McIntyre v McIntyre

[2005] NSWSC 1216

CITATION:	McIntyre v McIntyre & Anor [2005] NSWSC 1216
HEARING DATE(S):	25, 26 and 27 July 2005
JUDGMENT DATE :	1 December 2005
JURISDICTION:	Equity
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	1. I order that, in lieu of the benefits given to her by the will of the late David William McIntyre (“the Deceased”), the Plaintiff receive a legacy in the sum of $40,000, such legacy not to bear interest if paid on or before 1 January 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898. 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity be paid first out of the estate of the Deceased, and then, to the extent that the assets of the estate are not sufficient to meet those costs, out of the notional estate of the Deceased. 3. I designate as notional estate of the Deceased so much of The McIntyre Superannuation Fund as may be necessary to meet so much of the foregoing costs as cannot be paid out of the estate of the Deceased. 4. The exhibits may be returned.

CATCHWORDS:	Succession. - Family Provision. - Claim by widow. - Plaintiff and Deceased were estranged at time of Deceased's death. - Conduct disentitling. - Relevance of Plaintiff's adultery. - Financial and material circumstances of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance. - Prescribed transaction. - Notional estate. - Costs payable out of notional estate.
LEGISLATION CITED:	Family Provision Act 1982 Testator’s Family Maintenance and Guardianship of Infants Act 1916 Wills, Probate and Administration Act 1898
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731
PARTIES:	Kathleen Anne McIntyre (Plaintiff) Derek David McIntyre (First Defendant) Warren Vincent Thibault (Second Defendant)
FILE NUMBER(S):	SC 2215 of 2004
COUNSEL:	J. Waters (Plaintiff) D. Warren (Defendants)
SOLICITORS:	Bamford Marcellos O'Conner (Plaintiff) Warren Thibault (Defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

THURSDAY, 1 DECEMBER 2005

2215/04 KATHLEEN ANNE McINTYRE v DEREK DAVID McINTYRE AND ANOR

JUDGMENT

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

2 By summons filed on 31 March 2004 Kathleen Anne McIntyre claims an order for provision for her maintenance out of the estate and or notional estate of her late husband, David William McIntyre (to whom I shall refer as “the Deceased”).

3 The Deceased died on 22 October 2003, aged 70 years. He left a will dated 23 July 2003, probate whereof was on 23 December 2003 granted to Derek David McIntyre and Warren Vincent Thibault, the executors named in such will (who are the Defendants to the present proceedings). Mr Thibault is also the solicitor for the estate of the Deceased.

4 The Plaintiff and the Deceased were estranged at the time of his death, the Plaintiff having moved out of the matrimonial home at 30 McRae Street, Tamworth on 20 October 2003, two days before the death of the Deceased. The McRae Street property, which was held by the Plaintiff and the Deceased as joint tenants, passed to the Plaintiff by survivorship. Subsequently the Plaintiff returned to reside in the McRae Street property.

5 The inventory of property of the Deceased discloses a number of assets, being essentially chattels and a small sum in bank account, having a total value estimated to be about $91,300. The inventory of property gives an estimated value of the McRae Street property as $350,000. Although the inventory of property does not disclose any liabilities of the Deceased, the affidavit of Derek David McIntyre sworn 25 July 2005 sets forth liabilities totalling $13,094. That affidavit discloses the net distributable estate as having a value of $53,603.

6 By his will the Deceased gave to the Plaintiff a legacy of $10,000, and distributed various chattels among his four children. The residue of the estate was divided among those four children and the Plaintiff’s daughter, Trudy Jane Waddell.

7 The Deceased had been previously married, to Valerie on 20 June 1959. Four children were born of that marriage, being Derek David (born 30 March 1960), who is now aged 45, Michelle Leah (born 11 November 1962), who is now aged 43, Bronwyn Jeannette (born 8 January 1966), who is now aged 39, and Roderick Roman (born 30 September 1968), who is now aged 37.

8 The Plaintiff (who was born on 20 November 1953, and who is now aged 52) also had previously been married, to Phillip Gregory. However, that marriage also failed, in April 1974, and subsequently ended in divorce. Two children were born of the Plaintiff’s marriage.

9 The Plaintiff and the Deceased entered into a relationship in 1974, which matured into a de facto relationship by August 1976, at about the time when the Deceased and his first wife separated. The Deceased and his first wife resumed cohabitation for what was described as “a few months” in January 1977. However, shortly thereafter, the Deceased and the Plaintiff resumed their de facto relationship, and they married in March 1980. No children were born of that marriage.

10 From mid-1981 (when he experienced his first heart attack, which required a triple bypass procedure in February of the following year) the Deceased suffered from a number of health problems. In addition to the bypass procedure, he also underwent a hip replacement in January 1986. In August 1996 he suffered a cardiac arrest, which required a second triple bypass procedure to be performed. In March 1997 the Deceased underwent a second hip replacement, and later surgery to his shoulder.

11 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since if the Plaintiff is successful in her claim she will be entitled to an order that her costs be paid out of the estate, whilst the Defendants will be entitled to receive their costs out of the estate, irrespective of the outcome of the proceedings. It is estimated on behalf of the Plaintiff that her costs will total in excess of $50,500, whilst it is estimated on behalf of the Defendants that their costs will total about $73,000. It will be appreciated that the assets of the estate will be entirely exhausted in meeting the foregoing costs. (It is appropriate here to record that, consequent upon an agreement in that regard, being the Deed dated 27 April 2004, David McIntyre Consulting Services Pty Limited, the trustee of The McIntyre Superannuation Fund, has agreed to pay the costs of the Defendants of the present proceedings. Nevertheless, if a costs order is made in favour of the Defendants and the Defendants are thereby enabled to recoup part or all of their costs from the estate, then, presumably, they will repay, to the extent of such recoupment, the costs which they have received from The McIntyre Superannuation Fund, even though the Deed is silent in that regard.)

12 It is for that reason that the Plaintiff claims that the order for provision be made out of “the estate and or notional estate”, since the net distributable estate is not sufficient to meet the totality of the costs, let alone any additional provision in favour of the Plaintiff. I shall later in this judgment return to a consideration of whether property should be designated notional property of the Deceased for the purpose of meeting any order for provision which might be made in favour of the Plaintiff herein or any costs order which might be made in favour of one or more of the parties.

13 At the time when they commenced their relationship in 1974 the Deceased was employed as an engineer in Tamworth, whilst the Plaintiff was working as a waitress at the Travelodge at Tamworth. According to the Plaintiff, at that time and for a considerable period thereafter the Deceased’s income was totally disbursed in paying the mortgage, spouse maintenance and child maintenance of his first wife.

14 When the Plaintiff and the Deceased entered into their de facto relationship in 1976 they resided firstly in rented accommodation at Calala, a suburb of Tamworth, for which the Deceased paid the rent. The Plaintiff’s two children (then aged six and three) resided with them, and continued to do so until those children became independent. Although they were not formally adopted by the Deceased both the Plaintiff’s children assumed the surname McIntyre and, according to the Plaintiff, addressed the Deceased as “Dad”.

15 In October 1976 the Plaintiff inherited $13,000 upon the death of her father. That sum, together with the Plaintiff’s earnings, was used in payment of domestic household expenses and for the support of the Plaintiff’s children. In early 1977 the Plaintiff, her two children and the Deceased relocated to a flat which was attached to her mother’s residence. They remained in that flat until 1990.

16 From 1977 until 1981 the Plaintiff was employed by her sister in a hairdressing business. The Plaintiff gave up that work on account of a shoulder injury. At the time when the Deceased suffered his first heart attack in mid-1981 the Plaintiff was working full time as a sales assistant in a dress shop in Tamworth. She reduced her working hours to one-and-a-half days a week after the Deceased underwent his first triple bypass surgery in early 1982.

17 The Deceased served as an Alderman on the Tamworth City Council from 1992 until 1996, and was involved in other community and public activities in Tamworth. The Plaintiff acted as hostess for the Deceased in entertaining his business acquaintances and friends.

18 In 1979 the Plaintiff’s Family Law proceedings with her first husband were concluded, and she received sufficient money to purchase a block of land in Dekaleb Street, Tamworth for $10,000. Although the Plaintiff provided the entirety of the purchase price, that land was registered in the names of herself and the Deceased as joint tenants. The vacant land in Dekaleb Street was sold in September 1980 for $15,000. That money was used by the Plaintiff and the Deceased as deposit on the purchase of the house property at 30 McRae Street Tamworth, which was acquired by them as joint tenants for $79,000. The balance of the purchase price was funded by way of a home loan of $60,000, secured by mortgage. The McRae Street property became the matrimonial home of the Plaintiff and the Deceased.

19 It was the Plaintiff’s evidence that she gave considerable financial assistance, as well as emotional support, to the Deceased during the period of his Family Law proceedings with his former wife, until those proceedings were ultimately concluded in 1986. Further, that from the time when he underwent his first heart surgery, and, increasingly, until the time of his death, the Plaintiff provided care and companionship to the Deceased, as well as being responsible for the conduct of the household and the maintenance of the residence.

20 The Plaintiff in about 1984 changed employment, and began working about 20 hours a week. In 1991 she again changed employment and commenced in her present full time position as a sales representative for a radio station in Tamworth. By 1992 both the Plaintiff’s children had finished school and had departed the family home.

21 In August 1996 the Deceased underwent a second triple bypass procedure. He retired from his employment at the end of 1996, being then aged 64, after working for the same employer for 39 years. The Plaintiff continued her full time employment, on account of the financial exigencies of herself and the Deceased.

22 At the time of his retirement from employment the Deceased received accumulated leave, redundancy and other benefits (totalling about $147,000) and superannuation (totalling around $592,000). The Deceased also was enabled to purchase from his employer the motor vehicle which he had been using in his employment for an attractive price of $15,000. The superannuation moneys were deposited to the Deceased’s credit in a self-managed superannuation fund, styled “The McIntyre Superannuation Fund”. It is that fund which the Plaintiff seeks to have designated as notional estate of the Deceased. The Deceased was the only member of that fund. The trustee of the fund has not effected any distribution since the death of the Deceased.

23 According to the Plaintiff, the Deceased received from the superannuation fund payments which averaged about $4,000 a month. The Plaintiff said that after the Deceased’s retirement from work they did not economise or adopt a more frugal lifestyle, but continued to live in much the same way as they had conducted their lives while they both were in full time employment. They lived a comfortable, not extravagant but not austere, life.

24 According to the Plaintiff, the Deceased in February 2003 made a new will, leaving the entirety of his estate to the Plaintiff. (It will be appreciated that, even if he did so, that will has been revoked by the Deceased’s last will, being that of 23 July 2003.)

25 The Plaintiff’s mother died in February 2003, and the Plaintiff inherited $80,000 from her estate. Of that amount she spent about $30,000 in renovating and refurbishing the McRae Street residence. The Plaintiff said that the balance of $50,000 has been slowly eroding, since her expenses now exceed her income.

26 From the time when the Deceased was discharged from hospital in 1996 he required considerable post-operative care. He underwent a hip replacement procedure in March 1997, and later in 1997 underwent a soft tissue operation on his shoulder. The Plaintiff was his principal carer in respect to all the Deceased’s health problems. According to the Plaintiff the Deceased’s alcohol consumption, which had always been considerable, greatly increased in the period preceding his death. It was the Plaintiff’s evidence, that in consequence of his drinking the Deceased became somewhat erratic in his behaviour, especially in his conduct towards the Plaintiff, and suffered problems with his mobility. It should be noted, however, that the Plaintiff’s evidence in regard to the Deceased’s drinking habits was disputed by each of the Deceased’s children who gave evidence in the proceedings.

27 The legacy of $10,000 given to the Plaintiff under the will of the Deceased was conditional upon her not having entered a de facto relationship at the date of the death of the Deceased. The Plaintiff denied that she had either before (or, indeed, after) the Deceased’s death entered into such a relationship.

28 Despite the assertion contained in the letter of 18 December 2003 from the Second Defendant (who is the solicitor for the estate of the Deceased) that the Plaintiff “had only days before the Deceased’s death entered into a de facto relationship with a third party and which was still continuing at the time of the Deceased’s death”, the legacy of $10,000 has ultimately been acknowledged by the Defendants to be payable to the Plaintiff.

29 Although denying any such de facto relationship, the Plaintiff conceded that she had an affair with a work colleague, one Kingsley Agnew, in 2003. According to the Plaintiff, she was experiencing problems in her relationship with the Deceased at that period, on account of the Deceased’s ill health and on account of his heavy drinking.

30 The deteriorating relationship between the Plaintiff and the Deceased resulted in the Plaintiff instructing solicitors to write to the Deceased on 21 July 2003, with a view to negotiating a property settlement, “in the hope that an amicable and civilised separation can occur without the need for recourse to the Family Court”. The Plaintiff said that she hoped that that letter would shock the Deceased into realising how difficult life was becoming for her and would motivate him to modify his own behaviour. The Plaintiff also said that her relationship with Mr Agnew had ceased by that time, although they still worked together and he remained a good friend. However, the Plaintiff did not dispute that since the death of the Deceased she had had an occasional sexual relationship with Mr Agnew.

31 After consultation with the Deceased the Plaintiff moved out of the matrimonial home on Monday, 20 October 2003. Two days earlier, on 18 October 2003 the Deceased had instructed his solicitors to add to his will a codicil which included provision that, apart from specific chattels given by the will, the Plaintiff should receive the entirety of the contents of the house property at 30 McRae Street. However, no such codicil was executed before the death of the Deceased on 22 October 2003. The Plaintiff and the Deceased remained in communication throughout the period from the Plaintiff’s departure on 20 October until the Deceased’s death two days later. The relationship between the Plaintiff and the Deceased’s children, particularly at that period, was not a good one.

32 The Plaintiff returned to the McRae Street residence promptly after the Deceased’s death. She said that the Deceased’s children did not allow her to participate in the arrangements for his funeral or to attend the subsequent gathering, and that she was not acknowledged in the death notice or in the funeral notice.

33 The Plaintiff gave the following details of her present financial and material circumstances:

Assets

30 McRae Street, Tamworth, to which a value of $380,000 is ascribed

Furniture, to which an estimated value of $5,000 is ascribed

Jewellery, to which an estimated value of $5,000 is ascribed

ANZ bank account, $1,863

Superannuation, $34,912

Total $426,775

Liabilities

Coles Myer credit account, $10,612

Visa card, $12,287

Toyota Financial Services, $25,896

ANZ bank loan, $16,904

Legal costs, estimated at about $35,000

Total about $100,700

34 The Plaintiff receives from her employment an annual gross base rate salary of $22,500, plus a gross annual commission of $27,926, totalling a gross annual income of $50,426, from which income tax of $12,192 is deducted, giving her a net weekly salary of $780. In addition, she receives a car allowance of $150 a week. Thus her total net weekly income from her employment is $930. She calculates her weekly expenses as totalling $853. However, it would appear that there is a degree of duplication in respect to the components of that figure, since items totalling $145 are paid by the Plaintiff using credit card facilities in respect of which she makes weekly payments totalling $90.

35 Although in her affidavit evidence the Plaintiff set forth her superannuation entitlement in an amount of $34,912, it was the evidence of Perry John Burrow, the group accountant and acting general manager of the Plaintiff’s employer, Tamworth Radio Development Pty Limited, that her present entitlement is, in fact, $36,439. Further, upon the various assumptions set forth in Exhibit 7, that over the next ten years the Plaintiff’s superannuation entitlement will increase to an amount in excess of $175,000. It was also the evidence of Mr Burrow that the Plaintiff was one of her employer’s better performing sales people, and that it was unlikely that she would lose her job.

36 It was the Plaintiff’s evidence that the fund representing the remainder of her inheritance from her mother’s estate is being eroded in order to meet her outgoings.

37 In May 2005, two months before the hearing of the present proceedings, the Plaintiff participated in a holiday with her daughter and her son-in-law on the cruise ship upon which they are employed. That holiday (upon which she was accompanied by Mr Agnew) cost the Plaintiff about $6,000 and was paid for by her credit facility. In April 2004 the Plaintiff had spent a holiday of ten days on Vanuatu. She had been accompanied by Mr Agnew on that holiday also.

38 The Plaintiff expressed the desire to pay out the balance of her motor vehicle indebtedness (in a total amount of $25,896), to pay off the indebtedness to Coles Myer and the indebtedness to the Visa card. She also expressed a desire to have a holiday. The Plaintiff, who was born in Tamworth, said that she no longer has any family connection in that city. It is her desire to sell the McRae Street property and relocate to Queensland, in order to be near her daughter and her son-in-law, who propose shortly to return to reside on the Gold Coast. The Plaintiff has made enquiries and has ascertained that a relatively modest two to three bedroom residence on the Gold Coast would cost between $450,000 and $500,000. In addition, she has ascertained that the costs and expenses associated with the sale of the Tamworth residence and the purchase of a Gold Coast residence would be likely to total almost $22,000 (comprising real estate agent’s commission, advertising, solicitor’s costs, removal costs, and Queensland stamp duty on purchase of a residence).

39 The Plaintiff was cross-examined concerning various financial transactions in respect to her access advantage account with the ANZ bank (Exhibit 3). She agreed that in the period from 17 April 2003 to 18 May 2004 amounts totalling $120,000 had been paid out of that account. Those amounts included the cost of refurbishing and enhancing the foyer in the McRae Street residence, in amounts totalling in excess of $30,000. In the previous year the Plaintiff had obtained a bank loan of $20,000 for a bathroom renovation.

40 Although in her affidavit evidence the Plaintiff ascribed $5,000 as the value of the furniture in the McRae Street residence and ascribed $5,000 as the value of her jewels, she has insured the contents of that house for $141,800.

41 It will be appreciated that the claim of the Plaintiff must be approached in the light of the competing claims of the children of the Deceased, who are the beneficiaries named in his will (apart from the Plaintiff and her daughter Trudy), and whose claims upon the testamentary beneficence of the Deceased were recognised by the terms of his will. Interestingly, although affidavits by three of the four children of the Deceased were filed on behalf of the Defendants, none of those affidavits addressed the matter of the financial and material circumstances of the respective deponents.

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

43 The Plaintiff, as the widow of the Deceased, is an eligible person within paragraph (a) 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 each of the children of the Deceased is also an eligible person in relation to the Deceased, being such within paragraph (b) of the foregoing definition. The Defendants do not dispute that the Plaintiff’s two children, Robert John McIntyre and Trudy Jane Waddell, are also eligible persons in relation to the Deceased (presumably, within paragraph (d) of the foregoing definition). None of those other eligible persons has made a claim against the estate of the Deceased.

44 A very considerable quantity of evidence (especially affidavit evidence, but also oral evidence, by way of cross-examination of the Plaintiff) was directed to establishing that the Plaintiff was in a de facto relationship with Mr Agnew at the time of the death of the Deceased, or at the present time. Evidence directed to establishing that the Plaintiff had been in a de facto relationship at the time of the death of the Deceased was relevant in respect to the condition attached to the legacy of $10,000 given to the Plaintiff by the Deceased’s will. However, Counsel for the Defendants in his submissions expressly stated that the Defendants did not dispute the entitlement of the Plaintiff to that legacy and that the Defendants did not assert that at the date of death of the Deceased the Plaintiff was in a de facto relationship. In the light of that attitude on the part of the Defendants, the foregoing evidence appears to have been largely unnecessary, since the Plaintiff in her primary affidavit filed in support of the summons, being that sworn by her on 19 August 2004, disclosed the fact that during the lifetime of the Deceased she had committed adultery with Mr Agnew. Details of the Plaintiff’s affair with Mr Agnew and of her adultery with one other person during the lifetime of the Deceased would appear to be relevant only to the submission on behalf of the Defendants that the Plaintiff had been guilty of what was, in respect to the statutory predecessor to the Family Provision Act, being the Testator’s Family Maintenance and Guardianship of Infants Act 1916, known as “conduct disentitling”.

45 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 208-210 the Court must first consider whether, in consequence of the testamentary dispositions of the Deceased, the Plaintiff has been left without adequate provision for her proper maintenance. (See, also, Vigolo v Bostin (2005) 79 ALJR 731, in which the High Court affirmed the correctness of the foregoing test in Singer v Berghouse.)

46 It was submitted on behalf of the Plaintiff that adequate provision for the proper maintenance of the Plaintiff would require that she be enabled to relocate on the Gold Coast, where her daughter and son-in-law propose shortly to reside, and that in doing so she would require an additional amount of about $100,000 to meet the price differential between her present residence and the likely cost of desired accommodation on the Gold Coast, together with transaction costs totalling about $25,000. In addition, the Plaintiff seeks to be provided with capital and income sufficient to secure her against uncertainty and to meet any unforeseen contingencies.

47 The Defendants, however, submit that the Plaintiff has established no relevant need. They point to the fact that the Plaintiff is secure in her accommodation in the McRae Street residence. That residence has in recent times undergone significant refurbishment. Further, the Plaintiff is secure in her employment. That employment has enabled her to lead a full and pleasant lifestyle, which includes scuba diving (in which the Plaintiff is a qualified instructor), and other physical activities, as well as to present herself in an attractive and stylish fashion. The Plaintiff has been enabled to expend about $6,000 upon a recent overseas trip, and was also enabled to have an overseas holiday in the previous year.

48 Nevertheless, it cannot be overlooked that the Plaintiff’s ability to maintain the lifestyle which she enjoyed during the latter years of her marriage to the Deceased has only been possible as a result of the bank loan which she obtained in order to assist in the refurbishment of her residence, and of having resort to the inheritance from her mother, and of increasing her credit card indebtedness.

49 Whilst the Plaintiff is secure in her accommodation, and is secure in her employment, in which she is competent and well regarded, nevertheless, she has significant liabilities. If she continues in her present employment for another ten years she may receive a reasonably large superannuation payment. Nevertheless she has no ability or funds to meet any unforeseen contingencies which might arise before she chooses to retire from employment and to access her superannuation entitlement. I recognise that, at least to an extent, the Plaintiff’s financial problems are of her own making, in seeking to maintain a lifestyle which appears to be somewhat beyond her means. However, there is no suggestion that that lifestyle is of a higher standard or is any more expensive than that which she enjoyed (with at least the acquiescence, if not the encouragement, of her husband) during the lifetime of the Deceased.

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

51 In the circumstances of the instant case it should not be overlooked that the Plaintiff was the principal carer of the Deceased in his declining years. Although the extent of the Deceased’s drinking habits and consequent emotional problems were disputed by the Defendants, nevertheless there is no suggestion that the Plaintiff was not an adequate carer for the Deceased whilst he was suffering ill health in his later years. Neither is there any suggestion that the Plaintiff failed in her role as homemaker, or as housekeeper and hostess for the Deceased during the years of his employment and his participation in public and community activities. Neither should it be overlooked that the Plaintiff was married to the Deceased for 23 years, and that they had lived together for 27 years. Throughout almost the entirety of that period the Plaintiff was in employment and she contributed her earnings, as well as the inheritance from her father in 1973 and part of the inheritance from her mother in 2003, towards household expenses and the welfare of the Deceased, including contributions as a homemaker.

52 That the Plaintiff was unfaithful to the Deceased during the last year of his life, and that she contemplated proceedings for a property settlement (if an amicable arrangement in that regard could not be achieved), and that she left the matrimonial home two days before the death of the Deceased, are all matters which are relevant to the totality of the relationship of the Plaintiff and the Deceased. The adultery of the Plaintiff is not, however, decisive of her claim. Whilst in former times and under the former statute such adultery might have totally defeated the claim of an applicant, I do not consider that it has such an effect in the circumstances of the instant case.

53 I recognise that it is the desire of the Plaintiff to relocate to the Gold Coast, where her daughter and son-in-law propose shortly to establish residence. The Plaintiff said that she had no family ties in Tamworth. However, the Plaintiff was born in that city and appears to have lived there all her life. I do not consider that the Deceased had an obligation to provide the Plaintiff with more than he in fact did regarding a residence. That is, he was content that the McRae Street residence should pass to the Plaintiff by survivorship. He chose not to sever the joint tenancy. I consider that he discharged any obligation which he might have had to ensure that the Plaintiff was secure in her residence.

54 It will be appreciated that the Plaintiff is entitled to receive a legacy of $10,000 from the estate of the Deceased. Her liabilities, apart from the legal costs of the present proceedings total about $65,700. If the Plaintiff were to receive, instead of the legacy of $10,000, a legacy of $40,000, that sum would enable her to pay off the amount outstanding on her motor car (almost $26,000) and at least one or other of the amounts owing to Coles Myer ($10,612) or Visa card ($12,287). If the Plaintiff pays out the amount owing on her motor car, she will then no longer have to meet the weekly payments of $177, and, in consequence, she will have that additional sum available either to meet unforeseen contingencies or to use for the enhancement of her lifestyle.

55 The competing claims of the other beneficiaries named in the will of the Deceased are not such as, in my conclusion, should have the effect of reducing, let alone extinguishing, an order for provision in favour of the Plaintiff in the proposed amount of $40,000.

56 Since the net distributable estate is in the vicinity of $52,000, there is sufficient in the estate to meet a legacy of $40,000 to the Plaintiff. In those circumstances, it is unnecessary for the Court to embark upon a consideration of whether any property should be designated notional estate of the Deceased in order to meet the proposed legacy. In this regard, I would observe that the written submissions of the Plaintiff address the question of notional estate, and the question of whether The McIntyre Superannuation Fund should be available to be designated notional estate of the Deceased. Had the net distributable estate not been sufficient to meet the proposed legacy in favour of the Plaintiff, I would have been satisfied that the failure of the Deceased during his lifetime to require the trustee of the fund to pay to him either the member’s retirement benefit or the permanent disablement benefit constituted a prescribed transaction of the nature contemplated by section 22(4) of the Family Provision Act, and that, to such extent, so much of the superannuation fund as might have been required to meet any legacy in favour of the Plaintiff should be designated notional estate of the Deceased. I note that Counsel for the Defendants stated that the Defendants did not dispute the submissions of the Plaintiff in respect to notional estate, and did not make any submissions of their own in this regard.

57 The success of the Plaintiff in her application for provision entitles her to an order that her costs be paid out of the estate of the Deceased.

58 If the Plaintiff receives a legacy of $40,000, there will remain only about $13,600 in the estate. The Plaintiff’s costs total at least $50,500. That will leave the Plaintiff out of pocket to the extent of about $37,000 in respect to her costs, even if the totality of the balance of the distributable estate be allocated towards payment of the Plaintiff’s costs (rather than to the payment of the costs of the Defendants). In this latter regard, I have already observed that, by agreement between the Defendants and the trustee of The McIntyre Superannuation Fund, that fund is responsible for the payment of the Defendants’ costs.

59 The question then arises whether a costs order in favour of the Plaintiff who, in my conclusion, is entitled to receive such an order, should be paid, at least in part, from the notional estate of the Deceased.

60 Section 33 of the Family Provision Act makes express provision in subsection (1) thereof that the costs of proceedings under the Act “in relation to the estate or notional estate of a deceased person be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit”. In Hill v Hill (19 May 1997, unreported) Young J (as he then was) made an order designating a certain fund as notional estate for the purposes of the Family Provision Act, and ordered that the costs of the plaintiffs and of the defendant be paid out of that fund.

61 The views which I have already expressed concerning the existence of a prescribed transaction and the designation of notional estate, in the context of an order for provision in favour of the Plaintiff, have in the instant case equal application in the context of orders for costs to which the parties are entitled.

62 In the instant case, I consider it appropriate that I make a costs order in favour of each of the Plaintiff and the Defendants, and that I designate so much of The McIntyre Superannuation Fund as notional estate of the Deceased as may be necessary to meet so much of the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis as cannot be met from the assets of the estate of the Deceased. In doing so, I note that a considerable part of the costs of the Defendants have already been paid out of The McIntyre Superannuation Fund.

63 Accordingly, I make the following orders:

1. I order that, in lieu of the benefits given to her by the will of the late David William McIntyre (“the Deceased”), the Plaintiff receive a legacy in the sum of $40,000, such legacy not to bear interest if paid on or before 1 January 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898.

2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity be paid first out of the estate of the Deceased, and then, to the extent that the assets of the estate are not sufficient to meet those costs, out of the notional estate of the Deceased.

3. I designate as notional estate of the Deceased so much of The McIntyre Superannuation Fund as may be necessary to meet so much of the foregoing costs as cannot be paid out of the estate of the Deceased.

4. The exhibits may be returned.