Pont v Morris

[2003] NSWSC 982

CITATION:	Pont v Morris [2003] NSWSC 982
HEARING DATE(S):	Thursday, 31 July 2003
JUDGMENT DATE:	30 October 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	See paragraph 71 and following.
CATCHWORDS:	Sucession - Family Provision - Plaintiffs are three adult children and mother of first testator and are three adult stepchildren and mother-in-law of second testator - Sole asset of the two testators was a house property owned by them as joint tenants - Interest of first testator passed by survivorship to second testator - Second testator by will gave that property to Defendant - Defendant sold that property and dissipated proceeds of sale - Financial and material circumstances of each Plaintiff - Competing claim of Defendant (whose affairs are now under the control of the Protective Commissioner) - Claim against estate of first testator an exercise in futility - Factors which warrant the making of the application against the estate of the second testator - Whether assets of Defendant should be designated notional estate of second testator.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Re Fulop; Fulop v Public Trustee (1987) 8 NSWLR 679
PARTIES :	Colin Andrew Pont (First Plaintiff) Susanne Marie Donald (Second Plaintiff) Graeme Kenneth Pont (Third Plaintiff) Annie Rodger Pont (Fourth Plaintiff) Colin Morris by his Tutor the Protective Commissioner (Defendant)
FILE NUMBER(S):	SC 4504/00; 5086/00
COUNSEL:	M.S. Willmott (Plaintiffs) G.B. Carolan (Defendant)
SOLICITORS:	Turnbull Hill Lawyers (Plaintiffs) Lee & Lyons Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 30 October 2003

4504/00 COLIN ANDREW PONT and ORS -v- COLIN MORRIS
5086/00

JUDGMENT

1 MASTER: These are two proceedings under the Family Provision Act 1982.

2 Proceedings 4504 of 2000 were instituted by summons filed on 6 November 2000. Subsequently an amended summons was filed on 29 August 2001. By that amended summons the Plaintiffs, Colin Andrew Pont, Susanne Marie Donald, Graeme Kenneth Pont and Annie Rodger Pont, claim an order for provision for their maintenance, education and advancement in life out of the estate and or notional estate of the late Lawrence Lennie Pont (to whom I shall refer as “Lawrence”).

3 Proceedings 5086 of 2000 were instituted by summons filed on 20 December 2000. Subsequently an amended summons was filed on 29 August 2001. By that amended summons the Plaintiffs, Colin Andrew Pont, Susanne Marie Donald, Graeme Kenneth Pont and Annie Rodger Pont claim an order for provision for their maintenance, education and advancement in life out of the estate of the late Florence Bray Pont (to whom I shall refer as “Florence”). The Defendant named in each summons is Colin Morris.

4 At the commencement of the hearing of the two proceedings on 31 July 2003 by consent of all parties I made in each proceeding an order in the following terms,

I order that proceedings 4504 of 2000 and proceedings 5086 of 2000 be heard together and that the evidence in each, so far as is relevant, be treated as evidence in the other.

5 The first three Plaintiffs, Colin Andrew Pont, Susanne Marie Pont and Graeme Kenneth Pont are the children of Lawrence, who died on 18 September 1999. The fourth Plaintiff, Annie Rodger Pont (who was added as a party to each proceeding by order made on 20 August 2001 (in consequence of which order the amended summons was filed in each proceeding) was the mother of Lawrence.

6 Lawrence was married twice, Colin, Susanne and Graeme being the children of his first marriage. After the death of his first wife on 1 January 1972 Lawrence married Florence on 14 December 1972. By his will dated 12 June 1986 Lawrence left his entire estate to Florence, and appointed her sole executor thereof. At the time of his death the only significant asset owned by Lawrence was his interest as joint tenant with Florence in the property situate at and known as 19 Wentworth Road, Strathfield. That property passed to Florence by survivorship. Accordingly, it was not necessary or Florence to apply for a grant of probate of Lawrence’s will.

7 Florence died on 15 April 2000. By her will dated 31 March 2000 she appointed her son, Colin Morris, as her sole executor and gave to him the entirety of her estate. Probate of Florence’s will was granted to Colin Morris (who is the Defendant to the present proceedings) on 31 August 2000. The sole asset in her estate disclosed in the inventory of property was the house property at 19 Wentworth Road, Strathfield, to which was attributed an estimated value of $250,000.

8 Subsequent to the grant to him of probate, Colin Morris sold the Strathfield property and received, after payment of agent’s commission and other related expenses, the sum of about $268,000.

9 After the commencement of the two sets of proceedings an agreement was reached between the solicitor for the Plaintiffs and the solicitor then acting for the Defendant that the Defendant from the foregoing proceeds of sale of the Strathfield property would hold $168,000 pending the outcome of the proceedings. Thus the Defendant was left with an amount of $100,000 which was treated as belonging to him beneficially.

10 By about September 2001 the Defendant had expended the entirety of that $100,000. He then withdrew the $168,000 held in trust and removed himself and those moneys to Vanuatu. Upon arriving in Vanuatu the Defendant purchased a leasehold interest in a parcel of land at Devil’s Point, Port Vila and a steel hulled sailing vessel, known as Tiva. It appears that he also purchased some jewellery, which he alleged to have been stolen from him shortly after the purchase, on the very day of its acquisition.

11 On 19 February 2002 a financial management order was made under the Protected Estates Act 1983, by the Mental Health Review Tribunal, which ordered that the Defendant be subject to management under that Act.

12 On 31 July 2002 Mr Justice Windeyer ordered that the Protective Commissioner be authorised, pursuant to section 71 of the Protected Estates Act 1982, to exercise the powers of the Defendant as executor and trustee of the estate of Florence.

13 At the present hearing the Defendant was represented by the Protective Commissioner. Counsel retained on behalf of the Protective Commissioner appeared for the Defendant in each of the two proceedings.

14 It should at the outset be recognised that there are no assets in the estate of Lawrence. Further, that the assets in the estate of Florence have been fully distributed to the Defendant. He has sold the only asset, the house property at Wentworth Road, Strathfield, and has fully expended the net proceeds of sale of that property (not only the $100,000, which it was not disputed by the Plaintiffs was retained beneficially by the Defendant, but also the amount of $168,000 which, in breach of the agreement between the Plaintiffs and the Defendant was being held in trust by the Defendant pending the outcome of the present proceedings).

15 It was recognised by Counsel for the Plaintiffs that their claim against the estate of Lawrence might well be an exercise in futility.

16 It should also at the outset be appreciated that unless there be an order designating as notional estate of Florence any of the assets in the acquisition whereof the proceeds of sale of the Strathfield property were expended by the Defendant, then the claim against the estate of Florence may also be regarded as an exercise in futility.

17 At the time of the hearing the only assets held by the Defendant (which could possibly be the subject of an order designating them as notional estate of Florence) consisted of

(a) An unregistered leasehold interest in real property located at Devil’s Point near Port Vila, Vanuatu;

(b) Steel hulled sailing vessel, known as Tiva , moored at Iririki Island, Port Vila, Vanuatu;

(c) Trust account balance with the Office of the Protective Commissioner in an amount of $416;

(d) Various chattels and personal effects.

18 In his affidavit of 29 July 2003 Christopher Zucker, solicitor, who has the conduct of the matter on behalf of the Defendant, upon instructions of the Protective Commissioner, stated that according to his instructions the Protective Commissioner since 23 July 2003 had received an offer in respect of the boat owned by the Defendant, that offer being in the sum of $2000, and that he was instructed that the Protective Commissioner was presently considering whether to accept the offer, but was likely to do so.

19 The Defendant had paid the equivalent of $75,000 for that boat. According to Mr Zucker there were substantial mooring fees outstanding in respect to the boat, although he was not aware of the amount of those fees. Although Mr Zucker had been informed by a firm of solicitors with whom he had been dealing in Vanuatu to the effect that the Defendant had been “ripped off” in respect to the purchase of the boat, he was not aware as to whether the offer of $2,000 represented a fair market value.

20 In paragraph 7 of his affidavit of 23 July 2003 Mr Zucker said that he was instructed that the leasehold interest of the Deceased in the land at Devil’s Point in Vanuatu had, in the opinion of the Protective Commissioner, no value. However, under cross-examination he stated that, as he understood it, the basis for that belief was that the leasehold interest had not been registered. There appeared to be no reason why that interest could not be registered. There was no evidence before the Court to suggest that the value of that land had diminished since its acquisition by the Defendant.

21 It will be appreciated from the foregoing that the Court is left in a position of very considerable uncertainty concerning any potential assets held by the Defendant which might ultimately be available to be designated as notional property of Florence, and, in consequence, to meet any order for provision to which any or all of the Plaintiffs might be entitled.

22 Evidence was given concerning the financial and material circumstances of each Plaintiff. None of the Plaintiffs was cross-examined on behalf of the Defendant. It is appropriate, therefore, that I should set forth the following summary concerning the circumstances of each Plaintiff.

23 Colin Andrew Pont, the first Plaintiff, was born on 30 July 1960 and is presently aged forty-three. He had a good relationship with his father. His relationship with Florence appears not to have been so good. He moved out of home for a while when he was aged sixteen and left home permanently in 1978 when he was aged eighteen. Colin continued to keep in contact with his father and also with his stepmother after he left home.

24 Colin left school in 1975 at the age of fifteen, and commenced employment as a sheet metal worker. He married in 1985 and has three children (presently aged twenty-eight, twenty-one and eighteen). He is employed as a sheet metal worker for Copper Fold Shower Trays Pty Limited, a company of which he and his wife are the sole directors and shareholders. Colin’s wife Cheryle is also employed by that company as a secretary. Their combined income is not great; for the year ended 30 June 2000 it was $19,506.

25 The joint assets of Colin and his wife consist of:

Vacant house property at 3 Carters Road, Grose Valley - $370,000

Vacant house property at 59 Horatio Street, Mudgee – $90,000

House property at 90 Francis Street, Richmond - $200,000

Savings account for children’s education - $18,000

Personal property and effects - $1,000

Superannuation - $20,400.

26 The company Copper Fold Shower Trays Pty Limited owns machinery having an estimated value of $30,000 and a Toyota Hilux 1989 motor vehicle, having a value of $5,000.

27 In addition, the company leases a Mentor motor vehicle from the State Bank. That vehicle is used by Colin’s wife, the lease fee being $500.

28 Colin and his wife owe her mother an amount of $30,000 in respect of a business loan made to them.

29 Their outgoings are more or less equal to their income. They have neither the time nor the money to go on holiday.

30 Colin suffers from problems with his back (described as “bulging discs”) and tendonitis of both elbows. Those conditions are exacerbated by the nature of his employment. According to Colin he has been informed by his medical advisors that his physical condition is such that he should no longer be carrying out the heavy work which he performs in the course of his employment.

31 Details are set forth in Colin’s affidavit of 7 August 2001 concerning the present condition and state of repair of each of the three house properties owned by himself and his wife. Neither of the houses at Grose Valley and at Mudgee is habitable. Each needs considerable work to be performed thereon. Neither is occupied and neither is income producing. The evidence is not particularly informative as to the circumstances in which Colin and his wife acquired those properties, or how they sourced the purchase prices thereof.

32 It is Colin’s desire that if he had sufficient funds he could complete outstanding work on the various properties, and either sell the two vacant properties or move to Grose Valley and sell the Richmond and Mudgee properties.

33 Colin expressed a desire to join a private health fund, which would cost $1,480 a year for his entire family. He also desires to assist his daughters with their tertiary education. Colin’s wife requires substantial dental work, which would cost in the vicinity of $5,000. Colin desires to purchase various items of furniture and furnishings for their house, for which he estimates the total cost would be about $3,000.

34 Susanne Marie Pont, the second Plaintiff, was born on 30 August 1958 and is presently aged fifty-five years. She also appears to have had a good relationship with her father, both before she left home in 1976, shortly after her marriage to Paul Donald (for a period of about eight months she and her husband resided with Lawrence and Florence), and thereafter.

35 Susanne left school in 1974 at the age of sixteen, and thereafter was in employment until her marriage. She and her husband separated in 1998. Susanne has two children, a son Jerome, who was born in 1976 and is presently aged about twenty-seven, and Selina, who was born in 1980 and is presently aged about twenty-three. At the present time Susanne is employed as an assistant in nursing specialist carer by Villa Maria Centre. In that employment she works 75 hours a fortnight and receives a current net income of $22,000 a year. She has no assets and has no debts. She estimates that her outgoings total about $21,450 a year, the major component in those outgoings being rent of $90 a week. Susanne’s son, who was residing with her at the time of the institution of the proceedings, has now joined the Royal Australian Navy and is no longer dependent upon her. Susanne’s daughter Selina still resides with her but is not dependent upon her.

36 In her affidavit of 31 July 2003 Susanne states that she would like to obtain sufficient money for the purchase of a motor vehicle. In her present employment her working hours are such as to make travelling by public transport difficult, if not impossible. A motor car would allow her to get to and from work without delays. Susanne states that she would like to purchase a car such as a Toyota Seca, and she estimates the cost of such a vehicle to be about $25,000. (No basis for that estimation is stated.)

37 Graeme Kenneth Pont, the third Plaintiff, was born on 25 December 1955 and is presently aged forty-seven. He also maintained a good relationship with his father, both before he left home at the age of twenty, and thereafter. Graeme left school in 1972 when he was aged seventeen. He qualified as a bricklayer.

38 He is presently employed as such, receiving an annual net income averaging about $22,000. Graeme is not married and has no dependents. His current assets consist of a 1995 Holden Commodore motor vehicle (having an estimated value of $10,300) and a minimal amount in a State Savings Bank account. He has no debts. Graeme’s living expenses are estimated to total a little over $21,000, the major expense being rent of $170 a week.

39 If he were to receive provision from the estate of Lawrence it was Graeme’s stated intention to use such provision as deposit upon a residence.

40 Annie Rodger Pont, the fourth Plaintiff, is the mother of Lawrence. She was born on 30 May 1901 and is presently aged one hundred and two. Not only did she reside with Lawrence during his formative years, but she also resided with Lawrence and Florence in their residence at Strathfield for eleven years, from early 1973 to 1983, when she moved into a residential hostel. Thereafter she spent every weekend at the Strathfield residence until January 1999.

41 Annie is a widow, her husband William Pont, having died, very unexpectedly, on 21 December 1972.

42 When Lawrence and Florence purchased their residence at Strathfield Annie contributed $2,500 towards the deposit upon that purchase. The Strathfield residence was mainly furnished with the furniture and possessions of Annie. Throughout the period whilst she resided with her son and his new wife, Annie contributed one half to all household bills; Lawrence made the mortgage payments. Annie also made other contributions towards household expenses, including paying for the funeral ($500) when Lawrence’s baby died six weeks after birth in mid-1974. She also paid for the purchase of a garden shed ($250). Annie had a close and affectionate relationship with her son.

43 After Annie moved into the residential hostel Lawrence and she maintained their close and affectionate relationship. She often stayed each weekend with Lawrence and Florence until about January 1999 when the Defendant moved into residence with his mother and stepfather, and occupied the room which theretofore had been Annie’s bedchamber.

44 Annie is a pensioner, her sole income being the age pension of $10,397 a year. Otherwise she has no assets and no debts. Her expenses and outgoings total her income. The major expense is rent of a little over $300 a fortnight.

45 It was Annie’s stated intention that if she were to receive provision out of her son’s estate she would use it for the purchase of an air-conditioner (costing about $2,000), a lift chair (costing about $1,500), acquisition of clothing ($200), prepayment of her funeral expenses ($6,000). She also said that she would like to purchase a crypt for Lawrence, so that his ashes could rest next to those of his father, grandfather and daughter; and that she would like to acquire gifts for her great-grandchildren and great-great-grandchild.

46 I have already recorded the assets of the Defendant. According to the information placed before the Court by Mr Zucker, upon instructions from the Protective Commissioner, the Defendant currently has significant debts amounting to several thousand dollars, including the costs of overseas hospitalisation, overseas accommodation, solicitor’s costs, and the costs associated with the present proceedings. The Defendant, according to that information, has no funds from which to meet those debts, having, as Mr Zucker has been advised, expended the entirety of his inheritance from Florence’s estate as well as the moneys held by him on trust for the Plaintiffs in the present proceedings.

47 It is somewhat unclear from the evidence placed before the Court on behalf of the Defendant whether he is still in residence at the Rozelle Psychiatric Hospital, or whether he resides in other accommodation, possibly with his father, Lester Morris, at Bossley Park. It would appear that the Defendant is in receipt of a disability support pension, in an amount which does not emerge from the evidence. Neither is the evidence particularly revealing concerning other financial and material circumstances of the Defendant.

48 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claims of the Plaintiffs.

49 I have had the benefit of receiving a chronology and a written outline of submissions from Counsel for the Plaintiff. Those documents will be retained in the Court file.

50 Each of the first three Plaintiffs, Colin, Susanne and Graeme, as a child of Lawrence, is an eligible person in relation to Lawrence within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. The fourth Plaintiff, Annie, was a member of the same household as Lawrence during his formative years, then for eleven years whilst she resided with him and Florence at Strathfield, and then subsequently at weekends until 1999. In addition, for the period of eleven years, from early 1973 until early 1983, Annie was partly dependent upon Lawrence. The Defendant conceded that Annie is an eligible person in relation to Lawrence, within paragraph (d) of the foregoing definition.

51 Each of the first three Plaintiffs was also a member of the same household as Florence during the period after their father married Florence in 1973 until each of those Plaintiffs left home some years later. Further, throughout each such period each of those Plaintiffs was partly dependent upon Florence for the provision of accommodation and sustenance. Similarly, for the period from early 1973 to 1983 Annie was a member of the same household as Florence, and was partly dependent upon Florence for accommodation and sustenance. The Defendant conceded that each Plaintiff is an eligible person in relation to Florence, within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act.

52 In consequence, each Plaintiff has the standing to bring each of the present proceedings.

53 Since in relation to Florence each Plaintiff is an eligible person only within paragraph (d) of the definition, the provisions of section 9(1) of the Family Provision Act have application. Accordingly, it is necessary for the Court to consider whether there are factors which warrant the making of the application by the Plaintiffs. Such factors are those which, when added to facts which render the applicant an eligible person, give him or her the status of a person who would generally be regarded as a natural object of testamentary recognition by the Deceased (Re Fulop;Fulop v Public Trustee (1987) 8 NSWLR 679 at 681).

54 In the instant case, I consider that the fact that the Strathfield property (which was the sole asset in the estate of Lawrence, and passed by survivorship to Florence and then by her will passed to the Defendant) was sold by the Defendant, thus removing the possibility of that asset being designated as notional estate of Lawrence, constitutes a factor which warrants the making of the application by the Plaintiffs in respect to the estate of Florence. Further, I consider that the conduct of the Defendant himself, not only in dissipating the proceeds of sale of the Strathfield property, but in disposing of the entirety of those proceeds in breach of the arrangement under which he held a substantial part thereof in trust awaiting the outcome of the present proceedings also constitutes a factor warranting the making of the application by the Plaintiffs against the estate of Florence.

55 Further factors warranting the making of the application are the modest financial circumstances of each Plaintiff; the absence of any testamentary provision by Lawrence in favour of any of the Plaintiffs; and the strength of the claim which each Plaintiff would have had against the estate of Lawrence had there been any assets in that estate or had the Strathfield house property been retained by the Defendant so that it could have been designated notional estate of Lawrence and thus been available to meet any orders for provision which might ultimately be made in favour of one or more of the Plaintiffs against that estate. Further, the fact that the first three Plaintiffs were stepchildren of Florence constitutes an additional factor which warrants the making of the application by those Plaintiffs, while the fact that the fourth Plaintiff was the mother-in-law of Florence, and was a member of the same household as Florence for a period of at least eleven years constitutes, in the case of the fourth Plaintiff, such a factor.

56 In my conclusion, the provisions of section 9(1) of the Act do not preclude the making of the present application by the Plaintiffs for an order for provision out of the estate of Florence, or the making by the Court of such an order.

57 It will be appreciated that in approaching the claim of each Plaintiff, the Court must consider the assets which might be available to be the subject of an order for provision. In the case of Lawrence, there are no such assets. His only asset at the time of his death was his interest as joint tenant in equal shares with Florence in the house property at Strathfield. That interest passed by survivorship to Florence. It seems to me that it would be quite unrealistic for the Court at this stage to attempt to designate as notional estate of Lawrence the house property at Strathfield or the interest in that house property which Lawrence had held during his lifetime, in circumstances where not only has the house property, after the death of Lawrence, subsequently been sold, but where that sale has been effected not by the surviving joint tenant, Florence, but by the executor and sole beneficiary of that joint tenant after her death.

58 I am in agreement with the comment by Counsel for the Plaintiffs that any proposed order for provision out of the estate of Lawrence would be an exercise in futility.

59 In respect to the claims of the Plaintiffs against the estate of Florence, those claims must be approached in the light of the competing claim of the Defendant.

60 It was recognised by all parties, through their respective solicitors, that before the departure of the Defendant on his adventure to Vanuatu, the maximum amount available to meet any claims of the Plaintiffs was the sum of $168,000 which the parties agreed should be held by the Defendant on trust pending the outcome of the present proceedings. It was recognised on behalf of the Plaintiffs that at least the sum of $100,000 from the proceeds of sale of the Strathfield property was retained beneficially by the Defendant, and should not be designated notional estate of Florence (even if that amount had not been dissipated by the Defendant).

61 It will also be appreciated that provision must be made for the costs of the present proceedings, in particular, the costs of the Protective Commissioner for acting in the proceedings on behalf of the Defendant. No estimation of those costs has been placed before the Court. However, the solicitor for the Plaintiffs has, in accordance with the prescribed procedure, filed an affidavit sworn 28 July 2003, in which he estimates that the costs of the Plaintiffs in the proceedings (including solicitor’s costs and disbursements and Counsel’s fees) will total $50,000. For a hearing which lasted for no more than two hours, in which none of the Plaintiffs was cross-examined, and in proceedings in which only one substantive affidavit was sworn by each Plaintiff, I consider that estimation of costs to be quite excessive. I am confident that the Plaintiffs will, upon assessment, not be entitled to anything like that amount.

62 I recognise that none of the Plaintiffs is in a good financial position. However, the competing claim of the Defendant, who is incapable of managing his own affairs, and suffers from severe psychiatric problems, is significant. I have already observed that the evidence is not particularly revealing concerning the present financial and material circumstances of the Defendant.

63 In all the circumstances, however, I consider that each Plaintiff has established an entitlement to receive from the notional estate of Florence a relatively small legacy.

64 In the case of Colin, that legacy should be sufficient to enable him to effect necessary repairs to the Richmond property ($26,000) and to enable him to arrange for private health insurance for his family, as well as necessary dental work for his wife, and for some basic new furnishings to be acquired. An appropriate amount for such a legacy is $35,000.

65 In the case of Susanne, I consider that the legacy should be sufficient to enable her to purchase a motor vehicle, to enable her to travel to and from her employment when public transport is not available. The estimated cost of such a motor vehicle presented by Susanne (without any basis) as being $25,000, appears to me to be excessive. The legacy should also be sufficient to enable Susanne to have necessary dental treatment ($1,500). It seems to me that the appropriate legacy for Susanne is $25,000.

66 Graeme has not placed before the Court any evidence as to the amount which would be necessary for a deposit upon a residence. Indeed, he has not presented to the Court any evidence whatsoever concerning the nature of the residence which he would like to acquire or the cost thereof. It seems to me appropriate, however, that he should receive a legacy of $25,000, that being a sum which would probably be adequate as the deposit upon the purchase of a modest residence.

67 The appropriate legacy for Annie is in my conclusion $10,000. That amount will enable her to acquire an air-conditioner, a lift chair, some new clothing, and also to arrange and pre-pay her funeral.

68 The foregoing legacies total $95,000. It will be appreciated that there is no actual estate of Florence, the proceeds of sale of the Strathfield property having been expended by the Defendant, not only on the acquisition of various chattels, and on the alleged purchase of jewels which were allegedly stolen from him, but also on the acquisition of the sailing boat and of the leasehold interest in land in Vanuatu. It is appropriate therefore that the legacies should be payable out of the notional estate of Florence, and that some or all of those assets be designated as such notional estate of Florence.

69 There appears to me to be no reason why that leasehold interest, when registered, could not be sold for much the same price as the Defendant paid for it ($45,000). The value of the sailing vessel is less certain. However, it must have some value. It seems to me that the appropriate course is for the Court to designate as notional estate of Florence the leasehold interest in the land at Devil’s Point, Vanuatu and the sailing vessel Tiva. Then the Court should order that legacies in the foregoing amounts be payable to the various Plaintiffs out of the notional estate of Florence. Similarly, the costs of the Plaintiffs on the party and party basis and the costs of the Defendant on the indemnity basis should be payable out of that notional estate.

70 The total amount of the foregoing legacies, $95,000, is considerably less than the amount of $168,000 which the parties through their respective legal advisers agreed should be held in trust by the Defendant pending the outcome of the present proceedings. Even when the costs of the present proceedings are added to the amount of $95,000 the resulting total amount will not exceed the amount of $168,000. In those circumstances, therefore, and in the light of the (admittedly not particularly ample) evidence concerning the financial and material circumstances of the Defendant, I do not consider that the competing claim of the Defendant is such as should have the effect of extinguishing, or even reducing, the foregoing orders for provision in favour of each of the Plaintiffs, which I consider that each such Plaintiff has otherwise established.

71 Accordingly, I make the following orders:

72 Proceedings 4504 of 2000 (Estate of the late Lawrence Lenny Pont and the Family Provision Act 1982)

73 I have not heard submissions as to costs. Accordingly, unless any party within seven days of the date hereof arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders.

(1). I order that the proceedings be dismissed.

(2). I make no order as to costs, to the intent that each party will bear his or her own costs of the proceedings.

74 Proceedings 5086 of 2000 (Estate of the late Florence Bray Pont and the Family Provision Act 1982)

(1). I order that the leasehold interest in land at Devil’s Point near Port Vila, Vanuatu, held by the Defendant, and the sailing boat known as Tiva be designated as notional estate of the late Florence Bray Pont (“the Deceased”).

(2). I order that the Plaintiffs receive respectively the following legacies payable out of the notional estate of the Deceased:

(a) Colin Andrew Pont - $35,000
(b) Susanne Marie Pont – $25,000
(c) Graeme Kenneth Point - $25,000
(d) Annie Rodger Pont - $10,000


(3). I order that the costs of the Plaintiffs on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the notional estate of the Deceased.

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Last Modified: 12/05/2003