Linnane v Bonham; Bonfield v Bonham; Davey v Bonham

[1999] NSWSC 906

CITATION:	Linnane v Bonham; Bonfield v Bonham; Davey v Bonham [1999] NSWSC 906 revised - 10/09/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	4671/97; 4672/97; 4673/97
HEARING DATE(S):	31 August 1999
JUDGMENT DATE:	9 September 1999
PARTIES :	Pamela Margaret Linnane (P) Adell Marie Bonfield (P) Judith Ann Davey (P) Clive Lawrence Bonham (D)
JUDGMENT OF:	Acting Master Berecry

COUNSEL :	Mr. J. E. Thomson (P) Mr. P. H. Blackburn-Hart (D)
SOLICITORS:	McIntosh McPhillamy & Co (P) Doolan & Brothers (D)
CATCHWORDS:	Family Provision; Small estate; Unreasonable attitude of defendant; Section 33 exercise of discretion; Unconventional lifestyle; Competing needs of siblings.
ACTS CITED:	Family Provision Act 1982
CASES CITED:	Perrin & ors v Morgan [1943] AC 399 Jackson v Riley (unreported, 24 February 1989, Cohen J) Cooper v Duggan (1976) 50 ALJR 539 Singer v Berghouse (1994) 181 CLR 201 Stewart v McDougall (unreported, 19 November 1987, Young J)
DECISION:	See paragraph 59

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

Thursday, 9 September 1999

4671/97 PAMELA MARGARET LINNANE -v- CLIVE LAWRENCE BONHAM
4672/97 ADELL MARIE BONFIELD -v- CLIVE LAWRENCE BONHAM
4673/97 JUDITH ANN DAVEY -v- CLIVE LAWRENCE BONHAM

JUDGMENT

1    MASTER: On 4 April 1996 Lorna Adell Bonham died. Under the terms of her will she made the following provisions:

I GIVE AND BEQUEATH unto my Trustee upon trust my cottage premises at 10 Hamley Street, Bathurst aforesaid together with the furniture contained therein for my son CLIVE LAWRENCE BONHAM absolutely upon his attaining the age of twenty-one years AND AS TO the residue of my real and personal estate I GIVE DEVISE AND BEQUEATH the same unto my Trustee upon trust for the said CLIVE LAWRENCE BONHAM the said ADELL MARIE HUGHES , PAMELA MARGARET LINNANE and JUDITH ANN BONHAM or the survivors of them upon their attaining the age of twenty one years respectively.

2 On 1 September 1998, probate was granted to Adell Marie Bonfield. The inventory of property disclosed that the realty was valued at $100,000 and the balance of the deceased’s estate was valued at $112,334.46. 3 On 7 November 1997 each of the daughters of the deceased commenced proceedings under section 7 of the Family Provision Act. The proceedings were commenced out of time. On 11 December 1997 orders were made by consent to amend the summons by seeking an order extending the time for bringing the applications up to 7 November 1997. 4    Subsequently, on 26 November 1998, an order was made in each matter substituting Clive Lawrence Bonham as the defendant in each of the proceedings. 5    At the commencement of the hearing orders were made that the evidence in one matter be read as the evidence in the other. 6    In Perrin & ors v Morgan [1943] AC 399 Lord Atkin warned Judges faced with disputes over wills of the prospect that they might one day be obliged to meet “the group of ghosts of dissatisfied testators” who, “according to a late Chancery Judge, wait on the other bank of the Styx to receive the judicial personages who have misconstrued their wills”. “Waiting thereto” the President said “will be those whose wills have been interfered with unnecessarily or excessively”. I suspect the same fate awaits beneficiaries who have caused wills to be unnecessarily or excessively interfered with. 7 Persons are entitled to dispose of their assets as they see fit. However, the Family Provisions Act permits the Court, to a limited degree, to interfere with the testamentary intentions of the deceased. 8    This is a small estate. The valuation for probate was $212,334.46. The residue being $112,334.46. Under the will, subject to administration costs, each of the plaintiffs would have been entitled to approximately $28,000. I think that is important when considering each of the claims. 9    In Jackson v Riley (unreported, 24 February 1989) Cohen J said that where the estate is a small estate, he suggested that the parties should try to come to some compromise and, if that failed, then the proceedings should have been approached with concerted attempts to keep the costs to a minimum. His Honour went on to say that both branches of the profession have an obligation to reduce the costs of litigation as much as possible where the amounts in dispute are so small. If the parties cannot reach a compromise, then by consultation with their legal advisers, both solicitors and Counsel, should seek to find all means of defining the real issue and confining the evidence in relation to them. 10    I can find no fault with either the plaintiffs or their legal representatives. There is evidence (Exhibit A) that they used their best endeavours to settle the proceedings. The evidence of the defendant was that, in the face of all requests to settle, he was not prepared to do anything but litigate. His reason being that he had promised his mother that he would do everything possible to ensure that the terms of her will were carried out as she wished them. I am sceptical of such promise when the maker of the promise stands to gain more than the others. It is not necessarily a noble position but one advanced by self interest. It would seem to me having regard to this evidence that, in all probability, he ignored the advice of his legal representatives in embarking on the course that he did. 11    At the date of the hearing, the costs of all parties amounted to approximately $67,500. Thus, if all costs were paid out of the estate, each plaintiff would receive a legacy of less than $9,000. It was submitted on behalf of the plaintiff that this is an estate where the Court should order an equal share amongst the four siblings. However, I am mindful in what was said in Cooper v Duggan (1976) 50 ALJR 539. It was said that it may be possible to justify an equal distribution in a small estate. However, that is not an aim of the jurisdiction and, should such an order be made, the discretion may miscarry. While the statute has changed since that decision, the fundamental philosophy has not. 12 So far as each of the beneficiaries go, their needs are different.

Adell Marie Bonfield

13 Adell Marie Bonfield (“Adell”) is currently forty-nine years of age. She is married with children. However, her children are not dependant on her. She was educated to the age of sixteen. Thereafter she became an office worker and married at nineteen. She moved out of the Bathurst district after marrying and did not return to the area until 1980. During the time she was away from Bathurst her relationship with her parents was unremarkable. When she returned to the Bathurst district her relationship was close with both her parents. During that period of time up until the death of firstly her father and then her mother, both she and Judith Ann Davey cared for their parents by doing a number of tasks above and beyond what are normally associated with the type of relationship one has with parents. Not only did they and their family visit the parents on a regular basis and have regular contact with them, but during their times of illness they were supportive and cared for their parents. They were available to run errands, take them to hospitals, sit with them in hospital and, generally, look after their welfare. In my view the relationship that Adell had with her mother was a close and caring relationship. The things that she did by and large, however, are things that one would normally expect of a child towards a sick parent. She did, however, give of herself unstintingly towards her parents. In my view, having regard to the matters provided in section 9(3), she has demonstrated that consideration should have been given to her to a greater extent than was given by her mother. The plaintiff’s husband from time to time during 1989 and 1990 provided his labour to enable renovations to be carried out to the deceased home. 14 Adell has been employed as a clerk at Glenray Industries since 1985. Her husband worked for the railways for many years and subsequently drove taxis and a bus in Bathurst. In 1995 he purchased a coach for purposes of establishing a coach business. Since that time they have purchased three coaches. Each time I assume upgrading the coach. Mrs Bonfield continues to be employed as a clerk and currently her weekly earnings are $430. Her husband earns $270 net per week. The total income for the family is $700. From her evidence, the weekly expenses amount to $678 leaving an excess of $22 a week. A major component of the weekly expenses is the repayment on the mortgage. That repayment amounts to $190 per week. The recent upgrade of coach from a Mercedes-Benz to a Scania has cost the Bonfields $165,000. It was necessary to borrow from the Colonial Bank an amount of $150,000 to finance the purchase of that coach. That has resulted in a commitment to the bank of just over $2700 per month by way of repayments. On income and expenditure it can be seen that there is very little surplus left over. When one takes into account the commitment to the debt in respect to the coach her position is precarious. There was evidence that at this stage the coach is not operating full-time. Often work is only available on three or four days per week. It operates generally in the Bathurst area and the Sydney metropolitan area. The Bonfields hope that within a few years the business will be running at a profit. Until that time the financial position is, as I have already indicated, precarious. 15 There is a mortgage over the family home and currently stands at $80,000. There is a debt in respect of credit cards which stands at $3,000. In my view, Adell has demonstrated that provision should be made for her maintenance and advancement in life. That, of course, is commonly referred to as need. The matters that I have identified are matters that, in my view, do go to her needs. It seems to me that whilst this estate cannot pay out the mortgage and, indeed, on the authorities, it would not be permissible for me to make an order which would enable her to discharge the mortgage from money she receives out of her mother’s estate by adjustment. Nevertheless, in my view, there is a need to provide her with a fund of money which may either enable her to reduce the principal on the mortgage or to use the money to supplement their income whilst they get over this difficult period over the next few years. 16 When her assets are considered, the assets in themselves are not going to enable her to do that. As I have already indicated the Scania coach which is worth $165,000 is subject to a loan of $150,000. A home at Kelso is currently valued at $85,000. The mortgage as I have indicated is approximately $80,000. 17 Adell is a member of a superannuation fund and, according to a statement from the fund which is marked Exhibit D, the balance in that account is just under $11,000. But of course at this stage she cannot gain access to the moneys that are held in the superannuation fund.

Pamela Linnane

18    Pamela Linnane (“Pamela”) is forty-seven years of age. She received her education in the Bathurst area and then went on to study nursing. Ultimately she became a Registered Nurse. She is also qualified as a psychiatric nurse. She was married. That marriage ended in divorce. She has for many years been living in a de facto relationship with a Phillip Anderson. They have two children by that relationship. They are currently aged ten and fifteen. Most of Pamela’s adult life has been spent away from the Bathurst area. There were times in Sydney and then in 1989 she and her partner moved to Queensland to live on a property that they had purchased at an earlier time. Pamela continues to work as a nurse. However, her partner is currently unemployed. The evidence disclosed that the partner has not worked since 1987. The evidence also was that he has no intention of working now or at any time in the foreseeable future. 19    The income of Pamela’s family consists of her weekly income as a nurse of $470 and a parenting allowance that her partner receives. The total amount that they receive is approximately $500 per week. 20    The assets that they own consist of a property in Gympie (valued at about $53,000), a motor vehicle and various funds and shares. Currently their expenses amount to $480 per week. The excess moneys they have at the end of each week therefore is approximately $20. 21    So far as the relationship with the mother is concerned, in my view, Pamela’s relationship was nothing unremarkable. As I have already indicated she has spent most of her adult life away from Bathurst, either in Sydney or in Queensland. There was contact with her parents and holidays from time to time were spent together. There were visits to Bathurst. However, because of the geographical differences, it was not possible for Pamela to provide the same level of care that her other sisters provided. In my view there is nothing which could be regarded as factors against Pamela. The relationship that she had with her parents was no different than that of many parents and children in the late twentieth century Australia. Perhaps if she lived closer to her parents she would have been able to provide the care that her other two sisters did. However, she did not live close by and that should not count against her. She nevertheless always displayed a loving and caring attitude towards both of her parents. 22    However, so far as Pamela demonstrating a need which was not provided for in her mother’s will I have a great deal of difficulty. In her evidence she has stated that a house needs to be built on the property near Gympie. Her family lives in a shed. The shed appears to be fairly primitive. The only electricity is electricity generated by solar panels that are affixed to the roof. There is insufficient power to run even a television set. Prima facie there is a need. What Pamela seeks is to build a house on the property so that the family, I assume, can enjoy the comforts of modern living. This estate is a small estate. To make such provision would mean providing her with a substantial amount from the assets of the estate. Once again the authorities would not permit me to make provision for Pamela out of her mother’s estate to the extent that the estate pay for the building of a home Shearer v Public Trustee (unreported, 23 March 1998, Young J). At best the estate would only provide a sum to give her a start to put a deposit down for the purpose of building the house and thereafter she would need to arrange a finance deal to complete the construction. The need that is clearly expressed by Pamela is a common need. However, in this particular instance I doubt whether that is a need at all. 23    The evidence discloses that Pamela and her partner purchased the Gympie property in the mid-1980s. Her partner’s mother died in 1987. The partner received from his mother’s estate a legacy in excess of $200,000. At that stage, both Pamela and her partner were working as psychiatric nurses at Rozelle. After the death of the partner’s mother they moved to the property at Gympie. They had erected on the property the shed in which they now live. Out of his mother’s estate none of that money was used to build a house. The partner ceased working and has not worked since. The evidence of Pamela was that the partner is not looking for work and has no intention of seeking employment in the future. The money, therefore, was used, to a large degree, to support the family unit until it ran out. 24    The two children of the relationship are now aged approximately fifteen and ten. When Pamela resumed working as a nurse in the Gympie area, having regard to the location of the property, it would have been reasonable to expect one of the parents to stay home and look after the children. At that stage in 1989, the elder child would have been approximately five. The younger child was born at about that time. It was therefore perfectly reasonable to expect, as I have said, one or other partner to stay at home until both children commenced school. However, the younger child is now ten and therefore has been at school for approximately five years. There appears to be little reason why the partner should still not be seeking employment. There is no evidence that the land is cultivated or provides an income for the family unit. On the material before me the only income being generated is the weekly wage earned by Pamela and the parenting allowance that the partner receives. 25    Since the death of Pamela’s mother the parties have done nothing to have a home built on the land. In fact, they have sold shares that the partner received from his mother’s estate and instead of using the proceeds of those shares towards the erection of a home, the proceeds of sale were used in part to reduce their debt level, to purchase a boat and an outboard motor which cost approximately $2,500. 26    It would seem to me, having regard to their lifestyle, not just now but over the last ten years or so, that they could be regarded as an unconventional family. The needs of most families are not necessarily the needs that they have. They have been in the position in the past to have a home built on the land. In fact, they were in a far better position to do that when the partner’s mother died than they are now, and yet they elected not to do that. The shed, for all its imperfections, seemed to suit their lifestyle even as recently as this year when there were fresh funds generated they did not see fit to use those funds towards the erection of a house on the property. 27    It seems to me, therefore, in the context of this family that conventional living and a house as most people know it is not something that they really consider is a need. In any event, had they marshalled their assets they would be in a position to make a significant contribution towards the building of a home even if they were not prepared to sell the Gympie property. With the Westpac rollover fund and the shares together with probably the best asset the family has (that would be the partner back in the labour force) there would be sufficient funds generated by the family by either a realisation of the shares, income earned by the partner and Pamela and the ability they would have to borrow money to complete the building of a home. Any provision out of the estate, therefore, would be minor. It seems to me that, had there been no challenge to the estate, the funds that would have been available from the mother’s will of approximately $28,000 would more than have assisted the building on the property. 28    Even now, based on Pamela’s evidence, there should be sufficient funding from the deceased’s estate to assist Pamela to build a house should that be what she really wants. She gave evidence that the cost of building a house on the property would be about $40,000. That would be to “lock-up stage” and her partner would be able to complete it. That being the case if Pamela were to receive her quarter of the residue of what is left of the estate she would receive approximately $10,000 towards the costs of construction. 29    Whether Pamela should receive an additional amount must be placed in context of the size of the estate and the competing claims of her siblings. It would seem to me that the deceased, had she been a wise and just testatrix, would have given serious consideration to her 1972 will in the light of the amount of assistance that they rendered to her during the 1980s and the early 1990s. In saying that, that should not be construed as holding against Pamela and the fact that she was unable to provide the same sort of assistance for her parents but, nevertheless, it is a factor to be considered when determining whether or not they should receive something additional from the estate having regard to what their needs are. 30    In my view, having regard to Pamela’s lifestyle over the last twenty years or so the need for the type of accommodation that she has alluded to in her evidence is not as strong or pressing as perhaps the need of her other two sisters.

Judith Ann Davey

31 Judith Ann Davey (“Judith”) is forty-three years of age. She received her education in the Bathurst district and attained the School Certificate. Thereafter she studied nursing and worked as a nurse. In recent years she undertook a course to obtain qualifications as a masseuse. Having obtained those qualifications, she resigned from her employment as a nurse and branched out in her own business as a masseuse. As with most people starting out in a new business, she has struggled during the initial period. She hopes the business will pick up and there is evidence that, should she be able to drive to patients, the potential for the business to grow is far greater than remaining in rooms in Bathurst. 32 Judith is married. There is one daughter at school doing Year 12. Her husband has worked in the Bathurst area for many years. He is a manager at a large company. The combined income of Judith and her husband is approximately $1,000 a week. Their outgoings are approximately $730 per week. There is a substantial excess of income over expenditure. They own their home in Bathurst and it is valued at $165,000. They have a time share unit in Port Macquarie, savings of approximately $6,500 and two motor vehicles estimated at $31,500. They have recently carried out renovations to the bathroom and have a debt in respect of that work. The debt is approximately $15,000. 33 Additional assets of Judith consist of entitlements of superannuation fund and her husband has approximately $6,500 in a building society. The business that Judith has started, on her evidence, requires the purchase of a van and a special purpose table. It would seem that the van would cost approximately $20,000 and the chiropractic table would cost $2,700. Judith has stated that, in addition to the van and the table, the house needs repainting. A quote has been obtained for $15,200 for the purposes of internal and external painting. 34 Having regard to the size of the estate, it seems to me that no provision should be made for the painting. In any event, even where the estate is of such a size that it could make funds available for that work, in the absence of any evidence of neither Judith nor her husband are physically capable of painting the house themselves, I would not regard that as a need. There is no evidence of that in any event. 35 However, Judith has demonstrated a need so far as her new business is concerned. As with Adell, it is a difficult time. It is a period where Judith is trying to establish herself in the market place and it is only with the passage of time and no doubt some skill and luck that the business will grow to its potential. In order to give her every assistance to achieve that position, it is essential that she purchase a vehicle and it follows that she will also need to purchase a chiropractic table. On Judith’s evidence to be able to work in the manner in which she has indicated holds greater potential than to operate from premises in Bathurst. Judith, above all others, had a greater involvement with her parents. True it is that to large degree that could be put down to an accident of geography. She has lived in the Bathurst area all of her adult life. But, nevertheless, it was Judith who was always there prior to 1980. It would seem on the evidence since 1980 while she has received much assistance from Adell the primary role fell to Judith. 36 In considering in section 9(3) of the Family Provision Act when one considers conduct in this context it is a positive aspect of conduct. In my view the caring that Judith has done initially for both her parents and subsequently for her mother was of such value and nature that additional provision should have been provided to her by her mother. That was not the case. Therefore some adjustment should be made for Judith.

Clive Lawrence Bonham

37    Clive Lawrence Bonham (“Clive”) is forty-two years of age. He is the major beneficiary of the deceased’s estate. Clive was educated in Bathurst to the School Certificate. He then did an apprenticeship as a motor mechanic and was duly qualified as a motor mechanic. He has also undertaken a welder’s course. He has obtained some certificates and it is his intention to continue to obtain other welding certificates. He and his family live in Tasmania and have done so for many years. He has two children aged thirteen and eleven. One child shows promise and it is anticipated by Clive and his wife that that child will go on to university. The other child appears to be of average ability. Nevertheless they hope that he also will continue with tertiary studies after completing his last year of school. Although, for that child, they expect something equivalent for TAFE. 38    Clive’s relationship with his parents appears to have been unremarkable. Once again, like Pamela, he moved away from the Bathurst area and, with the exception of a period of six months when he and his family lived at his parents’ home to assist his mother after an laminectomy, he has spent most of his adult life away from Bathurst. On a trip around Australia he met his wife and they settled in Tasmania. The children have been reared in Tasmania. 39    Whilst Clive and his family wish to move out of their present house they wish to remain living in Tasmania, not withstanding the vagaries of employment. 40    Clive is currently employed as a permanent staff member and as a welder with a company in Devonport. His wife does seasonal work at a local factory. Their combined income is approximately $840 per week. Their expenses are around about $730 per week. There is an excess of income over expenditure of approximately $110. 41    The house they occupy is approximately 100 years old. Evidence has been put on by a builder and by Clive that the house requires substantial work to be done to it to make it reasonably habitable. They live some distance from the boys’ schools and that is of concern to them. 42    Their liabilities are approximately $20,000. Their assets are approximately $86,000. The liability is in relation to a loan which was taken out to purchase a motor vehicle. 43    It is Clive’s intention to move from his present address into Devonport into a better house in an area which is close to schools and other amenities. The value of Clive’s house is given at $53,000. Evidence has been put on that to buy the type of house that the family would need in Devonport would cost between $110,000 and $150,000. 44    Under the terms of the deceased’s will, Clive receives the Bathurst property and one quarter of the residue of the estate. Prior to the commencement of these proceedings, that one quarter of the residue was approximately $28,000. Although for purposes of probate the value of the property was given as $100,000 evidence suggests that, at maximum, the property is worth $85,000. It would seem that, in all probability, that it will sell for about $75,000. If Clive were to receive his entitlement under his mother’s will, he would receive approximately $98,000 before costs were deducted in relation to the sale of the Bathurst property. That sum together with the amount they would get from the sale of their Latrobe home would enable Clive to buy a house in the upper range of properties in Devonport without the need to borrow any funds. 45    At the present time Clive seems reasonably secure in his employment. The evidence of his wife is that the nature of the work that she does and the length of time in that employment dictates the amount of work that will be made available to her. Whilst in recent times overtime has not been as readily available as in previous years, she has a number of years employment with the organisation and has acquired a certain level of seniority which means that, as I understand it, she will be one of the first taken on and one of the last put off. 46    Clive and his wife have no liabilities other than the loan in respect to the purchase of the motor vehicle. Their income is such that they have the ability to borrow money. Their ability to borrow would not diminish their ability to buy a house in Devonport within the range that they seek. 47    Balanced against Clive’s need are the needs of his sisters. 48    The costs that each party has incurred to date amount to $67,500. The value of the estate is currently $177,500 in round figures. That figure is arrived at by the amounts set out in paragraph 8 of the affidavit of Adell Marie Bonfield sworn on 24 August 1999. It stated that the moneys in the estate forming the residue of the estate are currently $105,331.51. The balance of the estate is the realty, the Bathurst property. Current indications are that there will probably be a sale at a figure of $75,000. 49    If there had been no challenge to the will the siblings would have received as follows: Clive, approximately $101,000; each of his three sisters would have received just over $26,000. The legal costs have been estimated at $67,500 for all parties. If the legal costs are taken into account, the estate is valued at $110,000. That would mean that Clive would receive just over $83,000 and each of his sisters would receive $9,000. 50    The estate cannot provide for the needs of all of the parties to the extent that they may seek provision out of the estate. In considering the position of each of the parties, it is necessary to bear in mind the principles set out in Singer v Berghouse (1994) 181 CLR 201 at 209. The first question is whether or not the provision made for any of the parties was inadequate for his or her proper maintenance, education and advancement in life. So far as Clive’s position is, the provision that his mother made for him was generous. It was certainly adequate for the proper maintenance, education and advancement in life. Had the proceedings not been commenced he would have received approximately $101,000. That would have enabled him to relocate to Devonport and, in all probability, he would not have been placed in a position where money was needed to be borrowed to enable him to effect the move. 51 So far as the provision for Clive’s sisters is concerned, it would seem to me that the first question so far as Adell is concerned could be answered yes, inadequate provision had been made for her. The major commitment that Adell and her husband have at the moment is to service the loan on the coach. There is also a mortgage over the house. Their income has not greatly changed with purchase of the coach. As I have already said, it seems to me that there is a need that Adell has at the present and which will continue certainly over the next couple of years. Having regard to the closeness to her mother, one would have expected a wise and just testatrix to revisit her 1972 will and make additional provision for Adell to help her at least so far as weekly expenses go. It seems to me that when one considers the mortgage and the equity that she and her husband have in her house and the drain that the weekly payment of the mortgage has on the household finances that provision should have been made to give Adell some cushion. Whilst this estate could not go anywhere near making provision to discharge the mortgage, it would seem to that a proper provision for Adell, in all the circumstances, would be to provide her with a sum of money which could be used for ordinary household expenses and unforseen expenses that may arise which are likely to happen over the next three to four years, or, alternatively, to use the sum of money to reduce the mortgage and then either renegotiate the mortgage or pay it off within the time that is currently provided. In my view, an appropriate legacy for Adell is $30,000 and make such an order. 52 So far as Judith is concerned, she is in a better position than her siblings. She and her husband are in receipt of a combined income which is greater than that of her siblings and there is a surplus each week. She has recently become self employed. To be able to do that effectively, she needs a van and a table. There is also a loan which was taken out to carry out certain renovations to the home. In my view, an appropriate amount to enable Judith to purchase the van and to buy the chiropractic table to enable her to maximise her income would be a reasonable amount to be provided out of the mother’s estate. Judith above all others rendered care and assistance to her mother and father throughout her life. In my view, the matter to be considered under section 9(3) have been met. Although she is in a better position than her siblings, her position is not so great that she has funds available to her which would enable her to use her assets without having to borrow money from other sources. It must also be borne in mind that while she goes into her venture with high expectations, the reality may not meet those expectations. Nevertheless, in my view, there should be further provision made from the mother’s estate for Judith. An appropriate legacy therefore, in my view, would be $23,000. 53 In respect of the application brought by Pamela for the reasons I have already outlined, I am of the view that no additional provision should be made out of the deceased’s estate for her. Under the terms of the deceased’s will she is to receive one quarter of the residue of the estate. Had there been no application brought under the Family Provision Act, she would have received approximately $26,000. As things stand at the moment when costs are taken into account she would receive far less than that. The provisions so far as Pamela should stand. That is, she should be entitled to one quarter of the remaining residue of the estate which is in an amount of $8,750. I make no other order for provision for Pamela and the summons therefore be dismissed. 54    The balance of the estate under the terms of the will would go to Clive. However, because the estate cannot provide for his sisters without the realty being sold, Clive will receive the balance of the estate. 55    The only outstanding question is the matter of costs of all the parties in the proceedings. In my view the estate should pay Adell’s costs on the indemnity basis. Similarly, the estate should pay Judith’s costs on the indemnity basis. Pamela’s costs on the indemnity basis should also be met by the estate. 56    Section 33 of the Act provides that the Court may order the costs of the proceedings in relation to the estate of the deceased be paid out of the estate in such manner as the Court thinks fit. Subsections (2) and (3) qualify subsection (1). Subsection (3) is concerned with eligible persons under section 6(a) and 6(b). Pamela falls into that category, she being a child of the deceased. 57    In Stewart v McDougall (unreported, 19 November 1987, Young J) his Honour considered section 33. It can be seen from that decision that where there are sufficient circumstances to do anything special in a particular case then an appropriate order for costs may be made. No additional provision has been made out of the estate for Pamela. Had the defendant not conducted the defence of these proceedings in the manner in which he did, Pamela would have been entitled to a far greater sum than is now available to her. But for those actions, the amount provided under her mother’s will would have been approximately $26,000. That amount has been eroded primarily by the actions of the defendant. It seems to me that the same result would have happened whether or not Pamela commenced these proceedings. Given her present circumstances, given the conduct of the defendant, it is appropriate, in my view, that what small legacy will flow from the deceased’s estate to her should be preserved. Therefore, the order I make is that Pamela’s costs be paid out of the estate. 58    So far as the costs of the defendant are concerned he has contributed to a great extent in the reduction in the value of this estate. True it is the land at Bathurst was overvalued for the purposes of probate but that accounts for only $25,000. The costs in running the three sets of proceedings have amounted to $67,500. Much of the costs and expenses associated with that have been brought about by the defendant’s action. Therefore the proper order in the circumstances is the defendant’s costs are paid out of the estate on the party and party basis. 59    I make the following orders:

In 4671 of 1997 Pamela Margaret Linnane v Clive Lawrence Bonham

1. The plaintiff receive out of the estate of the late Lorna Adell Bonham a legacy in the sum of $8,750.

2. The summons be otherwise dismissed.

3. The plaintiff’s costs on the indemnity basis be paid out of the estate of the deceased.

4. The defendant’s costs be paid out of the estate on the party and party basis.
In 4673 of 1997 Judith Ann Davey v Clive Lawrence Bonham

1. In lieu of the legacy given in the will of the late Lorna Adell Bonham the plaintiff receive a legacy of $23,000.

2. The plaintiff’s costs be paid out of the estate on the indemnity basis.

3. The defendants costs be paid out of the estate on the party and party basis.
In 4672 of 1997 Adell Marie Bonfield v Clive Lawrence Bonham

1. In lieu of the legacy given in the will of the late Lorna Adell Bonham the plaintiff receive a legacy of $30,000.

2. The plaintiff’s costs be paid out of the estate on the indemnity basis.

3. The defendant’s costs be paid out of the estate on the party and party basis.

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Last Modified: 06/30/2000