Moore v Foodey

[2006] NSWSC 764

CITATION:	Moore v Foodey [2006] NSWSC 764
HEARING DATE(S):	27/07/06
JUDGMENT DATE :	27 July 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	07/27/2006
DECISION:	Paragraph 59
CATCHWORDS:	Family Provision. Claim under the Family Provision Act 1982 by a stepson left out of the will of the deceased. Order for provision made. No matter of principle.
PARTIES:	Shayne Edward Moore v Kevin George Foodey (Estate of Leslie Ronald Foodey)
FILE NUMBER(S):	SC 5390/2004
COUNSEL:	Mr C Jackson for plaintiff Mr P O'Loughlin for defendant
SOLICITORS:	Creswick McCarthy for plaintiff Kells The Lawyers for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 27 JULY 2006

5390/04 - SHAYNE EDWARD MOORE v KEVIN GEORGE FOODEY - ESTATE OF LESLIE RONALD FOODEY

JUDGMENT

1 This is an application under the Family Provision Act in respect of the estate of Leslie Ronald Foodey who died on 12 April 2004. He was survived by his two children of his first marriage and the plaintiff, his stepson. Both his wives pre-deceased him.

2 The deceased had made his will on 4 February 2002. He appointed his brother as his executor and he gave the whole of his estate to the two children, Gail Keene and Janine Martin.

3 He had previously made a will in 1981 at the same time as his then wife had made a will. His wife, of course, was the plaintiff’s mother. Under those wills they provided that generally all of the estate was to pass to the other in the event one the pre-deceased the survivor, and agreed to leave the whole of the estate to the three children equally.

Assets in the Estate

4 The estate principally consisted of cash and a home. The home has been sold and there will be an amount of net proceeds of $244,000. Some of the costs have been paid out of the cash that was available at the date of death and the balance now available is $58,911.90. There were shares worth $5,470 but they have already been distributed to the two beneficiaries.

5 The defendant's costs total $50,000, of which $30,000 still are to be paid; and the plaintiff's costs are in the order of $30,000. This will lead to a net estate, if an order is made in favour of the plaintiff, of some $248,000.

Family History

6 The plaintiff was born in 1957, the same year as Gail, the deceased's daughter. Janine was born in 1962. It was in 1970 that Marjorie Moore, the mother of the plaintiff, Shayne, came to know the deceased and she moved in to live with him when she and the plaintiff moved from the southern highlands down to Albion Park, moving in with the deceased and his two children.

7 The deceased and Marjorie Moore married in 1972 and it was in 1981 when they made the wills to which I have earlier referred.

8 In 1986 the plaintiff moved out from the deceased's home and he married in 1987. His son, Gavin, was born in 1989; and his daughter Mariah and 1991. By 1992 the plaintiff had managed to resume contact with his natural father, as he had lost contact with him substantially after his mother remarried. In 1993 the plaintiff's son Cameron was born.

9 The deceased's wife, the plaintiff's mother Marjorie Foodey, died on 3 July 1999. In September 1999 there was an occasion when Marjorie's possessions were being distributed, to which I will refer more a little later. This was the last occasion the plaintiff saw the deceased.

10 On 4 February 2002 the present will of the deceased was executed and, of course, it leaves nothing to the plaintiff. The deceased suffered from cancer and he eventually died on 12 April 2004.

Eligibility

11 The plaintiff lived with the deceased in the deceased home from 1970 until 1986 or 1987. In 1970 he was 13 years of age and when he left he was of the order of 28 years of age. It is clear he had been a member of the deceased's household and was dependent upon him and the defendants concede this fact.

12 However it is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

“Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. 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 (of the Wills Probate and Administration Act 1898, s 61B), 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. 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 status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'“

13 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:-

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

14 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

15 Plainly, the plaintiff was part of the whole family for the 16 or 17 years he lived with the deceased. He lost contact with his natural father during this time and he called the deceased "dad".

16 It was submitted that because of the lack of contact with the deceased for a period of four years from September 1999 until the death of the deceased in September 2004 I should find that there are no factors warranting in respect of the application.

17 This particular submission raises similar matters to those which concern the Court when it considers matters under s.7 of the Act and some useful guidance can be obtained from the authorities on that aspect.

18 Section 7 of the Family Provision Act provides that if a Court is satisfied that a person is an eligible person

“it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.”

19 In Benney V. Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted:

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

20 Meagher JA (NSWLR at 570) agreed with Priestley JA.

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

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

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

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

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

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

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

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

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

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

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

27 Bryson J in any event distinguished Scales case (p11) on the basis that on the facts before him the plaintiffs;

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

28 In Walker v. Walker (unreported 17 May 1966) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

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

29 Young J also observed:

“In Fraser’s case, Kirby P at p29 said that “I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning “moral duty”. However, His Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law “either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier (p27).”

“Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words “moral claim” in decisions under this Act.
“Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 “the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the ourt to make an order.”

30 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121. In Walker v Walker, (p 27) Young J noted:

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

31 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:

“I agree with his Honour’s remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of “eligible person” in s 6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds.”

32 In the present case the plaintiff’s mother died in the middle of 1999. The deceased stayed for a while at Gail and Janine's home for about 18 months. The plaintiff was invited over to sort through his mother's clothes and on that occasion the deceased said that he could have some of Marjorie's clothes. He went over and apparently the other three searched through her clothes. According to the plaintiff Janine had a go at him for not ringing up the deceased on Father's Day. Then, when they were walking out of the door with the clothes which Leslie had said he could have Janine said to him; “This is the last thing you will ever get out of this house." That upset the plaintiff.

33 However, before he left he spoke to the deceased who told him he would stay with Janine for a little while before returning home.

34 In 1999 at Christmas, and in the year 2000 at Christmas, he sent Christmas cards with lottery tickets and a message to the deceased. He received no reply. He obviously wanted the deceased to see his grandchildren and enjoy them and wrote about them in his notes. He did not try again and was not told about the death or the funeral arrangements.

35 One would have thought Janine or Gail may have informed him of the deceased's deteriorating health, his subsequent death and the funeral arrangements. One can only speculate why they did not. He plainly felt uneasy about contacting Janine after the heated words but he made the effort to try and contact the deceased in the two years following. It is surprising that he did not try harder but perhaps wrongly assumed that the deceased had rebuffed him.

36 Having regard to the attempts he made to contact the deceased and the lack of any information given to him by his stepsisters I do not think that his conduct was sufficient to detract from his status as the dutiful son who had lived with the deceased and was part of his family for those 16 or 17 years and had kept in touch over the subsequent years until his mother died.

37 In these circumstances I think there are factors warranting the making of the application on the traditional basis.

38 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that the Court must take. At p.209 it said:

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

39 As directed by the High Court I return to consider the plaintiff’s situation in life. The plaintiff is 48 years of age, married with three children aged 16, 14 and 12 years. He has no assets, apart from some furniture worth $10,000. Their car has been stolen. They live in rented Housing Commission premises which are available for purchase.

40 The plaintiff was originally by training a fitter and turner. Although he completed his apprenticeship work he did not complete his examinations and he has been out of that area of employment for many many years. In the years after his apprenticeship for a time he worked as a labourer, rising to be a supervisor, and has recently worked in a liquor shop in some managerial capacity. He last worked in 1994. He has been studying to achieve the Higher School Certificate and hopes to attain that in about 18 months time. He hopes that that will improve his employment prospects.

41 He is now on Austudy benefits and does not have any other employment. His wife is at home looking after the children. She herself has not worked since about 18 months after marriage, presumably when they had their first child. They live on social security in an amount of a little under $600 a week. It covers their expenses. However, it is plain that they have to be careful to make ends meet and examples of this include if they need a new appliance they have buy one at a time over a period by paying it off.

42 They do not seem to live extravagantly and they seem to make ends meet which is always difficult to do on any income of that level.

43 Their son Cameron has an intellectual disability and attends a special school. Because of his disability it is hard for the plaintiff and his wife to go out. He needs special care to look after him, because of his special difficulties.

44 Their daughter was recently diagnosed with Crohn's disease. This is a disease which affects the bowel and will apparently need treatment. The daughter will have to be brought from Wollongong up to Randwick Children's Hospital for treatment.

45 It is necessary to consider the situation of any other persons having a claim on the bounty of the deceased. In this case it appears that the two daughters of the deceased have presented no evidence of their financial circumstances to the Court and, accordingly, the Court can assume they do not wish those circumstances to be taken into account in the exercise which the Court must carry out.

46 They do give evidence of the care which they extended to the deceased over the last years of his life when he was sick and suffering and that obviously must be taken into account.

47 It is necessary to see how the plaintiff says he has been left without adequate and proper provision for his maintenance, education and advancement in life. This is because this is the only factor which allows the Court to make provision for him. It is not this Courts function or position to make what might be sometimes called a fair or just will. It is only to make provision if the deceased has not made an appropriate provision.

48 The plaintiff put forward that he would like to purchase the house in which he lives. As I have said, it is a Housing Commission house and it is available for purchase. A local estate agent has said it would be valued in the order of between $215,000 and $225,000. When considering this desire it is useful to know what was said in Shearer v The Public Trustee and Hawke v The Public Trustee, Young J, (unreported, NSWSC, 29 March 1998). His Honour said:

“The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who had some dependence.
Where the applicant is a spouse, it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any Court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own."

49 In this case the provision out of an estate of this size with the claims of the other beneficiaries probably would not extend to the provision of a house and as been indicated in the authorities, it is normally not appropriate. Sometimes it is thought that an appropriate and proper provision might be to provide a sum towards the purchase of a house. In this case, however, there is no evidence before the Court as to what the plaintiff might, if anything, be able to borrow in order to add to some amount which the Court might award so that he could complete such a purchase.

50 In such circumstances it is speculative on the part of the Court to assume something could be borrowed, particularly having regard to the fact that the plaintiff and his wife are living on Social Security.

51 There is one aspect of the matter for which obviously the plaintiff should have some assistance. That is in respect of a car. I have already recounted that the car has been stolen and they obviously will need a car to take their daughter to Sydney for treatment. They would be able to do that by public transport but it would be preferable with a car. The plaintiff has already made inquiries and has ascertained that a Holden Astra would cost approximately $22,000, and the registration would be $500. A Zafir would cost $32,000 with insurance of $670 and registration fee of $500.

52 Having a car also provides that there are more expenses that have to be met and although there was criticism in cross-examination of his desire to have a new car, I think that is a perfectly sensible approach and an appropriate amount should be given to the plaintiff to have a new car. After all, there is no prospect that he will come into funds at a later stage to replace it.

53 The plaintiff is still paying off the freezer and the amount that is still to be paid does not appear in the evidence. He needs some more things for his computer and these will cost $250, a vacuum cleaner costing $550 and he and his wife have recurring optical expenses of $680.

54 I have earlier referred to the fact that the son, Cameron, needs to be looked after. Clearly it would be of some advantage to the plaintiff to have time, so that he and his wife could have time to themselves and have some respite care in looking after Cameron. Unfortunately the affidavit evidence does not quantify the amount but plainly, the amount would be a modest amount and over a period of time would give them some help in this regard.

55 The other thing that has been referred to in the evidence is that they would like to look after the future education of their children. The evidence is not particularly clear as to what happened and, given Cameron's disabilities, he may not be able to take advantage of that. However, the fact of the matter is the plaintiff and his wife have three young children. They are at a stage where they are expensive to maintain and their future is uncertain. Obviously if there is anything that parents can do in the next few years to provide for that better education that would give them a far better start in life - and I think although the full details of what would be necessary are probably not available, because it is unknown - some fair allowance should be made for the costs which will be met.

56 To simply say that if there is a need for further education that the provision of such costs is at the public expense is misleading. It does not cover all costs as there are always other matters that children need to have as well as having their school or university fees paid.

57 This matter has to be looked at in what is a modest estate. Costs have been taken out and it is now about $248,000. The other important thing is there are no other financial claims on the estate. The two daughters, properly, no doubt on advice taken, have not advanced any financial needs so there is no other claim on the estate. No doubt those daughters have helped the deceased and I have regard to the fact that they have extended care to him in the years when he was suffering after his second wife died.

58 Having regard to these lack of claims, it seems I can be somewhat more generous in the estimate of what might be useful for the plaintiff to have considering his uncertain future in respect of his children's education and what is necessary.

59 The orders that I make are as follows:

1. That the plaintiff receive out of the estate of the deceased a legacy in the sum of $75,000.
2. The plaintiff's costs on a party and party basis and the defendant’s on an indemnity basis be paid or retained out of the estate of the deceased.
3. Interest is to run on the legacy at the rate provided for under the Wills Probate and Administration Act on and from 6 October 2006.
4. I order the exhibits be returned.

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