Ralphs v Shirt

[2002] NSWSC 626

CITATION:	Ralphs v Shirt [2002] NSWSC 626
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3314/00
HEARING DATE(S):	30 November 2001, 12 February, 11 April 2002
JUDGMENT DATE:	12 July 2002
PARTIES :	Lorna Jane Ralphs (Plaintiff) Lola Jean Shirt (Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	G. Preston (for Plaintiff) C.Hodgson (for Defendant)
SOLICITORS:	G. Healey & Co - Sutherland (for Plaintiff) Warren McKeon Dickson, Solicitors (for Defendant)
CATCHWORDS:	Succession - Family Provision - Claim by de facto widow - Size of estate - Partial distribution - Plaintiff left without adequate provision for her proper maintenance and advancement in life - Competing claim of other beneficiary, who is mother of testator - Needs of Plaintiff - Accommodation - Whether appropriate accommodation should be a three bedroom townhouse or a two bedroom home unit - Nature of order for provision is constrained by assets available in estate.
LEGISLATION CITED:	Family Provision Act 1982 Testator's Family Maintenance and Guardianship of Infants Act 1916 Wills, Probate and Administration Act 1898
CASES CITED:	Golosky v Golosky (Court of Appeal, unreported, 5 October 1993) Luciano v Rosenblum (1985) 2 NSWLR 65 Singer v Berghouse (1994) 181 CLR 201
DECISION:	1. I order that, in addition to the benefits given to her by the will of the late Brian Kenneth Shirt ("the Deceased"), the Plaintiff receive a further legacy of $340,000, such legacy not to bear interest if paid on or before 26 July 2002, and if not so paid to bear interest at Supreme Court rates; 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased; 3. The exhibits may be returned.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 12 July 2002

3314/00 LORNA JANE RALPHS -V- LOLA JEAN SHIRT

JUDGMENT

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

2 By summons filed on 24 July 2000 the Plaintiff, Lorna Jean Ralphs, claims an order for provision for her maintenance and advancement in life out of the estate of the late Brian Kenneth Shirt (to whom I shall refer as “the Deceased”).

3 The Deceased died on 20 May 1999, aged fifty-four (he having been born on 30 January 1945). He left a will dated 12 February 1981, probate of which will (together with a codicil thereto dated 10 April 1985) was on 8 October 1999 granted to Lola Jean Shirt, the executor named in such will (who is the Defendant to the present proceedings).

4 By that will the Deceased gave to the Plaintiff a legacy of $30,000; he gave another legacy of $10,000 (which legacy was revoked by the codicil made on 10 April 1985); he gave his motor vehicle to the Plaintiff; and gave the residue of his estate to the Defendant. The Defendant is the mother of the Deceased.

5 The assets of the Deceased consisted of a house property situate at and known as 3 Roper Crescent, Sylvania Waters (to which an estimated value of $490,000 was attributed); moneys in bank accounts (totalling $98 – 3,300); a 1972 Ford Fairlane motor vehicle (to which a value of $3,700 was attributed).

6 The Plaintiff asserts that she was the de facto spouse of the Deceased at the time of his death. The Defendant does not dispute that status of the Plaintiff.

7 The Plaintiff was born on 4 April 1955, and is presently aged forty-seven. She is a registered nurse by profession. The Plaintiff first met the Deceased in 1974, when she was aged eighteen and was a student nurse. At that time the Deceased was a low level quadriplegic, as a result of injuries sustained in a water skiing accident on 9 January 1967, when he was aged almost twenty-two. At the time when the Plaintiff met the Deceased he was employed in a clerical position in a sheltered workshop conducted by the Civilian Maimed and Limbless Association, and was in receipt of a disability pension.

8 The relationship which thereupon developed between the Plaintiff and the Deceased did not receive the approbation of the Plaintiff’s parents. In consequence, the Plaintiff became estranged from her parents and thereafter had little contact with them.

9 The Plaintiff and the Deceased commenced to live together in 1979, by which time the Plaintiff had qualified in the nursing profession. They resided for their first nine months together in Tasmania. The Deceased was not in employment throughout that period in Tasmania and the major source of income for the Plaintiff and the Deceased was the earnings of the Plaintiff as a registered nurse. In 1980 the Plaintiff and the Deceased returned to Sydney, where they resided with the Defendant for about ten months. Also in 1980 the Deceased’s father died, and the Plaintiff entered employment at the Redfern Community Health Centre.

10 At the commencement of the relationship neither the Plaintiff nor the Deceased had any significant assets, although the Deceased at that time owned a motor vehicle which had been modified to enable him to drive with hand controls.

11 It was in 1980 also that the Deceased received a settlement of about $280,000 in the Court proceedings which he had instituted in consequence of the injuries sustained by him to the spinal cord in the water skiing accident. With those settlement moneys the Deceased decided to purchase a residence. Because of the Deceased’s physical disabilities, it was the Plaintiff who conducted the initial inspections of various house properties. The Deceased and the Plaintiff ultimately decided on the house property situate at and known as 3 Roper Crescent, Sylvania Waters. The purchase price of the Roper Crescent residence was about $140,000. All the furniture, furnishings and renovations for that house were chosen and decided upon by the Plaintiff and the Deceased together.

12 Most of the balance of the Deceased’s settlement moneys was initially placed in management funds, and subsequently in a trust with a trustee company, of which the Plaintiff and the Defendant were directors. After that trust was terminated the moneys therein returned to the legal ownership of the Deceased.

13 Throughout the de facto relationship of the Plaintiff and the Deceased, which obtained for a period of twenty years, the Plaintiff was the principal, and at times the sole, carer of the Deceased. At the beginning of their relationship the Deceased was able to operate a manual wheelchair, although he had limited arm/hand function. He was also able to drive a motor car with hand controls. However, he could not dress or wash himself completely. The Plaintiff assisted the Deceased in getting from bed to wheelchair, and also assisted with his toileting.

14 In about 1984, when the Deceased was aged thirty-eight, he suffered a cerebral haemorrhage. The Deceased’s use of his right arm was severely affected. He was no longer able to drive a motor vehicle. Neither could he operate a manual wheelchair, and it was necessary for an electric wheelchair to be purchased for him.

15 In consequence of the Deceased’s cerebral haemorrhage the Plaintiff obtained leave without pay from her employment at the Redfern Community Health Centre for a period of six months. Financial necessity caused her to resume employment at the end of that period. Thereafter it was the practice of the Plaintiff to get the Deceased out of bed, wash and clothe him, ensure that he had refreshments, prepare food for his luncheon and leave it available for him.

16 After the Defendant retired from employment in 1986 it became her practice to call at the Roper Crescent residence for a few hours on most weekdays, to prepare the Deceased’s luncheon.

17 At that period there was a close and harmonious relationship between the Plaintiff and the Defendant. Indeed the Plaintiff regarded the Defendant almost in the role of a surrogate mother. The evidence reveals that the Deceased in his physical incapacity was the object of very loving and devoted care from these two women, his de facto wife and his mother.

18 In about 1988 the Plaintiff undertook a four months full time Geriatric Nursing Certificate course at the Concord Repatriation Hospital. In order to have sufficient funds to meet the living expenses of the Deceased and herself during that period the Plaintiff cashed in her superannuation entitlements.

19 After completing the geriatric course, the Plaintiff work at the Canterbury Health Centre for several months, and subsequently undertook part-time office work for an acquaintance, who was also a quadriplegic.

20 In about 1989 the Plaintiff was employed for about six months as a community nurse with the Redfern Community Health centre. In 1990 she commenced employment with the Sylvania Community Centre (which was located within ten minutes’ drive from the Roper Crescent residence).

21 From then until his death about nine years later the Deceased’s health condition deteriorated, and the responsibilities of the Plaintiff as his principal carer increased commensurately. It must be recognised that in this role the Plaintiff was exercising her practical skills and expertise as a professional nurse.

22 The Plaintiff herself suffered a lumbar disc protrusion in a work related accident in about 1998. She was off work for some time and received workers compensation. Community nurses attended at the residence for a short period whilst the Plaintiff was suffering from the results of that work related accident. Nevertheless, the Deceased preferred the ministrations of the Plaintiff, especially where they involved assistance with is toileting and other intimate activities, and the services of the community nurses were dispensed with. The Plaintiff resumed being the principal full-time carer of the Deceased. However, the Plaintiff, on account of her own physical disability to her back, was no longer able to lift the Deceased, and it was necessary for an electric hoist to be purchased for that purpose.

23 The Deceased’s health deteriorated significantly in 1998. It was necessary for him to have a skin graft to his hip, in consequence of bed sores which he had developed. He was also in that year diagnosed with cancer of the bowel, liver and kidney, and underwent surgery for bowel cancer in late 1998.

24 In March 1999 the Deceased was admitted to the Sutherland Hospital in intensive care. He remained in hospital until his death on 20 May 1999. The Plaintiff spent considerable periods of time with the Deceased while he was in hospital for the two and a half months preceding his death. Indeed, she took leave from work in order to be with him for eight to nine hours each day.

25 Even whilst he was in hospital the Plaintiff attended to the personal needs of the Deceased (including turning him in bed, wound dressing, catheterisation, bowel regime, tracheostomy care).

26 Apart from the periods already referred to, the Plaintiff was in full-time employment throughout the twenty years of the relationship, and had always been the major financial support of the family unit. However, it was the Deceased who managed the family finances and directed the payments. It was the practice of the Plaintiff, at least in the early years of the relationship, to give to the Deceased her earnings, which were then used by him to meet family and household expenses.

27 After the grant of probate the Plaintiff in December 1999 was paid the legacy of $30,000 given to her by the will of the Deceased. The Defendant also reimbursed the Plaintiff for the moneys which she had expended on the funeral of the Deceased. At the same time the Defendant distributed to herself the sum of $62,729. (I gather that that sum represented the balance then remaining of the cash assets in the estate.) The Defendant had met from her own funds the totality of the funeral expenses (part of which had originally been paid by the Plaintiff, but which subsequently was reimbursed by the Defendant to the Plaintiff).

28 The Plaintiff has never been married. The Deceased had been married in 1970, to one Sandra Munday. That marriage broke down after three months, and the Deceased returned to reside with his parents. The Deceased and his wife were divorced in about 1978 or 1979. That marriage had come to an end before the Plaintiff and the Deceased entered into their de facto relationship. The Plaintiff never met the Deceased’s wife.

29 It has already been recorded that the Deceased was in receipt of a disability pension. At the time of his death that pension was in an amount of $344 a fortnight. The Deceased was also at that time receiving interest upon the amount of about $100,000 which he had invested, that amount representing most of the balance of the settlement verdict, after the Roper Crescent residence had been purchased. According to the Defendant, the Deceased at the time of his death was receiving in excess of $400 a month by way of such interest. That interest was paid into a Streamline Account in the name of the Deceased with the Commonwealth Bank.

30 Until he entered into the de facto relationship with the Plaintiff the Deceased had resided at home with his parents at Carlton. The Deceased’s father had been retrenched from employment in 1963, and never returned to work thereafter. From that time onwards the Deceased’s mother, the Defendant, was the sole income earner for her family. From 1963 until 1986 the Defendant worked two jobs. The Defendant was born on 14 June 1916, and is presently eighty-six years of age.

31 From the time of her retirement from employment in 1986 until his death some fourteen years later the Defendant shared the care of the Deceased with the Plaintiff, the Defendant being at the Roper Crescent residence for five days each week.

32 The Defendant between 1989 and 1991 caused to be constructed a residence at Mollymook, using her savings for that purpose. Until 1998 it was the practice of the Defendant to let that house at Christmas and Easter. It was the Defendant’s evidence that she regularly gave to the Deceased one half of the net rental which she received from that house property.

33 In 1990 the Defendant’s brother died and she received from his estate about $160,000. From that amount the Defendant gave to the Deceased sum of $5,000 in cash. According to the Defendant’s evidence she gave to the Deceased additional sums totalling about $12,000 in cash between 1991 and 1997. That money was derived from interest payments which the Defendant received from investments.

34 The close and affectionate relationship which had obtained between the Plaintiff and the Defendant throughout most of the period whilst the Plaintiff was the de facto spouse of the Deceased continued for some months after the death of the Deceased in May 1999. However that relationship subsequently soured. Although it was the evidence of the Defendant that she was content for the Plaintiff to continue to reside in the Roper Crescent residence for as long as the Plaintiff wished, nevertheless, a decision was made (for reasons which do not emerge with clarity from the evidence, that of the Plaintiff and of the Defendant conflicting in this regard) that the Roper Crescent residence should be sold. There appears to have been a proposal between the Plaintiff and the Defendant that from the proceeds of sale of the Roper Crescent residence a townhouse should be acquired for the Plaintiff. That proposal did not come to fruition, and the evidence of the Plaintiff and the Defendant concerning such proposal is in conflict. It is not essential, for the purposes of the present proceedings, that I resolve those conflicts of evidence.

35 The Roper Crescent residence was sold in June 2000 for a net amount (after payment of agent’s commission, legal costs and adjustments) of $493,227. The major part of that amount was invested in a term deposit with the National Australia Bank; and since 1 April 2002 has been held on call. That investment is earning interest, upon which income tax in a relatively small amount will be payable. The total amount thus invested (representing principal and interest) is about $514,000, which represents the present undistributed assets of the estate.

36 However, in calculating the value of the estate presently available for distribution, allowance must be made for the costs of the present proceedings. If the Plaintiff is successful in her claim, she will be entitled to receive her costs out of the estate. Irrespective of the outcome of the proceedings, the Defendant will be entitled to receive her costs out of the estate. The total costs of the Plaintiff are estimated to be in the order of $72,500. Those of the Defendant are estimated to total between $95,000 and $98,000.

37 I am somewhat surprised at the amount of the foregoing estimations of costs. The actual hearing of this matter occupied only two days. A third day (18 February 2002), between those two days, was appointed for the continuation of the hearing, but, upon the joint application of both parties, that date was vacated. No order was made in respect to the costs of that day or as to any costs thrown away by reason of the vacating of that hearing date, to the intent that each party would bear her own costs thereof. I consider that for a two day hearing of a case which was in no way out of the ordinary, either as to facts or as to law, a total amount of $170,500 for costs (representing more than a quarter of the value of the estate) is excessive.

38 Nevertheless, when allowance is made for costs totalling about $170,500, the amount then available for distribution will be about $327,000. However, if the foregoing total amount of $170,500 in respect to costs includes costs attributable to the vacated hearing date of 18 February 2002, the entirely of that total amount of costs will not be payable out of the estate. In consequence, therefore, the amount available for distribution will be somewhat greater than $327,000. It will probably be no less than about $340,000.

39 At the present time the Plaintiff is living in rented accommodation, being a home unit situate at 99 Evelyn Street, Sylvania, for which she pays rent of $200 a week. Her total outgoings are about $530 a week. The Plaintiff currently earns about $650 a week net from her employment. The Plaintiff’s present residence is sparsely furnished. When she departed the Roper Crescent residence she took with her little in the way of furniture and household goods. Once again, there is a degree of obscurity surrounding the reason why the Plaintiff upon her departure from Roper Crescent left behind so much of the furniture and household contents, especially as it would appear that much of that furniture and contents had been purchased conjointly by the Plaintiff and the Deceased, such purchases having been funded, at least in part, from the earnings of the Plaintiff.

40 The Plaintiff as the de facto spouse of the Deceased is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings.

41 The only other eligible person in relation to the Deceased is Sandra Munday, the former wife of the Deceased. She has not been served with a notice of claim, since her whereabouts are unknown. The Defendant has submitted that the requirement of service of a notice of claim upon the former wife of the Deceased should be waived. Having regard to the shortness of her marriage and the fact that that marriage occurred more than thirty years ago, I consider that it is appropriate for that requirement to be waived, and that it is unnecessary for me to have regard to the interests of the former wife.

42 The claim of the Plaintiff must, however, be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only such competing claim is that of the Defendant, who is the residuary beneficiary named in the will, and who is the chief object of the testamentary beneficence of the Deceased.

43 It will be appreciated that the Deceased made his will more than eighteen years before his death, and no more than two years after the commencement of his de facto relationship with the Plaintiff. There is some evidence from the Plaintiff which suggests that the Deceased may have believed that he would outlive his mother. Since his father was no longer living when the Deceased made the will, the consequence of his mother dying before him would have been a partial intestacy (as to the major part of the estate), and the Plaintiff as the de facto spouse of the Deceased would have been entitled to the entirety of the estate upon that partial intestacy (Wills, Probate and Administration Act 1898, sections 32G(2) and 61B).

44 It has already been recorded that the Defendant is presently aged eighty-six, and that she was the sole income earner of her family from 1963 (when her husband was retrenched) until her retirement from employment in 1986. For much of that period she worked in two jobs, in a factory at Padstow during the day and, from about 1976 to 1986, in a second job at night typing medical reports for a group of doctors.

45 The Defendant and her husband had two children, the Deceased and another son, Richard Albert Shirt. However the Defendant has not seen or heard from her son Richard for more than twenty-five years.

46 The Deceased lived at home with the Defendant and her husband, other than (as I understand it) during the short period of his marriage 1970, until he commenced living with the Plaintiff in 1979.

47 I have already made reference to the care and attention which the Defendant devoted to the Deceased, especially after he suffered his cerebral haemorrhage in 1984 and after the Defendant retired from employment in 1986.

48 I have also made reference to the house which the Defendant had constructed in Mollymook in about 1990 and to the gifts to the Deceased which the Defendant said she made from the rents of that house. That was, in fact, the second house which the Defendant had owned at Mollymook. The first house owned by her was sold for about $135,000 and the proceeds were used to purchase the land and to construct the house there which the Defendant currently owns (the total cost of that land and construction being in the vicinity of $170,000).

49 No evidence concerning the present financial and material circumstances of the Defendant was placed before the Court. (I note, in this regard, that Counsel for the Defendant did not read paragraphs 44, 45 and 46 of the affidavit of the Defendant sworn 20 September 2000.) It is, therefore, my understanding (an understanding consistent with the submissions of Counsel for the Defendant) that the Defendant does not suggest that any order for provision an entitlement to which might otherwise be established by the Plaintiff should, on account of the financial and material circumstances of the Defendant, be reduced, or, indeed, extinguished. Nevertheless, of course, the Plaintiff must establish her own claim upon its own merits.

50 It is in the light of the foregoing facts and circumstances that I must proceed to a consideration of the claim of the Plaintiff.

51 I have had the benefit of receiving from Counsel for the respective parties detailed chronologies and also from Counsel for the Defendant a written outline of submissions. Those documents will be retained in the Court file.

52 The evidence on behalf of the Defendant contained criticisms by the Defendant concerning alleged shortcomings in the Plaintiff’s care of the Deceased. However, those criticisms were never expressed by the Defendant to the Plaintiff during the lifetime of the Deceased (or, as I understand it, after the death of the Deceased). Neither did the Deceased himself offer any significant criticisms of the manner in which he was cared for by the Plaintiff. There were, however, a couple of incidents referred to in the evidence of the Defendant (which were denied by the Plaintiff or of which she was unaware) concerning the failure of the Plaintiff to leave food or drink for the Deceased whilst she was at work, and concerning a somewhat curious incident relating to footwear. The Deceased is alleged to have requested the Defendant to count the quantity of the Plaintiff’s shoes reposing in a certain room at Roper Crescent. Since the Deceased was mobile in a wheelchair at the time and since he had full access to all parts of the residence, including the room where the Plaintiff’s footwear was located, it seems somewhat curious that the Deceased needed to request his mother to count the number of pairs of shoes which were possessed by the Plaintiff.

53 It is not in my view necessary for me to make any findings relating to these rather unimportant incidents where the evidence of the Plaintiff and the evidence of the Defendant are in conflict. It is not submitted on behalf of the Defendant that the Plaintiff has been guilty of what formerly (in respect to the statutory predecessor of the present legislation, being the Testator’s Family Maintenance and Guardianship of Infants Act, 1916) was referred to as conduct disentitling.

54 Another aspect of the evidence can in my view also be put out of consideration. Evidence was given concerning the gambling habits of the Plaintiff. She freely admitted that, especially after the death of the Deceased, she had on account of feelings of depression on occasion indulged in bouts of gambling. Indeed, she had lost in gambling about half of the legacy of $30,000 which she had received from the estate in December 1999. However, it was the evidence of the Plaintiff at the hearing that she had not gambled for the preceding fourteen months.

55 I do not consider that the gambling activities of the Plaintiff have any bearing upon the outcome of this case, except to the extent that in consequence of those activities, the Plaintiff has nothing to show for about half the legacy of $30,000 which she received in December of 1999. Even that fact is of little relevance to the outcome of the present proceedings, since the Court must exercise its discretion having regard to the circumstances at the present time.

56 I have already referred to evidence which was adduced concerning the Plaintiff, often in the company of the Defendant, looking for other accommodation after the death of the Deceased. I consider that evidence to be largely irrelevant to the present claim of the Plaintiff.

57 In exercising the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210, the Court must first determine whether the provision made for the Plaintiff was inadequate for her proper maintenance and advancement in life.

58 After a de facto relationship obtaining for twenty years, in circumstances where the Plaintiff was the principal carer of the Deceased, a quadriplegic who suffered other significant health problems, and where the Plaintiff was in full time employment during most of that period and contributed the entirety of her earnings to household outgoings and expenditure, I have no hesitation in expressing my conclusion that a legacy of $30,000 and the gift of a motor car almost twenty years old was, in the circumstances of this case, totally inadequate for the proper maintenance and advancement in life of the Plaintiff.

59 In Luciano v Rosenblum (1985) 2 NSWLR 65 Powell J (as he then was) said, at 69-70,

It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.

60 I would emphasise that there should be no distinction between the claim of a widow who is such by reason of a ceremonial marriage and the claim of a de facto widow. In Golosky v Golosky (Court of Appeal, unreported, 5 October 1993) Kirby P (with whom Cripps JA agreed) said, at 16,

[I]t had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the Deceased will permit such course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies.

61 In the instant case, had the Roper Crescent residence not already been sold, I would have had little hesitation in making an order that the Plaintiff receive absolutely that residence (which had been her home for almost twenty years). Since that property has, in circumstances which remain somewhat obscure, been sold, the Plaintiff should, to the extent that the assets of the estate allow this to be done, receive from the estate a legacy sufficient to enable her to acquire an appropriate residence.

62 The Defendant accepts that that should be done, but disputes the appropriate level and nature of accommodation which the Plaintiff submits that she should receive.

63 It is the desire of the Plaintiff that she should be enabled to acquire a townhouse (which the evidence discloses to be a residence of two levels with a garden) in the Sylvania/Miranda locality, and that such townhouse should have three bedrooms. The Plaintiff referred to her extensive collection of books (which would require the third bedroom to constitute a library) and to her love of gardening (which would make a townhouse more appropriate than a home unit). The Defendant, however, submitted that a two bedroom home unit in the Sylvania/Miranda area would be adequate and appropriate for the Plaintiff.

64 Evidence was given on behalf of the Plaintiff concerning the cost of various three bedroom townhouses in the preferred area, such residences being at prices ranging from $380,000 to $480,000. On behalf of the Defendant evidence was given that a two bedroom home unit in that area could be acquired for prices within the range of $235,000 to $295,000. (The evidence on behalf of the Plaintiff was that the price range of such home units was from $260,000 to $300,000.) It was submitted on behalf of the Defendant that a sum in the order of $275,000 to $295,000 would permit the Plaintiff to buy a reasonable/good quality home unit and potentially to have funds left over.

65 In my conclusion it is not appropriate that the Plaintiff, who resided with the Deceased in a three bedroom residence with a garden (one of those bedrooms serving as a library) for a period of twenty years, and to the furnishing, decoration and maintenance of that residence and to the upkeep and outgoings thereof the Plaintiff throughout that period expended the totality of her earnings, should now be relegated to living in accommodation which is smaller, more restricted, does not have a library, does not have a garden, and is not what the Plaintiff wants.

66 In my conclusion, to the extent that the assets of the estate are sufficient, the Plaintiff should receive from the estate a legacy which will enable her to purchase a three bedroom townhouse in the Sylvania/Miranda area. For that purpose the Plaintiff will need at least $380,000 (that being the lowest figure of the foregoing price range). In addition, evidence has been given of the cost of additional furnishings and furniture which the Plaintiff will need, and to the legal costs and associated expenses in acquiring such a home unit (such latter costs and expenses totalling $17,500).

67 The Court, however, is confronted with a practical problem. After the partial distribution ($92,729) and after allowance is made for costs, there remains in the estate only about $327,000 (probably somewhat more, if the costs of both parties of 18 February 2002 be disregarded). Unless recourse be had to the partial distribution of $62,729 received by the Defendant, the practicalities of the situation preclude the Court from awarding to the Plaintiff more than about $340,000. It was submitted on behalf of the Defendant that the distributions made to the Plaintiff and the Defendant should not be disturbed. I am in agreement with that submission.

68 I do not consider that the partial distribution to the Defendant (whose competing claim is relevant to determining the nature of the provision to be made for the Plaintiff) should be disturbed. My reasons include not only the size of the estate and the amount presently available for distribution, but also the fact that the Defendant was the chief object of the testamentary beneficence of the Deceased, the mother-son relationship between the Defendant and the Deceased, and the loving and devoted maternal care manifested by the Defendant towards the Deceased during more than thirty years of his physical incapacity.

69 Had the assets of the estate presently available for distribution been greater, and had they been sufficient to enable me to do so, I would have been disposed to make an order that the additional legacy be in an amount of $397,500. However, constrained by the size of the estate, and for the foregoing reasons, I consider that the appropriate amount of such legacy should be $340,000. The present income of the Plaintiff is such that she will doubtless have little difficulty in being able to obtain finance to meet the difference between the amount of such legacy and the cost of a three bedroom townhouse in her preferred location.

70 Accordingly, I make the following orders:

(1). I order that, in addition to the benefits given to her by the will of the late Brian Kenneth Shirt (“the Deceased”), the Plaintiff receive a further legacy of $340,000, such legacy not to bear interest if paid on or before 26 July 2002, and if not so paid to bear interest at Supreme Court rates.

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

(3). The exhibits may be returned.

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Last Modified: 03/06/2003