West v France

[2010] NSWSC 845

CITATION:	West v France [2010] NSWSC 845
HEARING DATE(S):	26 July 2010 27 July 2010
JUDGMENT DATE :	5 August 2010
JUDGMENT OF:	Hallen AsJ
CATCHWORDS:	SUCCESSION - family provision- adequacy of provision - Plaintiff - de facto spouse of the deceased for 11 years - Plaintiff and deceased engaged in drug use - Estate left to the three adult children of deceased - Plaintiff continued to engage in drug use after death of deceased - large estate - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for proper maintenance and advancement in life - provision to be made for Plaintiff
LEGISLATION CITED:	Family Provision Act 1982 Succession Act 2006 Succession Amendment (Family Provision) Act 2008
CATEGORY:	Principal judgment
CASES CITED:	Alexander v Jansson [2010] NSWCA 176 Anasson v Phillips (Supreme Court of New South Wales, Young J, 4 March 1988, unreported) Bondy v Vavros (Supreme Court of New South Wales, Young J, 29 August 1988, unreported) Clifford v Mayr [2010] NSWCA6 Collins v McGain & Anor [2003] NSWCA 190 Crisp v Burns Philp Trustee Co Ltd (Supreme Court of New South Wales, Holland J, 18 December 1979, unreported) Diver v Neal [2009] Re Fletcher (deceased); Fletcher v Usher (1921) NZLR 649 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 at 496 Gorton v Parks [1989] 17 NSWLR 1 Green v Perpetual Trustee Co Limited (Supreme Court of New South Wales, Hodgson J, 10 July 1985, unreported) Hastings v Hastings [2008] NSWSC 1310 Hoadley v Hoadley (Supreme Court of New South Wales, Young J, 17 February 1987, unreported) Howarth v Reed (Supreme Court of New South Wales, Powell J, 15 April 1991, unreported) Kalmar v Kalmar [2006] NSWSC 437 Luciano v Rosenblum (1985) 2 NSWLR 65 McLean v Public Trustee [2001] NSWSC 970 Marcuola Bel v Thi Ly Tran [2005] NSWSC 1182 Marshall v Carruthers [2002] NSWCA 47 Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] O'Loughlin v O'Loughlin [2003] NSWCA 99 Pontifical Society for the Propagation of the Faith v Scales(1962) 107 CLR 9 Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch Sellers v Scrivenger & Anor [2010] VSC 320 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR201 Vigolo v Bostin [2005] HCA 11
TEXTS CITED:	Government Gazette No. 38 of 20 February 2009, page 1036
PARTIES:	Shane West James France
FILE NUMBER(S):	SC 2008/281988
COUNSEL:	R D Marshall and P Darcy-King- Plaintiff L J Ellison SC - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

5 AUGUST 2010

2008/281988 WEST v FRANCE

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982 (“the Act”) even though that Act has been repealed, effective from 1 March 2009. Under clause 11(2) of Schedule 1 of the Succession Act 2006, the provisions of the Act “continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part.” That clause commenced on 1 March 2009: s 2(1) of the Succession Amendment (Family Provision) Act 2008 and Government Gazette No. 38 of 20 February 2009, page 1036.

2 Helen Jane France (hereafter called “the deceased”) died on 28 October 2007.

3 The deceased left a Will that she made and published on 1 June 1995, probate of which was granted on 14 April 2008, by the Supreme Court of New South Wales, to her brother, James Thomas France (“the Defendant”), the executor appointed under the Will.

4 By the deceased’s Will, the whole of her estate was left, upon trust, to be divided, equally, between her three children, Joanne Sarah Dent, Jordan James Bushby, and Jackson Thomas Bushby, who survived the deceased and attained the age of 21 years. (With no disrespect, or undue familiarity intended, I shall refer to each, individually, by her, or his, first name.)

5 In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $10,251,636. There was jointly held property, with an estimated value of $5,331.

6 There was also property owned by the deceased, in Queensland, with a value, at the date of death, of about $500,000. On 28 August 2008, the Probate was re-sealed, in Queensland.

7 In addition, there was property owned by the deceased, in Western Australia, with a value, at the date of death, of about $480,000. On 12 August 2008, the Probate was re-sealed, in Western Australia.

8 At the date of death, therefore, the estimated gross value of the deceased’s estate was in excess of $11.0 million.

9 There have been some distributions out of the estate. Each of the three children of the deceased has received $75,000 out of the deceased’s estate.

10 The executor, initially, disclosed potential estimated tax liabilities of the estate, at the date of death, of about $700,000. However, the estate’s actual estimated tax liabilities, up to the year ending 30 June 2009, are about $378,000. It is the latter amount that is relevant in determining the net distributable value of the estate.

11 In calculating the value of the estate available for distribution, the costs of the present proceedings must also be taken into consideration, since the Plaintiff, if successful, normally will be entitled to an order that his costs be paid out of the estate of the deceased, whilst the Defendant, irrespective of the outcome of the proceedings, normally will be entitled to an order that his costs be paid out of the estate.

12 The Plaintiff’s costs and disbursements, including counsels’ fees, calculated on the indemnity basis, have been estimated to be in the order of $180,000 (inclusive of GST and upon the basis of a two day hearing). The costs and disbursements of the Plaintiff, including counsel’s fees, calculated on the ordinary basis, are estimated to be $110,000. However, the Plaintiff’s solicitor, in his oral evidence, said that the Plaintiff was to be charged costs and disbursements only if he was successful (i.e. the solicitors are acting on a “no win/no charge” basis) and that there was no uplift factor added to the estimate of costs. I do not know why there is such a significant difference between the two estimates.

13 The Defendant’s costs and disbursements, including senior counsel’s fees, calculated on the indemnity basis, are estimated to be $92,500.

14 For the purposes of the hearing, the Defendant has estimated that the net distributable value of the actual estate, taking into account shareholding values as at 22 June 2010, is between $10,247,000 and $10,517,000, less costs of the proceedings and the estate’s total tax liability. It is agreed by the parties that the net distributable estate has a value in the order of $10.0 million.

15 The persons described as eligible persons, within the meaning of the Act, are the three children of the deceased, their father, Steven Bushby, who is the former spouse of the deceased and the father of Jordan and Jackson, and Shane West, the Plaintiff in these proceedings. Each of the children, and the former spouse, of the deceased, has sworn an affidavit, or affidavits, in the proceedings. There is also evidence that she, and he, has been given the prescribed notice of the proceedings. None of them has made a claim under the Act. (The father of Joanne predeceased the deceased having died in 1991.)

16 The Plaintiff commenced these proceedings by summons filed on 11 December 2008, that is, within the time period prescribed by s 16 of the Act (18 months from the date of death). He seeks a family provision order out of the estate of the deceased. There is no question of any provision being sought by the Plaintiff from notional estate.

17 In an application under the Act, the Court must consider, first, whether the plaintiff is an eligible person; secondly, whether the plaintiff has been left with adequate provision for his, or her, proper maintenance, education and advancement in life; and, thirdly, if not, what, if any, provision (or further provision) ought to be made out of the estate for those purposes?

18 The Plaintiff asserts, and the Defendant does not dispute that he is an eligible person within the meaning of that term in s 6(1)(a)(ii) of the Act, as he was a person who was living in a domestic relationship with the deceased at the date of her death. In this regard, he was her de facto spouse. They commenced their relationship in about 1996, and apart from a period of three months, during 1997, they lived together, continuously, for about 11 years, until her death in October 2007.

19 Before turning to the second and third questions referred to above, I set out some history of the Plaintiff and of the deceased. I am satisfied that the following facts are either not in dispute, or that they have been established by the evidence:

(a) The Plaintiff was born in April 1957 and is presently aged 53 years;

(b) The deceased was born in August 1956 and was aged 51 years at the date of her death;

(c) The Plaintiff grew up in Perth. He attended school until the age of 15 years and, on leaving school, he commenced working as a baker; he was described in the evidence, as having “limited education”;

(d) In about 1972, he contracted Hepatitis B from using an unsterilized tattoo needle;

(e) In 1972, the deceased qualified as a psychiatric nurse;

(f) In 1980, the Plaintiff developed cirrhosis of the liver, following which he has consumed very little alcohol; however, he has developed a long-term habit of smoking marijuana, and has tried other drugs, including heroin;

(g) In 1980, the deceased married Brian Donald Dent, the father of Joanne; they were divorced in 1984;

(h) In 1987, the deceased married Steven Bushby; they were divorced in 1993;

(i) By 1987, the deceased had developed a serious drug habit; she was, then, addicted to heroin and alcohol; she contracted Hepatitis B and Hepatitis C;

(j) The Plaintiff has never been married, and as far as he is aware, he is not the father any child;

(k) The Plaintiff purchased a property in Kalbarri, in Western Australia, in about 1990, for $75,000. He still owns that property, which is subject to a mortgage; the property is presently rented;

(l) The Plaintiff met the deceased in early 1995 in Western Australia; she told him that she was going to Perth for alcohol and drug rehabilitation; he met her again, several times, following her return;

(m) The Plaintiff’s relationship with the deceased commenced in about 1996. From about April, until September 1996, he would stay with the deceased about 4 nights each week, although he still lived, primarily, in his own home;

(n) In about September 1997, the deceased purchased a home in Kalbarri, into which she and the Plaintiff moved. He rented his property and used the rent to make the mortgage repayments;

(o) After he moved in with the deceased, the Plaintiff attended to some of the household tasks, including cleaning, washing, looking after the garden, painting the house, paving the driveway and walkways, and maintaining the irrigation system. He and the deceased would do the grocery shopping together. He also maintained their car. He did most, if not all, of the cooking;

(p) The Plaintiff tried to have the deceased seek assistance for alcohol abuse. He encouraged her to attend a drug and alcohol centre. He contacted the centre and spoke to counsellors. He contacted Alcoholics Anonymous, but the deceased did not attend any Alcoholics Anonymous meetings;

(q) In 1997, Joanne commenced to live with the deceased and the Plaintiff; she attended school at Kalbarri;

(r) In October 1997, the deceased moved from Kalbarri to Fairfield in NSW. The reason for her move was to be closer to Jordon and Jackson who were then living with their father;

(s) In December 1997, the deceased purchased a property in Byron Bay, following which she moved there. Subsequently, the Plaintiff, the deceased and Joanne, lived there together. Joanne attended the local high school;

(t) During the first 12 months living in Byron Bay, the Plaintiff was unemployed. His income of $500 per month was the rental he received from the property at Kalbarri. He used $240 per month to make the mortgage repayments on that property and the balance was used for his own, and household, expenses. The deceased paid all other expenses;

(u) From mid-October 1998, Jordan and Jackson spent every second weekend and half of the school holidays with the deceased and the Plaintiff;

(v) In about 2000, the Plaintiff commenced to receive unemployment benefits; the deceased, however, continued to pay for most things; at about this time also, the deceased added the Plaintiff to her private health insurance cover, for which she also paid;

(w) In about mid 2001, the Plaintiff sold his Harley Davidson motorcycle (for $18,000) and purchased the deceased a diamond ring (for $13,000);

(x) The deceased, subsequently, purchased, for the Plaintiff, another Harley Davidson motorcycle; she also purchased a motor vehicle, which he used to drive the deceased and others, when necessary;

(y) In 2002, the deceased paid about $50,000 in order to discharge the mortgage on the Plaintiff’s property at Kalbarri;

(z) In 2002, the Plaintiff thought that he had obtained employment. However, the job did not eventuate and he remained unemployed until he and the deceased moved to Queensland; thereafter, he remained unemployed until the middle of 2005;

(aa) In 2003, the deceased and the Plaintiff went on a 14-day cruise, for which the deceased also paid;

(bb) In June 2003, the deceased and the Plaintiff moved to Elanora, Queensland. The deceased paid the whole of the purchase price ($370,000) for the property, which was registered in her name. From then, until the date of the deceased’s death, they lived there together;

(cc) In September 2003, following the purchase of the Elanora property, Jordan and Jackson moved in with the deceased and the Plaintiff;

(dd) In late 2004, the deceased arranged for the Plaintiff to have a separate key card and, therefore, access, to her bank account; he used the key card, on occasions, but only for purposes known and approved of by the deceased;

(ee) Between 2005 and 2008, the Plaintiff obtained employment, but only intermittently; otherwise, he continued to receive social security benefits, the amount of which varied, depending upon the amount that the Plaintiff earned when working;

(ff) In August 2007, the deceased found out that she had liver cancer, from which she subsequently died; the deceased was admitted to hospital, on 10 October 2007, where she remained until her death; the Plaintiff regularly attended the deceased in hospital;

(gg) Whilst she was in hospital, the deceased told the Plaintiff that he could withdraw $20,000 to $30,000 from her account to be used to pay for living expenses for himself and her children “until my Estate is resolved”; he admits that following this conversation, and between 10 and 17 October 2007, he withdrew about $7,000 out of her account; however, when his money ran out, the Plaintiff had great difficulty looking after Jordan and Jackson;

(hh) The Plaintiff’s drug of choice is, and has been, for many years, marijuana, whilst the deceased’s drugs of choice were cocaine, heroin and ecstasy; for the last few years of her life, she was using drugs regularly;

(ii) The Plaintiff and the deceased were on a methadone programme for some time; following the death of the deceased, the Plaintiff was able to get off methadone completely; however, he still uses heroin (the regularity of his use is subject to dispute);

(jj) The Plaintiff has had many criminal convictions (identified in Ex. 2 and 3), most of which are for drug offences. The most recent offences appear to have been in June 2009, when he was convicted of five different offences, for which he was fined a total of $2,300. (The criminal record of the Plaintiff, in earlier times, included some more serious offences.);

(kk) The Court brief detailing charges laid against the Plaintiff in 2006 (Ex. 3), refers to the police having searched the Elanora premises, when the deceased was present and notes “full admissions . . . to possession of the dangerous drugs located, and also other items”;

(ll) Following the death of the deceased, the relationship between the Plaintiff and Jordan and Jackson deteriorated; after 11 months, they returned to live with their father;

(mm) Since the death of the deceased, the Plaintiff has borrowed $50,000, which is secured by mortgage on his Kalbarri property. He has used the money to repay debts, including car loans, to fix his teeth, and for other personal expenses.

20 The Plaintiff made a frank disclosure of the details of his drug use in the affidavit in chief that was read in the proceedings. He confirmed, in cross-examination, without any prevarication, that he remains addicted to marijuana, and that, realistically, he is likely to continue to use that drug when he can. He acknowledged the increased risk of death by his use of drugs. When asked whether he would use any provision that might be made out of the deceased’s estate for the purchase of drugs, he said that whilst he could not rule that out, “I know what I am like and I wouldn’t just squander an amount of money like that” (T 21.12-21.14).

21 The Plaintiff gives evidence of a number of conversations with the deceased in which she told him that she was going to change her Will to make some provision for him. Jennifer Lee Georgieff, a witness called by the Plaintiff, who was cross-examined, was a friend of the deceased. She corroborated the topic of the conversations. She says that, in August 2007, the deceased told her that she had been diagnosed with liver cancer and that she only had a short time to live. In answer to Ms Georgieff’s suggestion that the deceased should “get all your affairs in order”, the deceased responded, “I have to change my will to include Shane”. There is no reason to disbelieve Ms Georgieff’s evidence.

22 Furthermore, there is nothing improbable about the deceased wishing to change her Will to include her de facto spouse of 11 years. I accept that the conversations occurred. The deceased even raised the topic with the Defendant (although not the changes she wished to make). However, she did not change her Will and, in the circumstances, no provision is made for the Plaintiff in the Will of the deceased.

23 The Defendant asserts, however, that there was ample opportunity available to the deceased to change her Will and that she did not do so. It is submitted that this demonstrates that the deceased did not wish to make any provision for the Plaintiff.

24 Even though the deceased did see a solicitor, I am unaware of any reason, given to that solicitor, or to any one else, by the deceased, for not making any provision for the Plaintiff. There is no evidence from the Defendant, from any of the deceased’s children, or from the solicitor, about this topic. I do not draw, from the deceased’s failure to change her Will, the conclusion that she did not wish to make any provision for the Plaintiff.

25 Although there was some dispute about the relationship of the Plaintiff and the deceased, I am satisfied that they had a close and loving relationship. The fact is confirmed by a number of independent witnesses, including Dr Paul Balin, who states, in an annexure to his affidavit, that in the 2.5 years that he knew the deceased and the 5 years that he had known the Plaintiff, “they both exhibited fondness, care and love towards each other, as well as respect, consideration and mutual help and support”. Dr Balin was not cross-examined.

26 Furthermore, the relationship of the Plaintiff and the deceased lasted for about 11 years. This is much longer than each of the two marriages of the deceased.

27 The Plaintiff discloses the following facts about his financial and material circumstances. He owns the Kalbarri property, which has an estimated value of $330,000. That property is subject to a debt of $50,000, which is secured by mortgage. He owns a car ($7,500), has superannuation ($200), and has cash in bank of $20. He has to repay a New Start Auto Loan ($7,500) and has to contribute to the erection of a fence for the Kalbarri property ($1,700). He receives unemployment benefits of $397 per fortnight, plus rental income of $333 per fortnight. His income is, therefore, about $365 per week. The Plaintiff estimates his weekly expenses at about $421 per week. That expenditure includes $110 per week for car loan repayments; $20 per week for pool maintenance; and $90 per week for mortgage repayments.

28 The Plaintiff, since the date of death, has continued to live in the Elanora property. He has not been requested, and the Defendant does not require him, to pay any occupation fee to the estate. The Defendant has stated, however, that the Plaintiff will have to vacate the property when the case is concluded.

29 I was informed from the Bar Table that the Plaintiff is prepared to vacate that property within 2 months of the date of Judgment. This time limit is acceptable to the Defendant. I was asked to note that the Plaintiff, by then, would have had about 3 years rent free accommodation, since the death of the deceased, which is some provision for him out of the estate of the deceased.

30 The Plaintiff says that he owns no household furniture and that if he moves from the Elanora property he will have to purchase household goods. He identifies the items he needs to purchase and estimates the cost thereof to be about $19,500. The Plaintiff was not cross-examined on the reasonableness, or otherwise, of the items that he requires, or about the cost of purchasing them. In submissions, senior counsel for the Defendant stated that the Plaintiff could take whatever household goods he wished from the Elanora property. I shall leave it to the parties to determine which, if any, of the household goods the Plaintiff is to receive from the estate. It was not suggested that this would obviate the need to purchase the household goods identified by the Plaintiff.

31 The Plaintiff has limited literacy and numeracy skills. He has no clerical skills and is not computer literate. He has been virtually unemployed for about 13 years, although he has worked, on occasions, during this period.

32 The Plaintiff relies upon evidence obtained from a treating medical practitioner and other medical, and associated, experts concerning his health. In broad summary, one, or more, of these experts confirm that the Plaintiff has developed degeneration, particularly in the left hip which may, ultimately lead to the need to have a hip replacement (the costs of which would be about $16,000); there is some degeneration of the right hip; he has pain in his left knee which is caused by joint degeneration; his ability to work is affected by his physical limitations and also by his marijuana dependence. He is unlikely to ever be able to perform strenuous labouring work because of this. The Plaintiff does not suffer any psychiatric disorder.

33 The Defendant prepared a table, which was a summary of cash withdrawals out of the deceased’s bank accounts. This document became part of Ex. 1 in the proceedings. It reveals that various amounts, some of which were quite substantial, were deducted from the deceased’s bank accounts.

34 The Plaintiff was cross-examined on the contents of some of the banking records of the deceased, it being put to him, that he had obtained at least some of the cash withdrawals for personal use, and/or that the bulk of the moneys withdrawn were used to pay for drugs. His evidence was that whilst he was with the deceased on many occasions when she withdrew funds, or that he withdrew funds himself, less often, and only with the deceased’s knowledge and consent, he did not know the reasons why she withdrew such large amounts. He denied that he had used the funds that he withdrew to finance his own drug habit. There was no suggestion that the Plaintiff had retained any part of the funds that had been withdrawn.

35 There is no doubt, in this case, that the deceased, for many years prior to her death, was a regular user of drugs, including heroin and cocaine. It is equally clear that in the main, she, rather than the Plaintiff, paid for those drugs. I infer that, at least, some of the funds withdrawn from her bank accounts were used to purchase drugs for her use, and on occasions, when the Plaintiff used heroin, for the Plaintiff’s use also. However, I accept the Plaintiff’s evidence that he did not use heroin very often and that his “major problem” was marijuana use.

36 I also accept the Plaintiff’s evidence that the deceased did not tell him what she was doing with the money that she withdrew, although he must have known, or at least suspected, that some of the money was being used by her to purchase heroin and/or cocaine. This conclusion is not difficult to reach since the Plaintiff’s evidence is that he used $20,000, given to him by the deceased shortly before her death, to pay a drug dealer.

37 In regard to the evidence of the Plaintiff, generally, whilst I accept the Defendant’s criticism that the Plaintiff was a poor historian is valid, I am satisfied that he was endeavouring to tell the truth. He made many admissions, without prevarication, regarding his drug use, the likelihood of his continued drug use, and other events said to have occurred during the lifetime of the deceased, which did not place him in the best light (for example, his permitting marijuana use by Jackson and Jordan). I note also that the Plaintiff made no claim for privilege against self-incrimination.

38 I do not accept the Defendant’s submission that the Plaintiff was, and remains, a regular heroin user, or that he used heroin with the deceased far more often than he stated. Having observed the Plaintiff in the witness box, he was, I thought, straightforward and frank about his drug use. There appears to have been no reason to lie about this aspect of his drug use, particularly when he admitted, without prevarication, other aspects of that drug use.

39 In addition, the evidence of Ms Georgieff, in cross-examination, was that whilst she saw the deceased “shooting up”, many, many, many times, she did not ever see the Plaintiff have anything to do with heroin at Elanora. Again, there is no reason to disbelieve her evidence.

40 The Plaintiff was asked about his intentions for the future. Once again, candidly, he stated that there was nothing keeping him in Queensland; that he would like to move back to Western Australia, where he had family and friends; and that he had not done so because he could not afford the moving costs. He stated that he would probably not go back to live in the Kalbarri property, but would continue to rent it, so that the rental income could be used to make the mortgage repayments, or if he received provision out of the estate to pay the mortgage debt, to supplement his income. He would try to stay with friends, but if he was not able to do so, he may have no choice but to move back into his property at Kalbarri.

41 The reason the Plaintiff gave for not wanting to reside in his property at Kalbarri was that it was some distance from Perth and that he hoped, if he lived in Perth, he might be able to obtain some work, with a friend who is a painter. If he lived in his own home, the only available work would be fishing, and he thought he would be unlikely to be able to manage that. However, if he had no choice, he would do what was necessary to survive, including living in his own home and trying to find work fishing. I accept the Plaintiff’s evidence in this regard also.

42 I turn next to matters relating to the children of the deceased, who are the beneficiaries, named in the deceased’s Will. In Foley v Ellis [2008] NSWCA 288, Sackville AJA at [88] noted that Singer v Berghouse (No2) [1994] HCA 40; (1994) 181 CLR 201 “strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.”

43 I am satisfied that the following facts are either not in dispute, or have been established by the evidence in relation to Joanne:

(a) She was born in January 1984 and is presently aged 26 years;

(b) She lived with the deceased and the Plaintiff at various times in Kalbarri and in Byron Bay;

(c) She had a close relationship with the deceased, although, for a period of time, it was not as close as it might have been whilst she was living at the home in which the deceased and the Plaintiff lived; it improved, greatly, after she moved out of home;

(d) She and the Plaintiff did not get on very well when she was a teenager, although their relationship improved over time; the improvement is demonstrated by the fact that the Plaintiff used part of the proceeds of sale of his Harley Davidson to purchase a car for Joanne when she was aged 17 years;

(e) She was aware that the deceased was a regular drug user. She had observed the deceased and the Plaintiff using marijuana;

(f) In late 2007, she and the deceased purchased a home in Queensland, which they owned as joint tenants; the deceased paid $220,000 and Joanne borrowed $220,000 to cover the remainder of the purchase price; this property is presently rented for $740 per fortnight; the mortgage repayments are $864 per fortnight;

(g) Joanne commenced full-time university on 1 March 2010. She was studying to become a primary school teacher. She decided, during the semester, that she was not interested in becoming a teacher and ceased her studies. She had signed a 6-month lease, at $170 per week, and was required to pay out the remaining period of the lease;

(h) She has enrolled in a make-up course, which is for 2 days per week and which commences in October 2010. The cost of attending this course is $3,000;

(i) Joanne is currently employed as a casual sales assistant, typically working 3-4 days per week, earning approximately $400 per week. Her expenses are approximately $250 per week;

(j) Joanne intends to enrol in TAFE, in 2011, and to undertake a merchandising course, full-time, being 4 days per week for 2 years. The course fees will be approximately $600 per semester plus textbooks, materials and tools. While Joanne is studying her income will be reduced significantly as she will only be able to work 1.5 days per week.

44 I am satisfied that the following facts are either not in dispute, or have been established by the evidence in relation to Jordan:

(a) He was born in June 1989 and is presently aged 21 years;

(b) He had a loving relationship with the deceased; he and Jackson lived with the deceased and the Plaintiff after they moved back from Western Australia, initially on some weekends and half of the school holidays and then, when the deceased and the Plaintiff moved to Queensland, all the time;

(c) He suffers from an eye condition, called albinism, which affects his skin and means that he is unable to go out into the sunlight; it also affects his eyesight. In addition, he suffers from attention deficit hyperactive disorder (ADHD), which greatly affects his ability to concentrate; he is unable to hold down a job;

(d) He presently receives a pension of $350 per fortnight from which he pays $100 per week to his father for food;

(e) He, Jackson and their father, Stephen Bushby, recently purchased a home in Queensland for $560,000; they borrowed $400,000; the mortgage repayments are $2,200 per month;

(f) He is currently unemployed and has no intention of seeking work. He says he is depressed and deeply affected by his life events, especially the death of the deceased;

(g) He does some simple tasks around the house such as washing up, but does not assist with the pool upkeep, mowing or gardening;

(h) He seems to struggle to go anywhere alone, assist in shopping or participate in any sport or exercise;

(i) He has the potential to move forward, with professional help, but, at this stage, is refusing to seek help or help himself.

45 I am satisfied that the following facts are either not in dispute, or have been established by the evidence in relation to Jackson:

(a) He was born in March 1991 and is presently aged 19 years;

(b) He had a loving relationship with the deceased; he and Jordan lived with the deceased and the Plaintiff after they moved back from Western Australia, initially on some weekends and half of the school holidays and then, when the deceased and the Plaintiff moved to Queensland, all the time;

(c) He is employed as a labouring process worker and earns $37,544 per annum gross, plus superannuation of $3,380 per annum;

(d) He, too, gives his father $100 per week for food;

(e) In his oral evidence, he acknowledged that the Plaintiff undertook general yard work, cooked almost every night, looked after the dogs, looked after the pool, drove him and Jordan to various places if requested by the deceased, and that the Plaintiff “was more of a mate than a stepfather” (T79).

46 There is no dispute that the Plaintiff made little, if any, contribution to the acquisition, conservation, or improvement, of the deceased’s estate, or that it was the deceased who financially supported the Plaintiff during the time that they lived together. She was very generous to him in this regard, although he contributed some of his income (which was not very much at all), when he was able, towards household expenses. He did make some contribution to the maintenance of each of the homes in which he and the deceased lived. Jackson corroborated this in his evidence.

47 There are some facts in dispute in the affidavits that have been asserted by the Plaintiff and disputed by the Defendant and by the deceased’s children. These factual disputes relate, principally, to the extent of the contributions by the Plaintiff to the welfare of the deceased in respect of her drug and alcohol use, and the degree of contribution to the domestic environment in which the deceased, the Plaintiff and the children lived.

48 To the extent that it is necessary to otherwise determine the factual disputes, I am satisfied that the Plaintiff did contribute to the welfare of the deceased and to the welfare of her children. Jackson, who gave evidence and who was cross-examined, admitted some of the things that the Plaintiff did. Whilst some of the conduct of the Plaintiff with Jackson and Jordan cannot be condoned, it is to be remembered that the Plaintiff was not the person solely, or even principally, responsible for them. The fact that Jackson and Jordan stayed with the Plaintiff for eleven months following the death of the deceased, and that they returned to live with their own father, at a time when the Plaintiff was suffering serious financial constraints, is relevant in this regard.

49 In addition, I consider that the Plaintiff made a more significant contribution to the welfare of the deceased, including a contribution as a homemaker. Interestingly, there is no evidence about any complaints made by the deceased about the conduct of the Plaintiff towards her, except on one occasion described in the affidavit of Kim Tucker (who was not cross-examined). That event (about which the Plaintiff was not cross-examined either) appears to have occurred many years before the death of the deceased and was not, apparently, repeated. I am satisfied that the relationship of the Plaintiff and the deceased was, generally, a happy and harmonious one.

50 It is necessary to consider how the Plaintiff says that he has been left without proper provision for his maintenance, education and advancement in life. The Plaintiff has a home in Western Australia, which is subject to a mortgage. He has virtually no other assets or resources. He is currently receiving rental income, which he uses, at least in part, to make the repayments of his mortgage. He says that if he is required to move from the deceased’s home, he will have to purchase household goods and furniture. He also suffers from some physical difficulties; he has limited education; and he is not computer literate. In addition, he suffers a marijuana addiction. With his lack of qualifications, his physical difficulties and his drug use, I am satisfied that he is likely to have real difficulty in obtaining regular employment, although he might obtain casual work on occasions. I accept that, at the age of 53, he has no real prospects of full-time employment.

51 Since none of the other eligible persons has made a claim under the Act, and because each has been given notice of the Plaintiff’s claim, I may disregard their interests: s 20 of the Act. I do not do so. Each of the children of the deceased is a chosen object of her testamentary bounty and it is for them that the deceased wished to provide by her Will. However, the estate is a very large one, which means that, in reality, the children, who share the deceased’s estate equally, are not financially competing claimants with the Plaintiff.

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

53 As the Plaintiff has established eligibility, the principal question for determination is whether the provision (if any) made in his favour by the deceased, either during her lifetime, or out of her estate, is, at the time the court is determining whether or not to make an order, inadequate for the proper maintenance, education and advancement in life of that Plaintiff. The power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by her Will is not such as to make adequate provision from her estate for the proper maintenance, education or advancement in life of the Plaintiff.

54 No criteria are prescribed in the statute as to the circumstances that do, or do not, constitute “inadequate provision for the proper maintenance, education and advancement in life”.

55 The question is answered by an evaluation that necessarily takes the court to the provision actually made in the deceased’s Will on the one hand, and to the needs for maintenance and advancement in life of the eligible person on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the eligible person and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer (1980) 144 CLR 490 at 496).

56 “Provision” is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

57 Recently, it has also been noted that “’proper maintenance’ is not limited to the bare sustenance of a claimant (cf Gorton v Parks [1989] 17 NSWLR 1), but requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility”: Alexander v Jansson [2010] NSWCA 176 at [18].

58 An order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum or “in any other manner which the Court thinks fit”: s 11 of the Act. The court, if it makes an order for provision, “may specify the beneficial entitlements in [the] estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear”: s 13 of the Act. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the Will s 14 of the Act.

59 As Bryson J noted in Gorton v Parks at 6, it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant.

60 In applications under the Act, the High Court in Singer v Berghouse, has set out the two-stage approach that a court should take. At 209, it was said:

The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life’? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.

61 In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 (“Vigolo”), Gleeson CJ and Gummow and Hayne JJ at [37], [74] and [82]–[83] approved the two-stage test set out in Singer v Berghouse.

62 In Vigolo, at [114], Callinan and Heydon JJ said:

[T]he use of the word “proper”… implies something beyond mere dollars and cents. It’s use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a Court to have regard to a promise of a kind which was made here …The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the “station in life” of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.

63 And at [122] their Honours added:

… Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however, will never be conclusive. The age, capacities, means, and competing claims of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.

64 In Luciano v Rosenblum (1985) 2 NSWLR 65 at 69–70 Powell J (as he then was) said:

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

65 That “broad general rule” was approved, by the Court of Appeal, in O’Loughlin v O’Loughlin [2003] NSWCA 99. It has also been held that the principle is applicable to the position of a person who occupies the position of a de facto wife: Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 at [31]. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142]-[144]. It has been said that it may not apply to widowers, although whether it does or not depends upon the facts of the case.

66 Whilst the distinction between married relationships and de facto relationships has narrowed considerably over time, there remains binding authority which gives greater weight to the claims of parties who have entered “a formal and binding commitment to mutual support”: Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger & Anor [2010] VSC 320 at [68].

67 In this case, there is another principle to which reference also ought to be made because of the size of the deceased’s estate. That principle is as set out by Young J (as his Honour then was) in Anasson v Phillips (Supreme Court of New South Wales, Young J, 4 March 1988, unreported):

With a very large estate... there is great temptation on a Court to be overgenerous with other people's money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way, as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.

If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the Plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the Plaintiffs. In particular, the lifestyle that has been enjoyed by the Plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor.

68 Reference must also be made to Collins v McGain & Anor [2003] NSWCA 190, in which Tobias JA, with whom Hodgson and Beazley JJA agreed, said:

42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

…

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred.

69 Senior Counsel for the Defendant reminded me that it has been said many times that the Court should be careful not to interfere with freedom of testation except in circumstances where the legislation requires this to be done: see, for example, Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 per Dixon CJ at 19.

70 I was also reminded that the important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the proper or adequate provision for the person seeking provision. Gleeson CJ observed in Vigolo, at [11] that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons.

71 I am satisfied, in the circumstances of this case that the Plaintiff, having received nothing, pursuant to the Will, out of the deceased’s estate, which estate is very large, has been left with inadequate provision for his proper maintenance and advancement in life.

72 Having found, as a matter of fact, that there was inadequate provision for the Plaintiff under the deceased’s Will, the second stage of the test in Singer v Berghouse requires the making of a holistic, and multi-faceted, judgment evaluating the proper provision that ought to be made for him Kalmar v Kalmar [2006] NSWSC 437 at [67] per White J; Foley v Ellis at [3] per Basten JA. I turn now to the nature of that provision.

73 Mr Marshall who, with Mr Darcy-King, appeared for the Plaintiff, submitted that the Plaintiff needed some permanent accommodation in Perth, needed the mortgage debt secured on his Kalbarri house to be repaid, so that he could receive the full rental income, and that the Plaintiff should also have an amount for future living expenses and contingencies. The Plaintiff sought provision in the amount of $1.0 million on the following basis:

(a) $650,000 to purchase a residence in Perth Western Australia including all transaction and relocation costs (for example legal costs, stamp duty and moving himself and chattels);

(b) $25,000 for acquisition of furniture and white goods;

(c) $25,000 for the acquisition of a utility motor vehicle, registration and insurance costs;

(d) $50,000 to discharge of mortgage over the Kalbarri property; and

(e) $250,000, on account of contingencies and for future living expenses.

74 Mr Ellison SC, in his written submissions, accepted that “the Plaintiff could probably be described as being in relative need”. However, he submitted that no provision for the Plaintiff should be made because the Plaintiff:

(a) made no direct contribution to the acquisition, or improvement, of any property forming part of the deceased’s estate;

(b) had facilitated the deceased’s use of illegal drugs;

(c) had been a poor role model for the deceased’s children;

(d) had received significant benefits during the lifetime of the deceased;

(e) did not deny that he would continue to use illegal drugs, which could lead to his premature death;

(f) might be subjected to a jail sentence in the future;

(g) has a property in Kalbarri, in which he could live.

75 It was also submitted, on behalf of the Defendant, that the community would not accept that making provision for a person who has engaged in, and who gives evidence that he intends to continue to engage in, drug use is “proper”. In his written submissions, on this topic, Mr Ellison SC points to some authorities concerning what was called “conduct disentitling”. He refers to Hastings v Hastings [2008] NSWSC 1310, a decision of White J, in which case the authorities are referred to.

76 I do not accept the Defendant’s submission. The submission ignores the nature, and duration, of the relationship of the Plaintiff and the deceased, and, importantly, that, during the whole of their relationship, the drug use was engaged in by both of them. Furthermore, there can be no suggestion, in this case, as there was in Hastings v Hastings, that “the plaintiff’s criminal conduct affected the deceased, or that she felt that she was shunned and was embarrassed” by it. Even the Defendant appears to have tolerated the deceased’s drug use, presumably, because he realised it could not be prevented without her co-operation and desire to do so.

77 Also, in Hastings v Hastings, the plaintiff’s impecuniosity was the direct result of the confiscation of his property by United States authorities and that the confiscation was the direct result of his crimes. I do not accept that the Plaintiff’s financial position, in the present case, is as a direct result of his drug taking.

78 Finally, in this case, the Plaintiff’s involvement with drugs does not detract from his contributions to the deceased. In my view, that conduct does not warrant the refusal of an order in his favour if an order is otherwise appropriate.

79 Mr Ellison SC did concede, in his oral submissions, that the Plaintiff had made some contribution to the deceased’s personal welfare as a de facto spouse and some contribution to the maintenance of the homes in which they lived. He also acknowledged the closeness of the relationship of the Plaintiff and the deceased and its duration.

80 The Defendant is concerned that any provision made for the Plaintiff will be used to purchase drugs. However, as I have said, I am not satisfied that all of the withdrawals made out of the deceased’s bank account, were made by, or for the sole benefit of, the Plaintiff. It seems more likely, bearing in mind the type of drugs that the deceased consumed, and their cost, that it was she who withdrew most of the funds to enable the purchase of drugs. I also note that, despite the fact that the Plaintiff has received no financial assistance from the estate for almost three years, he has been able to retain the Kalbarri property and limit the borrowings on it to $50,000, which amount, so far as is known, was used for legitimate purposes.

81 There can be no doubt, and the Plaintiff did not suggest otherwise, that he did benefit from the generosity of the deceased during her lifetime. She paid off his mortgage ($50,000), paid for a holiday for him, purchased a car and motorcycle, which he used, and, otherwise, she supported him, generally for the whole of their relationship. They did not live an extravagant lifestyle. She also provided him with accommodation, which enabled him to receive rental income. He has continued to receive rent-free accommodation after her death. I take these matters into account in reaching my conclusion on the quantum of provision that ought to be made for the Plaintiff.

82 Like the Defendant, I am concerned that the Plaintiff remains addicted to marijuana and that, on occasions, he takes heroin. However, it does not follow, in a case where it can be shown that a plaintiff has a drug, or an alcohol, addiction, or, has a poor work record, that the Court is automatically prevented from making an order. For example, in re Fletcher (deceased); Fletcher v Usher (1921) NZLR 649, the Court made provision for a plaintiff with a chronic alcohol problem. In Green v Perpetual Trustee Co Limited Supreme Court of New South Wales, Hodgson J, 10 July 1985, unreported), an order was made in favour of a Plaintiff who was a heroin user. The order was one that involved a protective trust to make sure that the plaintiff was benefited, yet did not spend his money on heroin.

83 In McLean v Public Trustee [2001] NSWSC 970, a claim was made by a daughter with a gambling problem. An order was made for a legacy upon conditions as to its use. In Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] NSWSC 804, an order was made in favour of a grandson who had a chronic history of drug and alcohol abuse and a gambling problem.

84 Neither does the fact of the Plaintiff’s criminal history disentitle him to provision. As White J noted in Hastings v Hastings, at 40, “a criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (Supreme Court of New South Wales, Young J, 17 February 1987, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote”.

85 Submissions were made on whether there should be terms attached to any lump sum ordered to be paid to the Plaintiff out of the estate, to ensure that it is not used in any way for the purchase of drugs. I note that in Bondy v Vavros Supreme Court of New South Wales (Young J, 29 August 1988, unreported) his Honour said:

… in one sense it does not matter if I form the view that the plaintiff is a spendthrift. If a person is entitled to an order what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money will be wasted on wine women and song in a short period of time.

86 In Howarth v Reed (Supreme Court of New South Wales, Powell J, 15 April 1991, unreported) Powell J (as his Honour then was) referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. His Honour said at 43:

While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros…

87 In Green, Hodgson J said that the Court could not “have regard to any likelihood of dissipation of any provision for the plaintiffs except in relation to the actual order” which was made, and that “such consideration could suggest that there should be terms attached to the order to prevent dissipation”.

88 Despite these last-mentioned authorities, I am of the view that, in this case, the Plaintiff should not have absolute control of the whole of the provision to be made for him.

89 During the submissions, I raised with counsel that I was considering making provision for the Plaintiff which included the provision to him of accommodation for his life, if he did not wish to live in his Kalbarri property, a capital sum which was to be used to pay, directly to third parties, his debts, the cost of the household goods he required, and for a car that was also required, as well as a capital sum which could be retained by the Plaintiff, uncontrolled by a third party. Each party accepted that, if an order in favour of the Plaintiff, was to be made, that was appropriate provision in all the circumstances, although Mr Ellison SC did also submit that any uncontrolled capital sum should not be very large.

90 I was asked to set out, in this judgement, the amount that is to be paid out of the estate, which amount, in total, is to be used to purchase the accommodation (including associated costs and expenses) for the Plaintiff, for his life, to discharge of the mortgage debt secured on the Plaintiff’s Kalbarri property, to provide some capital to be used for the purchase of the household goods and a car, to pay the moving costs of the Plaintiff, and the other debts and likely expenditure of the Plaintiff. The parties, in the first instance, are to discuss precisely how this sum is to be divided between the various components to which I have referred. If agreement cannot be reached, I shall determine the different amounts.

91 I am of the view that $630,000 would be adequate, and proper, in all the circumstances for those purposes, only part of which amount is capital, which would not revert to the estate on the death of the deceased.

92 In addition, I consider that there should be a very modest (in the context of the size of the estate) capital sum available, absolutely, to the Plaintiff, himself, which can be used by him to provide for exigencies of life, to provide a small nest egg for his old age, and to provide an additional income. In my view, this amount should be $65,000.

93 If the Plaintiff does not use the accommodation purchased for him, the trustee may use any income received from the accommodation, or from the capital sum, agreed upon or determined, to pay any rent, or accommodation expense, of the Plaintiff, or otherwise, for the benefit of the Plaintiff. The income from the accommodation fund should not be made available, directly, to the Plaintiff, but should be paid to the third party providing the accommodation, or other benefit for the Plaintiff. In the event of any dispute, either party may approach the Court for directions.

94 In making this type of order, I appreciate that the Plaintiff may no longer be entitled to receive the whole pension. However, it seems to me that he will have available the whole of the net income from the Kalbarri property, without the need to use it to make mortgage repayments. He will also have the benefit of other income from the small capital sum he is to receive absolutely. On the figures that he has provided in his evidence, the income should be sufficient to meet his reasonable daily expenses. He will, also, retain, so long as he wishes to, the Kalbarri property, which will be unencumbered.

95 I note that the parties have agreed that the Plaintiff will also be entitled to occupation of the Elanora property until about 31 October 2010, or such other date as the parties may agree. That should be included as part of the provision that the Plaintiff is to receive out of the estate of the deceased.

96 It will be appreciated that the making of these orders will not impact upon the provision made for the children of the deceased.

97 In the circumstances, I shall not make any orders today, but shall allow the parties to have an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons.

98 I shall stand the matter over for two weeks for the making of the orders that the parties ask me to make.

99 If the parties cannot reach agreement on the appropriate orders, or the order for costs, I shall hear competing submissions on the adjourned date.

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