the relationship between the Defendant and the Deceased (and, in this regard, the various statements by the Deceased, both in her will, and in the handwritten letters by her which have been admitted into evidence disclose a close and loving relationship between the Defendant and the Deceased) is totally irrelevant to the claim of the Plaintiff. The Deceased herself appears to have been more than content that, whatever may have been the nature of the relationship between herself and the Defendant, the Defendant should receive the substantial benefit under her will, being a life estate in the house property at Earlwood. I propose, therefore, totally to disregard the evidence proffered by the Plaintiff with a view to establishing that the relationship between the Deceased and the Defendant was not harmonious and was not a close or affectionate relationship. I would, however, in this regard state that were it necessary for me to do so, I would find that there existed a close and affectionate relationship between the Deceased and the Defendant.

34 Evidence was placed before the Court concerning the financial and material circumstances of the Defendant and of his two brothers.

35 The Defendant has lived in the Earlwood property for virtually the entirety of his life. After leaving school in June 1966 he was employed for some years. (At least for a time that employment was under a government scheme relating to the employment of persons with disabilities.) His employment included working as a press operator and as a process worker. The Defendant has no trade qualifications or skills. He ceased employment in March 1982, and has not been employed since that time.

36 According to the Defendant, he left his last employment in order to look after the Deceased on a full-time basis. According to the Defendant, whilst he was in employment he gave the entirety of his income to his mother, who would save some money for him, and purchase his clothing and other necessities, giving him any spending money as he needed it. When the Defendant ceased employment he began to receive a disability pension. It was the practice of the Deceased and the Defendant to pool their respective pensions in order to meet their living expenses. The Deceased and the Defendant went on shopping expeditions together, as well as going on recreational tours and outings. They both participated in the housework and the maintenance of the residence, the Defendant stating that he attended to the heavy cleaning and to the external maintenance, whilst his mother did the cooking, and that they shared the light cleaning and washing of clothes.

37 At the present time the Defendant’s sole income is by way of a disability pension, currently in an amount of $416.30 a fortnight. He also receives $18 telephone allowance a quarter.

38 According to the Defendant’s affidavit of 13 March 2002, his assets at that time consisted of amounts in various bank accounts ($797 and about $10,000), cash held in his house (about $2,000), together with a train set (to which he ascribed a value of about $4,000) and household furniture (to which he ascribed a value of about $3,000), his total assets thus being disclosed at a little under $20,000.

39 That evidence was false, and was admitted to be so by the Defendant under cross-examination.

40 The Defendant owns a motor vehicle, being a seven seater Nissan Patrol wagon, which was purchased by him in December 2002 for $52,500. That vehicle is kept in the garage at the Earlwood residence, although it is sometimes driven by a friend. It will be appreciated that, on account of his sight impairment, the Defendant does not drive and has never held a driver’s licence. That vehicle was purchased by the Defendant for cash, the amount of $52,500 being part of a cash fund of about $215,000 held by the Defendant, and located in what he described as a bank vault at the Commonwealth Bank in Martin Place.

41 The precise source of that not inconsiderable cash fund was somewhat obscure. According to the Defendant that fund represented accumulated savings from his pre-1982 earnings.

42 Not only did the Defendant in recent times purchase the motor vehicle for cash, but he also purchased a boat for $24,000 (being described as a Getaway), which has subsequently been sold, the sale price not being revealed, but the proceeds of that sale having been used in part for the purchase of the motor vehicle. The Defendant said that after the death of the Deceased he also expended some of that cash fund on renovations to the house, and the acquisition of new furniture and two new televisions, as well as some landscaping, and acquisition of roller shutters for enhanced security on the house.

43 According to the Defendant’s oral evidence, of the asserted cash fund of $215,000 the Plaintiff currently holds $84,000 in cash in the bank vault and $10,000 in cash at his residence, being a total cash amount of $94,000. He was cross-examined as to what had happened to the difference between that sum and the original cash fund of $215,000, even taking into account the purchase of the motor vehicle for $52,500 and the acquisition of additional furniture and the renovations and repairs to the house and its grounds.

44 Further, the Defendant until about four or five years ago, participated in what was described as a Personal Superannuation Scheme, in respect of which he as recently as 3 April 2002 had an amount of $11,732 standing to his credit.

45 The Defendant under cross-examination stated that the value of the train set was now about $6,000, although he had attributed a value of about $4,000 to that asset in his affidavit evidence.

46 It will be appreciated that neither the cash fund, nor the motor vehicle nor the superannuation entitlement was disclosed by the Defendant in his affidavit evidence. He said that the reason he did not disclose those additional assets was the thought that if he did so it might assist the Plaintiff’s claim for an order for provision.

47 The Deceased’s son Francis has not worked since 1994 (I gather, on account of his physical and mental health). He and his wife reside at Akaroa in Tasmania, where they own a house property (to which an estimated value of $100,000 is ascribed and which is subject to a mortgage upon which $42,000 is outstanding). Their other assets are a 1980 Holden motor vehicle ($2,700) and furniture ($40,000). Their only liability, apart from the mortgage, is a Bankcard indebtedness ($10,000). Francis has an income of $13,200 a year (described as “AMP replacement income”), whilst his wife has an age pension of $8,034 a year. Their outgoings are somewhat in excess of their combined annual income.

48 The Deceased’s son David has not placed before the Court details of his financial and material circumstances. However, each of Francis and David has provided an affidavit in support of the Defendant, and in opposition to the claim of the Plaintiff. Neither Francis nor David, each being an eligible person, has sought to disturb the testamentary provisions of the Deceased.

49 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

50 I have had the advantage of receiving written submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

51 The 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 the Family Provision Act. As such, she has the standing to bring the present proceedings. It will be appreciated that the Defendant and the other sons of the Deceased are also eligible persons, each being such within the same paragraph of the foregoing definition.

52 In performing the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208, the Court must first establish whether, in the light of the testamentary dispositions of the Deceased, the Plaintiff has been left without adequate provision for her maintenance and advancement in life.

53 By her will the Deceased gave to the Plaintiff her piano, subject to the Plaintiff reimbursing the Defendant the amount of $4,000 stated by the Deceased in clause 4(a)(i) “provided by him for improvements on her St. Clair home before its sale”. There is no evidence to suggest that the Plaintiff has in fact reimbursed the Defendant in that amount, or that she intends to do so. Indeed, it is of the very essence of the Plaintiff’s claim that she would not be able to afford to make such reimbursement even if she were desirous of doing so. In those circumstances, therefore, any potential benefit to the Plaintiff under clause 4(a)(i) of the will should be disregarded.

54 The other benefit given to the Plaintiff by the will of the Deceased is a share in the interest in remainder in the Earlwood property after the death of the Defendant. Since the Plaintiff and the Defendant are twins, of exactly the same age, there is no particular likelihood that the Plaintiff will survive the Defendant. In any event, each of them is presently aged only fifty-three years. Even if the Plaintiff does outlive the Defendant, she should not expect to receive any benefit under her mother’s will for many years to come. In any event, that benefit is only an interest as to one third of the interest in remainder in the Earlwood property.

55 That the Plaintiff is in modest circumstances, with no assets and little by way of income, residing with her sixteen year old son in a women’s refuge, and being totally dependent upon social security and maintenance payments, is clearly established by the evidence. However, as the High Court of Australia recognised in Singer v Berghouse, at 208-210, it is necessary for the Court, in performing the first stage in the two stage process therein identified by the High Court, to take into consideration the claims of other persons upon the testamentary bounty of the Deceased. In the instant case the only other such person whose claim needs to be considered is the Defendant.

56 The primary need of the Plaintiff is for secure accommodation. She previously had such secure accommodation at Port Macquarie. On account of the mugging and the subsequent confrontation by the mugger, the Plaintiff felt it desirable to quit Port Macquarie and to move to the Southern Highlands. Since the breakup of her relationship with Mr Muller, in mid-2002, the Plaintiff has been residing at the refuge. That situation obviously lacks permanence, and the Plaintiff has no security of accommodation.

57 The almost inevitable consequence of any order for provision which the Court might make in favour of the Plaintiff is that the Earlwood property must be sold. That will mean that the Defendant will be dispossessed of the residence which has been his home for virtually the entirety of his life.

58 Had the evidence concerning the assets of the Defendant remained as they were set forth in his affidavit evidence it was inevitable that the Court, albeit with reluctance, must have dismissed the Plaintiff’s claim.

59 The situation now, however, is not so clear cut.

60 The Earlwood residence comprises three bedrooms. It was the evidence of the Defendant that two of those bedrooms were unoccupied and were not used for any purpose. It is apparent that the accommodation in that residence is more commodious than is essential for the Defendant. There was evidence placed before the Court by the valuer, Stuart Rowan that “the current market value of an older style two bedroom ground floor or first floor unit in the Earlwood area in sound original condition would range between approximately $220,000 and $260,000”.

61 However, it is not for the Court to tell parties where they should reside. It is for the Plaintiff to establish her entitlement to an order for provision. The competing claim of the Defendant (and of the other beneficiaries) may then have the effect of reducing, or even extinguishing, an order for provision an entitlement to which the Plaintiff might otherwise have established. It would be an incorrect approach for the Court firstly to decide that the Defendant should leave the residence which has been his home for his entire life and should acquire a two bedroom ground floor home unit in Earlwood costing up to $260,000, and for the Court then to award to the Plaintiff the balance of the estate of the Deceased.

62 The fact that the Plaintiff, especially in her oral evidence at the hearing, did not attract the sympathy of the Court, both by her manner and her responses, should not on that account deprive her of an order for provision. Indeed, it is possible that that fact might enhance the claim of the Plaintiff, by emphasising at least some of the psychological and emotional problems from which she suffers.

63 I am in entire agreement with the submissions made by Counsel for the Defendant concerning the evidentiary responses given by the Plaintiff, that she was not a good historian, that she was a poor, evasive witness, that she chose to avoid answering questions and gave unintelligible answers, and that in certain respects (for example concerning offers for accommodation from the Housing Department) she was unconvincing. The Plaintiff offered no explanation as to why her claim for criminal compensation was totally omitted from her affidavit evidence.

64 Nevertheless, in all the circumstances of this case I am satisfied that in consequence of the testamentary dispositions of the Deceased the Plaintiff has been left without adequate provision for her proper maintenance. It therefore becomes necessary for the Court to redress that situation, in the light of the competing claims of the Defendant and his brothers (who, especially the Defendant, are the chosen objects of the testamentary beneficence of the Deceased).

65 I have already recorded that the Plaintiff’s claim, and indeed her significant need, is for accommodation for herself and her dependent sixteen year old son. Nevertheless, the evidence as to how that need could be redressed was skimpy in the extreme, if not non-existant.

66 The Plaintiff did not offer any evidence of attempts made by her to inspect or locate suitable accommodation, either for purchase or for rental. Indeed, her efforts to find suitable rental accommodation appear not to have gone beyond reading the local newspaper. The Plaintiff has not chosen to visit any real estate agents. She offered no evidence of the cost of any specific house in the Southern Highlands, be it the cost of purchase or the rental cost.

67 Unless the Plaintiff be awarded an amount which would enable her to purchase outright a residence, there is no purpose in her receiving any amount towards the purchase of accommodation. She does not have the financial capacity of servicing a mortgage So there is no purpose in awarding to her an amount to be used as a deposit on a residence (even if there were evidence of an amount which would be appropriate to the deposit upon some specific residence).

68 But, in any event, it is not usual for an adult child to be awarded from the estate of a parent the cost of purchasing a residence. The approach of the Plaintiff appeared to be that she should be enabled to purchase outright a residence. Consideration does not appear to have been given by her to the acquisition of rented accommodation. In this regard, I observe that the Plaintiff appears to have been content to reside in rented accommodation at Port Macquarie for more than ten years, until the incidents relating to her mugging caused her to remove from that locality. There has not been placed before the Court any evidence concerning the cost or availability of rental accommodation in the Southern Highlands (be it by way of public housing or by way of private leasing).

69 The Court is confronted, on the one hand, by the claim of the Plaintiff, who suffers health problems and emotional problems and is in poor financial circumstances, has a dependent son, and who lacks security of accommodation, and, on the other hand, by the provisions of the will in favour of the Defendant, whose health problems are hardly less than those of the Plaintiff, and whose financial circumstances, apart from his life interest in the house property, are somewhat better than those of the Plaintiff.

70 To give to the Plaintiff any practical benefit out of the estate of the Deceased, for the purchase of a residence, it would be necessary to award to her a sum representing the entire purchase price of a residence. There is no evidence before the Court as to the cost of such a residence, but it is unlikely that a sum of less than $200,000 would be adequate, even in the Southern Highlands. For the Court to award such a sum to the Plaintiff would, in the light of the nature of the assets of the estate, inevitably result in the sale of the Earlwood property, with the consequent dispossession of the Defendant from his home of virtually the entirety of his life.

71 The express statements by the Deceased herself, both in the will and in the various letters from her which have been placed in evidence (which statements are admissible pursuant to section 32 of the Family Provision Act) clearly reveal that the Deceased gave careful and appropriate consideration to the competing claims of the Plaintiff and the Defendant. The Court should not lightly disregard those statements.

72 Neither should the competing claims of the other two children of the Deceased be disregarded. They have made no application for an order for provision. They are content to abide by the terms of their mother’s will. They should not be deprived of the benefit given to them under the terms of the will of the Deceased, that benefit, so far as the house property is concerned, being identical to the benefit given to the Plaintiff. It should be observed that the Plaintiff did not choose to cross-examine either of the other beneficiaries, one of whom lives in Sydney, and could have been readily available for cross-examination. The Deceased’s son Francis is clearly in very modest circumstances.

73 I am not prepared to make an order in favour of the Plaintiff which would have the inevitable effect of dispossessing the Defendant of his residence. Nevertheless, I consider that the Plaintiff should receive from the estate of the Deceased a fund, which can be used to meet pressing needs and to enhance her frugal lifestyle, and which can be available to meet unexpected contingencies. Such a fund would also be available, should the Plaintiff so choose, to pay for rented accommodation. I consider that such a fund should be in an amount of $100,000.

74 It will then be for the Defendant to decide whether, in order to meet the costs of the proceedings and the payment of a legacy in the foregoing amount, he will sell the Earlwood property, or whether he will, from his own present and readily available resources meet that legacy and the foregoing costs. If he chooses to sell the Earlwood property, then the balance remaining in the estate (about $326,000), together with his own cash resources and superannuation entitlement (totalling in excess of $105,000) will be more than adequate to enable him to acquire a home unit suitable and appropriate for his needs in the Earlwood area, that being the locality in which he says he is familiar and where he wishes to continue to reside.

75 I make the following orders:

(1). I order that, in addition to the benefits given to her by the will of the late Elspeth Anne Melville Dymond (“the Deceased”), the Plaintiff receive a legacy in the sum of $100,000, such legacy not bear interest if paid on or before 3 September 2003, and if not so paid to bear interest at Supreme Court rates.

(2). I order that the costs of the 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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Last Modified: 07/16/2003