Sharon Ann McCarthy v Royce Alphonsus Dorney

[2007] NSWSC 742

CITATION:	Sharon Ann McCarthy and Anor v Royce Alphonsus Dorney [2007] NSWSC 742
HEARING DATE(S):	15 and 16 March 2007
JUDGMENT DATE :	10 July 2007
JUDGMENT OF:	Associate Justice McLaughlin
DECISION:	1. I order that the summons be dismissed; 2. I order that the Plaintiffs pay the costs of the Defendant, such costs to be on the party and party basis; 3. I order that the Defendant be entitled to recoup from the estate of the late Olive Julia Lilia Dorney (“the Deceased”) the difference between the costs of the Defendant on the indemnity basis and the amount of the foregoing costs which he may recover from the Plaintiffs; 4. The exhibits may be returned.
CATCHWORDS:	Succession. Family Provision. Claim by two adult grandchildren. Whether Plaintiffs are eligible persons. Whether Plaintiffs, who as infants resided with the Deceased for short periods, were partly dependent upon the Deceased. Whether there are factors warranting the making of the application. Financial and material circumstances of each Plaintiff. Competing claims of beneficiaries.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Re Fulop Deceased (1987) 8 NSWLR 679 Ball v Newey (1988) 13 NSWLR 489 Petrohilos v Hunter (1991) 25 NSWLR 343 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191
PARTIES:	Sharon Ann McCarthy (First Plaintiff) Trevor Francis Dorney (Second Plaintiff) Royce Alphonsus Dorney (Defendant)
FILE NUMBER(S):	SC 5179 of 2005
COUNSEL:	R. Colquhoun (Plaintiffs) G. Wilson (Defendants)
SOLICITORS:	Walker Smith (Plaintiffs) Marshall & Partners (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 10 July 2007

5179 of 2005 SHARON ANN McCARTHY and ANOR v ROYCE ALPHONSUS DORNEY

JUDGMENT

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

2 By summons filed on 28 September 2005 Sharon Ann McCarthy and Trevor Francis Dorney claim an order for provision for their maintenance and advancement in life out of the estate of their late grandmother, Olive Julia Lilia Dorney (to whom I shall refer as “the Deceased”).

3 The Deceased died on 23 September 2004, aged 92. She left a will dated 1 September 1987, probate whereof was on 28 November 2005 granted to Royce Alphonsus Dorney, one of the executors named in such will (who is the Defendant to the present proceedings). The other executor named in the will, Bernas Patricia Coleman, predeceased the Deceased (having died on 23 May 1993).

4 The Deceased was a widow at the time of her death, her husband, Harold Joseph Dorney, having died on 2 June 1986. The Deceased and her husband had eight children. Six of those children survived the Deceased. Two other children, Harold Francis (the father of the Plaintiffs) and Bernas Patricia had predeceased their mother.

5 By her will the Deceased gave her residence at 17 Young Street, Cooks Hill (a suburb of Newcastle) to her surviving children as tenants in common in equal shares. The will contained a provision by which the share for any child of the Deceased who predeceased her, other than Harold Francis, passed to the children of such deceased child. The effect of that provision was that the house property should pass in seven shares; each of the surviving six children of the Deceased thus receiving a one seventh interest in the house property and the four children of Bernas sharing the remaining one seventh interest (each of those four children thus receiving one twenty- eighth interest in the house property).

6 By her will the Deceased gave a legacy of $2,000 to each of the Plaintiffs. The residue of the estate was given to the surviving children of the Deceased as tenants in common.

7 The inventory of property discloses the following assets and the respective values thereof ,

House property, 17 Young Street, Cooks Hill, to which an estimated value of $800,000 is ascribed

ANZ Bank account - $6,580

Household furniture and appliances, to which an estimated value of $2,000 is ascribed

1968 H2 Kingswood sedan motor vehicle, to which a nil value is ascribed

8 Despite the estimated value of $800,000 ascribed in the inventory of property to the house at 17 Young Street, Cooks Hill, which had been the family home of the Deceased, her husband and their children, a valuation dated 16 May 2005, which was obtained by the Defendant, discloses the value of that house property at that date to be $625,000. There has been placed in evidence on behalf of the Plaintiffs an appraisal of the Young Street property by a real estate agent in the range of $625,000 to $650,000.

9 In calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration, since the Plaintiffs if successful in their claim, will be entitled to their costs out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to have his costs out of the estate.

10 It has been estimated on behalf of the Plaintiffs that their costs will total a little over $39,000, whilst it is estimated on behalf of the Defendant that his costs will total about $26,000. Accordingly, the Court should proceed upon the basis that the total costs of the proceedings will be about $65,000.

11 It will be appreciated that the ready money available in the estate (being the amount of $6580 held in a bank account) will be exhausted in meeting the administration expenses of the estate, and that the house property must be sold, if only to meet the costs of the present proceedings. In the event of such sale, there will be legal costs and expenses and estate agent’s commission. Whilst no evidence has be placed before the Court concerning the amount of those costs, expenses and commission, I consider that it would be prudent to assume that they could amount to $20,000. Accordingly, adopting a conservative estimate of the value of the Young Street property, and deducting therefrom a total of $65,000 for the costs of the present proceedings and an amount of $20,000 in respect to the sale of the house property, and also assuming that the amount of $6580 will be, either totally or at least in large part, expended in meeting the costs and administration expenses of the estate, the value of the distributable estate will be probably no more than about $540,000.

12 Sharon Ann McCarthy was born on 12 November 1958 and is presently aged 48. Her brother, Trevor Francis Dorney, was born on 7 January 1961, and is presently aged 46. They are the only two children of the late Harold Francis Dorney, who died on 27 December 1960. (I shall, for convenience and without intending any disrespect, refer to each of the Plaintiffs by her or his first given name.) At the time of her father’s death Sharon was aged a little over two years. Trevor was born eleven days after the death of his father.

13 Evidence was given by each of the Plaintiffs concerning their respective recollections of their early childhood and concerning their relationship with the Deceased and with their paternal grandfather. Evidence was also given by the mother of the Plaintiffs, Kathleen Frances Dorney (now Mrs Montague). Mrs Montague’s present husband, William Montague, whom she married on 28 June 1968 is the only father whom the Plaintiffs have ever known. (I shall also, for convenience and without intending any disrespect, refer to Mrs Montague by her first given name.)

14 Harold Dorney married Kathleen on 1 February 1958 and they moved into a house at Markwell (near Bulahdelah), which remained their family home until the death of Harold almost three years later. Kathleen retained that residence as the family home until late 1963 or early 1964. However, Kathleen and the Plaintiffs did not reside continuously in the Markwell house from the death of the Deceased until the sale of that house some two or three years later. Shortly after Harold’s death they resided with Kathleen’s parents until 1961. They then returned to the Markwell house, where they resided until March 1963, Royce Dorney and his wife Irene living there with them throughout that period. In March 1963 Kathleen and her children returned to her parents’ residence, at Upper Myall, where they remained until she sold the Markwell house towards the end of that year or early in the following year. The Markwell house was sold to Royce Dorney, and Kathleen then, conjointly with her sister-in-law Bernas, purchased a residence at 1 Kemp Street, Merewether (a suburb of Newcastle). Kathleen and the Plaintiffs continued to reside in that house property until Kathleen’s marriage to William Montague in June 1968. Upon her marriage to Mr Montague, Kathleen, together with the Plaintiffs, moved into residence at the rural property owned by her new husband near Krambach (in the vicinity of Taree).

15 From before his marriage until the time of his death Harold was employed by the Newell’s Creek Timber Mill at Markwell, which apparently was owned and operated by his father, Harold Joseph Dorney, and other members of the Dorney family.

16 Like many wives of that period, Kathleen did not work during her marriage to Harold. She was a full-time wife and mother, and, especially after Harold became ill in late 1958, shortly before the birth of Sharon, much of Kathleen’s time and energy was devoted to looking after her young husband in what ultimately became his terminal illness.

17 Harold was admitted to the Newcastle Mater Hospital on 13 November 1958 for a period of one week (that being immediately after Sharon’s birth). Thereafter he suffered continual health problems, later diagnosed as cancer. He was hospitalised on four subsequent occasions in 1958 and 1959 in Newcastle and underwent surgery on at least three of those occasions. He was admitted to St Vincent’s Hospital in Sydney in August 1960. However, his death on 27 December 1960 occurred at the residence of his parents at Young Street, Cooks Hill.

18 On each of the occasions when Harold was hospitalised in Newcastle, Kathleen and her children resided with his parents at their residence at Cooks Hill. When Harold was admitted to St Vincent’s Hospital in Sydney in August 1960 his parents, Kathleen and Sharon resided in a caravan located in the backyard of a friend in Sydney, so that they could visit Harold each day during his period in hospital. Following his discharge from St Vincent’s at the end of August 1960 Harold, his parents, Kathleen and Sharon all returned to the Cooks Hill residence. Harold was still living there at the time of his death four months later. Kathleen and Sharon were still living at Cooks Hill when Trevor was born eleven days after his father’s death.

19 Harold was the second child and eldest son of the Deceased, having been born on 17 December 1935. He was aged only 25 at the time of his death. Kathleen was left a widow at the age of 24.

20 At the time of Harold’s death five of his siblings were still living at home. During Harold’s final illness, Sharon, who was aged only two at the time, was sent to stay with her maternal aunt (Kathleen’s sister) at Upper Myall for a period of some weeks. However, after Trevor’s birth Sharon returned to her mother and her new brother in the residence of her grandparents for a period of about a month. At that time there were also in residence five of the Deceased’s children. That is, there was a total of ten people residing in the Young Street property in late 1960- early 1961.

21 It was the evidence of Kathleen that during the periods whilst she (and, at first Sharon, and then both Sharon and Trevor) resided at Cooks Hill with Harold’s parents, those parents provided all food, and transported Harold and Kathleen for Harold’s medical treatment and to hospital, and provided any other necessary transport, as well as assisting with shopping for Harold and Kathleen. Each Sunday Harold’s parents would take Kathleen and Sharon for a drive. Harold’s father throughout those periods attended to all Harold’s finances. Kathleen purchased neither food nor clothing for herself or her children throughout those periods.

22 The residence at 1 Kemp Street, Merewether, into which Kathleen, Sharon and Trevor moved in January 1964 was purchased by Kathleen conjointly with her sister in law Bernas (who had been widowed in July 1963, upon the death of her husband in a timber accident). Throughout the period of her residence at Merewether, Kathleen received practical assistance from her father-in-law, by way of repairs to the Merewether house. Sharon and Trevor often stayed with their grandmother, the Deceased, whilst Kathleen was working. Similarly, the Deceased and her husband would frequently visit the Merewether house. Kathleen said that they played a very good and supportive role in the lives of their grandchildren, and that there were strong family ties between the Plaintiffs and their grandparents. Even after Kathleen married Mr Montague in 1968 and she and her children removed to the property of her new husband, there was still a continuing and good relationship between the Plaintiffs and their paternal grandparents. However, it was not suggested that there was any dependence by the Plaintiffs upon the Deceased once their mother had married Mr Montague.

23 Sharon left school at the age of 16, and commenced employment at Taree first, as a dental nurse, and then, when she attained the age of 17, as a trainee nurse at the Manning Base Hospital. Sharon married in March 1979, when she was aged 20. Of that marriage were born two children, Melanie (who is now aged 24), and Amber (who is now aged 22). Sharon and her husband separated in June 1990, and divorced in March 2005. After the separation from her husband, both Sharon’s daughters continued to reside with her at her home at Taree until April 2005, when Melanie moved into her own residence, but Amber continued thereafter to reside with Sharon.

24 At the time when she separated from her husband Sharon had little in the way of assets, apart from some furniture and an old motorcar. Initially, she lived with her parents on their property. Eventually she was enabled to purchase a house in Taree in 1993.

25 Sharon’s mother and her stepfather, Mr Montague, retired to Taree. They and Sharon purchased a block of land at Burrawong Crescent in that town (Sharon using the proceeds of sale of her previous residence as a contribution towards that purchase). That block of land was then subdivided, and two residences were constructed thereon. Sharon resides at 25 Burrawong Crescent, and her mother and stepfather reside next door at 27 Burrawong Crescent. Sharon’s house is presently worth about $275,000. She owes her mother and stepfather an amount of $35,000, in respect to the mortgage on the purchase of the block of land, which she is repaying by instalments.

26 Sharon is currently employed as a sales manager by Office Data Systems at Taree, where she receives a gross income of $52,000 a year (together with superannuation). She has been working for her present employer since 1984.

27 Apart from furnishings and household effects Sharon has no other assets. In 1995 Sharon was diagnosed as a diabetic Type One. Nevertheless, she has to the present time been able to maintain reasonably good health.

28 In addition to her weekly salary (now in an amount of $337 net) Sharon since 21 September 2006 has received the sum of $300 a week as a distribution from the Melamber Trust, an entity which acquired a one third interest in Sharon’s employer Office Data Systems (which is the trade name of Twomacs Systems Pty Limited), and Sharon is a beneficiary named in that trust.

29 Sharon’s daughter Amber, now aged 23, currently resides with her, and pays board of $100 a week, which Sharon uses towards weekly household expenses. Amber is engaged to be married, and the wedding will take place in early February 2008.

30 Sharon’s current assets (and estimations of the respective values thereof) are as follows:

House $275,000
Home contents $43,000
2002 Ford Laser motor vehicle $10,000
2000 Ford motor vehicle $8,500
Savings account $1,000
Total $337,500

31 Her only liability is the mortgage loan, in a present amount of $35,000, which she owes to her mother and stepfather.

32 Sharon is a guarantor to the amount of $250,000 for loans incurred by her employer, Twomacs Systems Pty Limited associated with the purchase of Office Data Systems. Her residence is security for that guarantee. She is also a guarantor for the trade debts of the business.

33 Sharon provided details of her weekly expenses, in a total amount $656.

34 As a result of an injury at work in February 2006, Sharon has undergone two surgical procedures to her right knee, in March 2006 and subsequently in January 2007. She has received workers compensation benefits in consequence of that injury for the various periods while she has been off work. She retains from the insurer ongoing benefits for medical expenses.

35 Sharon as an insulin dependent diabetic is required to self-medicate four times a day, by way of intramuscular injection. She said that she has found that the increased stress associated with her work since July 2006 (when, in effect, she became a part owner of the business by which she is employed) and the worry that the security of her home depends on the success of the business, have led to her having difficulty in controlling her blood sugar levels. A medical report from her usual medical practitioner, Dr Patrick Stevens, addressing these matters, was admitted into evidence over objection from the Defendant.

36 After leaving school, Trevor worked in his uncle’s sawmill at Newell’s Creek from the time when he was aged eighteen until he was twenty. He is presently a co-proprietor, with his wife Jennifer Joyce Dorney, of an earthmoving, timber milling and supply business. They now conduct that business through the vehicle of a company, Yenrod Milling & Earthmoving Pty Limited. In the financial year ended 30 June 2006 the partnership earned a net income of $39,415. Trevor’s taxable income from the partnership was $19,559 and the taxable income of his wife from the partnership was $19,708. In addition, his wife, works three hours a day as a cleaner on two mornings a week, from which employment she received a total amount of $2579 for the foregoing financial year.

37 The assets of Trevor and his wife (and estimations of the respective values thereof) are as follows:

House $180,000
Home contents $30,000
1985 Toyota 4 Runner motor vehicle $2,000
1990 Toyota 4 Runner motor vehicle $8,000
Boat $10,000
Savings account (approximate) $5,000
Total $235,000

38 The current liabilities of Trevor and his wife are:

Home loans $37,388
Business loan $30,000
Indebtedness to Australian Tax Office $3,133
Total $70,521

39 The indebtedness to the Australian Tax Office arose because Trevor’s principal forestry employer went bankrupt, owing him an amount of about $4,000 in contract fees.

40 Trevor had previously been married, and has an adult daughter, now aged about 27, from his first marriage who is no longer dependent upon him. Trevor had full custody of that daughter from infancy, until she left home.

41 By his present marriage Trevor has two children, a son Nicholas and a daughter Katie, both of whom still live at home. Nicholas is employed as an apprentice, but is not yet in a position to pay board to his parents. Katie, having completed school is currently studying medical administration at TAFE, and is totally dependent upon her parents.

42 The home loan debt of $37,388 is owed by Trevor to his mother and his stepfather, Mr and Mrs Montague. He makes monthly repayments to them in an amount of $500.

43 The business loan for $30,000 was incurred in November 2006, for the purpose of purchasing equipment for Trevor’s business. He has given a personal guarantee for that loan, which is secured upon his residence.

44 Trevor gave details of the weekly expenses of himself and his wife, totalling almost $479.

45 Although Trevor resides in the town of Wingham, his work, felling timber, is generally conducted alone, sometimes at distant locations from his residence. On occasion it is necessary for him to remain away from home throughout the week, camping at the worksite. His business is essentially a one man operation. If he were to be sick or sustain an injury, he would be unable to work and production would cease. The size of Trevor’s business prevents him from employing any other persons to assist or replace him.

46 The claim of the Plaintiffs must be approached in the light of competing claims upon the testamentary bounty of the Deceased. Those are the claims of the surviving six children of the Deceased and the children of Bernas, the deceased child of the Deceased, each of whom was recognised by the Deceased as an object of her testamentary beneficence. Evidence was placed before the Court concerning the financial and material circumstances of the each of the surviving children of the Deceased.

47 It is not necessary that I set forth the details of those financial and material circumstances. Suffice it to say that, whilst some are better situated than others, none of the beneficiaries (with the possible exception of the Defendant, who is in poor health and no longer able to work) could be described as affluent, whilst none of them are destitute.

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

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

50 Each of the Plaintiffs asserts that she or he is an eligible person within paragraph (d) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. That paragraph is as follows,

(d) a person:
(i) who was, at any particular time, wholly or partly dependent upon the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.

51 Accordingly, it is necessary for each Plaintiff, each of whom is a grandchild of the Deceased, to establish that, in addition, she or he was partly dependent upon the Deceased.

52 The Plaintiffs also point to the fact that at various times in their early infancy each resided in the home of the Deceased or resided with the Deceased, and submit that, in consequence, each was a member of the household of which the Deceased was a member.

53 The Plaintiffs submit that the fact that on a number of occasions during the respective infancy of each Plaintiff, they, together with their mother and, until his death, their father, resided with their paternal grandparents, being the Deceased and her husband, at their residence at Cooks Hill, and the fact that throughout those periods when they resided at Cooks Hill accommodation and sustenance were provided for them had the consequence that throughout those periods they were partly dependent upon the Deceased.

54 The Defendant, however, points to the fact that throughout the entirety of those periods of asserted dependency the parents of the Plaintiffs had their own residence at Markwell, and that it was a matter of familial convenience that the Plaintiffs and their parents were residing in the Cooks Hill residence of the Plaintiffs’ paternal grandparents, during the periods of illness and of recuperation of the Plaintiffs’ father. The Defendant also points to the fact that during the period from late 1959 until mid-1960, when Harold’s medical condition had improved somewhat, he was enabled to return to work at the sawmill. Further, that throughout the entirety of the period of his ill-health, whether he was enabled to work or not, Harold retained his employment at the sawmill, and received his normal wages on a full-time basis to the time of his death.

55 The Defendant denied that the Plaintiffs were at any time wholly or partly dependent upon the Deceased. Further, the Defendant denied that each Plaintiff was at any relevant time a member of the same household as the Deceased.

56 The Defendant submits that for a grandchild to establish dependence, whether whole or partial, on a grandparent the dependence must be direct and immediate; it is not sufficient that the grandchild’s dependence is the indirect result of the grandparent providing support and maintenance for the grandparent’s own adult child, and thereby incidentally benefiting the grandchildren who are directly dependent upon that child. In this regard, the Defendant relies upon the following passage from the judgment of Hope A-JA (with whom Clarke and Sheller JJA agreed) in the Court of Appeal in Petrohilos v Hunter (1991) 25 NSWLR 343 at 346,

The word “dependent” is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that “‘Dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed”. If the correct view were that the context of the statute requires a limitation of the word to “financial or material” matters as McLelland J said in Re Fulop Deceased or to “other forms of dependence analogous to but distinct from financial dependence” as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.

57 The present is not a case where, for practical purposes, a grandparent has accepted the role of parent, and has been directly responsible for the upbringing of a child, essentially without the intervention of the child’s own parent or parents.

58 The present is a case where, for relatively short periods during the infancy of each of the Plaintiffs, whilst the father of the Plaintiffs was suffering periods of ill-health and was in hospital, and for a period of about three weeks after the death of their father, the Plaintiffs (or, before the birth of Trevor, only Sharon), who throughout the entirety of those periods were with their mother, resided in the home of the Deceased or resided with the Deceased (during the period whilst the Plaintiffs’ father was in St Vincent’s Hospital in Sydney). Throughout those periods, and indeed throughout the entirety of the relevant period of his declining health and until his death, the Plaintiffs’ father continued to be employed full-time by the family sawmilling business and continued to receive his full wages.

59 In my conclusion the Plaintiffs throughout the periods relied upon were directly dependent upon their mother and, until his death, their father. I am not satisfied that the accommodation and sustenance provided for the Plaintiffs (and, it should not be overlooked, for their mother and their father) during the foregoing periods constituted partial dependency of the Plaintiffs upon the Deceased (or upon the Deceased and her husband).

60 The extent of the contact of the Plaintiffs with their paternal grandparents after the death of their father was disputed by the Defendant, whose evidence in this regard was supported by that of his various siblings. However, even accepting that the contact was as asserted by the Plaintiffs and their mother, nevertheless I do not consider that that contact constituted dependence by the Plaintiffs upon the Deceased, or upon the Deceased and her husband. The fact that the Plaintiffs may have been the recipients of grandmotherly gifts and generosity and may from time to time have spent relatively short periods in the grandmother’s residence, whilst residing with their mother and, subsequently, with their mother and her new husband, does not constitute dependence by the Plaintiffs upon the deceased. It follows, therefore, that the Plaintiffs are not eligible persons in relation to the Deceased.

61 My foregoing conclusion is of itself sufficient to dispose of the proceedings. However, even if, contrary to that conclusion, the Plaintiffs were to have established that they were eligible persons in relation to the Deceased, it would then be necessary for the Plaintiffs, being eligible persons only within paragraph (d) of the foregoing definition, to establish, as required by section 9 (1) of the Act, that there are factors which warrant the making of the application.

62 It was submitted on behalf of the Plaintiffs that the following matters constituted such factors,

· the Deceased taking the Plaintiffs on outings;

· the Deceased babysitting the Plaintiffs for extended periods whilst their mother went to work;

· extended stays by the Plaintiffs with the Deceased and their grandfather over school holidays;

· visits by the Plaintiffs to the Deceased;

· the needs of the Plaintiffs, when considered in the context of the death of their father (when Sharon was aged only two, and eleven days before the birth of Trevor), and the consequent close relationship between the Plaintiffs and the Deceased.

63 Most of the foregoing matters, concerning the nature and extent of the contact between the Plaintiffs and the Deceased, were disputed by the Defendant. Evidence disputing those matters was given by the Defendant and his siblings.

64 It is not necessary for me to resolve those disputes, although it is probable that the nature and extent of the contact between the Plaintiffs and the Deceased was less than that which they now assert and was greater than that asserted by the Defendant and his siblings. However, accepting, for present purposes, the evidence in this regard of the Plaintiffs, I consider that such evidence discloses no more than a normal relationship of a grandmother who was affectionately disposed towards the children of her deceased son, who had died at an early age leaving a youthful widow and very young children (one not yet born).

65 In Re Fulop Deceased (1987) 8 NSWLR 679 McLelland J (as he then was), said at 681,

The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (cf the Wills Probate and Administration Act 1898 , s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the "factors" referred to in the subsection are factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.

66 I am not persuaded that any of the matters so relied upon by the Plaintiffs constitute factors warranting the making of the application, being factors of the nature described by McLelland J in the foregoing passage. I have already observed that the present is a case where throughout the entirety of the contact and relationship between the Plaintiffs and the Deceased the Plaintiffs were residing with, and were in the care and custody of, their mother and, until his death, their father (who was still continuing to receive his full wages from his employment).

67 In the absence of such factors which warrant the making of the application, the Court is precluded from proceeding with the application. Accordingly, my conclusion that there are no such factors warranting the making of the application would, in any event, be determinative of the claim of the Plaintiffs.

68 In the event, however, that I be wrong in my foregoing conclusions (first, that the Plaintiffs are not eligible persons in relation to the Deceased; second, that there are no factors which warrant the making of the application), it is appropriate that I should express my views concerning the substantive claim of the Plaintiffs.

69 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191) Court must determine whether in consequence of the provisions of the will of the Deceased the Plaintiffs, or either of them, have been left without adequate provision for their proper maintenance.

70 It should not be overlooked that each of the Plaintiffs received a legacy of $2,000 under the terms of the will of the Deceased.

71 Sharon owns her own residence, having an estimated valued of about $275,000, subject to a mortgage loan in an amount of $35,000. She owns two motor vehicles. She is in secure employment, having worked for the same entity for the past 23 years. Since mid-2006 she has had a beneficial interest in the business for which she works. In consequence, her net income from that business is $637 a week. That amount is marginally less than the total of her weekly expenses. Sharon has certain health problems, including diabetes, which is controlled by medication, and she has suffered problems with her knee as a result of the injury which she sustained at work in February 2006. She is also suffering from increased stress associated with her work, and with the fact that she now has a beneficial interest in the business, but that in return for that interest she is a guarantor to the extent of $250,000 for loans incurred by her employer, and that her residence is security for that guarantee.

72 Were it necessary for me to do so, I would be satisfied that Sharon has been left without adequate provision for her proper maintenance, and that she would be entitled to receive, in addition to the legacy of $2,000 given to her by the will of the Deceased, a further, relatively small, legacy which would provide a fund to meet unexpected contingencies. I would have in contemplation an amount of no more than $20,000.

73 Trevor and his wife own their own residence, having an estimated value of $180,000, which is subject to a home loan of slightly more than $37,000. As well as the contents of that residence they own two motor vehicles and a boat. Their younger daughter is still totally dependent upon them. Trevor has a business loan of $30,000 and an indebtedness to the Australian Taxation Office of about $3,000. He is self employed, and has no assistants or employees. His business is dependent upon his own ability and health.

74 Were it necessary for me to do so, I would be satisfied that Trevor has been left without adequate provision for his proper maintenance, and that, in addition to the legacy of $2,000 given to him by the will, he would be entitled to receive a further legacy, which would provide a fund to meet unexpected contingencies. In my view, having regard to the uncertainties of his occupation, and the fact that he is, for practical purposes, self-employed, and without help or assistance from others, an appropriate amount for such a fund would be $40,000.

75 However, as I have already concluded, I am not satisfied that either Plaintiff is an eligible person in relation to the Deceased. Further, even if either Plaintiff were, contrary to that conclusion, to have established that she or he be such an eligible person, I am not satisfied that there are factors which warrant the making of the application by the Plaintiffs. It follows, therefore, that the proceedings will be dismissed.

76 I make the following orders:

1. I order that the summons be dismissed.

2. I order that the Plaintiffs pay the costs of the Defendant, such costs to be on the party and party basis.

3. I order that the Defendant be entitled to recoup from the estate of the late Olive Julia Lilia Dorney (“the Deceased”) the difference between the costs of the Defendant on the indemnity basis and the amount of the foregoing costs which he may recover from the Plaintiffs.

4. The exhibits may be returned.

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