Re Estate Di Meglio; Di Meglio v Carle

[2018] NSWSC 1690

Supreme Court

New South Wales

Medium Neutral Citation:	Re Estate Di Meglio; Di Meglio v Carle [2018] NSWSC 1690
Hearing dates:	4, 5, 6 and 7 September 2018
Decision date:	04 December 2018
Jurisdiction:	Equity - Family Provision List
Before:	Lindsay J
Decision:	Family provision order to be made in favour of the plaintiff, the effect of which is to increase by about $50,000 the provision made for him under the will of the deceased
Catchwords:	SUCCESSION – Family provision and maintenance – Extension of time for making an application – Plaintiff is an incapable person in need of a tutor – Defendant was for some time financial manager of the plaintiff – No prejudice flowing from extension of time – Extension granted   SUCCESSION – Family provision and maintenance – Application by adult child under legal incapacity – Circumstances of the plaintiff require additional provision – Plaintiff currently entitled to an indeterminate fund held on trust – Testamentary trust replaced by provision paid to plaintiff’s financial manager – Present provision for maintenance insufficient – Provision granted
Legislation Cited:	Guardianship Act 1987 NSW NSW Trustee and Guardian Act 2009 NSW Probate and Administration Act 1898 NSW Uniform Civil Procedure Rules NSW
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656 Goodman v Windeyer (1980) 144 CLR 490 Osborne v Smith (1960) 105 CLR 153 Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 Sgro v Thompson [2017] NSWCA 327
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Guiseppe (Joe) Di Meglio by his Tutor the NSW Trustee First Defendant: Maria Grazia (Grace) Carle Second Defendant: Angela Flemming Third Defendant: Franchina (Frankie) Kain
Representation:	Counsel: Plaintiff: P Blackburn-Hart SC and DC Eardley Defendants: G Waugh SC and JEF Brown   Solicitors: Plaintiff: Russo & Partners Defendants: James H Field
File Number(s):	2017/00147354

Judgment

INTRODUCTION

1. By a summons filed on 16 May 2017 (amended on 31 July 2017 and 16 August 2017), the plaintiff (an incapable person, now represented by the NSW Trustee as his tutor) applies for family provision relief (including an order extending the time within which an application for a family provision order can be made), under Chapter 3 of the Succession Act 2006 NSW, from the estate of his mother, Quintina Di Meglio (“the deceased”).

2. The deceased died on 7 July 2014, leaving a will dated 19 June 2014, probate of which was granted on 28 September 2015 to those four of her five children (that is, excluding the plaintiff) who are competent.

3. The deceased was married once only, to Giovanni. Her husband died in January 1990.

4. There were five children of the marriage.

5. Using the names by which they are commonly known, they were:

1. Grace (the first defendant), born in March 1955 and now aged 63 years.

2. Joe (the plaintiff), born in April 1956 and now aged 62 years.

3. Chris (formerly a defendant but no longer a party to the proceedings), born in June 1957 and now aged 61 years.

4. Angela (the third defendant), born in September 1958 and now aged 60.

5. Frankie (the second defendant), born in August 1960 and now aged 58 years.

6. The solicitor for the plaintiff also acts for Chris. In strict legal terms, the plaintiff and Chris are not in the same interest. However, Chris (a single man) is the carer of the plaintiff (an incapable person) as well as carer for his own disabled son (John), with both of whom he resides in the former family home at Glenorie. Before her demise, the deceased also lived there.

7. Chris’ son, John was born in April 1982. He is presently aged 36 years. He suffered a severe brain injury in 2009, for which he received a substantial award of compensation. Although he is, by reason of that award of compensation, entitled to a large capital sum (of the order of $10.25 million) presently under protected estate management, the intensive care he requires for his survival comes at a price which might leave him without adequate provision from his own resources before the expiry of his natural life. A licensed trustee company (Perpetual Trustee Company Ltd) manages his estate, as a protected estate, pursuant to the NSW Trustee and Guardian Act 2009 NSW. A solicitor for that company (Mr Indran Sinnaduri) attended the hearing of these proceedings on a watching brief, and provided evidence as to John’s affairs.

8. The plaintiff’s affairs are also subject to protected estate management. On 14 July 2015 the first defendant was appointed his financial manager (pursuant to the Guardianship Act 1987 NSW) by the NSW Civil and Administrative Tribunal (NCAT), Guardianship Division. On the application of Chris, on 19 February 2017 NCAT appointed the NSW Trustee as financial manager in lieu of the first defendant.

9. The present proceedings were commenced by a summons filed on 16 May 2017 at a time when, by operation of section 71 of the NSW Trustee and Guardian Act 2009, the plaintiff was legally incompetent to instruct his solicitors to commence proceedings. The amended summons filed on 31 July 2017 addressed practical concerns about the validity of the summons by providing for the plaintiff to sue by the NSW Trustee (by then, manager of his protected estate) as tutor.

10. On 15 August 2017 Hallen J made orders which settled the constitution of the proceedings:

1. the identity of the plaintiff’s contradictors was confirmed as the first, second and third defendants as now designated.

2. with the consent of Chris, an order was made, pursuant to the Uniform Civil Procedure Rules NSW, rule 7.8, for those defendants to have conduct of the proceedings on behalf of the estate of the deceased.

3. the plaintiff (by the NSW Trustee as his tutor) was granted leave to file a fresh amended summons, naming the first, second and third defendants as the only defendants in the proceedings (thereby acknowledging removal of Chris as a party to the proceedings).

11. On 16 August 2017 the plaintiff (by the NSW Trustee as tutor) filed the “amended summons” upon which he now moves the Court for relief.

12. Although Chris was removed from the proceedings as a defendant, he gave evidence on behalf of the plaintiff and participated in the hearing of the proceedings. By analogy with the principle enunciated in Osborne v Smith (1960) 105 CLR 153 at 158-159 in relation to probate proceedings, he can reasonably be expected to be bound by the outcome of the proceedings: although no longer named as a party, or formally represented, in them he had an ongoing interest in the proceedings, a comprehensive knowledge of them, and a reasonable opportunity to participate in them.

13. This is important to note because the defendants’ submissions included a contention that the burden of any family provision order made in favour of the plaintiff should be borne by Chris’ interest in the deceased’s estate (more particularly, a farm property at Bathurst). As Chris is a beneficiary named in the deceased’s will, section 61 of the Succession Act 2006 does not license the Court to disregard his interests upon a determination of the plaintiff’s family provision application. In fact, in social terms, the interests of the plaintiff and Chris are closely aligned. The plaintiff is socially dependent upon Chris to care for him. If a putative will of the plaintiff dated 13 April 2017 is valid, Chris stands to benefit (as the plaintiff’s primary beneficiary) in the event that he survives the plaintiff.

14. In light of this procedural history of the proceedings, no party contends that any irregularity attending their commencement affects the validity of the proceedings or the competency of the plaintiff’s claims for relief. Had the defendants taken a procedural objection to the plaintiff’s claims, an answer to such an objection may have been section 63 of the Uniform Civil Procedure Act 2005 NSW, reinforced by Hallen J’s reconstitution of the proceedings by orders made on 15 August 2017 and the parties’ active conduct of the proceedings as regular since that time.

15. Before passing beyond considerations of procedural history, it must be noted that the current proceedings are the third to have been instituted with respect to the estate of the deceased. Two earlier proceedings (neither of which involved active representation of the current plaintiff’s interests) have been resolved.

16. The first set of proceedings (numbered 2015/00193707) were commenced, by a summons filed on 2 July 2015, by which the present second and third defendants (Angela and Frankie) themselves applied for family provision relief. The defendants named in the summons were the present first defendant (Grace) and Chris.

17. On 19 December 2016 those proceedings were dismissed, by consent, by means of orders to the following effect:

[1]   ORDER that the whole of the proceedings be dismissed generally with the intention that the plaintiffs are prevented from bringing fresh proceedings or claiming the same relief in fresh proceedings.

[2]   Make no order as to the costs of the plaintiffs, to the intent that they will pay their own costs of the proceedings.

[3]   ORDER that the defendants’ costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of the deceased, Quintina di Meglio.

18. The second of the two sets of proceedings (numbered 2015/00377350) resulted in a family provision order being made in favour of Chris’ son, John. Those proceedings were commenced by a summons filed on 23 December 2015. Perpetual Trustee Company Ltd filed a consent to act as John’s tutor on 18 February 2016. On 13 February 2017 the defendants (all four of the deceased’s executors, including Chris) consented to orders the effect of which was to extend the time within which John’s family provision application could be made and to provide as follows:

“[5] ORDER that the settlement of the claim by the plaintiff [John], who is a person under a legal incapacity (a protected person), be approved pursuant to section 76(4) of the Civil Procedure Act 2005 NSW.

[6] ORDER, pursuant to section 59(2) and 65(2)(d) of the Succession Act 2006 NSW, that further provision be made for the plaintiff in lieu of the provision made to him in clause 3 of the will of the deceased, in the following terms:

(To precede clause 3.1)

3A.   I give to my grandson JOHN DI MEGLIO a life interest in my home subject to the concurrent rights of the other beneficiaries named in this clause and the rights, powers and obligations set out in this clause in relation to those beneficiaries which shall apply mutatis mutandis to the life tenancy hereby created.

[7]   Make no order as to the plaintiff’s costs to the intent that he will bear his own costs of the proceedings.

[8]   ORDER that the costs of the defendants, calculated on the indemnity basis, be paid or retained as the case may be, from the estate of the deceased.

…

[10]   NOTE that the Court has not disregarded the interests of Guiseppe (Joe) Di Meglio who is a beneficiary named in the Will, of the deceased, and a person under a legal incapacity (a protected), but is satisfied that his financial manager, Maria Grazia Carle, consents to the settlement of the proceedings and the order made in favour of the plaintiff.”

THE DECEASED’S WILL

19. By her will, the deceased named the defendants and Chris as her executors and trustees (defined as “my executors”).

20. By clause 3 of the will, the deceased disposed of her home at Glenorie by conferring upon the plaintiff, Chris and Chris’ son John a right of occupation (to use a neutral expression), with provision for the executors to acquire a substituted residence for “the Life Tenants”, and with provision for the property the subject of the gift to fall into residue in due course. That clause was amended by John’s family provision order to provide that his interest now takes the form of a life estate.

21. By clause 4 of the will, the deceased gave her Bathurst property to Chris for his absolute use and benefit. By the same clause, she declared that he had had his own home on a property at Dural owned by her and that he gave up that home (when she sold the property) without receiving any money for his home. She expressly stated that she left the Bathurst property to Chris “as a payment for the loss he suffered when he gave up his home.”

22. By clause 5 of the will (subject to clause 11), the deceased dealt with “the proceeds of my bank accounts”:

1. as to one-fifth of the proceeds, by subjecting them to a trust set forth in schedule 1 to the will.

2. as to the remaining four-fifths, by giving that share to the defendants and Chris as tenants in common in equal shares.

23. By clause 6 of the will, the deceased named the defendants and Chris as her residuary beneficiaries.

24. By clause 8 of the will, the deceased appointed Chris and Grace “to be the guardians of my disabled son”, the plaintiff. Nothing presently turns on this; but it could do if, in the context of clause 3, a decision has to be made about the plaintiff moving to substitute, or alternative, accommodation.

25. By clause 11 of the will, the deceased directed that “any administration expenses of my estate shall be paid out of the cash moneys held by me in my bank accounts.”

26. Schedule 1 of the will established a trust which, nominally, takes the form of a discretionary trust for the benefit of the plaintiff, the defendants, Chris and any grandchildren of the deceased. As senior counsel for the defendants acknowledged, its form cannot disguise a clear intention that the trust fund be used exclusively for the benefit of the plaintiff before, on his death, passing to the deceased’s residuary beneficiaries. The terms of schedule 1 themselves manifest a clear intention that the plaintiff be favoured, an intention strengthened by clause 5 of the will, which (in substance) points towards a share of the proceeds of the deceased’s bank accounts being appropriated for the benefit of the plaintiff.

THE DECEASED’S ESTATE

27. As revealed in the Inventory of Property annexed to the grant of probate issued in respect of the deceased’s will (with some updated valuations agreed between the parties), the deceased’s estate comprises in substance:

1. the Glenorie property, with a present estimated value of $2,750,000.

2. the Bathurst property, with a present estimated value of $600,000.

3. a Toyota Land Cruiser, with an estimated value of $19,500.

4. Cash at bank, formerly held in three separate accounts, totalling (as at 10 August 2018) $1,335,242.

5. household contents held at the Glenorie property, with an estimated value of $7,500.

28. In these proceedings, nobody seeks to disturb the interests which the plaintiff, Chris and John have (by way of a right of occupation or life tenancy) in the Glenorie property. That property, or other property referable to it, will in due course (at some indefinite time, perhaps long in the future) pass to the deceased’s residuary beneficiaries or their respective estates.

29. The focus for attention in these proceedings is really upon the estate’s cash fund of $1,335,242 presently held in the estate’s solicitor’s trust account. From that sum, must be deducted debts totalling $81,279 referable (as to $76,000) to costs unpaid from previous litigation and (as to $5,279) probate fees said to have remained unpaid.

30. Upon an assumption that the Bathurst property is not to be burdened with any order for provision, or costs, that leaves a net sum of $1,253,963 available to bear the burden of any family provision order and any orders for costs made in the proceedings. Leaving aside a need to consider whether costs of these proceedings should be paid out of the estate, if (in deference to clause 5 of the will) that sum were to be divided five ways, the plaintiff’s one-fifth share would amount to $250,792.60.

31. In final submissions, the plaintiff sought an order that he be paid a legacy of $600,000 in lieu of the provision made for him in clause 5 of the will. That is said to be necessary so as to set aside a fund which might, in due course, be called upon for the provision of aged care accommodation for him should he be unable to be cared for at the Glenorie property.

32. The defendants’ response to the plaintiff’s quantification of his claim is, in part, to point to the inequity of such an outcome for them. If the net available fund were to be subjected to an order for provision for the plaintiff in the sum of $600,000, and to orders for the payment of the parties’ costs of these proceedings (estimated to be of the order of $478,937 in total), that would leave a reduced balance of $174,026 to be divided between the four residuary beneficiaries (the defendants and Chris) so that each of those beneficiaries would obtain a benefit of approximately $43,756 pending that indeterminate future time when the Glenorie property falls into residue.

33. The parties’ competing narratives in these proceedings were hotly contested, in large part because, in my assessment: (a) Chris has understandable anxieties about how he can cope with an uncertain future in caring for John and the plaintiff at the Glenorie property (with no clear pathway for the plaintiff to move to aged care accommodation should it be required); (b) the defendants are anxious because they can see their substantive interest in their mother’s estate deferred indefinitely for the benefit of the plaintiff, Chris and John, as they themselves experience ageing and its attendant problems; and (c) the defendants’ anxieties are fuelled by the plaintiff’s execution of a will dated 13 April 2017 (witnessed by the plaintiff’s solicitor and a medical practitioner) which, if valid, favours Chris and John whilst denying any benefit to them.

34. The defendants fear that any provision ordered in favour of the plaintiff at their expense will enure to the benefit of Chris – who, with John and the plaintiff, in the meantime keeps them out of any substantial inheritance associated with the Glenorie property.

35. The defendants sought to escape their dilemma by inviting the Court to impose the burden of any family provision order upon the Bathurst property. However, in my assessment, this is not a reasonably available option. That is because: (a) there is no substantial dispute that the Bathurst property is to pass to Chris as compensation for what the deceased regarded as a concession made by Chris in her favour; and (b) the evidence before the Court is that the Bathurst property provides a safe haven for the plaintiff to spend time away from the Glenorie property, in the presence of neighbours who are prepared to keep an eye on him. If any provision is to be made for the plaintiff, the practical reality is that the burden of it should be borne by the estate’s cash.

36. An undue amount of time at the final hearing of the proceedings was devoted to two issues which largely fell away.

37. The first of these was the defendants’ objection to the plaintiff having the benefit of an order extending the time within which he might apply for a family provision order. The unreality of that case is exposed by the fact that the plaintiff is and was at all material times an incapable person and, until after the present proceedings were commenced, his protected estate was managed by the first defendant herself. Nor is there any material prejudice to any person arising from an extension of time. The time within which the plaintiff can apply for family provision relief should be extended to accommodate his application in these proceedings as properly constituted.

38. The second issue was a complaint by the defendants that Chris has been promoting the present proceedings as a means of forcing a sale of the Glenorie property to him on favourable terms. That complaint appears to have arisen, in large part, because Chris did contemplate, in settlement discussions which came to nothing, that he might buy the property as a means of securing his, the plaintiff’s and John’s entitlements to continue living at the property unconstrained by the terms of the deceased’s will. Grounds for the complaint died away as it became increasingly evident that all parties have to focus upon the availability of the deceased’s cash if the proceedings are to be the subject of a practical outcome.

THE PERSONAL CIRCUMSTANCES OF COMPETING CLAIMANTS ON THE DECEASED’S BOUNTY

The Plaintiff

39. Finances. In addition to his entitlements under the will of the deceased (a right of occupancy in the Glenorie property and, via a discretionary trust, an expectancy approximating an interest in one-fifth of the defendant’s cash funds), the plaintiff has financial investments (balances in a NSW Trustee trust account and moneys on deposit with the National Australia Bank) worth about $69,000.

40. The NSW Trustee receives his Centrelink pension ($967.45 per fortnight), from which it pays him a weekly allowance of $250.00. From moneys held for the plaintiff, the NSW Trustee pays one-third of insurances on the Glenorie and Bathurst properties; and deducts a monthly management fee. It also gives consideration to payments for discretionary expenditure, and reimbursement of expenses incurred on behalf of the plaintiff.

41. The NSW Trustee regards the plaintiff’s income as sufficient to meet his current expenditure. Nevertheless, it acknowledges that the plaintiff benefits from payments made by Chris, and it expresses a concern that, if the plaintiff can no longer reside at the Glenorie property, he may be required to pay for alternative accommodation, with limited available resources.

42. Health. Statements of the plaintiff’s medical condition focus on his intellectual incapacity (said to be “mild”, but likely to deteriorate) and his almost total reliance on Chris for his day-to-day living arrangements.

John

43. No party to the present proceedings suggests that the entitlements of Chris’ son, John, under the will of the deceased (as varied by the family provision order made in his favour in earlier proceedings) should be affected by the outcome of the current proceedings. The burden of any family provision order made in favour of the plaintiff is not to be borne by John.

Chris

44. Finances. In addition to his entitlements under the will of the deceased (an entitlement to the Bathurst property, a right of occupation in the Glenorie property, a one-fifth share in the deceased’s cash funds and a quarter share in her residuary estate), Chris’ principal asset is a term deposit of about $365,000 held with the National Australia Bank.

45. Chris receives a carer allowance and rental assistance of about $538.00 per week, and a small amount of interest on his NAB funds. His regular expenses include a one-third share of rates, insurance and utilities.

46. Health. Chris has a long list of physical ailments which extends from head to toe, including migraine cluster headaches; dental, eyesight, hearing and respiratory problems; several aches and pains; vertigo; and depression and anxiety relating to the condition of his son, John.

The First Defendant (Grace)

47. Finances. The first defendant is married to Bruce, 12 years her senior. They have four adult children. Her entitlements under the will of the deceased comprise a one-fifth share of the deceased’s cash funds, and a one quarter share of the residuary estate (in essence, a remainder interest in the Glenorie property) .

48. The first defendant and her husband own their own home at Baulkham Hills. Apart from that, their principal assets comprise bank deposits (about $430,000.00 in the first defendant’s name and about $305,000.00 in the her husband’s name), and the first defendant’s superannuation entitlements of about $150,000.00. They have no significant liabilities, although their home is in need of repair.

49. The first defendant works five days a week as a retail manager, earning approximately $825.00 per week net after tax. Her husband is a self-employed electrician, on the cusp of retirement through age and ill health. Substantially dependent upon the first defendant’s income for ordinary living expenses, they are apprehensive about having to dip into their savings.

50. Health. The first defendant has several health issues: neck pain; pain in the lower back and hip; headaches; poor eyesight and thyroid problems. Her husband has had two knee replacements (which restrict his mobility) and he is concerned about potential future problems with troublesome nodules on his lungs.

The Second Defendant (Angela)

51. Finances. The first second defendant is married to Garry, approximately the same age as her. They have two adult children. Her entitlements under the will of the deceased comprise a one-fifth share of the deceased’s cash funds, and a one quarter share of her residuary estate (a remainder interest in the Glenorie property).

52. The second defendant and her husband own their own home at Cundletown, subject to a small mortgage. Apart from that, their principal asset comprises savings of about $355,000.00, including his superannuation entitlements. Their home is in need of repair.

53. The second defendant receives a disability pension. Her husband is retired, but he does casual work. Their income and expenses hover in close proximity but, with her husband’s retirement, they are dipping into savings.

54. Health. The second defendant, like Chris, has a full complement of health issues – which include chronic fatigue; sleep apnoea; migraines; and several other ailments. Her husband too, including one ankle replacement and need of another. Both need to have teeth repaired. Both have a full regimen of regular medication.

The Third Defendant (Frankie)

55. Finances. The third defendant is married to Gerry, about two years her senior. They have two dependent sons, just over the age of majority. The third defendant’s entitlements under the will of the deceased comprise a one-fifth share of the deceased’s cash funds, and a one quarter share of the residuary estate (a remainder interest in the Glenorie property).

56. The third defendant and her husband own their own home at Kenthurst, and an investment unit at Meadowbank, subject to a substantial mortgage debt. They have minimal savings; but they do have superannuation entitlements with a combined value of about $245,000.00.

57. The third defendant is a self employed cleaner, with an annual income of about $250,000,00. Her husband, employed as a meat consultant, earns about $150,000.00. They live within their means.

58. Health. The third defendant suffers from Carpal Tunnel Syndrome; back problems that hinder her work; and poor eyesight. Her husband has problems with his back, hearing and eyesight.

STATUTORY CRITERIA

59. The primary focus for attention in disposition of the plaintiff’s claim for family provision relief is on the interplay between sections 59(1)(c) and 59(2) of the Succession Act, having regard to the plaintiff’s incapacity; the limited resources available to him as he ages, and may need institutional care; his reliance on Chris as a carer; and the competing claims of his siblings, each of whom has a reasonable expectation of benefit from the deceased’s estate.

60. There is no dispute that, as a child of the deceased, the plaintiff is an eligible person: Succession Act, sections 57(1)(c) and 59(1)(a).

61. For reasons earlier stated, an order should be made (pursuant to section 58(2) of the Succession Act) extending the time within which the plaintiff can apply for a family provision order up to and including 16 August 2017, the date upon which the NSW Trustee (as tutor for the plaintiff) filed the “amended summons” upon which his claim for relief is founded.

62. As a child of the deceased, the plaintiff is not required (by section 59(1)(b) of the Succession Act) to satisfy the Court that there are factors which warrant the making of his application for a family provision order.

63. Sections 59(1)(c) and 59(2) of the Succession Act both require the Court to make an assessment of the plaintiff’s case as at the present time.

64. In making that assessment, the Court must endeavour to place itself in the position of the deceased and, paying due respect to the expressed testamentary wishes of the deceased (Sgro v Thompson [2017] NSWCA 327 at [70]-[75]), to consider what she ought to have done in all the circumstances of the case as presently revealed by the evidence, treating her for that purpose as wise and just (Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the criteria set out in sections 59-60 of the Succession Act which govern the Court’s power to make a family provision order.

ASSESSMENT OF THE PLAINTIFF’S APPLICATION FOR A FAMILY PROVISION ORDER

65. In terms of section 59(1)(c) of the Succession Act, I find that the plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life by the will of the deceased. That finding is a function of (a) the plaintiff’s intellectual incapacity; (b) the likelihood that, at some indefinite time in the future, he may require institutional accommodation in circumstances in which (because of subsisting rights of Chris and John) the Glenorie property cannot readily be sold, and, independently of the deceased’s will, he lacks resources to provide for his future care; and (c) the plaintiff’s dependency upon Chris to meet some of his living expenses.

66. Within the limits of the resources available to her, the deceased, by her will, recognised that provision should be made for the plaintiff’s accommodation and maintenance. The problem (not assisted by the way her children have engaged in litigation) is that the provision made for the plaintiff’s maintenance is insufficient for his proper maintenance, taking into account a present assessment of his needs, his dependency on Chris and contingencies.

67. Although there is a substantial similarity, if not close identity, between the criteria to which sections 59(1)(c) and 59(2) of the Succession Act provide, the problem of what to do with the plaintiff’s application for a family provision order presents itself more graphically in the context of section 59(2): What, if any, order, “ought to be made” for the plaintiff’s maintenance, education and advancement in life, out of the estate of the deceased, having regard to the facts of the case as presently known?

68. Given that the plaintiff’s estate is now managed by the NSW Trustee, there is little difficulty in reaching a settled view that the testamentary trust for which clause 5.1 of the deceased’s will provides should be displaced by an order for the plaintiff to receive a legacy. The primary problem is: How much?

69. There is no particular occasion for variation of the right of occupancy of the Glenorie property which (by virtue of clause 3.1 of the deceased’s will) the plaintiff enjoys, more or less in common with Chris and John. John’s family provision claim was settled on terms that converted his right of occupancy into a life estate. However convenient that may have been as a means of accommodating a settlement of that claim, nobody in the present proceedings has suggested that the distinction between a “right of occupancy” and a “life estate” has any practical significance for the plaintiff.

70. The question of the size of legacy the plaintiff should enjoy is related to the availability of estate property to fund it. There is no present need, or justification, for sale of the Glenorie property; the plaintiff, Chris and John have a settled home there, as the deceased intended. For the reasons earlier stated, there are good grounds for not disturbing the deceased’s gift of the Bathurst property to Chris; as a member of Chris’ household, the plaintiff enjoys life at Bathurst in circumstances that provide respite for Chris.

71. Operating within constraints of wisdom and justice, paying due respect to claims on the bounty of the deceased in competition with that of the plaintiff, my conclusion is that, in lieu of the provision made for him in clause 5.1 of the deceased’s will, the plaintiff should receive a legacy of $300,000.00, not the $600,000.00 he seeks. That represents an increase in his entitlements (unconstrained by a testamentary trust) of about $50,000.

72. Uncertainty about the future course of the lives of the plaintiff, Chris and John (and of the defendants and their respective husbands) counsels caution in making orders displacing, more than in a modest fashion, the provision made for the defendants. They have needs, and expectations, that must be accommodated. Too generous a grant of family provision relief to the plaintiff might not only deprive them of any substantial benefit from their mother’s estate in the near future. It might not greatly change the plaintiff’s lifestyle, but simply enure for the benefit of Chris should he survive the plaintiff.

73. The extra provision to be made for the plaintiff will serve to enhance the NSW Trustee’s capacity to make discretionary payments to or for the benefit of the plaintiff, and to contribute to the cost of institutional care should he require it. The deceased’s estate cannot afford to make a greater allowance for the potential capital cost of institutional care without: (a) unfairly depriving the defendants of their inheritance; (b) requiring Chris’ entitlement to the Bathurst property to be displaced in whole or part; or (c) compelling a sale of the Glenorie property before any one or all of the plaintiff, Chris and John are in need of alternative accommodation.

74. A practical factor which cannot be excluded from consideration is also the burden of the costs of these proceedings, robustly fought on both sides of the record. Despite misgivings about the way the litigation has been fought, my assessment is that the welfare of each of the deceased’s children would not be served by costs orders which do not provide for the burden of costs of the proceedings being borne by the cash funds comprising part of the deceased’s estate.

75. Counsel have agreed that a decision to award the plaintiff no more than about $50,000 provision beyond his entitlements under the deceased’s will can be made together with the usual form of costs orders made in family provision proceedings without a need for further submissions as to costs.

ORDERS

76. Accordingly, subject to allowing the parties an opportunity to make submissions about the form of the Court’s orders I propose to make the following orders:

1. ORDER that the time within which the plaintiff might apply for a family provision order affecting the estate of the deceased be extended up to and including 16 August 2017.

2. ORDER that, in lieu of the provision made for the plaintiff in clause 5.1 of the will of the deceased, he receive (from the property to which clause 5 refers) a legacy of $300,000.00.

3. ORDER that, if that legacy is paid within 28 days of the making of these orders, it bear no interest; but, if paid after that date, it bear interest (calculated at the rate for which section 84A of the Probate andAdministration Act 1898 NSW provides) from that date.

4. ORDER that the plaintiff’s costs of the proceedings be paid (from the property to which clause 5 of the will of the deceased refers) on the ordinary basis.

5. ORDER that the defendants’ costs of the proceedings be paid (from the property to which clause 5 of the will of the deceased refers) on the indemnity basis.

6. ORDER that (after payment of the legacy payable to the plaintiff, and the costs payable, pursuant to these orders) the property to which clause 5 of the will of the deceased refers be divided equally between the defendants and Crescenzo Di Meglio as tenants in common.

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Decision last updated: 05 December 2018