McQuhae v Abel

[2003] NSWSC 711

CITATION:	McQuhae v Abel [2003] NSWSC 711 revised - 12/08/2003
HEARING DATE(S):	1,4 August 2003
JUDGMENT DATE:	7 August 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:
CATCHWORDS:	Family Provision. Application under Family Provision Act by a daughter who had minimal contact with deceased over last 13 years of the deceased's life. Small estate - legacy granted.
PARTIES :	Patricia Edith McQuhae v Marilyn Jean Abel
FILE NUMBER(S):	SC 3229/02
COUNSEL:	Mr S. Bell for plaintiff Mr P.R. Glissan for defendant
SOLICITORS:	McKenzie Cox for plaintiff Toltz La Hood for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 7 August 2003

3229/02 Patricia Edith McQuhae v Marilyn Jean Abel

JUDGMENT

1 Master: This is an application under the Family Provision Act 1982 in respect of the estate of the late Jean Margaret Perooz who died on 5 October 2001 aged 86 years. The deceased’s husband had died some months beforehand and her two daughters, the parties in these proceedings, survived her.

The will of the deceased

2 The last will of the deceased was made on 24 August 2001 in which she appointed the defendant her executrix. She gave pecuniary legacies of $20,000 each to her four grandchildren and the residue of her estate to the defendant. She also directed the repayment of $30,000 to the defendant, which she described as the final payment for the house that she and her husband had purchased from their daughter the defendant. In clause 6 of her will, the deceased referred to the plaintiff in these terms:

“I declare that I do not want my younger daughter Patricia McQuhae to receive any of my estate as she has not acknowledged her parents for almost 14 years. She also refused us contact with her children, refusing to let us phone them, except any gifts from us and would not allow us to have any photographs of them. However, the elder (granddaughter) Kim McQuhae after a long search, contacted us and has kept in constant touch of her own free will during the last 12 months.”

Assets in the estate

3 At the date of her death the deceased owned her home at 11A Steyne Road, Saratoga. The only evidence of value is that in the probate application, namely $275,000. The deceased had cash totalling $24,916.21. Apart from the debt due to the defendant of $30,000 there were funeral, testamentary and other expenses totalling $5843.01.

4 The defendant’s costs for a one-day hearing are estimated at $40,385.01 and for a two-day hearing of $45,060.01. The plaintiff’s costs for a one-day hearing are estimated at $30,356.15 and for a two-day hearing $33,656.15.

5 If an order is made in favour of the plaintiff this means that a sum of $89,642 will have to be deducted from whatever might be the net proceeds of the sale of the only property in the estate. Assuming sale costs of about $7,000 the distributable estate will be in the order of $178,358. If the legacies of $80,000 are paid the distributable estate is $98,358.

The family history

6 The plaintiff’s father was born on 6 March 1914 and his wife, the deceased, was born on 26 August 1916. The defendant was born on 27 March 1945 and the plaintiff on 8 September 1949.

7 It was in 1969 that the plaintiff met her future husband Peter McQuhae. The deceased did not like him and gave an ultimatum to the plaintiff in 1970 that she had to stop seeing him or that she could leave home. She did leave home although she returned some months later for a short time. The same problem surfaced and accordingly she left again for a short time. Although she still continued her contact with her future husband she remained at home between 1971 in 1973 studying as well as doing housework and other things about the home.

8 The plaintiff graduated with a bachelor of science in March 1972 and in December that year she and Peter McQuhae purchased a house at Casula. They married in January 1972 and the plaintiff then worked as a maths teacher at Presbyterian Ladies College in Sydney up until 1979. During this period and indeed up until 1987 the plaintiff and her husband did work renovating and repairing their parent’s house at Padstow.

9 The plaintiff’s daughter Kim was born on 27 December 1979 and her son Cameron was born on 15 January 1982. The contact between the plaintiff, her husband and the plaintiff’s parents continued and, for example, in 1980 they took their mother and father on a holiday to Tuross Lakes and in 1984 on a holiday to Wauchope. They paid for a holiday for their parents to visit Caloundra in 1985.

10 In 1987, a doctor advised the McQuhae family to move from Sydney due to the severe asthma that the plaintiff’s son Cameron was suffering. Her husband accepted redundancy from APM Ltd and the family moved to a farm at Dorrigo. Between 1987 and 1993 the family lived on the farm at Dorrigo and built a granny flat for the plaintiff’s mother and father to visit. However her parents refused to visit the plaintiff saying it was too far to drive.

11 The relations between the plaintiff and the deceased were exacerbated in 1988 when the deceased wrote a letter to the plaintiff that was very critical of her husband. This, however, did not stop the plaintiff in speaking by telephone to her father. The plaintiff’s father was hospitalised in May 2001 and died on 24 May 2001. Probate was granted on 13 February 2002 and these proceedings were commenced within time on 20 June 2002.

The eligibility of the plaintiff

12 The plaintiff is a daughter of the deceased and accordingly is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At page 209 it said the following:-

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

The situation of the plaintiff

13 The plaintiff is 54 years old, married with 2 adult children who are dependant upon her as they are still continuing with higher education. If they do what is proposed, Kim will be dependant until at least 2008 and Cameron until 2005. The children have some earnings that are contributed to their education and upkeep.

14 The assets of the plaintiff and her husband consist of the following:

(a) Their home at Newrybar on the far north coast estimated at $400,000

(b) A bus run including a leased bus the value of which is of a debatable value. It was purchased for some years ago for $200,000 but it is apparent that with the deregulation of the bus industry that there is real doubt as to whether there will be any commercial value in respect of the goodwill of the run.

(c) Home contents of $30,000

They have liabilities of approximately $65,000

The plaintiff has superannuation of $100,000, which, if she retires at 60 will amount to $150,000. Her husband has a similar amount of superannuation.

15 The plaintiff has a position as a casual secondary school teacher and she currently receives $680 net per fortnight. Last year she had fulltime work as a casual teacher but it seems that now she only has two or three days work a week. The net income before tax from the bus run is shared between them and was about $32,000 per annum for the year ended 30 June 2002. Their present outgoings are $36,928 per annum. Some of these expenses are business expenses.

16 The plaintiff will need an operation for a gallstone condition and she does not have private medical cover

The relationship between the plaintiff and the deceased

17 The defendant submitted that in the circumstances of the present case where there had been no contact between them the deceased and the plaintiff of upwards of 13 years that no provision should be made for the plaintiff. This submission raises the question of what is the appropriate approach of a court in matters such as the present.

18 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.”

19 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

“This conclusion directly raises the question of whether the word “ought” in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.
…..
It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased’s person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that “many cases suggest that an applicant must show a moral claim …”, he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s.7 of the present Act of the word “ought” in replacement of the words from s.3 of the 1916 Act “as the Court thinks fit” shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word “ought” seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case.”

20 Meagher JA, at 570, agreed with Priestley JA.

21 Meagher JA had previously expressed a view in Hughes v Hughes, Court of Appeal unreported 6 June 1989 (an adult daughter case), that the duty arose to make provision as established in that case as follows:-

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.” (Emphases added).

22 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

23 In Benney v Jones, Mahoney JA, at 560, said:

“Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1.
“Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

24 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:”

25 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales’ Case) (1962) 107 CLR 9. Scales’ Case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said, at 18:

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

26 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales’ Case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

27 Bryson J, in any event, distinguished Scales’ Case, at 11, on the basis that on the facts before him the plaintiffs:

“In their childhood years... lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ...”

28 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows, at 26:

“In Singer’s case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that “we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language”. They then say “the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

29 Young J, at 27, also observed:

“In Fraser’s case, Kirby P at 29 said that “I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning “moral duty”. However, His Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law “either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier." ( at 27).
Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words “moral claim” in decisions under this Act.
Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the Court. He said, with reference to decisions of Murphy J at 42, “the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. ... The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NZLR 959, 970 will not alone suffice to empower the court to make an order.”

30 In Walker v Walker, Young J also noted, at 30:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. …”

31 It seems to me that the formulation of His Honour Mr Justice Young is sufficient and appropriate to guide me in determining these matters.

32 I have already referred to the attitude of the deceased to the plaintiff’s husband. Apparently she believed that he was not her daughter’s intellectual equal and that she could do better. It is plain that the plaintiff kept in contact with her mother on a weekly basis until she went to Dorrigo in 1987. Her mother obviously wanted to keep in contact with the plaintiff’s children and this was the basis of her opposition to the Plaintiff’s move to Dorrigo. The plaintiff kept in touch by phone after the move until she received a gift containing the hostile letter in which the deceased accused the plaintiff’s husband of deliberately coming between her and the grandchildren. There is no evidence that he did so and it was apparently the move and lack of contact that prompted this letter.

33 The plaintiff tried to re-establish contact with her mother through her father but her mother refused to speak to her. She refused to speak unless the plaintiff apologised for marrying her husband and moving away from Sydney. Importantly, her father did not believe that there was such a need to apologise and he well understood the need to move. This indicates that the conduct on the part of the deceased was quite irrational. It is worth noting that the plaintiff and her husband are still together 30 years after their marriage and have successfully raised a family.

34 There was reference to some correspondence between the defendant and the plaintiff in 1990 and there is a draft of a letter that the defendant says she sent to the plaintiff. She described receiving a reply which she no longer has in her possession in which she alleges the plaintiff described her family as “pseudo”, that she wanted “nothing to do with you” and that Mum and Dad were “your parents and you can have them”. The defendant says she showed this letter to her parents. Although the plaintiff denied writing such a letter I accept the defendant’s evidence in this regard. Due to the passage of time and the intensity of feelings the dispute generated it may well be that she does not recall this event. The showing of the letter to the deceased no doubt exacerbated the dispute.

35 The following comments of His Honour Mr Justice Holland in Kleinig v Neal (1981) 2 NSWLR 532, at 540, are apposite:-

"If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the parent, it may refuse the child's claim."

36 Clearly the deceased had better expectations for her daughter’s marriage than what she perceived was to be the case with her marriage to her husband. Disappointments such as these are the things His Honour was referring to in his comments. The deceased seems to have been a difficult person and this comes from evidence of what was said by her husband and also indeed from the draft letter that the defendant wrote to the plaintiff in 1990. In large measure it must be the responsibility of the deceased for the initial break in the relationship with her daughter.

37 It was submitted that the plaintiff should have endeavoured again to try and re-establish contact with the deceased prior to her death. Although the plaintiff spoke of maintaining phone contact with her father it is unlikely that there was such contact. It was investigations by the plaintiff's daughter Kim that re-established some contact with her grandparents. The plaintiff still appears very bitter about the actions of her mother and probably does not or, more importantly, did not have the capacity to try some rapprochement. One has to however look at the matter over the whole period of the relationship. In this regard, it is clear that the plaintiff and her husband played an important part in the deceased’s life with their children up until the move to Dorrigo in 1987.

38 There is also the work that was done by the plaintiff and her husband on her parent’s house at Padstow. I later refer to the fact that this is not insignificant. Against this, is a period where for some eleven years there was no contact between the plaintiff and the deceased. In this regard probably both are to blame. However, having regard to the relationship over the lifetime I still think that it is appropriate that the deceased should have provided for the plaintiff in her will.

Contributions to the estate of the deceased

39 The plaintiff and her husband did a fairly substantial amount of renovation to the plaintiff’s home at Padstow. This was described in detail in the affidavits and was of some substance. The plaintiff and her husband paid for the materials. However, there is no estimate of the amount involved.

The position of the defendant

40 The defendant did not place before the court any evidence of her assets and personal situation. The court therefore can assume that the defendant does not want the court to take those matters into account when considering the plaintiff’s application. There is no evidence of any contributions to the deceased’s estate by the defendant.

41 The defendant did give evidence of the relationship she had with the deceased. In paragraph 10 of her affidavit, she detailed the help she gave the deceased over the 10 years before her death. She clearly was very involved with the day-to-day care of the deceased and her husband and taking them to their many medical appointments. The deceased and her husband were in hospital on at least 15 occasions in these years. Having regard to the type of illness from which the deceased suffered I am sure there was substantial help given by the defendant to the deceased in this regard.

42 There is evidence available to me of the situation of the two grandchildren who are the children of the plaintiff and her husband. The daughter Kim, who is aged 23 years, is a schoolteacher who is planning to stop work and do her PhD. At present she pays $100 per week board that is being accumulated to meet the further cost of her education. The son Cameron, who is aged 21 years, lives at home and apparently earns some income from casual bus hire to others of a vehicle, which is appropriate to allow him to do this work. He also proposes to undertake further studies.

43 There is no information before the court as to the situation of the other two grandchildren who are the children of the defendant. However, the plaintiff does not seek to interfere with the provision of any of the legacies to the four grandchildren. The only claims on the bounty of the testator of which the court has any financial information are those of the plaintiff and her two children.

Discussion of the plaintiffs claim

44 It is a necessary to see how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. The plaintiff has submitted that she would have a sum sufficient to enable her to pay off her existing mortgage of $65,000 and some further sum to allow for contingencies which come with older age.

45 It is plain that she and her husband have a very nice house where they choose to live. Although there was some evidence of the sale price for the next door house it is plain from the evidence that the house was substantially bigger than the plaintiff's house. For this reason I do not find that evidence of much use in deciding whether the plaintiff's house is worth more than the $400,000 which is the value the plaintiff placed upon the house. In any event, the plaintiff and her family intend to continue living at those premises and this is not unreasonable.

46 The income situation of the plaintiff and her husband fluctuates depending upon the amount of work that the plaintiff can obtain. Although in her list of expenses some amounts are probably already taken up in the accounts of the business there certainly is nothing more than modest income available to the plaintiff and her husband.

47 Although the plaintiff has some medical problems arising from her gallstones and will have to have a operation at some stage in the future she can probably continue working for some years provided the work is available. It was suggested that the debt could be discharged from the sale of the bus, which they presently lease. The residual value will require a substantial payment, namely $45,000 which seems to make it unlikely that that asset would be of any great assistance in this regard.

48 I do think that the plaintiff does demonstrate some need for a small provision and the amount of $65,000 in order to pay off her mortgage would be appropriate.

49 I order that the plaintiff receive out of the estate of the deceased a legacy of $65,000. Interest is to run on such legacy at the rate provided for under the Wills Probate and Administration Act 1898 if not paid within three months of today's date from that date. I will hear submissions as to costs.

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Last Modified: 08/18/2003