Mikulic v Public Trustee

[2006] NSWSC 256

CITATION:	Mikulic v Public Trustee [2006] NSWSC 256 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 and 5 April 2006
JUDGMENT DATE :	11 April 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
CATCHWORDS:	Family Provision. Claim by adult daughters who were left the residue of the estate equally. No matter of principle. Order for adjustment of shares taken by beneficiaries and reduction of the amount of pecuniary legacies to other relatives.
PARTIES:	Mira Mikulic v Public Trustee (Estate of Maria Mikulic) Susan Mikulic v Public Trustee (Estate of Maria Mikulic)
FILE NUMBER(S):	SC 6525 of 2004; 2034 of 2006
COUNSEL:	Mr John Drummond for Mira Mikulic Mr Ross Hanrahan for Susan Mikulic Mr J. Kildea for Public Trustee
SOLICITORS:	Turnbull Hill Lawyers for Mira Mikulic Athena Touriki for Susan Mikulic Mr B Maher solicitor for Public Trustee

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Tuesday 11 April 2006

6525/04 Mira Mikulic v Public Trustee (Estate of Maria Mikulic)
2034/06 Susan Mikulic v Public Trustee (Estate of Maria Mikulic)

JUDGMENT

1 His Honour: This is the hearing of two claims under the Family Provision Act 1982 (the Act) in respect of the estate of the late Maria Mikulic who died on 15 July 2004 (the deceased). Her two daughters, both of whom have brought proceedings under the Act, survived the deceased. I have ordered that the proceedings be heard together and that the evidence in one be evidence in the other.

The will of the deceased

2 The deceased made her last will on 20 April 2004 shortly before her death in which she appointed the Public Trustee as executor. That will provides for the distribution of the deceased’s estate as follows:

(i) Specific legacies
(a) to be held on trust for Barbara Mrazova (Jnr) $100,000
(b) to be held on trust for Michaela Polcin $50,000
(c) to be held on trust for jointly Maria Polak and Daniel Polak $ 50,000
Total $200,000
(ii) One half share of the rest and residue to Susan Mikulic; and
(iii) One half share of the rest and residue to Mira Mikulic.

3 The provision to the plaintiff Mira Mikulic (Mira), is made subject to the repayment of a loan by the deceased to Mira to which I will shortly refer and this appears in clause 6 of the will.

4 In clause 7 of the will the deceased provided reference to a document in which she set out the reasons why she did not make greater provision for her daughter Mira. The terms of that document are as follows:

“After the death of my husband and her father Jozef Mikulic she wanted 2/3 of the house to be transferred to her and nothing to my other daughter Susan, nothing at all with reasoning that she was the one who arranged the funeral and all other matters, because Susan was still studying in Vienna, and that is why she does not deserve anything. I told her that while she was in Vienna and we were building a house in Hobart, it was Susi helping her father with building and helping me to run the household as I was doing shiftwork.
After my husband's death several of my compatriots offered to help me with everything, but Mira refused all their offers of help, she decided to do everything by herself. Since I did not agree with her decision, because Susi is also my daughter and they both should receive an equal share, she became very cross with me, quarrelled with me all the time, shouted at me, spreading rumours about me being such a bad mother, and did not have a nice word for me. She even told me she hopes that God will not punish her in such a way that I will live for long. Susi came from Vienna for her father's funeral, Mira only argued with her, she even physically attacked her. I almost had an heart attack, I could never leave them on their own, I don't know what would have happened. Since that day she stopped talking to her sister, she hates her, spreads gossip about her. She also said that Susi would die before she does and she would inherit the whole lot. To this day when I am writing this she does not speak with me, it has been twenty years.
Mira talks everywhere in public how she cares for me, how much she helps me. But whenever anybody comes to see me they can see straightaway how she cares for me and how she helps me. She always expects me to serve her, often, even in front of other people, she would call me a cow and a swine, to this day she has no respect for me. Talking about help, I am the one who is helping her all the time. There is a proof even now, under the pressure from her I gave her 100 000.00 dollars loan mortgaging my house. Her commentary was that it is her entitlement, she needs money now and will not wait until my death. And so I live the last part of my life with such stress which brings a lot of bitterness into my life since my husband's death as she tells me all the time how much she helps me and gets no reward. I am writing this with broken heart, but I have to do it to protect my daughter Susi, because I know that after my death she will attack her and will want to inherit everything because she took care of me.”

5 Some years earlier the deceased had made wills leaving her estate to her daughters equally but made no provision for her relatives in Slovakia.

Assets in the estate

6 At the date of her death the deceased owned her property at 24 Flora Street, Arncliffe; personal effects; cash at bank and a 1991 motor vehicle. Mira also owed the deceased $70,368. This loan arose on 25 January 2004 when the deceased took out a loan with the St George Bank secured over the property at 24 Flora Street, Arncliffe for the purposes of advancing to Mira $100,000. This was to enable Mira to set up a business and pay off liabilities for Capital Gains Tax she had incurred on the sale of her Brisbane properties. On 13 February 2004, Mira repaid $30,000 of that sum reducing the amount owed to the deceased to $70,000. Thereafter Mira made various monthly payments of $500 in respect to that loan. At the date of the deceased’s death the balance remaining being $70,368.

7 On 23 August 2005 settlement occurred on the deceased's property at 24 Flora Street, Arncliffe. The Public Trustee sold the property to Mira by public auction for the sum of $650,000.

8 After the realisation of the assets and the payment of all debts, including the loan to St George Bank and commission, the estate account balance as at 30 March 2006 was $524,278.53.

9 There are substantial costs, which have been incurred in the matter to date. These have been estimated as follows:

Defendant’s costs $37,736
The plaintiff Mira’s costs $57,000
The plaintiff Susan’s costs $12,600
Total $107,336

10 The net distributable estate, on the assumption that Mira repays the sum of $70,368 and if orders for costs are made is therefore likely to be in the order of $605,455 less $107,336, namely, $498,119.

The family history

11 The deceased and her husband had two children, being Mira who was born on 26 November 1954 and her sister, Susan who was born on 23 June 1956.

12 Mira and her sister, Susan, were born in Slovakia. In 1968 the family migrated to Australia and commenced to reside in Hobart, Tasmania.

13 In 1972 Mira, aged 18, began to reside in Vienna, Austria. In 1973 her parents and sister also moved to Vienna, Austria. In 1977 Mira returned to live in Sydney, Australia.

14 In 1979 the deceased and her husband moved to Sydney, Australia after residing in Hobart since 1977.

15 In 1981 the deceased and her husband purchased 36 Flora Street, Arncliffe. The deceased and her husband had purchased a sandwich shop in Moore Park, Sydney in 1979, which they operated for a number of years. Unfortunately this was not a success and the deceased’s husband became bankrupt.

16 Susan completed her studies in 1983.

17 In September 1983 Mira returned to reside with the deceased at 36 Flora Street, Arncliffe. In 1985 Mira commenced to reside with George Zalesak at Burwood.

18 In February 1983 Joseph Mikulic, the father of the plaintiffs’ and husband of the deceased died in a motor vehicle accident.

19 On 4 May 1989 the deceased sold 36 Flora Street, Arncliffe and purchased 24 Flora Street, Arncliffe.

20 In 1990 Mira separated from George Zelesak and commenced to reside by herself. In 1992 Mira travelled to Prague where she remained until 1993. In 1993 Mira returned to reside with the deceased at 24 Flora Street, Arncliffe. She remained living with the deceased until 1994 when she returned to Prague.

21 Mira returned to Australia in late 1996 and lived in her Brisbane flat. In early 1997 she commenced to reside with the deceased at 24 Flora Street, Arncliffe where she remained until March 1998. She then moved to Annandale.

22 In April 2002 the deceased purchased a car for Mira at a cost of $4499. In December 2002 Mira purchased her house at 42 Greenwich Place, Mardi on the Central Coast moved there shortly thereafter.

23 The simultaneous settlements of the sale of 42 Greenwich Place, Mardi by Mira and her purchase of 24 Flora Street, Arncliffe occurred on 23 August 2005.

24 The claim of Mira was made within time but the claim by Susan was out of time it only having been commenced on 24 March 2006.

Eligibility

25 The plaintiffs are eligible persons under the Act. In applications under the 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 the Court 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 Ltd . 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.
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."
[Footnotes omitted]

26 Before dealing with the matters to which the High Court refers I will deal with the extension of time claim made by Susan.

Extension of time

27 Because the application is out of time it is necessary for the Court to consider section 16 of the Act that allows an application to be made notwithstanding it is out of time. Although there was no consent to the extension of time application, neither the defendant nor Mira made any submissions on the application for extension of time and has left the matter for the Court to determine. There are a number of cases, which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) [1947] VLR 212 the following was said (at 214):

"It is for the applicant to make out a case that will justify the granting of the indulgence sought. He has to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts, but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As, moreover, he is seeking an indulgence, he should apply promptly for an extension of time."

28 His Honour Young J, in several cases has dealt with the principles governing application to extend time under the Act. In Massie v Laundy (unreported, NSWSC, 7 February 1986) his Honour indicated that when looking at “sufficient cause” under 16(3) of the Act the factors include the following (at 5):-

“(a) is the reason for making a late claim sufficient?
(b) Would the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) Has there been any unconscionable conduct on either side which would enter into the equation?”

29 Young J also accepted a view which was expressed later by his Honour Needham J in Fancett v Ware (unreported, NSWSC, 3 June 1986) (at 9) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported, NSWSC, 31 March 1988) Powell J (at 13) when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators’ Family Maintenance and Guardianship of Infants Act 1916 must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989).

30 In De Winter v Johnstone, (unreported, NSWCA, 23 August 1995) his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:

"In such a case, so it seems to me, no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

31 His Honour Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Justice Cole seems to have adopted the parties’ approach of looking at the strength of the plaintiff’s case.

32 This case is a contest between the two sisters who have not spoken to each other since their father died over 20 years ago. There is nothing in the evidence which would suggest that there has been any unconscionable conduct by Susan and the only prejudice to the beneficiaries which will arise is the natural consequence of allowing her claim. There are no circumstances concerning the other beneficiaries namely Mira and the specific legatees who live in Slovakia which indicates any particular prejudice. Indeed Mira made it plain to her sister Susan shortly after the death of the deceased that she, Mira, was going to claim the whole of the estate.

33 The question remaining is whether there has been an appropriate explanation for the delay in bringing the proceedings.

34 Susan was in contact with the Public Trustee shortly after death and, as I have said, was informed that her sister was making a claim. She understood that the Public Trustee would defend the will and consider her wishes. In due course Susan received a notice of claim on 21 January 2005, thought that it was merely a formality and that the Public Trustee would continue to uphold the will.

35 In March 2006 there were some settlement negotiations between the Public Trustee and Mira. Susan was not apprised of the details these communications and she sought separate advice. There is no evidence to suggest that she was advised of the time limits for making applications. She was not cross-examined on the matter.

36 In the context of this matter there are three interested groups of beneficiaries. There are the two sisters and the more distant relatives in Slovakia. The Public Trustee has an active role to play in defending the relatives position under the will because it is plain that Mira’s claim will involve an attack upon their legacies.

37 There is some utility in the context of this case in separate representation of Susan. Mira’s claim, as made plain in her opening, was not only to attack the legacies given to the relatives in Slovakia but also to impinge upon the entitlement of Susan to share in residue. The commencement of Susan's claim at a late stage has not overly increased the costs above the additional costs, which would have been incurred if she had been separately represented. The matter of costs however, can be left for later submissions once a result has been determined. Susan does not seek an increase in her share of residue but her approach in respect to any encroachment upon the share of the Slovakian relatives is different to that of Mira and it is only in this sense that she is making a claim.

38 In the circumstances it seems to me that there is an adequate explanation by Susan as to the reason why she did not bring her claim within time and accordingly I will extend time for the making of her application.

The situation in life of Mira Mikulic

39 Mira is single and now lives in her own home at 24 Flora Street, Arncliffe. Railcorp employs her at a weekly net salary of $797.58 (or $3,456 per month). She also receives $1,600 per month in board payments from students to whom she rents out rooms. Her total income is, therefore, $5,056 per month. There will be some tax payable on the board income. Her outgoings she says are $5,229 per month, the most substantial elements of which are the home loan repayments of $2,850 per month and car repayments of $920 per month.

40 Mira works for Railcorp is on a contract basis and the present contract expires on 30 June 2006. She expects it to be renewed for three months. Mira seems to have good skills as an executive assistant that should enable her to obtain other employment in due course.

41 Mira’s assets include the house, which she has just purchased for $650,000 and which is subject to a mortgage of $520,000. Her new car is now worth $23,000 and she owes $27,000 on the car. Her superannuation amounts to $39,405 and she has personal property worth about $10,000. She has miscellaneous debts of $13,203.61 and owes the estate the sum of $70,368. By the terms of clause 6 of the deceased’s will the amount of the charge was limited to the amount which was due to the St George Bank at the date of death and for this reason the sum to which I have referred equates to that sum and there is no provision for her to pay further interest.

42 Mira suffers from chronic iritis which flares up from time to time requiring treatment that may require her to take time off work. However, the condition seems to be well managed over the last two years and does not affect her overall capacity for work.

43 Mira has not contributed to the assets in the estate in a financial sense and she has had the benefit of the loan from the deceased and the purchase of a second-hand car to which I have earlier referred. Mira says that she has made substantial non-financial contributions to her mother’s welfare over the years.

44 Mira claims that since the death of Joseph Mikulic in February 1983 she has provided considerable assistance to the deceased in managing her everyday affairs. In her affidavit evidence, Mira gave considerable detail of this assistance. The plaintiff has given evidence that since January 2003 she travelled each fortnight from the Central Coast to Sydney to attend to the affairs of the deceased. This included cleaning her mother’s house although the evidence would suggest that at times the deceased did not approve of the way in which she carried out that work. It is to be remembered that during this period that Mira provided assistance there were periods when she was living overseas and also when she was living in Brisbane.

45 The next stage is to look at the nature of the relationship between Mira and the deceased. From time to time they lived together and it seems that at times there was friction between them. The comments on the letter which the deceased left with her will, attest to the deceased’s end years. There was some suggestion that Mira used abusive language towards her mother. Mira conceded that several times a year she might have called her mother a cow or swine and said that was all there was to it. Only Mira gave evidence on the matter and it is thus hard to put these concessions into context other than to assume that there was disharmony from time to time.

46 The disharmony seems to be related to the relationship between Mira and Susan. After the death of their father there was a dispute about where he should be buried. At that stage Mira and her mother were residing in Australia and Susan was overseas. As a result of this dispute the rights or wrongs to which hardly seem important, Mira has maintained a steadfast refusal to talk to Susan and this has of course impacted upon the relationship between the deceased and her daughters. Mira seems to have been overly concerned about the fact that she was doing more work in helping her mother than her sister Susan. There is no doubt that Mira pressed her mother to receive more from her estate is a consequence of this imbalance.

47 Mira created some unhappiness for the deceased but the deceased steadfastly maintained her intention to treat her daughters equally. Susan kept in touch and tended to avoid being present in the house when Mira was there. If they did happened to be at the house at the same time Mira went into another room and did not speak to her sister. The relationship between the deceased and her daughters had tensions which were unfortunate but which did not lead to any breakdown. The deceased had a relationship with both the daughters. Although it was not the happiest of relationships I would not find that there is anything in the relationships which would lead to any reduction in the claims made by the daughters.

The situation in life of Susan Mikulic

48 Susan is single and has no children. She was born on 3 June 1956 and is aged 49 years. She has a friendship with a Mr Vaclav Krucek who lives in the Czech Republic and they see each other either in Australia or in Prague several times a year.

49 Susan is a graphic designer and has a company, City Design & Production Pty Ltd through which she carries on her business. Since 2002 she has substantially reduced that business and has instead spend time renovating her residences which have been changed from time to time. She has borrowed funds to enable her to renovate various properties.

50 Susan has her own home at 54 Surrey Street, Darlinghurst which is valued at $800,000 and there is a mortgage on the property in the sum of $439,000. In addition she has a car worth $3000, cash slightly in excess of $10,000 and superannuation entitlements of $29,232. A few years ago she provided to her friend Vaclav Krucek a sum of $60,000 which he used to purchase the leasehold of an apartment in Prague. Her friend had, during his many trips to Australia, stayed with Susan and carried out a substantial amount of labouring work in the renovation of the various properties. I am satisfied on the evidence before me that the property which is in his own name is one in which Susan has no proprietary interest although the arrangements between the two friends are such that she can stay at the property when she goes to Prague.

51 Susan estimates her present income from the design business at about $400 per month and she receives rent from part of the house amounting to $1600 per month. Her expenses total $4370 per month the largest of which is the mortgage payment of $2400 per month. Clearly she has been living on capital during the process of renovating her current home. Precisely what she intends to do is not clear and she probably is waiting for the outcome of the present case. Susan has qualifications to be able to work as a graphic designer although in the past years this has lead to some stressful times.

52 Susan, like her sister, has not contributed towards the estate of the deceased and there is no particular provision that has been made for her by her mother apart, of course, from her education. I have already addressed above the relationship which she had with the deceased.

The situation and life of the specific legatees

53 The deceased on numerous occasions travelled back to see her family in Slovakia. She kept in touch with them by phone and would frequently take presents to members of the family there including the specific legatees. It was this association with her family had led the deceased to make provision for them in her will.

54 Barbora Mrazova (Junior) is a 14 year old. Evidence has been given of her situation in life by her mother. Her mother and father have an income which equates approximately to an income of $4761.90 per year. They own their own house valued at approximately $142,857.14 and do not have a car. Barbora is currently attending school and she has expenses for school of $142 per month and food and other expenses for her amount to $119.04 per month. Her mother would like her to attend university in due course.

55 Under the will Barbora is to receive $100,000. That is almost enough for her to buy a house similar to that owned by her parents. The income earned and the expenses incurred by her parents shows the disparity in the cost of living for her parents compared to the cost of living in this country.

56 There is evidence that the deceased continued contact with Barbora and her mother even by phone from Australia as well as bringing presents to her. Clearly she was some joy to the deceased.

57 Maria Polak was born on 9 April 1985 and is a niece of the deceased. She also was visited by the deceased in Slovakia and was given presents by the deceased. Maria is currently enrolled in university as a full time student in first year and relies on her parents for allowances and she is not employed. Her father has been unemployed for a year and she lives with her parents and her brother in a flat. She has medical expenses she would like to meet which will cost $92.23. Her parents meet university fees and her support of $238 per month.

58 Daniel Polak was born on 24 February 1982 and is also a nephew of the deceased. He also speaks of visits by the deceased and the deceased providing him with gifts of money and clothing. Daniel is at university in his fourth year and relies on his parents as he is not employed. Their circumstances I have just mentioned. He has dental expenses in the near future of $105.26.

59 There was no contribution by any of these beneficiaries to the estate of the deceased and as I have mentioned she would provide them with gifts from time to time on her trips to Slovakia.

Consideration of the applications

60 It is necessary to consider the present position of each of the sisters who are the main beneficiaries and the closest to the deceased. Mira has placed herself in a position where she has very few assets and some modest superannuation. She has a good job and can continue to work for some time. She has no dependants and thus can manage to meet her very high mortgage repayments.

61 Susan on the other hand has substantially more assets. She has approximately $374,000 in assets plus some minimal superannuation. She has high mortgage repayments at and is presently living on capital. It will take her some time to get back into business if that is what she decides to do or restructure her assets and liabilities in order to live within her means.

62 There has been criticism of both sisters as to how they got themselves into their present situation. Mira has clearly has made some bad decisions. She sold her home on the Central Coast on a falling market and lost about $50,000 on its previous value. Then she went ahead probably, on an emotional basis, to purchase the deceased’s home for far more than she intended to pay. The Public Trustee insisted on sale in the amount of the purchase price. It was suggested in submissions that she did this deliberately to improve her chances in the case by putting herself in a situation where she had demonstrated a substantial need at the hearing.

63 There emerged in the case extraordinary circumstances surrounding her loan application for the purchase of the estate property. She purchased at auction and had to obtain an appropriate loan. For this purpose she dealt with a mortgage broker and the agent. She obtained a loan as a result of the intervention of the mortgage broker from the National Australia Bank. It was for a substantial part of the purchase price. It seems clear that the only reason a loan was obtained was that forged copies of notices of assessment and tax returns were submitted by the mortgage broker to the National Australia Bank. These notices and copy tax returns substantially inflated her earning capacity and obviously had been forged using as a basis the notice of assessment from some other person and copies of tax returns.

64 Mira was foolish in this whole episode. Not only did she place herself in a situation where she had agreed to purchase the property and then had to obtain finance but she signed incomplete forms which were given to the mortgage broker. No doubt the forms were thereafter filled out with the misleading information which was given the National Australia Bank. Mira knew that if she had applied for a loan herself based on her then income and asset position she was unlikely to get a loan. Mira used a mortgage broker and paid him in cash fees amounting to some $11,000.

65 Notwithstanding the extraordinary circumstances which were used to impeach her credit, it is clear to me that Mira did not know that the forged documents were put forward. She may well have a suspicion but I am satisfied that she did not know that this is what happened. To suggest that this was done deliberately in order to improve her chances in the proceedings is a very serious charge to make. Is apparent that other emotions have had a substantial part to play in the progress of these proceedings not the least of which is Mira’s determination from the day her mother died to deny her sister any share in the estate based upon her view of her sister’s role in the relationship. I am not satisfied that these foolish and not properly explained actions on her part which led to a substantial decrease in her financial situation were done deliberately.

66 Susan was also criticised in submissions for having decided to reduce her business income and merely rely on the monies that she had borrowed for the purposes of developing her present property. There certainly is nothing reprehensible about her decision and it is not an uncommon situation for people to obtain an income by the renovation of their principal place of residence from time to time. Her claim however, has to be seen in the light, not only of her ability to support herself in this way, but also by use of her other abilities.

67 Both plaintiffs in my view were left without adequate and proper provision having regard to the circumstances which I have outlined. The provision for the beneficiaries in Slovakia can now in retrospect be seen to be extremely generous. Although the deceased obtained some joy from the particular legatees the obligation to provide for her children was higher than that which she owed to these relatives.

68 Both parties approached the matter on the basis that if any further provision were to be made for either of the plaintiffs it could come in the first place from the specific legatees’ share. Mira suggested that a total amount of $20,000 split in the same proportions as in the will would be appropriate. Susan suggested that an appropriate amount would be $60,000. I think that having regard to the relationship between the parties and their respective situations in life that the specific legacies should be reduced to a total of $20,000 distributed in the same proportion as in the will.

69 The submissions of Mira were that the residue after providing for the relatives in Slovakia should be divided as to two thirds to Mira and one third to Susan. Merely reducing the specific legacies to $20,000 would mean in terms of the present will that Susan would receive $238,059 and Mira at would receive a net figure of $167,691.

70 Receipt of figures of this amount would have a substantial impact on each of the plaintiffs’ position. Mira’s mortgage would be reduced to a figure in the order of $350,000 and Susan’s would be reduced to approximately 200,000. The plaintiffs have referred to some other things they would like to do apart from reducing their loans but these are not of significance and in terms of their current lifestyle the most important thing for both of them is to be provided with some capital to reduce their indebtedness.

71 I have mentioned before the work that Mira did in assisting the deceased. The purpose of these applications is not to reward people for the beneficial non-financial contributions to the deceased. Such contributions have to be seen overall in the context of the relationship between the deceased and the respective claimants. There have been real contributions by Mira in this respect and no doubt the deceased as she became older did not appreciate as often happens the efforts, which children make for them.

72 Mira is in good employment and it will take some time for Susan to reorganise her life and place it upon a sounder financial footing. She has not expanded upon the precise way in which she intends to do this in evidence.

73 To me it is plain that Mira has had an advance on her share in the estate by virtue of the loan which her mother took out shortly before the date of death. This no doubt was a great benefit to her as to enable her to pay her taxation liabilities when otherwise she might have had trouble in doing. The advantage to her is that she has had the use of the money since shortly prior to the date of death and that benefit is something to be taken into account.

74 Mira’s situation at the moment is that she is at a stage in her life where she has probably about 15 years before she will retire and she has a fairly high mortgage. Susan who is little different in age does not have the same extent of the commitment. Taking all matters into account, it seems to me that rather than the residue of the estate being shared equally between the two children that it should be shared in a proportion of 60% to Mira and 40% to Susan.

75 The parties can bring a short minutes when I will hear argument as to costs.

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13/04/2006 - spelling of Mikulic corrected - Paragraph(s) not applicable