Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke

[2002] NSWSC 804

CITATION:	Michael BIENKE v Brian BIENKE; Estate of the late Harold BIENKE [2002] NSWSC 804
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3218/01
HEARING DATE(S):	03/09/2002
JUDGMENT DATE:	9 September 2002
PARTIES :	Michael Stuarat Stephpen BIENKE v Brian Clarence BIENKE & Anor; Estate of the late Harold Edgar BIENKE
JUDGMENT OF:	Acting Master Berecry at 1

COUNSEL :	Mr M. Gorrick - Plaintiff Mr D.L. Warren - Defendants
SOLICITORS:	Hertzberg Heydon - Plaintiff Brian C.M. Bigelow - Defendants
CATCHWORDS:	Family Provisions Act - grandson dependency - pensioner - disabilities - chronic drug and alcohol abuse - role of carer - provision during lifetime - no evidence of competing needs.
LEGISLATION CITED:	Family Provisions Act
CASES CITED:	Re: McGregor (1961) NZLR 1077 at 1090 & 1096 Re: Horton (1976) 1 NZLR 251 at 255 Re: Fulop (deceased) (1987) 8 NSWLR 679 at 681 Bondy v Vavros (unreported, Young J, 29 August 1998 Wang v D'Ambrosio [1999] NSWSC 227 at para 63. Ford v Birt [1999] NSWSC 919 Re: Fletcher (1921) NZLR 649 Hunter v Hunter (1987) 8 NSWLR 573 at 580 Shearer v The Public Trustee (unreported, CA, 12 October 1998 at 15 ) Fiorentini v O'Neill (unreported, CA 12 October 1998 at 15)
DECISION:	1. Additional provision made for the plaintiff in the sum of $40,000.00. This sum to be paid to him prior to any deductions by the Executors of the Estate for any costs or expenses. ; 2. That the balance of the proceeds of sale of the property bear the costs of these proceedings, including costs' application of 11/9/02 to the intent that out of these proceeds the defendants pay the plaintiff's costs and the defendants' costs to be paid out of the Estate on the trustee basis.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

MONDAY, 9 SEPTEMBER, 2002

3218/01 - Michael Stuart Stephen BIENKE v Brian Clarence BIENKE & ANOR; ESTATE of Harold Edgar BIENKE

JUDGMENT

1 MASTER: The plaintiff commenced proceedings on 22 June 2001 seeking an order that further provision be made for him pursuant to s.7 of the Family Provisions Act out of the Estate of his grandfather, Harold Edgar Bienke. The deceased died on 1 January 2001. Probate was granted on 13 February 2001. Therefore, the proceedings are commenced within time.

2 The plaintiff, as grandchild of the deceased, is an eligible person pursuant to s.6(1)(d). The defendants are the co-executors of the deceased’s Estate and are children of the deceased. There is no issue between the parties concerning the plaintiff’s eligibility. It is accepted that the plaintiff is a grandchild of the deceased and has been, for a lengthy period, either wholly or partly dependent on the deceased. The deceased and his wife had five children. Those children survived the deceased. The deceased’s Will dated 23 April 1999 makes the following provision:-

3. I give to the trustee the whole of my real and personal Estate of whatsoever kind and nature and wheresoever situate UPON TRUST as follows:-
(a) ……….

(b) To divide the proceeds of sale of my property at 48 Shirley Street, Byron Bay, equally between Michael Bienke, Thea Margaret Baldwin, Dorothy June Morrison, Lance William Bienke, Brian Clarence Bienke and Harold James Stephen Bienke as shall survive me.
(c) To divide the rest and residue of my Estate equally between such of my five children Thea Margaret Baldwin, Dorothy June Morrison, Lance William Bienke, Brian Clarence Bienke and Harold James Stephen Bienke as shall survive me and if more than one in equal shares as tenants-in-common.

3 All of the deceased’s children survived him. It can be seen from the Will that the deceased has made provision for the plaintiff in paragraph 3(b). He stands equal with his father, uncles and aunts. The inventory of property disclosed that the deceased owned realty, namely the property known as 58 Shirley Street, Byron Bay which was ascribed the value of $460,000.00 for the purpose of probate and a number of bank accounts and a life policy. The total amount of the accounts and the policy being approximately $34,000.00. The real property has been sold and the net proceeds of sale are $722,759.83. I was informed by counsel for the Estate that the proceeds of sale had been invested and mature in October, 2002. It is anticipated that the interest on the capital will be approximately $9,000.00. Therefore, under the terms of the deceased’s Will, without any further provision being made for the plaintiff, the plaintiff will receive $120,459.97 together with accrued interest.

4 Background

The plaintiff was born in 1963. He is presently thirty-nine years of age. For the first few years of his life he and his parents resided in the deceased’s home with the deceased and his wife. Thereafter the plaintiff’s parents had their own accommodation. In 1970 the plaintiff’s parents separated. The plaintiff thereafter until 1974 resided with his mother and spent time with the deceased and his grandmother.

5 When the plaintiff was approximately twelve years old he moved into the deceased’s house on a permanent basis. He became a member of the household and his grandparents supported him during his high school years and became the primary carers. The grandmother performed the tasks and duties normally attributed to a mother. The deceased appears to have performed the duties and the tasks that are normally attributed to a father. The plaintiff’s evidence is that he was given pocket money when he completed household chores. For all intents and purposes he became a son to his grandparents. It would appear that during this time, neither his mother nor his father provided any financial assistance whatsoever to the grandparents for the plaintiff’s care and maintenance.

6 In 1977 the plaintiff went to the Gulf of Carpentaria with his father to work on a trawler. The evidence is that over the next five years he spent time on the trawler during the prawning season. Thereafter he returned to Byron Bay and continued to reside with the deceased. In 1982 he moved back to Byron Bay on a permanent basis and resumed residing with the deceased. He continued living with the deceased until the deceased died in 2001. Throughout this period the grandparents supplied emotional and financial support to the plaintiff. Throughout this period the grandmother continued to give him an allowance each week. The deceased paid the plaintiff for mowing lawns. The grandparents also continued to perform the usual household duties associated with a family. The grandmother provided meals, food and washed the plaintiff’s clothes. The plaintiff’s evidence is that he did some odd jobs around the place such as painting and mowing the lawns. As the grandparents grew older the plaintiff assumed more responsibilities around the house. His evidence is that he not only did some repairs and maintenance but he also did laundry and other household chores such as vacuuming, and as time went by the cooking. This evidence is contested by the defendants. Their evidence is that up until the time the mother became ill, approximately four years before her death, she attended to most of the household chores. Thereafter, the deceased cared for his wife and provided meals and administered her medication for her. It was conceded, however, that the plaintiff did do some of the other chores such as washing-up, some laundry and after the death of the grandmother, did, at least, some cooking for the deceased. The second defendant’s evidence is that in the last twelve to eighteen months of the deceased’s life it appeared that the plaintiff did most of the cooking. However, often the deceased would wait until 9.00 pm before he received his meal.

7 The plaintiff has had only two periods of permanent employment. He worked as a labourer for a landscape gardener between 1986 and 1993. Two years of this period he worked full-time. The balance was part-time. Between 1994 and 1997 he worked part-time in one of the hotels in Byron Bay. The plaintiff’s evidence is that he worked generally between November and Easter. This was not on a full-time basis but as and when they needed him. The rest of the time the plaintiff was on some form of social security benefits.

8 The plaintiff has sustained three significant injuries. The first occurred in 1979 when he was riding a bike and was hit by a car. He sustained injuries which resulted in him receiving compensation for those injuries. In 1993 he received injuries as a result of a serious assault at the hands of two Nomad bikie gang members. There was some difference as to what brought about the assault. However, I accept the plaintiff’s version in preference to the defendants’ version. Subsequently, the plaintiff received two payments from the Victims’ Compensation Tribunal. The first payment in the sum of $15,000.00. The second, in the sum of $35,000.00. In 2001 the plaintiff, as a result of a fall, sustained a broken collarbone. His evidence is that has still not fully knitted and therefore he has restricted movement which affects his ability to work. There was no evidence concerning whether or not he was entitled to any form of compensation as a result of this injury. In relation to the two earlier injuries, the evidence is that the plaintiff received approximately $8,000.00 in respect of the bike injury. This money was used to buy another bike and a caravan and personal items. In respect of the injury sustained in 1993, the plaintiff’s evidence was that that money has been spent. He purchased opals to the value of $15,000.00 with a view to using the opals as an investment. He has approximately $2,000.00 worth of opals at the present time. The other opals have been sold and the plaintiff lost money on those sales. The rest of the $35,000.00 appears to have been spent on alcohol and drugs. The plaintiff has a chronic history of drug and alcohol abuse. He also gave evidence that he has had a gambling problem. In any event, other than the $4,000.00 the plaintiff has at the present time, the rest of the money has been spent.

9 The plaintiff has used marijuana since the age of sixteen. The daily use of marijuana, according to his evidence, is one or two joints per day. He has, during his adult life, used cocaine, magic mushrooms and speed, although these last three drugs were only for a limited time. The only chronic use of prohibited drugs is in respect of marijuana. He admitted that he had had an alcohol problem since 1993. He has smoked cigarettes daily since approximately sixteen years of age. His daily consumption of cigarettes is between twenty and thirty. His evidence is that currently he spends $45.00 per week on tobacco, $25.00 per week on alcohol and $100.00 on a supply of marijuana which lasts two to three weeks. Conversely, his evidence is that he only spends $13.00 per week on food and lives in his motor vehicle. The drug and alcohol problem appears to have been exacerbated as a result of the injury that he sustained in 1993.

10 As a result of the assault he was assessed with traumatic stress disorder symptoms and attended psychological counselling with a view to assist in decreasing his stress levels with a view to returning to work. The sessions appear to have been successful and he was able to return to work at the Byron Bay Beach Hotel. As a result of the assault, he was assessed with having moderate to severe organic frontal lobe damage. From this period until the death of his grandmother the plaintiff worked on a part-time basis. However, much of the year he was the recipient of a disability pension. His grandmother topped-up any amounts he received from the pension, giving him approximately $15.00 a week for cigarettes and entertainment. There does not appear to be any reason why the plaintiff was incapable of gaining full-time employment other than perhaps the employment market in the Byron Bay area during the 1990’s. There was no evidence before me to suggest that there was not opportunities for unskilled people to obtain regular permanent employment in that area. It is difficult therefore to work out whether the plaintiff did not obtain full-time employment because there were not the opportunities there, or because of his medical condition or alternatively, because he did not want to work full-time.

11 When the plaintiff’s grandmother’s health deteriorated, her voice was reduced to a whisper. The deceased had also developed a hearing problem. The result was that the deceased had difficulties in hearing what his wife was saying. The plaintiff’s evidence is that he acted as a go between the two. He would inform the deceased what his wife was saying and, if necessary, then convey his response. As a result of the on-set of the grandmother’s Parkinson’s disease, the plaintiff’s evidence is that he spent more time at home with his grandparents assisting them in whichever way he could. This is denied by the defendants. Whilst it was accepted that he did household chores, he did not provide the assistance at the level of which he asserts. Both the defendants’ evidence is that the deceased looked-after his wife until she died. He provided meals, he bathed her, looked after her medication and generally cared for her. Their evidence is that the plaintiff, to some extent, was on the peripheral of this caring role. After the grandmother died, the plaintiff was requested by the deceased to make weekly contributions to the household expenses, as now the household received only one pension. The evidence is that the plaintiff made only one payment to the deceased. Thereafter, the former practise continued.

12 The plaintiff’s evidence is that he became the carer of the deceased, preparing his meals, cleaning the house, doing odd jobs around the property and generally looking after him. Once again, the evidence of the defendants is in contrast to the plaintiff’s evidence and they both maintain that the deceased was capable of preparing his own meals, although it was conceded that he had slowed down and was only able to move with the aid of crutches. Notwithstanding his restricted movement, the second defendant’s evidence was that he would still prepare stews. It would seem however, on balance, that during the final twelve to eighteen months of the deceased’s life, the plaintiff was, in all probability, the primary carer for the deceased. As a result of his role he was able to change the form of pension that he had been receiving, from a disability pension to a carer’s pension. His evidence was that the benefits that he derived out of the change was not so much an increase in the amount of the pension but it opened up a network of carers to him so that, from time to time, when he needed it, he could get respite.

13 During the first seven months of 2001, the plaintiff was not a recipient of social security. He, together with a partner, set-up a business known as “Byronomics”. It was the intention to built up a business to tap into the tourist market by taking tourists on bush tours. However, the plaintiff sustained an injury which resulted in breaking his collarbone. As a result of this injury he was unable to pursue that business. As a result, his partner lost interest in the business and nothing eventuated. From approximately August 2001, the plaintiff was, once again, the recipient of a disability pension. The plaintiff’s intention is to do a small business course at TAFE and develop the business that he attempted to create in 2001.

14 In January 2002 the plaintiff attended Heidi Muenchberger, a Clinical Neuropsychologist for a neuropsychology report. The report is attached to an affidavit of Miss Muenchberger, dated 29 May 2002. In her conclusions she makes the following comments:-

“On current Neuropsychological testing Mr Bienke demonstrates some specific weaknesses as follows:
Mild weakness in speed of information processing and
psychomotor speed
Mild weakness in visual attention
Mild weakness in general memory ability characterised
by reduced encoding for unrelated verbal information
and reduced encoding for more complex visual
information. This is reflected in his general memory
index score
Significant emotional distress (viz Depression, Anxiety
and Stress).
However, Mr Bienke does not report current cognitive difficulties nor describe any significant change to his cognitive functioning as a result of the previous head trauma experienced. On the basis of current testing, Mr Bienke’s Neuropsychological profile is not indicative of Frontal lobe dysfunction as previously reported by Mr Peter Stoker, June 2000. One would not totally rule out the possibility of brain injury occurring, however on balance it is unlikely that Mr Bienke’s current cognitive weaknesses are exclusively attributable to head injury. It is my opinion that his mild cognitive weakness may be largely explained by reference to chronic drug use and significant emotional dysfunction.
It is likely that Mr Bienke’s current cognitive weakness may improve with lifting of the depression and abstinence from cannabis use especially in the areas of speed of processing. Currently, Mr Bienke’s cognitive compromise appears relatively minimal and would not be expected to cauase3 significant disablement in his daily life. Further, Mr Bienke has demonstrated adequate cognitive skill to enable him to manage his financial matters independently. In addition, I anticipate that he could make reasoned and considered lifestyle decisions in the future.

However, his emotional difficulties and probable drug dependence would almost certainly interfere with his quality of life. Mr Bienke’s drug use and emotional difficulties are likely to be strongly linked. I recommend psychological counselling in the future aimed at exploring the inter-dependence of both issues. Treatment of complex emotional difficulties would be best undertaken by Psychologist specifically trained in drug dependency, as might be offered by the Drug and Alcohol Service ‘Riverlands’, Lismore Base Hospital. This would be considered a public health service.”

15 It appeared from that report that the Clinical Neuropsychologist is of the view that much of the plaintiff’s problems are not related to the injuries he sustained but to the alcohol and drug abuse. Her prognosis is that any cognitive compromise is relatively minimal and would not be expected to cause significant disablement in his daily life. It would seem to me that there is no reason why the plaintiff cannot enter the workforce. His ambition is to run his own business. There is nothing to suggest that he is not capable of doing that.

16 Evidence was given by the plaintiff concerning his ability to manage money. He admitted that he is a poor money manager. However, his evidence was that in recent times his ability to manage his finances has improved. When he was asked why he thought he was a bad manager of money he conceded that drugs was a factor, but the primary reason was stress and the fear of the losing everything. He also indicated that the fear, in part, arose out of a conversation he had with his father in 1996 when he was informed by his father that once the grandparents died the home would have to be sold. His concern therefore was that he would not have any accommodation.

17 The plaintiff’s current position is that he is a pensioner receiving a disability pension amounting of $420.00 per fortnight. His fortnightly expenses amount to the pension he receives. His assets he valued at $4,600.00, they being the motor vehicle at $500; household items and furnishings a $2,000; opals at $2,000 and a painting valued at $100. His liabilities, excluding the costs of these proceedings, are $13, 689.98. He has expressed a desire to own his own home. He asserts that the following conversation took place with the deceased:-

“Michael, I just want to let you know that when I’m gone you’ll have the Toyota and be looked after with $50.00 per week. You’ll have whatever you need to get by. You’ll have an equal share when the place is sold.”

I said:-

“I just want a chance to get on my feet and buy my home.”

18 Evidence has been put on by the defendants of properties in the Byron Bay/Lismore area. The second defendant inspected houses in Lismore, East Lismore and Goonellabah. The range of prices was $69,000.00 for a two bedroom unit to $120,000.00 for a three bedroom home near the central business district of Lismore. The plaintiff has also put on evidence concerning accommodation. His evidence relates to properties in the Byron Bay area ranging from $149,000.00 to $175,000.00. His evidence is that it is important that he remains in the Byron Bay area where he grew up. It is this area where he has friends, where his recreational pursuits are to be found and where his health care providers are based. It is in this area that where he wishes to develop his bush tour business. It should be noted that the areas where both parties have looked at properties are in the same region. The distance from Byron Bay to Lismore is approximately 40 kms. The drive takes three quarters of an hour. That is a factor also to be taken into account. It would seem to me that in this modern day and age having to drive forty minutes to either visit friends, to conduct a business or see doctors is not a great burden.

19 Eligibility

In opposing the application, the defendants submitted that the deceased had no obligation to make provision for his grandson. The defendants relied on two New Zealand decisions in re: McGregor (1961) NZLR 1077 at 1090 and 1096 and re: Horton (1976) 1 NZLR 251 at 255, which approved the earlier decision. However, those decisions go no further than to say that in the vast majority of cases the primary duty of the testator is towards his children and not his grandchildren. Section 9 subs (1) of the Family Provision Act makes a similar distinction between children and grandchildren. However, the Act specifically provides that a grandchild is an eligible person. In Re: Fulop (deceased) (1987) 8 NSWLR 679 at 681 McLelland J said:-

“The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased, whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded.”

20 Matters contained in s 9(3) therefore are matters to be considered when determining whether or not there are factors which would enable the Court to make some provision for grandchildren. His Honour then went on to say:-

“This suggests that the “factors” referred to in the subsection are factors which when added to facts which render the applicant an “eligible person” give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.”

21 Therefore, there is no authority either cases under the Family Provisions Act or the New Zealand authorities that I have been taken to which deny a grandchild the opportunity to apply to the Court for some provision to be made for him or her out of the Estate of the grandparent.

22 Factors warranting

For a grandchild to succeed, however, it is necessary for the grandchild to be able to satisfy the Court that there are factors warranting provision or additional provision being made for him or her (see s.9(3)). Section 9(2) also requires the Court to consider whether or not any provision was made for the eligible person during the deceased’s lifetime or out of the deceased’s Estate. Consideration of an application requires a two stage approach by the Court to the application. (See Singer v Berghouse (1994) 181 CLR 201.) The first question is whether provision, if any, made for the applicant is inadequate. The plaintiff would receive, under the terms of the deceased’s Will, approximately $120,000.00. Evidence has been put on by both parties concerning the value of properties in the Byron Bay/Lismore region. The plaintiff has expressed, as a need, accommodation and something to assist him in his future. The plaintiff’s evidence is that houses in the Byron Bay area range from approximately $149,000.00 to $175,000.00. His evidence is that he needs to remain in the Byron Bay area because of his state of anxiety, his friendships and recreational pursuits and access to doctors. The defendants’ evidence is that houses in the Lismore/Goonellabah area range from $69,000.00 to $120,000.00.

23 The plaintiff has also put on evidence that he has debts amounting to approximately $13,000.00. He has also indicated that he wishes to start a business and needs to purchase another motor vehicle, as the vehicle he has is over twenty years old. The plaintiff has a poor work history. It must be seriously questioned whether or not he will commence the business that he has given evidence about during the course of the hearing. However, regardless of whether or not he is able to establish that business or even has the initiative to establish the business, it seems to me that the plaintiff should be put in a position where he can undertake some form of employment. His evidence is that he wishes to do a small business course at TAFE. To do that he will need a motor vehicle. I would assume that, no matter where he lives on the far north coast, he will, in any event, need a motor vehicle to get to and from work.

24 The defendants submit that the plaintiff’s poor work record, plus his addiction to alcohol and drugs, which is chronic, and periods of gambling, indicate that any additional bounty he would receive from the deceased’s Estate, would not be used to maintain himself. It would, in all probability, be used to purchase drugs or alcohol. Evidence was also given that the plaintiff has been a bad money manager. This is another reason why the defendants say that no additional provision should be made for the plaintiff. However, in Bondy v Vavros (unreported, Young J, 29 August 1998) his Honour said:-

“In one sense it does not matter if I form the view that the plaintiff is a spendthrift. If a person is entitled to an order what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money will be wasted on wine women and song in a short period of time.”

25 In Ford v Birt [1999] NSWSC 919 Bryson J, his Honour in considering s 9(3) factors made the following comment:-

“The unsettled lives, many move from place to place, history of failed projects and bankruptcies and failure to accumulate assets do not appear to me to be blemishes on the plaintiff’s character and conduct in relation to her mother.”

26 In re: Fletcher (1921) NZLR 649 the Court made provision for a plaintiff with a chronic alcohol problem.

27 Therefore, it does not follow that where it can be shown that a plaintiff has either a drug or alcohol addiction or, has a poor work record, or has a history of failed business enterprises, that they are factors which automatically prevent the Court from making an order. The first question is whether or not the plaintiff has a need which ought to have been recognised by the deceased. The need is a need at the date of hearing of the proceedings. If the plaintiff is able to establish that additional provision ought to be made for him, the next matter to consider is whether or not provision ought be made out of the Estate having regard to the size of the Estate, competing needs and the factors set out in s 9(3) and whether or not provision made during the deceased’s lifetime was adequate (s 9(2)).

28 In Hunter v Hunter (1987) 8 NSWLR 573 at 580 Kirby P (as he then was) says as follows:-

“Far from discharging the “moral duty” owed by a testator to the appellant, the course of conduct between them in the testator’s lifetime demonstrates the extent to which the appellant was dependent upon his father and was quite frequently helped by him, though usually in a modest or strictly temporary way. Far from relieving the father of the “moral duty” to make adequate provision for his son, the course of their relationship, properly interpreted, demonstrates time and time again the inadequacies of the appellant and the unlikelihood that, in default of some provision in the will, he would be able adequately to cope with the vicissitudes of life.”

29 In these proceedings the plaintiff if a thirty-nine year old man. He had lived with his grandparents from the age of twelve. Between 1977 and 1982 he worked with his father in the Gulf of Carpentaria during the prawning season, returning to the deceased’s home during the off season. Thereafter he has lived in his grandparents’ house continuously for a period of approximately nineteen years. During this time the deceased and his wife provided money for the plaintiff, a roof over his head, food and attended to all his needs. It would seem to me that to some extent, they have been the authors of the plaintiff’s attitude towards life.

30 During his time with the deceased he sustained two major injuries. During this period he was cared for by both the deceased and his wife. The deceased was aware that the plaintiff was not in regular employment . The deceased, no doubt, was aware of the plaintiff’s drinking problem. However, it is not clear whether he was aware of the plaintiff’s drug abuse problem. Notwithstanding the differences in the evidence concerning the assistance the plaintiff rendered to the household, it would seem to me that the plaintiff performed some tasks of the household during that period. I accept that he also provided a role as a carer for the deceased during the last twelve to eighteen months of his life. However, I do not accept the extent of the caring role that the plaintiff would have me believe. In my view, the second defendant played a significant role in the welfare of the deceased’s life over the last twelve to eighteen months. That, however, doesn’t cancel the role of the plaintiff.

31 It would seem that the most of the period the plaintiff lived with the deceased, that the deceased and his wife were happy to have him there and treated him like a son. I am also satisfied that throughout most of this period the relationship was a normal family relationship. It is therefore necessary to look at the provision that was made for the plaintiff, in determining whether or not additional provision should be made for him. In my view, the plaintiff has satisfied some of the factors set out in s 9(3), in particular paragraph (a)(ii). The nature and extent of the relationship, in my view, are also factors which would fall under the umbrella heading subs (d). In my view, there is nothing in the character and conduct of the plaintiff which could be regarded as disentitling conduct.

32 It is necessary to consider the matters set out in s 9(2). It is clear in the evidence that there was provision made for the plaintiff throughout most of his life by the deceased. There was free board, no contributions were required by him towards the maintenance of the property, his needs were attended to. In periods when he was working on a trawler in his late teens, he returned to the deceased’s house where they openly welcomed him. They also provided the platform for an education. His own parents made no contribution towards his welfare or education during that period. It is clear that substantial provision was made for him during his lifetime. However, the comments by Kirby P in Hunter v Hunter (supra) must be taken into account when considering whether provision during the deceased’s lifetime together with provision in the Will is adequate provision for the proper maintenance, education and advancement in life of the plaintiff.

33 The deceased, by the terms of his Will, has treated the plaintiff, his grandson, as a son. He shares equally with the deceased’s children in the proceeds of sale of his realty. He does not share in the residue of the Estate. However, the residue is quite small. Only one of the beneficiaries has put on evidence in relation to her assets and liabilities. It is trite to say that where beneficiaries do not put on any evidence of need, the Court can consider the plaintiff’s position without the constraints associated with other parties who are provided for in the Will. (See Wang v D’Ambrosio [1999] NSWSC 227, para 63). The plaintiff’s needs are for accommodation in the Byron Bay area, a motor vehicle and something to give him a chance in life to put him back on his feet.

34 It has been submitted, on behalf of the plaintiff, that this is a matter where the Estate should provide an unencumbered house for the plaintiff. It is submitted that the plaintiff should be regarded as a son of the deceased. It seems to me that it is not open to me to accept either of those propositions. Firstly, the Act makes a clear distinction between children and grandchildren. Secondly, it is not the policy of the Court to provide an unencumbered accommodation for a child, much less a grandchild. See Shearer v The Public Trustee (unreported, Young J, 23 March 1998 at p 21) and Fiorentini v O’Neill (unreported, CA, 12 October 1998 at p 15). Whilst there may be circumstances when additional provision ought to be made out of the Estate by way of provision of an unencumbered house for a child, it seems to me that those circumstances would be extraordinary. One could envisage a child who suffered from a disabling disease who was unable to work and had never been in the workforce, could be successful on an application for the Estate to purchase a home This, of course, would be highly subject to the size of the Estate. However, the plaintiff is far from that category of person. The plaintiff is by and large healthy. His problems are of a psychological nature rather than a physical nature, although there is a suggestion that he still suffers from some minor disability because of his broken collarbone and the head injuries he received in 1993. However, the neuropsychologist’s report does not conclude that the plaintiff is incapable of work. Indeed, the plaintiff himself wishes to undertake a small business course and has a registered business name through which he hopes to explore business opportunities.

35 Therefore, in my view, this is not a case where provision should be made for the plaintiff which would enable him to receive from his grandfather’s Estate an unencumbered property. In my view, it is also unrealistic for the plaintiff to expect his grandfather’s Estate to provide him with a house in the Byron Bay /Ocean Shores area. There is no reason why he cannot live in the Lismore area and still commute for social and recreational purposes to Byron Bay. In my view, his desire to live in the Byron Bay area is no more than a wish rather than a need.

36 It does seem, however, that notwithstanding the equality his grandfather applied to his own children and the plaintiff that additional provision should be made for the plaintiff. It is clear that the plaintiff needs assistance to advance himself in life. It is evident to me that some small additional provision out of the Estate is warranted. In my view, additional provision should be made to cover his current debts, the purchase of a motor vehicle and a small fund to enable him to seek out employment or business opportunities. Therefore, in addition to the provision made to the plaintiff in the deceased’s Will, further provision should be made by way of an additional payment of $40,000.00.

37 The orders that I make are as follows:-

1. Additional provision made for the plaintiff in the sum of $40,000.00. This sum to be paid to him prior to any deductions by the Executors of the Estate for any costs or expenses.

2. That the balance of the proceeds of sale of the property bear the costs of these proceedings, including costs' application of 11/9/02 to the intent that out of these proceeds the defendants pay the plaintiff’s costs and the defendants’ costs to be paid out of the Estate on the trustee basis.

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Last Modified: 09/12/2002