Russell v Percy

[2004] NSWSC 804

CITATION:	Russell v Percy [2004] NSWSC 804
HEARING DATE(S):	30 March 2004
JUDGMENT DATE:	1 September 2004
JURISDICTION:	Equity division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	1. I order that, in addition to the benefits to which she is entitled under the will of the late Keith MacDonald Simpson ("the Deceased"), the Plaintiff receive a legacy in the sum of $150,000, such legacy to be borne by those parts of the estate of the Deceased to which under the said will the Defendant, Luke Simpson Percy, Ruth Emily Russell and Thomas Keith Everall Russell are entitled, such legacy not to bear interest if paid on or before 1 December 2004, and if not so paid to bear interest at the rates prescribed for unpaid legacies under the Wills, Probate and Administration Act 1898.; 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.
CATCHWORDS:	Succession - Family Provision - Claim by adult daughter - Relatively large estate - Plaintiff and her five children share estate - Financial and material circumstances of Plaintiff - Competing claims of other beneficiaries - Whether Plaintiff has been left without adequate provision for her proper maintenance - Plaintiff seeks provision by way of a house.
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Suzanne Sinclair Russell Diana Marie Percy
FILE NUMBER(S):	SC 5112 of 2002
COUNSEL:	R. D. Wilson, A. J. Tibby (Plaintiff) J. R. Wilson SC (Defendant)
SOLICITORS:	A W M Dickinson & Son (Plaintiff) Yandell Wright Stell (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 1 September 2004

5112/02 SUZANNE SINCLAIR RUSSELL -v- DIANA MARIE PERCY

JUDGMENT

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

2 By summons filed on 16 October 2002, the Plaintiff, Suzanne Sinclair Russell, claims an order for provision for her maintenance and advancement in life out of the estate of her late father Keith MacDonald Simpson (to whom I shall refer as the “Deceased”).

3 The Deceased died on 19 January 2002, aged 83 years.

4 The Deceased left a will dated 10 August 1989, probate whereof was, on 15 March 2002, granted to Suzanne Sinclair Russell, the executor named in such will (who is the Plaintiff in the present proceedings).

5 By his will, the Deceased gave the whole of his estate upon trust “for my daughter SUZANNE SINCLAIR PERCY, and my grandchildren, KATHLEEN SINCLAIR PERCY, DIANA MARIE PERCY, LUKE SIMPSON PERCY, RUTH EMILY RUSSELL and THOMAS RUSSELL as tenants in common in equal shares”.

6 Although the proceedings, as originally constituted, named as defendant, Luke Simpson Percy, one of the beneficiaries named in the will (it being appreciated that the Plaintiff herself was the executor of the will of the Deceased, and thus could not be the defendant), by order made on 4 February 2002, upon her application, the present defendant, Diana Marie Percy, was substituted for Luke Simpson Percy as defendant to the proceedings. The present Defendant is one of the beneficiaries named in the will of the Deceased. Each of the Defendant originally named and the present Defendant is a child of the Plaintiff.

7 The assets of the estate disclosed in the inventory of property consist of:

Property situate at and known as 71 Gould Street, Bondi Beach
Property situate at and known as 73 Gould Street, Bondi Beach
Shares (having a value of $133,477)

Money in bank accounts and on deposit (totalling $263,600)

Life insurance policy (having an estimated value of $15,000)

8 A valuation of the two properties at 71 and 73 Gould Street as at 10 December 2003 (Exhibit A) discloses the current market values of those two properties to total $2,400,000.

9 The shares held by the Deceased have a present value of about $150,000. The deposit in Security Credit Union is presently in an amount of $190,256, and the credit balance with the Commonwealth Bank of Australia is presently $49,828. In consequence, the present value of the assets of the estate is about $2,780,000. There are a number of present liabilities of the estate, including land tax in an amount of almost $8000, and income tax in amounts which have not yet been assessed.

10 It will be appreciated that in calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into account, since the Plaintiff, if successful, will be entitled to an order that her costs be paid out of the estate, whilst the Defendant, whatever be the outcome of the proceedings, will be entitled to her costs out of the estate. The costs of the Plaintiff are estimated to total $69,300 whilst those of the Defendant are estimated to total $83,835. I consider that for a case which was in no way exceptional and where the hearing occupied less than one day, costs totalling in excess of $153,000 are exorbitant. I would be surprised if costs in that total amount could properly be charged against the estate. Nevertheless, it is appropriate for the Court to proceed upon the basis that the net estate available for distribution will be no less than about $2,600,000. (I take into account the unquantified liabilities and the foregoing amount of costs). If any of the foregoing costs are disallowed, the distributable estate will be in excess of that figure. It should here be recorded that each of the six beneficiaries has already received an interim distribution in amounts totalling $54,700 (paid by way of three instalments, $32,000, $7,700 and $15,000, in 2002 and 2003). (I note that in her affidavit of 13 February 2004 the Plaintiff said that those three distributions totalled $59,700.)

11 The Plaintiff was born on 17 September 1947. She is presently aged 56. She is the only child of the Deceased. The Plaintiff has five children, who are the five grandchildren of the Deceased referred to in his will. They are Kathleen Sinclair Booth (née Percy), born 6 December 1970 (who is presently aged 33); Diana Marie Percy, born 19 September 1972 (who is presently aged 31); Luke Simpson Percy, born 23 March 1975 (who is presently aged 29); Ruth Emily Russell, born 6 April 1984 (who is presently aged 20); Thomas Keith Everall Russell, born 17 September 1985 (who is presently aged 18).

12 The Plaintiff was the only child of the Deceased. She was born to the marriage of the Deceased and his first wife Doreen Mavis (née Sutton). That marriage broke up when the Plaintiff was less than a year old, and she continued to reside with her father. The Deceased subsequently married Ruth Gammon on 19 August 1958. That marriage obtained until the sudden death of Mrs Ruth Simpson on 20 March 1989. The Plaintiff continued to reside with her father and her stepmother after their marriage, which occurred when the Plaintiff was aged almost nine years. The Plaintiff left school after completing her leaving certificate in 1963. The following year she commenced employment with the Commonwealth Public Service.

13 The Plaintiff married Richard John Percy in 1968. Of that marriage were born her first three children, Kathleen, Diana and Luke. The Plaintiff resumed employment in late 1972, when Diana was about three months old, and remained in employment until early 1975 shortly before the birth of Luke. The marriage of the Plaintiff and Mr. Percy broke down in 1976 and they were divorced in the following year. The Plaintiff married her second husband, Christopher Russell, on 18 September 1981. He was a high school teacher. Of her second marriage were born the Plaintiff’s fourth and fifth children, Ruth and Thomas. The Plaintiff was in employment throughout most of the period of her second marriage. When Mr Russell was transferred to the Erina High School at the end of 1982, he, the Plaintiff, and her children removed from the residence which she and Mr Russell had acquired at Marrickville to a property which they then purchased at 22 North Road, Wyong.

14 In mid-1985 Diana, aged 12, left the Plaintiff’s residence and went to live with her father, Mr Percy.

15 The Plaintiff and Mr. Russell separated in 1986 and were divorced in the following year. In consequence of the property settlement arising out of that divorce, the Wyong residence was sold and the Plaintiff received, after discharge of the mortgage, an amount of about $20,000. The Plaintiff subsequently purchased a house property at 45 Alison Road, Wyong in 1988. That property was sold in 1995, the Plaintiff receiving, after discharge of the mortgage, an amount of about $40,000. The Plaintiff sold that property because she wished to return to Sydney, her daughter Ruth (then aged 11) having been accepted as a pupil by Sydney Girls High School. Thereafter the Plaintiff, together with her youngest two children, Ruth and Thomas, resided in a basement flat at Paddington.

16 The Plaintiff had worked in various positions, sometimes part-time, and sometimes in two positions at the same time after her return to Sydney. However, at the time of the hearing the Plaintiff was unemployed.

17 The most recent employment of the Plaintiff was as a part-time ward clerk, at St. Vincent’s Hospital, in which she worked 20 hours a week. The Plaintiff resigned from that employment in September 2003, on account of the necessity for surgery for a tumour in her left arm. When asked why she resigned from that position, rather than taking sick leave, the Plaintiff responded by saying that it was a hasty decision, and that by resigning she deprived herself of two week’s sick leave.

18 The Plaintiff suffers various health problems. The Plaintiff currently takes an anti-depressant medication called Zoloft, which has been prescribed for her by her psychiatrist, Dr. Jane Hay. In addition, she also suffers from a permanent headache. The Plaintiff has arthritis which causes her chronic leg pain. The removal of the tumour from her left arm (which fortunately proved to be benign) not only has resulted in a large and unsightly scar to that arm, but also requires her condition to be monitored every six months.

19 The Plaintiff is currently and for about the past two and a half years has been residing with her son Thomas in rented accommodation at Bondi. That accommodation consists of a semi-detached residence owned by the Department of Housing, but of which the head lessee is the Community Tenancy Association, to which entity the Plaintiff pays rent of $88.50 a week. The evidence does not disclose the details of the accommodation in that residence.

20 It was not in dispute that the Plaintiff had a close and loving relationship with her father. After the sudden and unexpected death of her stepmother, Ruth, with whom the Plaintiff also had a close and affectionate relationship, the Plaintiff, who until 1995 had been residing on the Central Coast, had spent increasing time (with her youngest two children) with the Deceased. In 1989, the Deceased made the Plaintiff a signatory to all his bank accounts, thus enabling her to manage his affairs during a period in 1990 whilst the Deceased was absent in America. In October 2001, the Deceased appointed the Plaintiff to be his attorney under an enduring power of attorney.

21 In July 2001, the Deceased was diagnosed with motor neurone disease. He had been unwell for some time before then. The Plaintiff was assiduous in her contact with the Deceased, both before and after the diagnosis of the Deceased’s condition.

22 According to the Plaintiff, she has little by way of assets. In her most recent affidavit she stated that she held about $125 in her bank account and had a small amount of furniture. She owns a painting which she recently purchased for $450, but otherwise has no assets of any significance.

23 The Plaintiff’s only source of income is Newstart, from which she receives $422 a fortnight. She expressed a desire to return to work if possible, but believes that her prospects of future employment are at the most uncertain.

24 The Plaintiff owes Austudy an amount of about $5,000.

25 It has already been recorded that the Plaintiff, equally with each of her five children, has received from the estate of the Deceased interim distributions totalling $54,700, in 2002 and 2003. The evidence does not disclose, however, how those funds were disbursed by the Plaintiff.

26 I have already recorded that the Defendant departed the residence of her mother and her stepfather and her siblings (of the full-blood and of the half-blood) when she was aged 12, in order to reside with her father Mr. Percy. When the Defendant was aged 15 she ceased to reside with her father, and then received the Young Homeless Allowance, to enable her to remain at school, and she also obtained a Lions Club Scholarship. The Defendant had a close and affectionate relationship with the Deceased and his wife, who gave her both emotional and financial support during her final years in school and, subsequently, when she obtained a scholarship to study in Canada in 1999 as the James Fairfax Inaugural Scholar at the Lester B. Pearson College of the Pacific. The Deceased visited the Defendant whilst she was in Canada and gave her financial assistance throughout the period whilst she was studying there. The Defendant returned to Australia in June 1991 and enrolled at the Australian National University in Canberra in the following year. Throughout the Defendant’s university course the Deceased continued to give her financial and emotional support. The Defendant returned to Sydney in 1996 and entered the workforce. The following year she moved into residence with the Deceased at his home at 71 Gould Street Bondi Beach, where she resided for more than a year.

27 In January 1999, the Defendant embarked upon overseas travel for a period of two years. She remained in contact, both by post and telephonically, with the Deceased throughout that period. Upon her return to Sydney the Defendant undertook studies for the degree of Doctor of Philosophy, and resumed residence with the Deceased at 71 Gould Street. It was the evidence of the Defendant that when, in mid-2001, the Deceased was diagnosed with motor neurone disease, she, together with her mother, became one of the two primary carers of the Deceased. The Defendant moved out of the Deceased’s residence in early January 1992, to enable her mother and a qualified male carer to reside with the Deceased during his last days. However, throughout that period the Defendant continued to visit the Deceased almost daily.

28 The present financial and material circumstances of the Defendant are as follows;

Assets


Laptop computer, antiquarian books, jewellery, painting, etching, furniture, books, clothing and personal effects (to which the Defendant ascribes a total estimated value of $6,320).

Liabilities

Share of monthly rent $400

Food, telephone, electricity, $120 / week

University Activity Fees $468 / year

HECS debt of approximately $10,000

Credit card debt $1,500

29 The Defendant’s income is derived from part-time tutoring and part-time administration work at Dial-An-Angel, from which she received, in the 2002-2003 financial year, a total of $12,290.

30 The Defendant is a full-time student pursuing the degree of Doctor of Philosophy at the University of New South Wales in the School of English, and is residing at Baxter College, which is a residential college in that University. She currently has three part-time jobs to enable her to continue her studies, two of which are seasonal. The tutoring work takes place throughout university and school terms, but not during the summer recess. The Defendant’s employment by Dial-An-Angel is only on a casual basis. It was her evidence that at times it was necessary for her to borrow money from her boyfriend or to use her credit card to buy groceries and pay other bills.

31 It is the expectation of the Defendant that when she obtains her doctorate (her thesis was to be submitted at the end of March 2004) she may be able to obtain employment as a university tutor. If so, she would expect to be paid $26,000 a year. There is, however, no guarantee of such employment in an academic position.

32 The Defendant resides with her boyfriend, Llew Jenkins, to whom she is now engaged (they intend to marry in December 2004). He is employed by the Commonwealth Bank of Australia in a customer service position and earns $38,000 (gross) a year. The assets and liabilities of Mr. Jenkins are as follows;

Assets (and their estimated approximate values)

Second hand Nissan motor vehicle $4000

Second hand computer $1,500

Computer accessories $100

Surf board $500

Golf clubs $600

DVD and adaptor $260

Total $6,960

Liabilities

Credit card debt $2,000

HECS debt $8,700

Share of rent a month $400

Groceries food and bills $100

Private health cover (for himself and for the Defendant) $35 / week
Petrol $30 / week

33 Mr Jenkins is undertaking part-time postgraduate studies for a Graduate Diploma in Applied Finance and Investment. That course requires payment of $800 a session for each of eight sessions (that is, a total of $6,400).

34 The Defendant has suffered migraines since she was in primary school, but otherwise she is in generally good health.

35 The Defendant said that it had been her expectation that she would receive about $350,000 from the estate of the Deceased under the provisions of his will. Of that amount she has already received a distribution of $54,700. The Defendant in her evidence set forth her intentions as to how she proposed to expend the benefit which she would receive from the estate under the terms of her grandfather’s will. It is the primary desire of the Defendant to acquire a residence, being a one or two bedroom home unit which, according to her inquiries, could be purchased for between $350,000 and $450,000, or a house, which, according to her inquiries, could be purchased for approximately $450,000 to $650,000. From her provision from the estate it is the intention of the Defendant to repay the balance of her undergraduate debt, in an amount of about $10,000. She also proposes to purchase necessary household items such as a refrigerator, bed, television, stereo, video, dining chairs and research texts, costing about $30,000. She also proposes to upgrade her health fund, with a view to the possibility of starting a family in the future. It is also the intention of the Defendant to set aside provision for the possibility of marrying and having children, and she proposes to invest a portion of her provision from the Deceased’s estate in an investment or a superannuation portfolio to provide for her future.

36 Not only does the Defendant accept the responsibility in the present proceedings of upholding the will of the Deceased, but it is also the desire of the Defendant in her capacity as a beneficiary named in that will to ensure that, so far as is possible, her beneficial interest thereunder is not eroded by any order for provision made in favour of the Plaintiff.

37 The Defendant, in her capacity as Defendant to the proceedings, has, through her solicitor, communicated with the other beneficiaries (apart from the Plaintiff) named in the will of their grandfather, in order to ascertain whether or not they wish to place affidavit evidence before the Court.

38 Affidavit evidence in that regard has been provided by Kathleen Sinclair Booth. The Defendant states that she is reasonably well informed of the circumstances of her brother Luke and her half brother Thomas. According to the Defendant, Luke, who is presently 29 years of age, resides at 71 Gould Street Bondi, which is one of the house properties forming part of the estate of the Deceased. He pays no rent for that accommodation. Luke, who was unemployed for a number of years, has recently obtained employment as a courier, from which he receives what is described as a moderate income. He has no tertiary or other qualifications or any particular skills. According to the Defendant, Luke’s relationship with his grandfather was civil but not close.

39 Thomas, who is now 18 years of age, resides with his mother, the Plaintiff, and is financially dependent upon her. He dropped out of his final year of high school in 2002, Without obtaining his Higher School Certificate. Since then Thomas has been unemployed and appears to have made no attempt to gain employment. He has expressed to his mother a desire to become a writer, and also to reside in Melbourne.

40 It was the evidence of the Plaintiff that from the distributions which Thomas has received from the estate of the Deceased, Thomas has purchased a motor car and a piano, a computer, new clothing, lots of books and has made a couple of trips to Melbourne (which, according to his mother, he loves and considers to be a great place). The Plaintiff thought that Thomas had very little, if anything, remaining from those distributions.

41 According to the Defendant, Thomas regularly visited his grandfather on a number of occasions each week and regularly stayed at his residence. Their relationship was very close and the Deceased was very fond of Thomas. It was the evidence of the Defendant that neither Luke nor Thomas owned any assets of value, apart from a few minor items of personal property. Neither do they have any financial resources which they could use to purchase a residence or to fund any educational expenses necessary to enhance their skills or employment prospects.

42 Kathleen Sinclair Booth, the eldest child of the Deceased, is now 33 years of age. She is a widow, her husband Jamie Booth having been killed in a motor vehicle accident of 1 June 2003, when he was aged 31 years. Mrs Booth and her husband had been married for over nine years, since February 1994. Mrs Booth has two sons, born to her late husband, being Alek Dylan (born 21 May 1994, who is now aged 10) and Mallory Damien (born 31 August 1998, who is now aged almost 6). In addition, Mrs Booth is a foster mother to Kianni Jayde Johanson (born 16 January 2001), who is the daughter of the late Jamie Booth’s brother. That child has continuously and permanently been in the care of Mrs Booth since the first half of 2002, consequent upon an order of the Worimi Children’s Court at Broadmeadow.

43 Mrs Booth also had another daughter, Samantha Kylie Lyons (born 5 February 1989), who was known as Samantha Kylie Booth, and who also died in the motor accident on 1 June 2003. Samantha was aged 14 at the time of her death and was a child of Mrs Booth’s first marriage to Jamie Lyons. At the time of her death, proceedings for adoption had been instituted but not completed by Mrs Booth and her husband in respect to the adoption of Samantha.

44 In consequence of the death of her late husband, Mrs Booth has become entitled to superannuation and insurance, which she expects to be in amounts totalling in excess of $80,000. However, she is indebted to her solicitors for costs exceeding $20,000.

45 Apart from some furniture, Mrs Booth has no assets. She has no savings, and the family’s motor vehicle was destroyed in the accident in which her husband and her daughter were killed. There was no comprehensive insurance on that motor vehicle.

46 Mrs Booth is a full-time mother to her two sons, and to her foster-daughter, and receives various social security payments in that regard totalling $1,348 a fortnight. Mrs Booth and her children live in rented accommodation provided by the Department of Housing, for which she pays rent of $159.70 a fortnight. Her other outgoings include repayment of a personal loan from City Finance, $25 a fortnight; child care fees, $110 a fortnight; transport costs $80 a fortnight; medication for Alek, $23 a fortnight; swimming lessons for the three children $50 a fortnight.

47 Mrs Booth has the following current liabities:

City Finance $1000

Telstra $231

Electricity (overdue) $405

Child care $71

Palmdale Funeral Service $5454

48 After meeting the foregoing liabilities and household accounts, the totality of Mrs Booth’s fortnightly income is expended on food, clothing and household items.

49 The initial interim distribution which Mrs Booth received (which was paid to her before the deaths of her husband and her daughter) was expended in paying accumulated debts, the purchase of the second-hand Pajero motor vehicle (which was subsequently destroyed in the accident on 1 June 2003), and outstanding legal costs in respect to Children’s Court proceedings and the adoption of Samantha. Mrs Booth’s late husband had experienced a significant period of unemployment between May 2002 and January 2003, and household debts had accumulated during that period. It was on that account that it was necessary for Mrs Booth and her husband to take out the personal loan from City Finance, which she is still in the process of re-paying. Until 1 October 2003, repayments on that loan were at the rate of $174 a fortnight, but since that date the loan has been being repaid at the rate of $25 a fortnight.

50 Mrs Booth’s son Alek has developmental difficulties involving his fine motor skills. He has an inability to write at the level which might normally be expected of a child of his age. It has been recommended (by, I understand, his teachers) that a keyboard be made available for his use to assist him with that difficulty. The cost of such a keyboard is about $1,000, but Mrs Booth is presently unable to afford such an amount.

51 Mrs Booth has borrowed money from her grandmother and a friend in amounts totalling about $2,000, which she proposes to repay when her husband’s superannuation becomes available. She has also pawned some items and interest is due in that regard at the rate of $65 a fortnight.

52 It is the intention of Mrs Booth when she receives a final distribution from the estate of her grandfather to purchase a residence for herself and for her children. Since she is not in employment, she has no capacity to borrow from a lending institution by way of a mortgage, and has no capacity to repay any such mortgage. Therefore she would need to pay cash for the acquisition of any such house property. According to Mrs Booth, there are still available in the Lower Hunter area houses in the price range of $300,000 to $400,000 which would be adequate to accommodate her family. At the present time Mrs Booth and her children reside at Toronto on the Central Coast.

53 It is also the desire of Mrs Booth, who has never held a driver’s licence, and who was totally reliant upon her late husband for transport, to obtain a driver’s licence and to acquire a motor vehicle from the benefit which she would expect to receive from the estate of her late grandfather. Public transport in the Lake Macquarie area is difficult and uncertain. At the present time Mrs Booth and her children are totally reliant upon taxis and buses, and she considers that it would be less expensive to maintain a motor vehicle than to pay fares for such transport by taxi and bus. It is also the desire of Mrs Booth to be able to repay her debts, and to obtain new spectacles for herself. She also expressed her desire to take her children on a theme park holiday, probably to the Gold Coast.

54 Since her husband’s death, Mrs Booth has been taking anti-depressants, which have been medically prescribed, and she has been receiving counselling. Otherwise, although she suffers from occasional asthma, which does not debilitate her or impair her capacity to care for her children, she has no significant health problems.

55 Mrs Booth left school at the end of year 11, but without her higher school certificate, and she married for the first time when she was aged only 17 years. In recent times she has obtained an Associate Diploma in Social Science (Community Welfare) Studies with the Department of Technical and Further Education. In her affidavit evidence she expressed the desire of ultimately using that qualification to seek employment. She has an interest in the area of child care and fostering, and is a member of a local foster parents support network. She has also held the voluntary position of Secretary of the Board of the Foster Care Association of New South Wales.

56 Mrs Booth had a close and affectionate relationship with her grandfather and her step-grandmother. The geographical constraints of her residing on the Central Coast near Lake Macquarie precluded her from seeing a great deal of her grandfather during her marriage. However, they maintained contact and exchanged cards at birthdays and Christmas.

57 The only evidence placed before the Court concerning the financial and material circumstances of Ruth Emily Russell was that given by her mother under cross-examination.

58 According to the Plaintiff, Ruth is now living in the house property at 71 Gould Street, Bondi, which is one of the two house properties formerly owned by the Deceased and which is now held as one of the assets in the estate. She is living by herself. It would appear that, in effect, she does not pay any rent or occupation fee for her residence in that estate property. Ruth who was, in 2003, a first year student at the University of New South Wales is no longer attending university. She is working part-time in a food shop, and attending a TAFE course in hospitality. Her mother was not aware of Ruth’s earnings, or what Ruth proposed to do with any money that she might receive from the estate of her grandfather.

59 It is in the light of the foregoing evidentiary material that the Court must proceed to a consideration of the claim of the Plaintiff.

60 I have received written outlines of submissions and chronologies from Counsel for the respective parties. Those documents will be retained in the Court file.

61 The Plaintiff as a daughter of the Deceased is an eligible person within paragraph (b) 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.

62 According to the affidavit of the Defendant of 21 May 2003 (being the affidavit filed in compliance with requirements of Part 77 rule 59 of the Supreme Court Rules) each of the five other beneficiaries named in the will of the Deceased, being the five grandchildren of the Deceased, is or may be an eligible person. Nevertheless, although the Deceased appears to have been a loving, and at times generous, grandfather to each of his grandchildren, I have considerable doubt as to whether any of his grandchildren (apart, possibly, from the Defendant) was at any time dependent upon him, and thus an eligible person in relation to the Deceased. However, each of those five grandchildren, equally with their mother, the Plaintiff, is a chosen object of the testamentary beneficence of the Deceased.

63 Evidence was elicited from the Plaintiff concerning various funds of money which she had received or which had come under her control, and the manner in which she had dealt with those funds. The Plaintiff was questioned concerning the amount of $40,000 which she received in 1995 after the sale of the house property at Wyong. Other than the statement that she repaid a debt of $10,000 to her mother, the Plaintiff was not able to say what she did with the rest of that money. However, she had at the time two dependent children (although she was receiving maintenance from her father as well as Government payments in respect of those two children), and the evidence of the Plaintiff tended to suggest that the balance of those proceeds of sale was spent on normal family outgoings and expenses.

64 During the lifetime of the Deceased he and Mrs Ruth Simpson had established endowment policies for their first three grandchildren, being Kathleen, Diana and Luke. During the Deceased’s lifetime the Plaintiff somehow got control of those endowment policies and used the moneys in respect to those policies (said by the Defendant and Mrs Booth to have been about $2000 in respect to each of those grandchildren) without the permission of either the beneficiaries, being three of her own children, or the Deceased.

65 Further, when Kathleen was aged about seven, she became entitled to damages in consequence of a motor vehicle accident. The Plaintiff gained control of those damages (which were said by her to be in an amount of about $2,000, perhaps more), and used those moneys towards the deposit on the Marrickville house. The Plaintiff does not appear to have made any effort to account to Kathleen, or to reimburse her, for that amount.

66 It will be appreciated that the foregoing conduct of the Plaintiff, although not reflecting any credit upon the Plaintiff, occurred a considerable time ago. The Court by section 7 of the Family Provision Act is required to exercise its discretion regarding the claim of the Plaintiff for an order for provision in the light of the circumstances which exist at the present time. I do not regard the foregoing conduct of the Plaintiff as being determinative of her present claim.

67 It is here appropriate to observe that an order for provision is not made as a reward for good conduct. Neither is such an order withheld as punishment for perceived bad conduct on behalf of an applicant.

68 In performing the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208, it is firstly necessary to establish whether the Plaintiff has been left without adequate provision for her proper maintenance and advancement in life.

69 Although the Plaintiff stated that she had little, if anything, by way of assets, it must be recognised that she is entitled to a considerable financial benefit from the estate of the Deceased. Under the terms of his will, the Plaintiff is entitled to one-sixth of the distributable estate.

70 Had the Plaintiff not instituted the present proceedings, that estate would have had a distributable value in excess of $2,700,000. (It is difficult to be more precise, since income tax liabilities have not yet been assessed.) Thus, under the terms of her father’s will the Plaintiff was entitled to receive at least $450,000. Even after allowance is made for the costs of the present proceedings (in what I have already stated I consider to be a totally excessive amount of almost $153,000), the Plaintiff will be entitled to receive at least $424,500. Of that amount she has already received interim distributions of about almost $55,000. Thus she is entitled to receive, under the terms of the will, a further $370,000 from the estate.

71 The essential need asserted by the Plaintiff is for permanent and secure accommodation. She stated her wish to purchase a house property near Bondi Beach, or at least in the Eastern Suburbs. As a result of enquiries made by her, the Plaintiff said that a three bedroom semi-detached house or a terrace house in the Bondi area would cost in the order of $850,000.

72 The Plaintiff, upon being cross-examined concerning her foregoing preference for the locality in which she wished to reside, said that she had lived in the Bondi area for most of her life, and was presently residing there with her son.

73 However, it would appear that the Plaintiff has resided in the Eastern Suburbs of Sydney for a total of only about 19 years (from 1958 until 1968; and from 1995 until the present). That is, she has lived in the Eastern Suburbs for less than one third of her lifetime.

74 When cross-examined concerning accommodation which might be purchased in other parts of metropolitan Sydney, such as Erskineville, Sydenham, Hurlstone Park or Dulwich Hill, the Plaintiff responded by saying that she had made no enquiries concerning those locations, and intimated that she had never considered living in such places and was not enthusiastic to do so.

75 It would appear that the Plaintiff wishes to continue to reside in the Bondi area chiefly because that is where she is presently residing and because the two houses owned by the Deceased (each of which is currently occupied, essentially rent free, by one of the Plaintiff’s adult children) are located in Bondi.

76 It is rare that an adult child can establish an entitlement to provision from an estate of a parent by way of an absolute gift of a residence or the purchase price for such a residence.

77 In the instant case the Plaintiff appears to be secure in her rented accommodation. If she had been desirous of purchasing a residence, she was entitled to a least $450,000 under the terms of her father’s will, to enable her to do so. Even after instituting the present proceedings she will still be entitled to at least $424,500 from the estate, which she can use towards such a purchase (I have already remarked the absence of any evidence concerning how the Plaintiff expended her interim distribution of $54,700.)

78 It is not for the Court to direct where the Plaintiff should reside. But if she is seeking additional provision from her father’s estate beyond the $450,000 to which she is entitled under the terms of the will, then it is for the Plaintiff to establish why the estate should bear that additional amount necessary to enable her to reside in an area where residential accommodation is notoriously expensive, rather than in some other locality in metropolitan Sydney.

79 It is all very well for the Plaintiff to submit that because the estate is a relatively large one the Court should, in effect, be more generous to the Plaintiff. The Plaintiff must establish her claim upon its own merits. The competing claims of the other beneficiaries can have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise establish. Those competing claims cannot enhance the claim of the Plaintiff.

80 I have already observed that the Plaintiff appears to be secure in her rented accommodation. But if she wishes to purchase a residence, she has already a testamentary benefit exceeding $400,000, which might well enable her to do so, if she were prepared to look to accommodation less commodious than a three bedroom semi-detached house or terrace house (in which, presumably, she will be residing alone, when, as she expects, her son Tom removes to Melbourne) or if she were prepared to reside in a location other than the Eastern Suburbs. (In this regard I note the evidence of the Defendant concerning the cost of residential accommodation.) In respect to accommodation, I do not consider that the Plaintiff has established a need which has not been met by the testamentary provisions of the Deceased.

81 But, in any event, even if such a need be established, the claim of the Plaintiff must be approached in the light of the competing claims upon the testamentary bounty of the Deceased. Whether or not any or all of the Plaintiff’s five children are eligible persons in relation to the Deceased, each of those children is (equally with the Plaintiff) a designated object of the testamentary beneficence of the Deceased. Any additional benefit to the Plaintiff will have the practical effect of reducing the amount available to be shared among the remaining five beneficiaries.

82 It is a fair summary of the circumstances of the those beneficiaries that none are affluent, some being worse off than others. It is quite apparent that Mrs Booth, as the result of the tragic loss of her husband and daughter, is in extremely difficult circumstances. I would not be disposed to make any order in favour of the Plaintiff which would have the effect of reducing Mrs Booth’s entitlement under the terms of her grandfather’s will.

83 As well as accommodation, the Plaintiff claims an amount which will constitute a fund to meet unexpected contingencies and vicissitudes. If she chooses to remain in her rented accommodation, then the Plaintiff already has such a fund under the terms of the will. If, however, she chooses to expend her entitlement under the will upon accommodation of a less expensive nature than a three bedroom residence in the Eastern Suburbs, then she may need such a fund. I note that the evidence concerning the Plaintiff’s present needs (apart from her expressed desire to purchase a residence) and concerning her present lifestyle is somewhat scanty. However, I do not disregard the Plaintiff’s health problems and the fact that she is presently unemployed (and that her prospects of obtaining employment at her stage in life are uncertain).

84 In all the circumstances, it seems to me appropriate that the Plaintiff should receive some additional provision from the estate of the Deceased, which, together with the amount to which she is already entitled under the terms of the will, will enable her, if she so desires, to purchase appropriate accommodation or will constitute a fund to enable her to enhance her present lifestyle and provide for unexpected contingencies. I consider that appropriate provision is a legacy in the sum of $150,000. However, that legacy should not affect Mrs. Booth’s entitlement under the will; and thus it should be borne by that part of the residuary estate of the Deceased to which the Defendant, Luke, Ruth and Tom are entitled. In practical terms that will mean that the interest of each of those beneficiaries will be reduced by $37,500.

85 I make the following orders:

(1). I order that, in addition to the benefits to which she is entitled under the will of the late Keith MacDonald Simpson (“the Deceased”), the Plaintiff receive a legacy in the sum of $150,000, such legacy to be borne by those parts of the estate of the Deceased to which under the said will the Defendant, Luke Simpson Percy, Ruth Emily Russell and Thomas Keith Everall Russell are entitled, such legacy not to bear interest if paid on or before 1 December 2004 and if not so paid to bear interest at the rates prescribed for unpaid legacies under the Wills, Probate and Administration Act 1898.

(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: 09/20/2004