Re Filomena Rodi, deceased

[2016] NSWSC 1696

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Re Filomena Rodi, deceased [2016] NSWSC 1696
Hearing dates:	28, 29 and 30 November 2016
Date of orders:	01 December 2016
Decision date:	01 December 2016
Jurisdiction:	Equity - Family Provision List
Before:	Lindsay J
Decision:	(1) An application for family provision relief by a self-sufficient adult daughter entitled to a one-quarter share of her mother’s deceased estate (valued at $1.5 million), in common with her siblings, dismissed.  (2) An application by an adult grandson, who lived with the deceased for about a decade in a close family relationship, and subsequently became an unemployed sole parent of a new-born baby, granted family provision relief in the form of a legacy of $200,000.
Catchwords:	SUCCESSION – Family Provision – Eligible applicant – Adult Grandchild – Dependent or other person – Grandchild lived with deceased in a close personal relationship at the time of death – Family arrangement where grandchild lived with deceased for about a decade – Grandchild currently single parent caring for infant daughter and is unemployed – Grandchild eligible person and left without adequate provision   SUCCESSION – Family Provision – Eligible applicant – Adult Child – Deceased left will with four children given equal shares – Applicant estranged from siblings –- Adequate provision made in Will – Application dismissed
Legislation Cited:	Succession Act 2006 NSW
Cases Cited:	Andrew v Andrew (2012) 81 NSWLR 656 Ciric v Ciric [2015] NSWSC 313 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 Bruce v Greentree [2015] NSWSC 1611 Page v Page [2016] NSWSC 1218 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Re Fulop (1987) 8 NSWLR 679
Texts Cited:	GE Dal Pont and KF Mackie, Law of Succession (LexisNexis, Australia, 2013), paragraphs [16.30]-[16.32]
Category:	Principal judgment
Parties:	First Plaintiff (2015/00369399): Maria Assunta Rodi Second Plaintiff (2016/00009098): Phillip Luis Rodi First Defendant: Frank Rodi Second Defendant: Joseph Rodi
Representation:	Counsel: First Plaintiff: Rosalind Winfield Second Plaintiff: JEF Brown Defendants: KJ Pierce   Solicitors: First Plaintiff: Solomon Tudehope Second Plaintiff: Remedy Legal Defendants: Quantum Lawyers
File Number(s):	2015/00369399 2016/00009098

Judgment

INTRODUCTION

1. Before the Court are two applications for family provision relief under chapter 3 of the Succession Act 2006 NSW: one by an adult daughter (for convenience, described as “the first plaintiff”), the other by a grandson (for convenience, described as “the second plaintiff”). Each plaintiff filed a separate summons within the limitation period prescribed by section 58(2) of the Succession Act 2006 which expired 12 months after the date of the deceased’s death. With the consent of all parties, an order was made for the two sets of proceedings to be heard together, with evidence in each set of proceedings evidence in the other so far as relevant.

2. As a child of the deceased, the first plaintiff is clearly an “eligible person” within the meaning of section 57(1)(c) of the Succession Act.

3. The second plaintiff claims to be an eligible person: first, as a dependent member of the same household as the deceased within the meaning of section 57(1)(e); and, secondly, as a person with whom the deceased was living in a close personal relationship at the time of her death, so as to attract the operation of section 57(1)(f).

4. The defendants accept that it is open to the Court to find that the second plaintiff is an “eligible person” on either of these two bases. The first plaintiff disputes his standing.

THE DECEASED, HER WILL AND HER ESTATE

5. Filomena Rodi (“the deceased”) died on 13 January 2015, aged 95 years, leaving a will dated 10 December 2008, probate of which was granted by this Court to the two sons of the deceased, Frank and Joseph Rodi (the defendants), on 8 July 2015.

6. By her will, the deceased left her estate to her four children (two boys and two girls) in equal shares.

7. The deceased’s former residence (in Dudley Street, Lidcombe) represents the only substantial asset of her estate. It presently has a market value in the range of $1.2 million - $1.6 million or thereabouts. The lower figure ($1.2 million) represents a real estate agent’s appraisal without an inspection of the property. A competing appraisal, with the benefit of an inspection, comes in at $1.4 million - $1.6 million. Greater weight should be given to the latter appraisal, informed by an inspection. For convenience, a figure of $1.5 million is adopted.

8. Other estate assets have been absorbed in payment of the deceased’s debts and funeral expenses. That is common ground between the parties.

9. The proceedings have been conducted on the basis that the value of the estate is commensurate with the value of the deceased’s former home and that, whatever the outcome of the proceedings, that property will need to be sold in the ordinary course of administration of the estate.

10. An assumption, proposed by counsel for the second plaintiff and acquiesced in by all parties, is that $30,000 should be allowed for the costs of effecting a sale.

11. Upon this assumption, and attribution of a value of $1.5 million to the property, the distributable estate has a value of $1.47 million, subject to orders for costs of the proceedings. The parties’ submissions have been predicated on that figure.

FAMILY RELATIONSHIPS

12. The deceased was married once only, to Filippo Saverio Rodi (“Filippo”), who died on 14 October 2004, aged 85 years.

13. The deceased and Filippo were married, in Italy, in 1942.

14. The four children of their marriage are:

1. Frank (the first defendant), born in 1943 and now aged 73 years.

2. Joseph (the second defendant), born in 1946 and now aged 70 years.

3. Maria (the first plaintiff), born in 1949 and now aged 67 years.

4. Kathy, born in 1958 and now aged 58 years.

15. Filippo migrated to Australia, alone, from Italy, in 1949. The deceased and the three eldest children (the defendants and the first plaintiff) followed in 1953. The youngest child, Kathy, was born in Australia.

16. Upon his arrival in Australia, Filippo settled in Lidcombe. When his family arrived, they lived with him in a residence he had acquired, in Lidcombe, for that purpose.

17. That family home, at the time of the family’s arrival in Australia and for many years thereafter, was in Keating Street, Lidcombe. It was sold in 1980, at which time Filippo and the deceased purchased the residence in Dudley Street, Lidcombe, that represents the substantial asset of the deceased’s estate.

18. Each of the deceased’s four children lived at home, with their parents, until their respective marriages.

19. Frank (the first defendant) was married in 1975. He and his wife have three children: a daughter, now aged 39 years, and twin sons, now aged 38 years.

20. Joseph (the second defendant) was married in 1974. He and his wife were divorced in 1999. There were two children of the marriage, sons, now respectively aged 41 and 38 years. The elder of the boys is Phillip Luis Rodi, the second plaintiff.

21. Maria (the first plaintiff) was married, to Mario Rodi, in 1974. Mario was born in 1948, and is presently aged 68 years. Mario and Maria have two children (a son now aged 41 years and a daughter now aged 37) and, by their daughter, one grandchild.

22. Kathy was married in 1986. She and her husband have two adult children, respectively aged 26 and 24 years.

23. The defendants, together, conducted a service station business in John Street, Lidcombe between 1980 and 2006 (with an interlude for about a year in 1998-1999 when the station was operated by a lessee). They retain the property, presently operating as a car wash.

24. Following Filippo’s death in 2004, by an arrangement within the family (to which Maria, the first plaintiff, claims to have been no more than a reluctant party at most), Phillip (the second plaintiff) moved into the deceased’s home (in Dudley Street, Lidcombe) so as, primarily, to provide the deceased with a modicum of companionship, if not care for her, that aided her continued occupation of her own home until her demise and provided comfort to her children that she remained safe. This arrangement extended the relationship between the deceased and the second plaintiff beyond that normal between a grandparent and a grandchild, living at a distance, otherwise than as a nuclear family unit. Having observed the second plaintiff giving evidence, I suspect that a secondary purpose of the arrangement (at least from the perspective of the second defendant, Joseph) may have been to bring an element of social order, and discipline, to the life of a young man (then aged about 29 years) in need of guidance. Even today, he is not a sophisticated person although, in my assessment, he is a man conscious of family responsibilities, evidenced most graphically by his devotion to his infant daughter.

25. The second plaintiff (initially with a de facto partner) lived with the deceased until her death. He has continued to live in her home since her death. In the course of his residence there he acquired a new partner, married her in March 2015, fathered her child (born in February 2016) and, in July 2016, commenced a painful process of separation from her in circumstances in which he has retained sole care of the child. He has not given up hope of a reconciliation with his wife.

26. Each of the deceased’s children (the only beneficiaries named in her will) swore an affidavit in the proceedings; but only the first plaintiff disclosed her present financial circumstances.

27. The decision of the first plaintiff’s siblings not to depose to their financial circumstances, or to make an application for family provision relief themselves, means that, by virtue of section 61 of the Succession Act, their interests can be disregarded in determining the respective applications of the plaintiffs for relief. The proceedings have been contested on that express assumption. All parties accept, though, that the Court cannot, by reason only of section 61, disregard any moral claims the beneficiaries might have on the bounty of the deceased in competition with the plaintiffs: Ciric v Ciric [2015] NSWSC 313 at [204]-[206]; Bruce v Greentree [2015] NSWSC 1611.

THE PARTIES’ COSTS OF THESE PROCEEDINGS

28. The parties’ respective solicitors’ estimates of the costs of the proceedings demonstrate the zeal with which family members have locked horns. Upon an assumption of a five day hearing (in the event, completed in three days), the first plaintiff’s costs were estimated to be $70,000 assessed on the ordinary basis; the second plaintiff’s costs were estimated at $88,000 on the same basis; and the defendants’ costs were estimated at $90,000 on, I assume, the indemnity basis. Not forgetting that the hearing finished within three days, those figures total $248,000.

29. Upon a working assumption that all parties’ costs are to be paid out of the estate (on the bases of assessment here identified), the net distributable estate is estimated at not less than $1,220,000, representing $1,470,000 less $248,000.

THE FIRST PLAINTIFF’S CLAIM

30. In fair measure, the first plaintiff’s motivation for bringing a claim for family provision relief is grounded in a deep resentment that the deceased, by her 2008 will, revoked an earlier will (dated 27 September 1991) which, had it become operative, would have left the deceased’s estate to her daughters (the first plaintiff and Kathy) alone, to the exclusion of her sons, their brothers.

31. The validity of the 2008 will is not challenged; but the fairness, or otherwise, of its terms is a major preoccupation of the first plaintiff.

32. Until the 2008 will was made a common assumption of the deceased’s children appears to have been that the deceased’s residence (the family home in Dudley Street, Lidcombe) would, upon her death, pass to her daughters to the exclusion of her sons.

33. The deceased’s revision of her will in 2008 appears to have been associated with, if not causative or a consequence of, a falling out between the first plaintiff, her mother (the deceased) and her siblings. She became estranged from her siblings at that time and has remained so, more or less, ever since.

34. The siblings (at least, the first plaintiff and the defendants) have taken the opportunity presented by the proceedings to rake over the coals about the respective contributions that a close, Italian migrant family made to the common weal over many years, and the extent to which some or other members of the family benefited beyond the rest. Their earnest engagement in recriminations appears, from the perspective of the Bench, to have contributed nothing of significance to an orderly, and just, determination of the proceedings.

35. In some form or another, and for some time more or less, each member of the family contributed to success of the family. Reflecting the times in which the children were raised to maturity, the boys and girls enjoyed different experiences, each with different positive and negative features. The family unit conducted family business without an abacus in hand.

36. The first plaintiff cannot readily satisfy the Court (and I am not satisfied), as section 59(1)(c) of the Succession Act requires for a successful claim, that adequate provision for her proper maintenance, education or advancement in life has not been made in the will of the deceased. The words “adequate” and “proper” connote something different. “Adequate” is concerned with the quantum, whereas “proper” is concerned with the standard, of maintenance, education and advancement in life of an applicant for relief: Devereaux-Warnes v Hall(No 3) (2007) 35 WAR 127 at [72]-[77]. What is “adequate” and “proper” in a particular case depends on the circumstances of the case; the concepts they embody are relative to those circumstances, not governed by an abstract absolute: Pontifical Society for Propagation of the Faith v Scales (1962) 107 CLR 9 at 19.

37. Upon a consideration of these concepts, the Court is guided by a need for “justice and wisdom” (Scales’ case at 107 CLR 20), a need to pay due regard to “current community standards” (Andrew v Andrew (2012) 81 NSWLR 656) and a need to consult topics enumerated in section 60(2) of the Succession Act, each of which topics the first plaintiff has specifically addressed in her submissions.

38. In common with her siblings she has, under the deceased’s will, a one quarter share of the deceased’s estate, an asset conservatively likely (subject to orders made on the second plaintiff’s application for family provision relief and for costs) to exceed $250,000. She is settled, content, in a marriage of long duration. She and her husband Mario live in a modern, five bedroom house at Carlingford valued at about $2 million, subject to a mortgage of less than $100,000. Fully grown, the children of the marriage have fled the coop; the nest is empty. Mario has a quarter share in an investment property in Woodburn Road, Lidcombe which, if realised, might yield to him a sum in excess of $250,000. Both he and the first plaintiff have superannuation entitlements; hers is valued at about $70,000, his at about $325,000. 

39. On their own evidence, the first plaintiff estimates the value of her net assets (including superannuation) at $972,686.50 and Mario estimates his net assets (including superannuation) at $1,446,889.50.

40. Against that, the first plaintiff and Mario are both aged in their late sixties; Mario is retired; and, although she continues to work as a legal secretary, the first plaintiff can reasonably be characterised as approaching retirement.

41. The first plaintiff and Mario live modestly, well within the income available to them. Both appear, generally, to be in reasonably good health. In the year ended 30 June 2015, the first plaintiff’s taxable income was approximately $45,000. In an affidavit sworn on 21 March 2016, Mario disclosed his then current annual income (comprising a superannuation pension, a Centrelink part-pension and rental income) as $30,827.88.

42. The first plaintiff’s application for family provision relief must fail at the threshold for which section 59(1)(c) provides because of the amplitude of her own resources and those of her husband and, incidentally, because (whether or not there were inequalities in the treatment of their children by the deceased and her late husband) the first plaintiff has no moral claim to the bounty of the deceased which is superior to those of her siblings in a family which (I accept) can generally be characterised, all round, as a close and loving one.

43. It is not unreasonable for the first plaintiff to want the comfort of an inheritance from her mother’s estate as she approaches retirement; but, without the intervention of the Court, she has that in the provision made for her in the 2008 will.

44. There is no justification in the evidence for awarding her the one half share of the estate which, by her application, she seeks. By the efforts of herself and her husband, she has a reasonable standard of living. By her mother’s will, she has a reasonable allowance for contingencies.

45. Chapter 3 of the Succession Act does not provide a vehicle to subject the testamentary freedom of a testatrix to a disappointed beneficiary’s complaints of perceived inequality of treatment extending over a lifetime, particularly in circumstances in which the complainant has herself experienced substantial success in life.

46. For these reasons, the first plaintiff’s application for family provision relief must be dismissed.

THE SECOND PLAINTIFF’S CLAIM

Eligibility to apply for Family Provision Relief : Succession Act, sections 57(1) and 59(1)(a)

47. In my assessment, the second plaintiff is an “eligible person” within the meaning of both section 57(1)(e) and section 57(1)(f) of the Succession Act.

48. In relation to section 57(1)(e): There is no question but that the second plaintiff is a grandchild of the deceased and that, for about a decade preceding her death, he was a member of the same household as the deceased. The question, agitated only by the first plaintiff, is whether he was, within the meaning of section 57(1) (e) (i), a person “who was, at any particular time, wholly or partly dependent on” the deceased. The word “dependant” connotes a person who relies upon support of another, financial and/or emotional, in circumstances which include an element of being beholden for material or physical help: Page v Page [2016] NSWSC 1218 at [126] et seq.

49. Given its duration of approximately a decade, the second plaintiff’s residency with the deceased might be said to have placed him in the position of a surrogate son. That characterisation might be overly generous to him in circumstances in which: (a) he was aged about 29 years and in a de facto relationship at the time of commencement of his residency; and (b) his placement with his grandmother, by family arrangement, was designed in large measure to provide companionship, if not protection, for her as well as a meaningful family experience for him. Nevertheless, something of the flavour of a parental relationship remains. The personal relationship between grandmother and grandson was direct, immediate, socially intimate and sustained; there was a personal bonding beyond merely a blood line. That there may have been an element of co-dependency, with grandmother and grandson each contributing to a positive family relationship which permitted the deceased to remain in her home despite advancing age, does not preclude characterisation of the second plaintiff as a person who was “wholly or partly dependent” on the deceased. She provided him with a roof over his head, meals and communal living in a family setting, and he was dependent upon her for that. He was charged no rent or board – it was not sought, or offered, or even the subject of contemplation by any family member - but, for some years at least, he paid outgoings (including water rates and electricity charges) levied on the property. Relevantly, the second plaintiff was “wholly or partly dependent on the deceased” within the meaning of section 57(1)(e)(i). See, generally GE Dal Pont and KF Mackie, Law of Succession (LexisNexis, Australia, 2013), paragraphs [16.30]-[16.32].

47. In relation to section 57(1)(f): At the time of the deceased’s death she was living with the second plaintiff in a “close personal relationship” within the meaning of section 57(1)(f), as elaborated in section 3. Section 3(1) defines the expression “close personal relationship” by reference to section 3(3) which, in turn, must be read with section 3(4).

48. Sections 3(3) – 3(4) are in the following terms:

“(3) For the purposes of this Act, a ‘close personal relationship’ is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(4) For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee and reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).”

52. In terms of section 3(3), at the time of the deceased’s death, and for about a decade preceding that date, she and the second plaintiff were “living together” (as grandmother and grandson) in the deceased’s Dudley Street residence, in circumstances in which each of them “[provided] the other with domestic support and personal care”. They lived as a family. Section 3(3) was engaged notwithstanding that the second plaintiff’s partner also lived with them, and the deceased’s children (particularly the second defendant) actively assisted the deceased in daily living.

53. Counsel for the first plaintiff submits, first, that the exclusionary provisions of section 3(4)(a) were engaged because the second plaintiff’s residency with the deceased was beneficial (that is, “rewarding”) to him in that he received rent-free accommodation. Such a submission is untenable in a case in which it is common ground (and, in particular, conceded by the first plaintiff) that the second plaintiff’s residency with the deceased: (a) lacked any commercial flavour; and (b) was, quintessentially, a family arrangement unattended by calculations about financial benefits or detriments. In context, the expression “for fee or reward” implies a commercial arrangement.

54. Counsel for the first plaintiff also submits, in the alternative, but, in final submissions, as her principal submission, that the exclusionary provisions of section 3(4)(b) were engaged because, insofar as the second plaintiff provided domestic support and personal care for the deceased, he did so “on behalf of another person”; namely, the deceased’s children (his father, uncle and aunties).

55. This submission fails, factually, because the second plaintiff had a strong personal relationship with the deceased which underpinned his provision of support and care for her on his own account. That he did so at the invitation of his father, and his father’s siblings, does not mandate that his provision of support and care be characterised as, and as no more than, that of a servant or agent of those family members at whose invitation he was motivated to act. Ultimately, he was nobody’s agent but his own and, respecting the autonomy of his grandmother, he was resident in her home as her invitee, not as the invitee of her children. He could not, and would not, have lived with her for a decade without her agreement. Despite her occasional complaints about communal living (themselves a characteristic incident of a family relationship), she evidently enjoyed his company, as a grandson, acting in his own right, not “on behalf of another person”.

56. The relationship between the second plaintiff and the deceased falls within the parameters of section 57(1)(f), as well as section 57(1)(e).

Factors Warranting : Succession Act, section 59(1)(b)

57. Because the second plaintiff qualifies as an “eligible person” by reason only of sections 57(1)(e) and (f), the Court is required, by section 59(1)(b) of the Succession Act, to be satisfied that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application” of the second plaintiff for family provision relief.

58. In the classic formulation of Re Fulop (1987) 8 NSWLR 679 at 681D-E, such factors are factors which, when added to facts which render an applicant for family provision relief 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.

59. Section 59(1)(b)’s injunction that the Court have regard to “all the circumstances of the case (whether past or present)” has particular resonance in this case, reinforced by the time perspective mandated by section 59(1)(c).

60. In days immediately following the death of the deceased, the second plaintiff married a young woman several years his junior. Nearly a year later she gave birth to their child. The demands of a new-born baby appear to have placed unbearable pressures on the family. In an endeavour to cope with those pressures, the second plaintiff gave up work to look after the baby and, it seems, his wife has taken much needed time out.

61. These factors (present realities), coupled with the duration and character of his membership of the deceased’s immediate family circle, satisfy the requirement that there be “factors warranting” the making of the second plaintiff’s application for family provision relief. He is a person who would generally be regarded as a natural object of testamentary recognition by the deceased.

Inadequacy of testamentary provision : Succession Act s59(1)(c)

62. Section 59(1)(c) of the Succession Act requires, as a condition of a grant of family provision relief to the second plaintiff, that the Court be satisfied that, at the present time (when the Court is considering his application for relief) adequate provision has not been made for his proper maintenance, education or advancement in life. As has been noted, what is “adequate” and “proper” in a particular case depends on the circumstances of the case: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19.

63. In circumstances in which, as has been held, he is a person who would generally be regarded as a natural object of testamentary recognition by the deceased, and no provision has been made for him in the deceased’s will, it is not difficult (in an exercise governed by a need for “justice and wisdom” as counselled by Scales’ case at 107 CLR 20, by a consciousness of “current community standards” required by Andrew v Andrew (2012) 81 NSWLR 656 and other contemporary case law, and by a review of section 60(2)’s enumerated topics) to reach a finding that he has been left without adequate provision.

64. However, the mere fact that no testamentary provision was made for him is insufficient grounding for that finding, especially as he has had (and continues, in fact, to enjoy) a rent-free residency of the deceased’s home.

65. Allowance has to be made for the facts that (although an unsophisticated man): he is able-bodied; with a mate of long-standing, he has a one half share in an investment property at Ellis Lane; subject to satisfactory arrangements being made for the care of his daughter, he has a demonstrated capacity (with modest qualifications in mechanics and as a youth worker) to earn an income of the order of $75,000 per annum; and he has superannuation entitlements (not currently accessible) presently valued at about $100,000.

66. The investment property is subject to a mortgage liability, in the second plaintiff personally, of about $187,000, coupled with a liability to service the mortgage with monthly repayments.

67. He has requested his co-investor, and his co-investor has agreed, that the property be sold in the near future so as to provide the second plaintiff with a capital fund to assist him both to care for his daughter and to arrange alternative accommodation. They plan to market the property for sale early in the new year.

68. A current, reasonable expectation is that, upon a sale of the property in the new year, the second plaintiff will realise from his investment (after discharge of his mortgage liability and payment of costs of sale) an amount in the vicinity of $200,000 - $250,000.

69. In the meantime, financially, he is weighed down by limited savings (of the order of about $3,000); a credit card debt (of the order of about $5,000); ongoing mortgage repayments, to the extent that they may not be covered by rent received on the investment property; and a dependence upon Centrelink for payment of a sole parent allowance and family assistance.

70. One suspects that, if pressed, he might be able to look to his father (the second defendant) for modest assistance. However, his father pleads an inability to provide substantial assistance in circumstances in which he bears burdens arising from his second son’s particular needs for assistance.

71. The first plaintiff concedes nothing in her opposition to the second plaintiff’s case, contending instead that he should farm the baby out, get a job forthwith and look to his father for assistance.

72. The defendants (supported, in the conduct of their case, by evidence from their sister Kathy) are more moderate in their opposition to the second plaintiff’s claim. They concede that, on the evidence, it is open to the Court to make a finding under section 59(1)(c) that the second plaintiff has been left without adequate provision.

73. That is the finding which, in my opinion, is properly to be made. All things considered, the second plaintiff has been left without adequate provision for his proper maintenance and advancement in life, bearing in mind particularly his present circumstances as a sole parent.

What order for provision ought to be made? : Succession Act, s59(2)

74. Section 59(2) of the Succession Act provides that the Court may make such order for provision out of the estate of the deceased as it thinks ought to be made for the maintenance, education or advancement in life of the eligible person (that is, the second plaintiff) having regard to the facts known to the Court at the time the order is made. The Court’s task upon consideration of section 59(2) bears a marked similarity with the task for which section 59(1)(c) provides.

75. In measured submissions counsel for the defendants invited the Court, in this context, to contemplate no more than a legacy of the order of $50,000 - $100,000 designed to provide the second plaintiff with a buffer and to meet contingencies involved in his transition to new accommodation. Implicit in these submissions is an assumption that the second plaintiff: (a) will voluntarily vacate the deceased’s Dudley Street property so as to facilitate its orderly sale; and (b) will not be called upon to pay any rent or occupation fee referable to his occupation of the property in the meantime.

76. The first plaintiff’s primary concern, understandably, in this phase of the proceedings, is to emphasise that any relief granted to the second plaintiff will, prima facie, diminish the amount of estate property available to her. Implicitly, she invites the Court to impose upon her siblings the burden of any relief granted to her nephew.

77. For his part, the second plaintiff advances a primary claim for $400,000 (and an alternative claim for $300,000), plus costs, to facilitate the purchase of a two bedroom unit (with an estimate value of between $450,000 - $500,000), the payment of stamp duty on such a purchase (estimated at about $20,000), the acquisition of furniture for the unit, and discharge of his credit card debt.

78. In my assessment, the provision that ought to be made for the second plaintiff falls between the relief conceded by the defendants and the claim advanced by the second plaintiff, having regard particularly to the competing claim on the bounty of the deceased asserted by the first plaintiff and, as is their due, the moral claims of her siblings on their mother’s estate.

79. In my assessment, the second plaintiff cannot reasonably expect to be allowed more than a legacy designed to permit him to transition to a new life beyond his grandmother’s home and (importantly) to nurture the infant presently in his sole care.

80. In all the circumstances, I propose to make an order (conditioned upon an undertaking that he will vacate the property in a timely manner so as to permit it to be sold with vacant possession) that he receive a legacy of $200,000 payable out of the proceeds of sale of the property.

81. In my assessment, the interests of justice point towards the burden of that provision being borne by each of the deceased’s beneficiaries, not excluding the first plaintiff.

CONCLUSION

82. Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, and as to the costs of the proceedings, I propose to make orders to the following effect:

1. ORDER that the first plaintiff’s amended summons (filed in the proceedings numbered 2015/00369399) be dismissed.

2. Upon the second plaintiff giving to the Court an undertaking that he will vacate the deceased’s Dudley Street property in a timely manner so as to facilitate a sale of that property with vacant possession, ORDER (in the proceedings numbered 2016/00009098) that the second plaintiff receive a legacy of $200,000 payable out of the proceeds of sale of the property (after the payment of reasonable costs of effecting a sale) without being called upon to pay any sum (by way of rent, occupation fee or for rates or electricity) referable to his occupation of the property in the meantime.

3. ORDER (in the proceedings numbered 2016/00009098) that the second plaintiff’s costs of the proceedings be paid out of the estate of the deceased on the ordinary basis.

4. ORDER (in both proceedings, respectively numbered 2015/00369399 and 2016/00009098) that the defendants’ costs of the proceedings be paid out of the estate of the deceased on the indemnity basis.

5. NOTE that no orders are made as to the costs of the first plaintiff to the intent that she pay or bear her own costs of the proceedings.

6. RESERVE to the parties liberty to apply for further orders in the implementation or enforcement of these orders.

83. Had her application for family provision relief not been accompanied by a necessity to determine the application of the second plaintiff, the appropriate order for costs in the first plaintiff’s proceedings would, prima facie, have been an order that she pay the costs of the proceedings. However, subject to allowing the parties an opportunity to be heard, I am minded to limit her liability for costs to such liability as she has, or might have, for her own costs.

ADDENDUM (1 December 2016)

84. Upon publication of these reasons for judgment, and after allowing the parties an opportunity to be heard, orders were made in substantially the form recorded in paragraph 82.

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Amendments

02 December 2016 - Deletion of the last sentence of paragraph 38. The parties were notified of this by email sent at 5.51pm on 1 December 2016.

Decision last updated: 02 December 2016