Menczer v Menczer - Estate of Bruinsma; Menczer v Menczer

[2009] NSWSC 1466

CITATION:	Menczer v Menczer - Estate of Bruinsma; Menczer v Menczer [2009] NSWSC 1466
HEARING DATE(S):	16-18 December 2009
JUDGMENT DATE :	18 December 2009
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	18 December 2009
DECISION:	Refer to paras 104-107 of judgment.
CATCHWORDS:	SUCCESSION - wills, probate and administration – plaintiffs seek to enforce purported agreements that the deceased would transfer her interest in real property to them upon her death in return for the applicants looking after her – first alleged agreement not binding and in any event superseded by later agreement – construction of later agreement – agreement reflected real possibility of deceased changing her mind after making agreement and imposed no implied restriction on her doing so – adverse credit findings against plaintiffs – court considers critically agreements said to have been made with a deceased person – further term in second agreement that plaintiffs pay money to deceased found not to have been performed – plaintiffs’ claim rejected - SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for daughter – consideration of what is required for her proper maintenance and advancement in life – lump sum awarded
LEGISLATION CITED:	Family Provision Act 1982 (NSW) Contracts Review Act 1980 (NSW) Civil Procedure Act 2005 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Dable v Peisley [2009] NSWSC 772
PARTIES:	2180/08 Plaintiff: Grace Menczer 1st Deft: Benjamin Menczer 2nd Deft: Katina Manolios 1858/09 1st Plaintiff: Tracy Henry Menczer 2nd Plaintiff: Lyra Alenton Menczer 1st Deft: Benjamin Menczer 2nd Deft: Katina Manolios 3rd Deft: Grace Menczer 4th Deft: Trevor Imre Menczer 5th Deft: Pauline Marion Menczer
FILE NUMBER(S):	SC 2180/08; 1858/09
COUNSEL:	2180/08 Plaintiff: P Blackburn-Hart SC Defendants: R Quickenden with G Dilworth 1858/09 Plaintiffs: C Dibb 1st & 2nd Defendants: R Quickenden with G Dilworth 3rd Defendant: P Blackburn-Hart SC
SOLICITORS:	2180/08: Plaintiffs: Trenches Lismore Defendants: JJ Lees & Associates 1858/09 Plaintiffs: Bilias Associates 1st & 2nd Defendants: JJ Lees & Associates 3rd Defendant: Trenches Lismore

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 18 December 2009

2180/08 Grace Menczer v Benjamin Peter Menczer & Anor – Estate of the Late Margaret Bruinsma
1858/09 Tracy Henry Menczer & Anor v Benjamin Peter Menczer & 3 Ors

JUDGMENT

1 HIS HONOUR: These proceedings concern the estate of Margaret Bruinsma, who died on 15 March 2007, aged 91. She had one child, a daughter, Grace Menczer. Grace Menczer was born in 1942. She has four children, three sons, Trevor, Tracy and Benjamin Menczer, and one daughter, Pauline. Hence, the deceased had four grandchildren.

2 The deceased’s estate includes a 94 percent beneficial interest in a property in Doncaster Avenue, Kensington. She left other property valued at about $360,000, including jewellery valued at about $5,000.

3 The deceased made her last will on 20 September 2004. She appointed her grandson, Benjamin, and her friend Katina Manolios, as her executors. She made a gift to Tracy Menczer and his wife, Lyra Menczer, in the following terms:

“ 3. I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate of whatsoever kind and wheresoever situated unto my Trustee upon the following trusts:
...
(b) In consideration of my grandson TRACY HENRY MENCZER and his wife LYRA MENCZER continuing to look after me by providing personal and domestic care for me and also arranging for my nursing and medical needs as long as I live I GIVE AND TRANSFER one-half interest in my home at [xxx] Doncaster Avenue, Kensington and all contents thereof to my said grandson TRACY HENRY MENCZER and in the event of my said grandson failing to survive me for a period of thirty (30) days THEN the share of the deceased shall be held for his children until they attain the age of twenty-one (21) years and then unto them absolutely. ”

4 She left what she called the remaining one-half interest in her home at Doncaster Avenue to her grandson Trevor. She made a specific bequest of jewellery to her granddaughter, Pauline, and left the balance of her estate in the proportions of 40 percent to her daughter Grace, 30 percent to her grandson Trevor, 20 percent to her grandson Benjamin and 10 percent to her granddaughter Pauline.

5 In proceedings 2180 of 2008 Grace Menczer seeks an order under the Family Provision Act 1982 (NSW) for provision out of the estate in addition to, or in substitution for, that which she receives as a 40 percent residuary legatee.

6 In their further amended statement of claim in proceedings 1858 of 2009, Tracy and Lyra Menczer claim that the deceased held her interest in the Doncaster Avenue property on trust for them. They sought orders requiring the executors to transfer the deceased's interest in that property to them. They seek to enforce an agreement said to have been made on or about 23 April 2001, whereby it is said the deceased agreed to transfer the whole of her interest in the property to them in consideration of their providing services to the deceased, namely the services of looking after the deceased.

7 Alternatively, they seek to enforce an agreement made between the deceased and Tracy Menczer on or about 23 October 2002, whereby, so they contend, the deceased agreed to transfer the whole of her interest in the Doncaster Avenue property to Tracy Menczer, in the events which have happened, in consideration of Tracy Menczer looking after the deceased and paying her $100 per week.

8 They also bring a case based on proprietary estoppel. They say they were induced by the deceased to believe that the deceased would leave all her interest in the Doncaster property to them, and that they acted to their detriment in reliance on that belief by looking after the deceased until she moved from the Doncaster Avenue property to live with her daughter, Grace, in Nimbin in July 2005 and, thereafter, to a nursing home in Nimbin in September 2005. They say that the executors should be compelled to make good the assumption that they held.

9 It was ultimately agreed by counsel for Tracy and Lyra Menczer that no trust arose during the deceased's lifetime over her interest in the Kensington property. The agreements those plaintiffs seek to enforce are not that the deceased would transfer the property to them, but that she would leave the property to them by her will. Their assumption was that they would inherit the deceased's interest in the property, not that they would acquire a beneficial interest in the deceased's interest in the property during her life. It was thus common ground that, for the purposes of considering Grace Menczer's claim under the Family Provision Act, the whole of the deceased's interest in the Doncaster Avenue property formed part of her estate and was to be considered in determining whether orders should be made under that Act. The whole estate was amenable to orders under that Act.

10 The value of the deceased's interest in the Doncaster Avenue property is estimated to be between $1,034,000 and $1,222,000.

11 No party contended that Tracy Menczer was not entitled to at least a half of the deceased's interest in the Doncaster Avenue property and to the contents of the Doncaster Avenue property pursuant to clause 3(b) of the will. That is to say, no-one contended that the gift under clause 3(b) of the will was a conditional gift and that the condition had not been satisfied. It was common ground that all that Grace Menczer inherited was her 40 percent interest in the balance of the deceased's estate, and that the balance of the estate did not include any part of the Doncaster Avenue property.

12 It is convenient, first, to consider the claims of Tracy and Lyra Menczer. In 1995 they owned a unit at Hillsdale. In that year the deceased moved into their unit. Prior to then she had, for very many years, been living with her daughter, Grace, either at a house at Bondi, or at a property at Brooklet near Byron Bay. There was a falling-out between Grace and the deceased in relation to those arrangements, which led to litigation in this Court and which, for a time, soured the relationship between the deceased and her daughter.

13 The accommodation in the Hillsdale unit was far from ideal. In April 1996, Tracy Menczer and the deceased, together, purchased the Doncaster Avenue property for $425,000. They purchased the property as tenants in common, with the deceased having a 94 percent interest and Tracy and Lyra Menczer a 6 percent interest. Tracy Menczer says that this proportion was the proportion which the parties contributed to the purchase price.

14 At least at later times the deceased disputed this and evidence was given in relation to the payments Tracy Menczer said that he made towards the purchase price. I will consider this evidence later in these reasons, as it goes to questions of credit. Suffice to say for the moment that no issue was raised by any party in the proceeding that the property was not beneficially held in accordance with the legal title.

15 In 1997, a three-car garage was built at that property at a cost of about $30,000 to the deceased. Tracy Menczer gave evidence that he reimbursed the deceased for this payment in full and, again, there is an issue going to credit in relation to that evidence.

16 Tracy and Lyra Menczer's first child was born in July 1997.

17 On 1 August 2000 the deceased made a will. She left the Doncaster Avenue property, which she called "my property", equally to her daughter, Grace Menczer, on the one hand, and to her four grandchildren, on the other, with a gift of residue to Grace. It can be inferred from this, consistently with Grace Menczer's evidence, that by 2000, the relationship between Grace and her mother had been rehabilitated to a substantial degree.

18 On 30 November 2000, the deceased made a new will, which revoked the earlier will. In it she left the whole of her estate in five equal shares to Grace and each of the grandchildren.

19 During this time the deceased continued to live with Tracy and Lyra Menczer and their children in the Doncaster Avenue property. Tracy and Lyra Menczer provided substantial care for the deceased, who, by then, was 83 or 84.

20 On 23 April 2001, the deceased and Tracy Menczer signed a document, written out by Tracy Menczer, and headed "AGREEMENT". This is the first of the agreements which the plaintiffs seek to enforce. The document reads:

“ AGREEMENT

I Margaret Bruinsma leave my share of the house [xxx] Doncaster Avenue, Kensington to my grandson Tracy Henry Menczer and his wife Lyra Menczer. In return for looking after me, and all my needs. "

21 The signatures to the document were witnessed by a justice of the peace in Anzac Parade, Kensington.

22 Tracy Menczer deposed that the document came into existence as a result of a conversation he had with his grandmother in which she expressed her gratitude for being looked after for many years, and that she told him that he was the only grandson who offered to look after her when no-one else in the family even visited her. He deposed that she said words to the effect:

“ Keep looking after me on what you have been doing and I'll make an agreement on paper and sign it for a safe guard. You are getting the Kensington Premises. This is a safeguard for you. I'm doing this for your family, especially the kids. ”

23 He deposed that he said that they would keep looking after the deceased and she asked him to get a pen and a paper and she would make an agreement there and then. He deposed that he duly got a pen and a piece of paper and she dictated the words of the document, which I have set out above.

24 He deposed that he asked his grandmother whether she was sure that she wanted to do that, and she said words to the effect:

“ Yes, I'm sure. I'm very happy with everything that you and Lyra have done for me. I want to safeguard you from your mum. You and Lyra have worked so hard for me, I don't want your mum to take it away from you and your children. ”

25 In the nature of things, that evidence is uncorroborated. Corroboration is not to be expected. But the court always regards cautiously, if not suspiciously, evidence of conversations or oral agreements said to have been made with persons who are dead and who cannot give their version of events.

26 I will deal with questions of Tracy Menczer's credit later in these reasons. Suffice to say at the moment that the deceased's conduct in August and November 2000, in making her daughter, Grace, a beneficiary of her will, does not suggest that she would wish to "safeguard" Tracy Menczer and his family from his mother.

27 The deceased made a further will on 26 October 2001. It was prepared by a firm of solicitors at Matraville, and the deceased's signature was witnessed by a secretary and a solicitor of that firm. It was in materially the same terms as her will of November 2000, save that it described Grace Menczer as her daughter, rather than her granddaughter, as Grace had been erroneously described in the previous will.

28 On the same day, the deceased signed a document, which was witnessed by the solicitor, stating:

“ TO WHOM IT MAY CONCERN

I have been able to obtain a copy of a document headed 'Agreement' which was signed by me on the 23 ^rd April 2001.

I was told to sign the document upon the basis that my grandson Tracy Henry Menczer needed it for the purposes of a loan.
Tracy insisted that I sign it and I was scared that if I did not sign it I would be the subject of another outburst of his.
At no time did I intend to give him any rights over my share of [xxx] Doncaster Avenue, Kensington, nor did I intend the document to be an addition to my Will dated 30 ^th November 2000.
In all respects, I confirm the terms of my said Will. ”

29 At that time, or a few days before, the deceased prepared a handwritten note, which she also signed on 26 October 2001, in which she wrote, amongst other things, that Tracy Menczer had not paid for the initial 6 percent of the house; that he did not really look after her; that he lived rent free in the property, except for gas, electricity and telephone; and that otherwise she paid for everything. She made various other complaints, to which it is not necessary specifically to refer.

30 Another document obtained after the deceased's death and written on an envelope bearing a franking date of 1 September 2000 made other complaints against Tracy Menczer, including a statement that he did not give her help in little every day things that any other man in the house would do, and that he got her to build the three-car garage with the room attached and that she paid for it.

31 I should emphasise that, again, in the nature of things, these allegations by the deceased are not capable of being tested.

32 I infer that the last document to which I referred, the writing on the envelope, was brought into existence in 2000 or 2001.

33 It may be no coincidence that the will of the deceased of 26 October 2001 and the note witnessed by the solicitor of 26 October 2001 were prepared either during or shortly after a visit by Grace and a Mr Earl Morris to the Kensington property in October 2001. They stayed for about two weeks.

34 On 23 October 2002 the deceased made a new will. This document was also prepared by a firm of solicitors but a different firm, Lang Gellert & Noonan of Bondi Junction.

35 In his affidavit Tracy Menczer deposed that at about that time the deceased told him that she wanted to update her will and that she wanted to, "put your ownership of the house in the will." According to Tracy Menczer the deceased asked whether he knew anyone who could do a will and he said that he did not know of any solicitors but could ask a friend who could recommend a solicitor for them, he and his wife also needed to make wills. According to Tracy Menczer the deceased said, words to the effect:

“ I am very happy with Lang Gellert & Noonan solicitors at Bondi Junction, I have used them several times, do you want to go together? "

36 He agreed and the appointment was made.

37 In cross-examination Mr Menczer said that he had selected the solicitor, and although he did not know the firm of solicitors in question, he had acted on the recommendation of a solicitor of a girlfriend of his.

38 By her will of 23 October 2002 the deceased gave all of her interest in the Doncaster Avenue property, together with all its contents, to Tracy Menczer with a gift over to Lyra Menczer and their children if Tracy Menczer failed to survive her. The will contained a clause that:

“ In CONSIDERATION of the aforesaid gift to my said grandson I expect that he and his wife, Lyra Menczer , will continue to look after me by providing personal and domestic care for me and also arranging for my nursing and medical needs as long as I live. "

39 The residuary estate was left 40 percent to Grace, 30 percent to Trevor, 20 percent to Benjamin and 10 percent to Pauline. The will contained a clause that:

“ I do not wish to give more of my estate to my daughter, Grace Bernadette Menczer , as she has completely neglected me for the last seven years and has abandoned all interest or assistance that I require and I wish to place it on record that my grandson, Tracy Henry Menczer , has been taking care of me during that period and has agreed to continue to look after me for the rest of my life. "

40 On the same day Tracy Menczer and the deceased signed a document called an agreement. In the document the deceased was called "Margaret". It provided:

“ IN CONSIDERATION of Margaret leaving her interest in the property known as [xxx] Doncaster Avenue, Kensington to Tracy in her Will of same date, in expectation that Tracy will look after her for the rest of her life and provide all the necessary domestic and personal services, Tracy hereby agrees to pay the sum of One hundred dollars ($100.00) each and every week to Margaret as long as she lives, representing living expenses out of the rent he receives from his home units at Hillsdale. "

41 The signatures of Tracy Menczer and the deceased were witnessed by the solicitor, Mr Gellert. This is the second agreement which the plaintiffs seek to enforce.

42 Tracy and Lyra Menczer both depose that for about a year they paid $100 cash per week to the deceased. Lyra Menczer deposes that:

“ Most of the time, I gave our grandmother $100 a week. Occasionally my husband gave her the monies. "

43 There are no receipts or other records of payments.

44 Lyra Menczer deposed that in about October 2003 she and the deceased had a conversation in which the deceased told her that she did not want Lyra and Tracy Menczer to continue to pay the $100 cash each week. She deposed that the deceased said words to the effect:

“ I know Tracy has been paying more than $100.00 a week for the past few years for my living expenses. This was my solicitor's idea. I just want you and Tracy to continue looking after me. "

45 According to Lyra Menczer the deceased said that she was sure that is what she wanted and said words to the effect, "You need the money more than me, keep it." Tracy and Lyra Menczer say that it was as a result of that conversation that they ceased making the weekly payments.

46 In September 2004 the deceased visited Grace Menczer in Nimbin. On 20 September 2004 she made her last will, the terms of which I have summarised earlier in these reasons. At that time, that is to say about September or October 2004, the deceased was suffering significant problems with her health. Her weight was down to about 33 kilograms and her daughter was concerned about her mother's nutrition and hydration. From at least that time the deceased was considering taking up accommodation in the northern rivers area closer to her daughter.

47 She made extended trips to her daughter in February and March 2005 and then again in the three weeks in May and June 2005 before permanently moving out of the Doncaster Avenue property in July 2005. She stayed with her daughter at Nimbin before moving to a nursing home in Nimbin in September 2005.

48 With that background I turn to the way Tracy and Lyra Menczer put their claim. The claim based on principles of estoppel can be dealt with shortly. I accept that both Tracy and Lyra Menczer assumed that they would inherit the deceased's interest in Doncaster Avenue after her death. However, I do not accept they acted to their detriment in reliance on that assumption. Tracy Menczer gave evidence that, so far as he was concerned, the deceased had the right to deal with her interest in the Kensington property as she saw fit. He said that if she decided to give Trevor the half interest in that property it was her right to do so. The attempted explanation of that evidence in re-examination was unconvincing, and indeed incoherent.

49 He also gave evidence that he would have continued to provide care for his grandmother as he did, whether or not an agreement had been made for her to leave the Doncaster Avenue property to him by her will. He said that he would have done what he did out of natural love and affection no matter what agreement he had with the deceased.

50 Lyra Menczer gave evidence to the same effect. She deposed that she and her husband would have continued to look after their grandmother, regardless of whether she signed a document with Tracy or not.

51 Moreover, I do not consider that those plaintiffs suffered a detriment from providing the services they did to the deceased which would need to be addressed by making good any such assumption. They obtained substantial financial benefits from 1996 to the present from their residence in the Doncaster Avenue property, which was 94 percent owned by the deceased, and without any obligation to pay rent or to make mortgage payments. This freed up the Hillsdale unit so that it has been able to be let as an investment.

52 Tracy Menczer, who earns a modest income working for Australia Post, has been able to accumulate four investment properties with his wife, who also works. No doubt that is due in very large part to their hard work and frugality. But it is also due in no small measure to their not having any mortgage or rental expenses for the family home. Tracy Menczer also inherits a 50 percent share of the deceased's interest in that property under the will.

53 I would regard the imposition of a trust over the whole of the deceased's beneficial interest in the Doncaster property as being a remedy out of all proportion to make good the assumption upon which the plaintiffs plead that they acted.

54 I turn then to the case based on contract. The handwritten document of 23 April 2001, although headed "Agreement" is not expressed in terms of mutual promises. It is expressed as an immediate testamentary disposition. The words are, "I Margaret Bruinsma leave my share of the house", et cetera. It is not expressed as a promise to leave the property by will on consideration of a promise by Tracy Menczer to look after the deceased and to provide for her needs.

55 Notwithstanding that the agreement was in writing and was signed in front of a justice of the peace, I would not infer that there was an intention to contract. As Ward J said in Dable v Peisley [2009] NSWSC 772 (at [109]), courts are reluctant to assume that parties have an intention to contract in this area where agreements are made in a family or social context and where such promises are often subject to unspoken and ill-defined qualifications in relation to what might happen in the future. As her Honour said (at [111]), it might be thought that if it were intended that the deceased would be legally committed to a promise to leave her estate, there would be some mechanism by which if there were to be a change in circumstances or in her relationship with her grandson, the question of whether the promise was to stand, and if not, how, the services provided up to that time would be recognised, would have to be taken into account.

56 The document was an informal document prepared without legal assistance and in all the circumstances I do not consider it created a binding contract. But if that conclusion is wrong, it was, in any event, superseded by the agreement of 23 October 2002. That agreement was made between the same parties. Lyra Menczer was not a party to either document, although she would be a potential beneficiary of the 23 April 2001 agreement, if the document were contractually binding.

57 The plaintiffs initially submitted that the 2002 agreement was a restatement of the agreement made in 2001, but that is plainly not so.

58 In contrast to the 2001 document, I would infer, as counsel for the plaintiffs submitted, that considered objectively, having regard to the place and witness before whom the document was signed, and the fact that the document was legally prepared, and having regard also to its terms, that the parties did intend to contract, that is they did intend to be legally bound by the document they signed.

59 But the question is what does the agreement of 23 October 2002 mean? It does not say that in consideration of Tracy’s paying a weekly sum of one hundred dollars to the deceased so long as she lived and providing necessary domestic and personal services, the deceased agreed to leave her interest in the property to him. To the contrary, the statement that the deceased left her interest in the property at Doncaster Avenue to Tracy in her will of the same date was expressed to be the consideration for Tracy's promise to pay a hundred dollars per week to the deceased for her life. There was no express promise by the deceased not to change the gift in her will. The agreement expressly stated that her having left her interest in the Doncaster Avenue property to Tracy was something done in an expectation as to what Tracy would do in the future.

60 The document reflected the fact that circumstances might change, and the deceased's expectation as to whether she was being looked after might change. It reflected the real possibility that she might change her mind as to whether to leave the Doncaster Avenue property to Tracy. In my view, properly construed, the effect of the agreement was that if that were to happen, Tracy's obligation to pay a hundred dollars a week would cease. But there was no implied restriction on the deceased’s changing her will in that regard. As things happened, Tracy and Lyra stopped making the payments of a hundred dollars per week about a year later.

61 In case I am wrong in that construction and, properly construed, the agreement is that the deceased impliedly would not revoke her will in consideration of Tracy making the weekly payments of a hundred dollars during her life, the question is whether the deceased's implied promise not to revoke the will remained on foot. If that is the effect of the document, the parties’ obligations were interdependent. The deceased would not be bound by her implied promise, (if that is what she gave), if Tracy did not keep up the payments, unless the deceased waived that term.

62 It was submitted for the executors that I should not accept that any of the payments were made. Whether the payments of a hundred dollars per week were made, and whether the deceased asked that they stop, are matters depending entirely upon the evidence of Tracy and Lyra Menczer. Their credit was attacked on numerous grounds; to some of which I have adverted, but to others I will turn.

63 Tracy Menczer deposed that he contributed six percent of the purchase price of Doncaster Avenue, partly by cheque, and partly in cash. He deposed that he paid $14,392 by cheque, $10,808 in cash. He said the payment in cash was not out of an account, but was money which he had sitting at home. I found that evidence quite unconvincing. No reason was proffered as to why such a very large sum would have been kept at home in cash. It was not as if Tracy Menczer did not have a bank account at the time.

64 The sum of $14,392 appears to have been a reimbursement to the deceased of stamp duty on the contract and transfer. But there is no corroboration that any other sum was paid at the time. The question of whether Tracy made payments equivalent to six percent of the purchase price was not a separately pleaded issue in the proceeding, but it was a relevant issue in a wider sense. It was a matter the deceased had put into dispute. It was a matter which Tracy Menczer felt the need to address in his affidavits.

65 Another matter going to credit was his evidence that he reimbursed his grandmother for the cost of the garage constructed in 1997. He said that he had reimbursed her, but in oral evidence said that he paid cash of no more than $100 every week or every fortnight when he had the money for a period of 14 or 15 months. He clearly did not reimburse her, as he had said.

66 The inconsistency in his evidence in relation to the choice of the solicitor in 2002 was also a matter going to his credit.

67 Counsel for the executors also points to evidence Tracy Menczer gave in relation to an application for finance. He denied in oral evidence using the Doncaster Avenue property as a property to support an application for a loan. His grandmother, it would be recalled, had asserted in 2001 that he had sought to use the Doncaster Avenue property in support of a loan. He denied ever using the property in support of an application for a loan. But his application for finance made in April 2009 listed the whole of the Doncaster Avenue property as an asset of his. His explanation was that he had not known that the property had been included on the application form prepared by a finance broker, and that he had signed the form without appreciating that it had been included. Given the number of times the form was signed, and given that he had verified the accuracy of the information on the document, I do not find that explanation persuasive.

68 Whilst there was nothing in Tracy Menczer's demeanour while he gave his evidence, which indicated to me that he was not a witness of truth, there were inconsistencies in his evidence which make me doubt his reliability.

69 So far as Lyra Menczer is concerned, her credit was significantly called into question when cross-examined about a payment made, it would seem, by the deceased into her account in November 1996. This was a payment of $14,000. She was asked an open question as to whether she recollected any occasion in which the deceased paid money to her. She initially denied it. She gave the following evidence:

“ Q. Was the deceased in the habit of paying money to you?

A. No.

Q. Do you recollect any occasion when she did pay money to you?

A. No.

Q. On any occasion at all?

A. Okay. I think I remember this one. Omi [the deceased] had the money because probably it's about the 6 per cent loan of the house.

HIS HONOUR

Q. Six percent?
A. Six percent loan of the house. Six percent for the house, for Tracy's name. ”

70 She was asked by counsel to explain that and started giving an explanation:

“ Okay. Omi had a bank cheque and - one second, your Honour. I am sorry. I have no recollection of this one. I don't remember. ”

71 She then was asked what she had in mind and started to give an explanation about a loan for her sister who was studying in Australia as a nurse before saying that she recalled that that was not in 1996. She then said she could not recall anything in relation to the matter. It seemed to me that Lyra Menczer was about to give an explanation that the $14,000 related to a loan made by the deceased at the time of the purchase of the Doncaster Avenue property, and then she thought better of giving that evidence, as it was inconsistent with her husband's evidence. I think that evidence severely shakes her credit.

72 As I have said, the court considers critically evidence of an arrangement or of an agreement said to have been made with a deceased person who is not able to give evidence herself. The evidence that in October 2003 the deceased waived the right to receive $100 per week in cash depends solely upon the evidence of Lyra Menczer. It is corroborated by Tracy Menczer in the sense that he gives evidence of having been told of that alleged agreement. But there is no corroboration of the plaintiffs' evidence, except by each other.

73 I am simply not satisfied that an agreement was made in October 2003 with the deceased as the plaintiffs depose to. Nor am I satisfied, in the absence of any objective corroboration, that the payments were regularly made up to 2003.

74 It follows that even if the agreement were to be construed in the way the plaintiffs say it should be construed, the plaintiffs did not perform the term upon which the deceased's alleged promise not to revoke her will was dependant.

75 For these reasons, I reject the plaintiffs' claim to be entitled to the whole of the deceased's interest in the Doncaster Avenue property. It is unnecessary to deal with the defendants' contention that if an agreement as contended for by the plaintiffs were made, it was liable in any event to be set aside on the grounds of unconscionability, undue influence or pursuant to the Contracts Review Act 1980 (NSW). On the material presently before me I do not consider that the alleged agreement would be vitiated in that way.

76 The plaintiffs only pleaded the 2002 agreement by amendment made during the course of the hearing and over the defendants' opposition. Had I not come to the conclusion to which I have come, the defendants would have been entitled to an adjournment, potentially to call evidence from Mr Gellert in relation to that matter. But in the light of the conclusion to which I have come, it is unnecessary to deal with the defences of unconscionability or undue influence, or a defence based on the Contracts Review Act. Having regard to the dictates of s 56 of the Civil Procedure Act 2005 (NSW) I have concluded it is better to give judgment as I have done, rather than to delay matters, and for the parties to incur further costs in exploring such potential lines of enquiry.

77 It follows that the plaintiffs’ claims in proceedings 1858 of 2009 will be dismissed.

78 The question then is what provision, if any, ought be made in favour of Grace Menczer in her Family Provision Act proceeding?

79 In 2006 Grace Menczer was diagnosed with Parkinson’s disease. That has affected her mobility. It can be expected progressively to interfere with her ability to walk, and to move more generally. As time progresses, she can expect to need increasing care. Those needs were unknown to the deceased when she made her will in 2004. The question of whether Grace Menczer was left with adequate provision for her proper maintenance and advancement in life is to be made having regard to the circumstances as they exist today, not at the time the will was made.

80 Having regard to the costs incurred by the executors in the Family Provision Act proceedings and the costs incurred by Grace Menczer in those proceedings, she can be expected to inherit about $97,000 under the will. In addition she has already received $7,000 which she withdrew from the deceased's bank account after her death. Her assets include a property of about 70 acres five kilometres out of Nimbin. It is valued or appraised at $370,000. There has been no issue about that appraisal. She lives in that property with Mr Morris who acts as her carer, friend and companion.

81 She owns a campervan, furniture and effects and has savings of about $15,000 or $18,000. She receives an aged pension of about $300 per week which more than adequately covers her regular expenses. She is 67. As well as suffering from Parkinson’s disease, she has other adverse medical conditions, which it is not necessary to describe.

82 Because of Parkinson’s disease she has limited mobility, although she is able at present to take her small dog for daily walks. She has reduced ability in walking, stepping, standing, squatting and lifting and for tasks involving fine motor skills. She is currently able to undertake independently her personal bodily care, although in time that ability can be expected to deteriorate and she will need nursing-type assistance in that regard.

83 It is her wish to sell her Nimbin property to move closer to her daughter Pauline, who lives at Ocean Shores near Brunswick Heads. She wishes to move to that area so as also to be closer to medical facilities. She is currently under the care of a geriatrician, Dr Fairfull-Smith of Ballina. She lives with Mr Morris in a one-storey, three-bedroom, two-bathroom house. Mr Morris drives her. He also assists with shopping, lifting, preparing meals, and with laundry, in that he hangs out the clothes. He receives a carer's pension for the work he does for Grace.

84 As her disease progresses Grace Menczer will need more assistance and ultimately nursing home care. Home assistance can be expected to be available through EACH (Extended Aged Care at Home) packages provided by the Commonwealth government. Such packages are available once a person is assessed by an aged care assessment team as needing high-level care. Costs of such packages vary. The information sheet provided by the Commonwealth government states:

“ You may be asked to pay a fee for an EACH package of care. The amount charged forms part of an agreement between the recipient and the service provider.
For older people on the maximum basic rate of pension, fees must not exceed 17.5% of the maximum basic rate of the single pension. People on higher incomes may be asked to pay additional fees (limited to 50% of any income above the maximum pension rate). The services provider must inform you of its fees policy.
However, no one will be denied a service they need based on an inability to pay fees. ”

85 There are many nursing homes in the Northern Rivers area. Dr Fairfull-Smith considers that they all provide much the same standard of care, subject to one possible exception. No nursing home requires an up-front payment for admission. Admission depends upon assessed need and the nursing home is paid a percentage of the person's pension. The exception concerns a nursing home that has a separate section offering additional services for a higher fee. There is no evidence of what those additional services are or what the fees are.

86 Although there is no certainty about the matter, I accept it is more probable than not that if Grace Menczer wants the continued care provided by Mr Morris, that care would be available for the foreseeable future, whether or not she moves from her current property to a property to be acquired in the Ocean Shores area.

87 An occupational therapist has recommended:

“ 10.1 Should Ms Menczer decide to remain at her current residence, it is anticipated that she may require minor modifications at her entrance with a wedge ramp and grab rails, and major modifications to one of the bathrooms to provide wheel-chair accessible shower and toilet facilities.
10.2 Should Ms Menczer choose to re-locate, it is recommended that an Occupational Therapist carry out an assessment and provide details of recommended modifications.
10.3 Modifications to any accommodation that Ms Menczer chooses to live in are recommended as follows. The relevant trades persons who are familiar with the Australian Standards for Disabled People, AS 1428.1 should provide the specifications and quotations.
Ramp access at 1 door, minimum accessible width of 1000mm, with ramp gradient 1:14 and constant, curbs and rails both sides, and landings at the bottom and top
Minimum accessible width of the door to be 850mm
Ramp access or step wedge at any internal steps or changes in floor heights

Uncluttered access between the entry door and rooms to include bathroom, kitchen, dining room, lounge and bedroom
Minimum bathroom modifications to allow accessible doorway of 850mm, removal of shower screens and shower hob, installation of grab rails and installation of a hand held shower.
Major modifications would include removal of the existing items in the bathroom, re-sloping and waterproofing the floor, re-tiling with non-slip surfaces tiles, installation of a wheelchair accessible shower recess minimum dimensions 1200x1200mm with grab rails and hand held shower, installation of a wheelchair accessible vanity and toilet pan
10.4 It is considered that the following assistive equipment may be required,
Wheeled walking frame, cost about $380.00 with annual maintenance of about $50.00
Traymobile cost about $220.00
Lightweight self-propelled wheelchair for Carer use, cost about $1000.00
Electric scooter, cost about $3500.00 with annual maintenance of about $100.00 and replacement of batteries every 2 ^nd year, cost about $200.00
Ms Menczer has a self-funded Electric riser chair, anticipated replacement in about 5 years, cost about $2500.00
Mobile shower commode, cost about $1000.00 with replacement every 5 years
Electric high-low bed cost about $3000.00 with annual maintenance of about $200.00
Patient lifter cost about $3000.00 with annual maintenance of about $100.00 and replacement of battery every 2 years, cost about $150.00
Sling to suit lifter cost about $400.00 ”

88 The initial capital costs identified at paragraph 10.4 of that report total $15,000. The cost of modifying Grace Menczer's existing home by installing an access ramp and handrails at the front entry to her house, an access ramp at the back including handrails, and by modifying her bathroom to provide an accessible shower, vanity and toilet is estimated to cost between $23,500 and $26,500. The cost of making similar modifications to a property which might be purchased would depend on the property in question, but it can be assumed that some such modifications are likely to be required and the best that can be estimated is that if a similar property is purchased, similar costs might be expected.

89 Grace Menczer has identified two properties recommended for her consideration by a real estate agent in the Ocean Shores and Brunswick Heads area: one which would cost $465,000 and the other $590,000. If Mr Morris or another carer did not move into a property to be acquired, it is Dr Fairfull-Smith's opinion, which I accept, that Grace Menczer would be better provided with a smaller house than her current home. But in that event she would need more care. I proceed on the basis that if she moves, it is likely that Mr Morris would move with her, and that a three-bedroom house, as she has at present, would be needed.

90 The median house price in Ocean Shores is $467,500. It was submitted for the executors that no need, as distinct from desire, for Grace Menczer to move to Ocean Shores to be near her daughter and medical facilities has been demonstrated. The question is what is required for her proper maintenance and advancement in life. What is proper is to be assessed having regard, amongst other things, to the size of the estate.

91 In the poor health in which Grace Menczer currently finds herself, and having regard to the size of the estate of a little under $1.5 million, I accept that her desire to move closer to her daughter at Ocean Shores, and closer to medical facilities, is more than a mere wish, and is what is required for her proper advancement in life.

92 There are no material competing claims on the estate other than the claims of Tracy Menczer through the care which he and his wife provided the deceased for a period of about ten years. That is a substantial claim. But it is substantially met by his inheritance under the will and by the benefit of his residence in the Doncaster Avenue property since 1996, to which I have already referred.

93 The relationship between Grace Menczer and the deceased was severely strained at times, particularly during the time of their litigation; litigation in which Grace Menczer was unsuccessful and which she pursued unsuccessfully to appeal. Nonetheless, I accept there was a reconciliation evidenced by the provision which the deceased made for her daughter, from August 2000, in the various wills she made.

94 Grace Menczer also made contributions to the welfare of the deceased before their falling out. In the last years of the deceased's life, from 2004, but more particularly in 2005, the deceased spent considerable periods living with her daughter. Then in the last period of the deceased's life, when she was in a nursing home at Nimbin, she was regularly attended by her daughter.

95 In the circumstances I think adequate provision for Grace Menczer's proper maintenance and advancement in life requires an adequate provision sufficient to meet the difference between the cost of a new house in Ocean Shores and her Nimbin property, together with a sum to pay for modifications to that property of the same kind as recommended by the occupational therapist, and the cost of equipment recommended by the occupational therapist as set out in the passage which I have extracted at para [87] above, and a sum for contingencies. In addition, there is a sum of $6,000 for dental treatment which Grace Menczer needs and which at present can only be met out of her savings. Against this there is already a sum of about $97,000 which she will receive from the estate.

96 In my view, in valuing the cost of a new house at Ocean Shores, it is appropriate to adopt the median house price range in the Ocean Shores location of $467,500, which is approximately the same amount as the lower priced property, which was one of the properties that Grace Menczer identified as being recommended by a real estate agent for her consideration.

97 The difference between that price and the value of her present property is $97,500. To that are to be added selling costs which are not specifically identified, but which I allow at two percent of the assumed sale price of the Nimbin property, or $7,500; plus legal expenses on sale and purchase of an amount of $4,000. I interpolate that Grace Menczer estimated that on a purchase she would incur legal costs in the order of $2,000, and I infer that on purchase and sale, costs and disbursements of about $4,000 would be incurred.

98 In addition there would be removalist costs of $7,000, and stamp duty on a purchase of $467,500 of a little over $16,500: making a total of costs associated with the move of $132,500.

99 The costs of modification of a property and capital costs of equipment which will be needed by Grace Menczer in the future come to about $40,000. In addition there is the sum of $6,000 which I have already mentioned would be needed for dental treatment. The question is whether a further sum is needed for contingencies.

100 Having regard to the size of the estate I accept that adequate provision for Grace Menczer's proper maintenance and advancement in life, having regard to the significant uncertainties arising from her medical condition, requires a substantial sum for contingencies. On the other hand, there is also substance in the proposition put for the executors that, because of her circumstances, she is unlikely to need a provision which a more able-bodied person in her position might require to enjoy the more expensive pleasures of life.

101 In my view, a proper allowance for contingencies is substantially less than that contended for by Mr Blackburn-Hart SC for Grace Menczer. He submitted that a sum of $375,000 should be allowed on that account. Whilst that would undoubtedly provide a very substantial buffer and allow provision of comforts, in my view, that would also be achieved by a much smaller amount. In my view an appropriate amount to allow for contingencies, in addition to those sums already mentioned, is $140,000.

102 It follows in my view that Grace Menczer is entitled to an order for provision by way of a legacy of an amount of $220,000 in addition to the provision which she obtains under the will of a 40 percent interest in residue. The next question is how that legacy should be borne between the other beneficiaries.

103 I agree with the submission of counsel for the executors that the legacy should be borne not out of residue, but by Trevor and Tracy Menczer in respect of the Doncaster Avenue property. Tracy Menczer has significantly more net assets than does Trevor, but Trevor is entitled to a share of residue under the will which Tracy does not enjoy. In my view, the burden of the legacy should fall upon them equally.

104 I think the appropriate order, prima facie, is that the provision be made out of the estate of the deceased in favour of Grace Menczer by way of a lump sum of $220,000 in addition to her interest as residual legatee, the burden of that provision be borne equally by Tracy Menczer and Trevor Menczer.

[Counsel addressed.]

105 I so order. I order that in proceedings 2180 of 2008, the costs of the plaintiff be paid out of the estate on the ordinary basis as agreed or assessed, and that the costs of the defendants be paid out of the estate on the indemnity basis.

106 I do not consider that proceedings 1858 of 2009 were brought about by representations made by the deceased. In my view, there is no reason that costs should not follow the event. I do not think that there is any substantial difference in the events which happened between an order dismissing the proceedings and judgment being entered for the defendants. But as I am asked to make the latter order in these proceedings I will do so. In proceedings 1858 of 2009 I direct entry of judgment for the defendants. I order that the plaintiffs pay the defendants' costs on the ordinary basis as agreed or assessed.

107 In both proceedings exhibits may be returned after 28 days.

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