Whitmore v Poole

[2006] NSWSC 85

CITATION:	Whitmore v Poole [2006] NSWSC 85
HEARING DATE(S):	13, 14 and 15 February 2006
JUDGMENT DATE :	27 February 2006
JURISDICTION:	Equity
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	Unnless within seven days from the date hereof Counsel for either party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders: 1. I order that, in addition to the benefits given to her by the will of the late Agnes Beatrice Poole (“the Deceased”), the Plaintiff receive a legacy of $50,000, such legacy not to bear interest if paid on or before 27 May 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898. 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 3. The exhibits may be returned.
CATCHWORDS:	Succession. - Family Provision. - Claim by adult daughter. - Financial and material circumstances of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance. - Competing claims of other beneficiaries. - Statutory declaration by Deceased concerning reasons for her testamentary dispositions. - Nature of relationship between Plaintiff and Deceased. - Relevance of such relationship to Plaintiff's claim. - Only significant asset in estate is house property, which was left to Defendant. - Any order for provision in favour of Plaintiff will require sale of house property.
LEGISLATION CITED:	Family Provision Act 1982 Testator’s Family Maintenance and Guardianship of Infants Act 1916 Wills, Probate and Administration Act 1898
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731
PARTIES:	Donna Michelle May Whitmore (Plaintiff) Grant Mitchell Poole (Defendant)
FILE NUMBER(S):	SC 1384 of 2005
COUNSEL:	D. Liebhold (Plaintiff) M. A. Bradford (Defendant)
SOLICITORS:	Walsh & Blair (Plaintiff) Michael Siderowitz & Co (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

MONDAY, 27 FEBRUARY 2006

1384 of 2005 DONNA MICHELLE MAY WHITMORE –V- GRANT MITCHELL POOLE

JUDGMENT

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

2 By summons filed on 8 February 2005 Donna Michelle May Whitmore claims an order for provision for her maintenance and advancement in life out of the estate of her late mother, Agnes Patricia Poole (to whom I shall refer as “the Deceased”). The Deceased died on 23 June 2004 aged 80. She was a widow at the time of her death, her husband, James Poole, having died on 22 October 2001.

3 The Deceased left a will dated 5 June 2002, probate whereof was on 20 October 2004 granted to Grant Mitchell Poole, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased’s assets at the time of her death are disclosed in the inventory of property as follows:

Real estate situate at and known as 5 Hope Street, Seven Hills, having an estimated value of $330,000
St George Bank Limited – Pensioner Account, having a known value of $14,732
2166 units held in Stockland Trust Group, having a known value of $11,588
Furniture and contents of 5 Hope Street, Seven Hills, having an estimated value of $4,850
Jewellery and personal effects, having an estimated value of $600.

5 During the course of the hearing it was noted that it was agreed between the parties that the present value of the house property at Seven Hills (to which I shall refer as “the Seven Hills property”) is $290,000. Thus the assets in the estate have a total value of almost $322,000.

6 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since the Plaintiff, if successful, will be entitled to an order that her costs be paid out of the estate of the Deceased, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to an order that his costs be paid out of the estate. It is estimated on behalf of the Plaintiff that her costs total $34,200, whilst it is estimated on behalf of the Defendant that his costs total $36,700. Thus the value of the estate available for distribution is about $251,000.

7 The Deceased was survived by the six children of her marriage, being James Rodney (born in 1944), Jennifer Roslyn (born in 1949), Jeffrey Walker (born in 1955), Gregory John (born in 1956), Donna Michelle May (born on 23 November 1961) and Grant Mitchell (born on 2 February 1964).

8 By her will the Deceased gave the Seven Hills property to the Defendant. That property, which had been the matrimonial home of the Deceased, her husband and their children, had been inherited by the Deceased from her husband, under the terms of his will. She left her jewellery to her granddaughter Kate Marie Poole (who is the infant daughter of the Defendant); her book collection to her son James; the balance standing in her bank accounts to her son Jeffrey; her shareholding with Stockland Trust Group to her son Gregory; and the balance of the furniture and contents in the Seven Hills property to her daughters Jennifer and Donna as tenants in common in equal shares.

9 Clause 6 of the will is as follows,

I DECLARE that I have made provision for my said children, Grant Mitchell Poole, James Rodney Poole, Jeffrey Walker Poole, Gregory John Poole, Jennifer Roslyn Page and Donna Michelle May Whitmore, in this my Will for reasons more fully set out in a Statutory Declaration made today.

10 That statutory declaration was in evidence. By that statutory declaration, which consists of eight closely written pages (apparently in the handwriting of the Deceased), the Deceased made observations upon the character and conduct of each of her children, and expressed her reasons for leaving the substantial asset in her estate, the Seven Hills property, to her son Grant. I shall return to the statutory declaration later in this judgment.

11 The Plaintiff left home for the first time in about 1977, when she was aged about 16, in consequence of problems between herself and the Deceased, arising out of the Plaintiff’s indulgence in alcohol and drugs. It would seem that, for whatever reason, family life was far from tranquil in the Poole household during the Plaintiff’s formative years. It is proper that I should here record that the Plaintiff appears to have had no problem with drugs for well over twenty years, since she was aged in her early 20s, and that it was her evidence that she intermittently continued to have a problem with alcohol until she took up residence in Wagga Wagga six years ago, since when she had not drunk alcohol. That evidence was not challenged in cross-examination.

12 In about 1981 the Plaintiff married her first husband, John Fabian. Her first child, Daniel, was born of that marriage on 22 November 1981.

13 The Plaintiff’s marriage to Mr Fabian terminated in divorce in about 1984. There was no property settlement between them, since, according to the Plaintiff, they had no property. Subsequently the Plaintiff married Bruce Whitmore in early 1985. Of that marriage was born the Plaintiff’s second child, Laurence, on 7 March 1985. Although she separated from Mr Whitmore several years later, that marriage has not been dissolved. The Plaintiff does not know Mr Whitmore’s present whereabouts.

14 Of a subsequent relationship, with Norman Schafer (which obtained from about the early 1990s to 1994), were born two children, Aiden Norman (who was born on 25 November 1992 and is presently aged 13) and Zoe (who was born on 2 January 1994 and is presently aged 12). Those two children reside with the Plaintiff and are totally dependent upon her.

15 According to the Plaintiff her son Aidan suffers from ADHD, for which she said that he required constant medication. She said that he was difficult to control, and that she believed his education prospects would be enhanced if he could attend a private school, where more resources would be available. The Plaintiff was enthusiastic that her daughter Zoe, who she said was an excellent student and who receives very good school reports, should proceed to university.

16 The Plaintiff herself suffers from asthma and requires medication for that condition.

17 The Plaintiff and her two dependent children removed to Wagga Wagga in February 2000. Her two elder children, Daniel and Laurence, also reside in Wagga Wagga. The Plaintiff was for a time employed as an age care nurse in a nursing home in that town. She has also completed an age care nursing certificate in Community Health at the Wagga TAFE in 2000. It is the Plaintiff’s present intention to commence a degree course in nursing at the Charles Sturt University at Wagga Wagga. If she undertakes certain studies as an associate student of that university in 2006 she will be offered a place in the Bachelor of Nursing course in 2007. The Plaintiff presented to the Court documentation concerning that course and a letter from the clinical co-ordinator of the Bachelor of Nursing course at the Charles Sturt University.

18 The Plaintiff currently resides in rented Government accommodation in Wagga Wagga. She has no assets of any value and has no savings. According to the Plaintiff she is unable to work and is in receipt of a pension and child support from Centrelink totalling about $23,600 a year. The fact that the Plaintiff is presently not in employment is, however, essentially through her own choice, being due, in part, to her desire to be at home in order to protect and care for her two dependent children when they are not at school. The Plaintiff receives occasional and intermittent child support, of no more than $12 a month, from the father of those two children.

19 According to the Plaintiff her current liabilities consist of debts (to Grace Brothers and Target), totalling $1,400, and a HECS debt of $1,298.

20 In her primary affidavit, that of 4 April 2005, the Plaintiff set forth her needs as follows:

Deposit on house $50,000

Furniture $15,000

Urgently required dental work $7,500

Education expenses for children $20,000

Additional medical expenses for Aiden $6,000

Prepaid funeral $7,000

Vocational training to become a registered nurse $5,000

Motor vehicle $25,000

21 However, the foregoing figures were somewhat modified in the submissions ultimately made on behalf of the Plaintiff. For instance, the amounts of the foregoing liabilities for various debts and for repayment of HECS were presented as $2,698, the amount required for furniture was reduced to $9,970, the cost of the urgent dental treatment was reduced to $6,176, to the motor vehicle was ascribed a cost of $17,990. But the Plaintiff now seeks an amount of $3,248 for the acquisition of a home computer for the educational use of herself and her children, and seeks a cash fund for her own vocational education and to meet unexpected contingencies, in an amount of $50,000. The total cost of meeting the foregoing present asserted needs of the Plaintiff is $90,082.

22 The house property at Wagga Wagga where the Plaintiff and her youngest two children have resided for the past six years, contains three bedrooms and was stated by the Plaintiff to be suitable for her present needs. The market rental of that property is $320 a fortnight. However, the Plaintiff receives a rebate of $70 a week, and thus is required to pay only $180 a fortnight.

23 The claim of the Plaintiff must be approached in the light of the competing claims upon the testamentary bounty of the Deceased, being the claims of the other children of the Deceased. Whilst the Deceased by her will made some provision for each of her six children, the chief object of her testamentary beneficence was her youngest son, Grant Mitchell Poole, who is the present Defendant, and to whom the Deceased left the only significant asset in the estate, being the Seven Hills property.

24 The Defendant (who was born on 2 February 1964 and is presently aged 42) is employed as a painter, earning about $31,000 gross a year. He is married to Janelle Marie (with whom he commenced living in late 1983 and whom he married on 17 November 1990). They have two children, being Jack, aged 9 (who suffers from autism spectrum disorder and moderate intellectual disability), and Kate, aged 6. In his affidavit of 18 May 2005 (marked B) the Defendant listed his current weekly expenses as totalling $528. In that affidavit he disclosed the following assets:

Bank savings approximately $8,000
Boat approximately $1,500
Two motor cars approximately $5,000
Furniture and appliances approximately $2,000
IAG shares (661) approximately $3,800.

25 In his affidavit of 13 February 2006 the Defendant stated that he had inadvertently omitted from his list of assets superannuation benefits which, at 30 June 2005, were in an amount of $6,299.

26 In his oral evidence the Defendant revealed the following assets which had not been previously disclosed in his affidavit evidence:

Aluminium boat, 3 metres, purchased in February 2005 for $1,000
Daihatsu outboard motor, purchased in January 2006 for $2,200
Trailer, acquired in about 1983 for about $80.

27 Apart from the Plaintiff and the Defendant none of the other children of the Deceased have placed before the Court details of their financial and material circumstances.

28 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

29 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.

30 The Plaintiff as a child of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such she has the standing to bring the present proceedings. The Defendant also is an eligible person within the same paragraph of the foregoing definition, as also is each of the other four children of the Deceased.

31 A great deal of affidavit evidence was filed on behalf of each party. The deponents of most of those affidavits were cross-examined, as was each of the Plaintiff and the Defendant.

32 A very large part of the affidavit evidence and the oral evidence addressed the nature of the relationship between the Deceased and not only the Plaintiff, but also the Defendant and other persons, including each of the other children of the Deceased. In this regard it is appropriate that I should set forth the following salutary admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testator’s Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

33 It will be appreciated that the Plaintiff must establish her claim upon its own merits. She cannot enhance her claim by establishing, if such be the case, that the Defendant, had he been omitted from the testamentary dispositions of the Deceased, would have been unsuccessful in a claim for an order for provision. The Defendant, who is the chief object of the testamentary beneficence of the Deceased, does not need to prove anything. It is for the Plaintiff to establish that she is entitled to an order for provision, not that the Defendant is not entitled to receive the benefit which the Deceased gave to him by the terms of her will. But, in any event, the evidence shows that the Defendant throughout his life (and the Defendant’s wife, from the time she commenced living with him) had a close and loving relationship with the Deceased. Although it cannot enhance the Plaintiff’s claim, the competing claim of the Defendant may have the affect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise establish.

34 I have already referred to the fact that the Deceased left a lengthy handwritten statutory declaration which she had executed at the time when she made her will. That document, being a statement of the Deceased, was admissible into evidence under section 32 of the Family Provision Act. The fact that the document has been admitted into evidence does not, of course, mean that the Court must accept unquestioningly the truth of every statement and assertion made therein. The document deals seriatim with each of the six children of the Deceased. It is unnecessary for me to set forth the statutory declaration in its entirety.

35 Nevertheless, it is appropriate that I should set forth at least that part of the Deceased’s statement concerning the Plaintiff, so that the Court can consider the reasons which the Deceased gave for her testamentary provisions regarding the Plaintiff, and whether the evidence supports those reasons. The Deceased stated,

Our Fifth child Donna Michelle May Whitmore who now lives in Wagga Wagga who has 4 children to 3 fathers, hasn’t as far as I know claimed maintenance for any of them. She left home against our will when she was about 17 to live with her Boyfriend in a flat at the back of her brother Jeff’s house at Doonside. She soon left him and at 20 married her first husband (John) & 11 months later gave birth to Danny. Her father and I were at the clinic with her nearly every time she went, we even took he [ sic ] to the Hosp for Delivery & stopped ‘til baby was born. They broke up when baby was just over 12 months. We were back & forward to the Hosp with her baby as he suffered a few problems also reflux. After her divorce from John the baby was about 2½ or 3 she married again & had another son. We were against this marriage and we must have shifted her about 6 times and also paid her phone bills. Grant always helped his father with moving them. Grant & their father (Jim) did all the maintenance on his car. When they went to Coonabaraban [ sic ] they didn’t let us know where they were so Jim was on the phone to the police from Parramatta who kept transferring us to all police stations until they got to Coonabaraban [ sic ], because they had 2 children in the car, it was a hot day, and they had no water with them.
We were both very upset & frantic until we knew they were O.K. Then on the way home Donna called us to meet them at Dubbo so if anything went wrong we had transport. When she arrived back they went to Junction Road apparently there was a lot of trouble and she came here & left him (more moving). Later on she met this other chap (no hoper) wasn’t working & had a record. We (Jim, Grant & I) moved her to Campbelltown. She stayed there for a while. We called down many times as he was always causing trouble then we shifted her to Schofields. We had a massive phone bill to pay at Campbelltown and we also bought her a washing machine (twin tub). She had a boy & girl at Schofields and we were there quite a lot helping her out. They left Schofields and went to Qld where there were more problems so her father paid for her & the children to come back to our place & we picked them up at the bus stop at P’matta. While staying at our place she would sneak out & see this person, so the police had a stake out to try & catch him as he was wanted on several charges we were there which caused us a lot of stress. Before she left Schofields Grant & Jim (their father) went up to get the furniture & bring it here and inadvertently bought [ sic ] the wrong wardrobe so he went and reported that they had stolen it. When the Police rang us we said we were sorry & that he could come and get it, but he said when he came down he was going to torch our house. I had to go to the Dr’s & then I went to the police at Seven Hills and told them. After that she moved to Dharruk which was more trouble for us. She met another man and he moved in. He had a job and she was getting Austudy for Daniel & Ab-study for Laurence (2nd child) Danny needed glasses badly so we had to pay over $200 for glasses for him. Donna was paying off a loan for this boyfriend, he had a loan to buy furniture for his ex and she rang her father and told him she had lost the $400 he had given her to pay the loan payment so her father went to Mount Druitt and gave her $400 1999. A couple of days went past and I needed some money to pay some bills so I asked Donna could I have $200 back off the money Jim had given her & she said no that Dad had given it to her and I was mean & not a good mother & she wished I was dead and if I rang again she would get the police on to me for harassing her & she never spoke to me again until her father was dying. I only spoke to her to make her father happy. When Daniel got his licence Grant sold a car he had to him rather cheap and Donna accused Grant of getting more money off his father. In May 1999 Donna never rang me for Mother’s Day but at 11:30pm that night there was a knock on the door and it was Daniel. His mother had kicked him out & he stopped here for a few weeks then he went & stopped with Grant and Janelle who was 9 months pregnant and he stopped there for 1 year. When Donna decided to go to Wagga Wagga she told her father to come on the Wed afternoon to take the air-conditioner out of the window we had lent it to her. When he got there she had already shifted. Jeff & her cousins had moved her. He had to get it from the outside as the place was locked up. He got it out and tripped & it fell on top of him & his arms and body were black & sore. While she has been in Wagga she has got a job when her father was admitted to hosp all the family were called in. My son Greg rented a car for them all to come up and then they came up for the funeral. Since Jim’s passing Grant took me to Wagga & she spoke twice to me and has rung me twice. I never heard or got a card for Mother’s Day. She was on Drugs at different stages of her life. Once when I was in hospital with a broken leg (in short stay) at Blacktown Hosp, her father had her at outpatients high on drugs and they rang him at 5:30am to say she had walked out of the hosp.

36 I would, observe, however, that even concerning some of the other four children of the Deceased, apart from the Plaintiff and the Defendant, the Deceased in her statutory declaration was not always accurate or correct. Each of those other four children was, to some extent, cross-examined concerning the accuracy of the Deceased’s statements about that child in her statutory declaration. Apart from such inaccuracy or incorrectness being consistent with a general lack of accuracy in the entirety of the statutory declaration, I do not regard the cross-examination to which I have just referred as being in any way relevant to a determination of the primary question which must be answered by the Court, that being whether the Plaintiff has been left without adequate provision for her proper maintenance. Such a determination constitutes the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201. (See, also, Vigolo v Bostin (2005) 79 ALJR 731, in which the High Court affirmed the correctness of the foregoing test in Singer v Berghouse.)

37 Even if the accuracy of the foregoing statement concerning the Plaintiff be accepted without challenge, it will be appreciated that most of that statement deals with services allegedly performed by the Deceased, and her husband, for the Plaintiff in earlier times – on occasion up to thirty years ago – and the implicit lack of gratitude on the part of the Plaintiff for those services.

38 Not only should it be emphasised, consonant with the admonition of Windeyer J in Blore v Lang, that an order for provision is not made as a reward for past services on the part of an applicant, but, further it should be emphasised that an order for provision is not withheld as a punishment for perceived bad conduct on the part of the applicant. In the instant case the statements of the Deceased concerning the Plaintiff, when distilled from the verbiage in her statutory declaration, appear to be little more than complaints that the Plaintiff did not show sufficient gratitude to her parents for what they did for her when she was suffering from a drug problem in the late 1970s, and when she made unfortunate choices in her husbands and partners, and when she was attempting to raise her children as a single mother.

39 Indeed, it says much for the forbearance of the Plaintiff that she did not completely sever all connections with the Deceased, but persisted in attempting to maintain a filial relationship with her mother.

40 Since Counsel for each party requested that I should make findings in this regard, I here record that a clear picture of the Deceased emerged from the evidence, revealing her to have been a vituperative and foul-mouthed matriarch, who played favourites among her children and her grandchildren, and who sowed the seeds of discord between them, and who expressed the deliberate intention of causing familial disharmony by the terms of her testamentary dispositions. That depiction of the Deceased, however, has little bearing upon the determination of the Plaintiff’s claim.

41 It is quite apparent, and it was hardly disputed on behalf of the Defendant, that the Plaintiff has significant needs, not only to meet her current outgoings and commitments, but also to enable her to fulfil the laudable ambition of pursuing a career in the nursing field, and thus increasing her income and enhancing the lifestyle of herself and her two dependent children.

42 A great deal of the evidence, especially that on behalf of the Defendant, was directed to establishing that the relationship between the Plaintiff and the Deceased was a poor one and that, on account of what the Deceased regarded as the unsatisfactory conduct of the Plaintiff, especially concerning her alcohol and drug habits when she was aged in her teens and concerning her choice of husbands and partners, she was not deserving of provision. The Defendant does not, however, assert that the claim of the Plaintiff is defeated by what (in relation to the Testator’s Family Maintenance Act) was formerly known as conduct disentitling. Nevertheless, the Defendant does assert that the nature of the relationship between the Plaintiff and the Deceased and the unsatisfactory aspects of the Plaintiff’s lifestyle in the eyes of the Deceased not merely are of relevance, but are of significance, in determining whether or not the Plaintiff has been left without adequate provision for her proper maintenance.

43 I have already expressed my views concerning the statements of the Deceased herself regarding the Plaintiff and the relationship which, in the perception of the Deceased, obtained between herself and the Plaintiff. But even if, contrary to those views, I were prepared to accept the complaints of the Deceased as valid criticisms of the Plaintiff, those criticisms would not of themselves deprive the Plaintiff of any order for provision an entitlement to which she might otherwise have established. It is appropriate that I should also here observe that under cross-examination the Defendant ultimately conceded that, whilst he found the Deceased an easy person to get along with (a view which was not supported by any of his siblings), nevertheless she was difficult in her relationships with other people (including her children, apart from the Defendant).

44 That the relationship between the Plaintiff and the Deceased, at least in relatively recent times, was not a closer or more satisfactory one is not, in my view, a matter for which the Plaintiff can alone be held responsible. Overtures by the Plaintiff towards the Deceased were not welcomed. The manner in which the Deceased attempted to effect contact with and to communicate with the Plaintiff was not one which would be expected of a mother and grandmother, and was hardly likely to endear itself to the Plaintiff. That is especially so regarding the terms by which the Deceased regularly addressed and referred to the Plaintiff herself and referred to the Plaintiff’s second husband, Bruce Whitmore, and to their son Laurence. The manner in which the Deceased addressed Laurence Whitmore, by telephone, when Laurence was a lad aged 13 or 14, was not merely inappropriate but was grossly offensive. It would hardly be surprising if, in the light of such references to her husband and her son, the Plaintiff had broken off all contact with the Deceased. But she did not do so.

45 I have already referred to the fact that it is inevitable that the Seven Hills property must be sold in order to meet the costs of the proceedings. Indeed, it must be sold if only to meet the Defendant’s own costs in upholding the will of the Deceased, unless the Defendant himself is able to raise an amount sufficient to meet the proportion of those costs which must be attributed to that asset.

46 The sale of the Seven Hills property will have the practical consequence of depriving the Defendant of what has been the residence of himself, his wife and their two young children, for the past year and a half. Nevertheless, it must be appreciated that the Defendant has had the benefit of residing in the Seven Hills property, firstly at a very modest rent, whilst his parents were alive and he was single, he paying on $40 a week board to them as well as paying for half of the electricity, and paying for his groceries. Throughout the period from 1982 to 1992 the Defendant was in a position of being able to give significant assistance to his parents, essentially because he was not working throughout that period and was at residing at home with his parents.

47 The Defendant and his family moved into residence in the Seven Hills property in August 2004, not long after the death of the Deceased. Previously they had been residing in rented accommodation. The Defendant has had the benefit of having that estate property as his family home for the past year and a half. It also emerged from the evidence that the Defendant was claiming council rates and water rates in respect to the Seven Hills property throughout the period whilst he and his family had been residing therein, both as an estate expense and also as a personal expense.

48 I am satisfied that, consequent upon the testamentary dispositions of the Deceased, the Plaintiff has been left without adequate provision for her proper maintenance, and that the discretion of the Court to redress this omission on the part of the Deceased is thereby activated.

49 The size of the estate is not sufficient for the Plaintiff to receive (even if the Court were satisfied that the Plaintiff had established an entitlement to such) amounts which the Plaintiff presently seeks to satisfy her asserted needs, being in a total of about $90,000.

50 I consider it appropriate that the Plaintiff should receive a legacy in an amount sufficient to enable her to discharge her present liabilities, totalling $2,700; to have urgent dental work performed, costing $6,176; to meet the costs of her own nursing education, $5,000; and to go some way towards paying for the education of her dependent children, to enhancing the modest lifestyle of herself and her children, and to meeting unexpected contingencies.

51 The Plaintiff is secure in her rented accommodation. There is no reason why she should be entitled to look to the estate of the Deceased to purchase a residence. Neither do I consider that the Plaintiff is entitled to look to her mother’s estate for the acquisition of a motor vehicle (especially a new one), or for expenses relating to her own funeral (which can hardly be treated as a present need of the Plaintiff).

52 In the context of the size of the estate and of the competing claims of the other beneficiaries, especially that of the Defendant, I consider that the Plaintiff should receive from the estate of the Deceased a legacy in the sum of $50,000. I have already observed that the competing claim of the Defendant may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. Quite apart from such a legacy, the costs alone, as I have already observed, make it inevitable that the Seven Hills property must be sold, thus depriving the Defendant of what has been his residence for the past year and a half. It will be appreciated, however, that the Defendant will, under the terms of the testamentary dispositions of the Deceased, receive the major part of the proceeds of sale of the Seven Hills property. Accordingly, a legacy in favour of the Plaintiff in the proposed amount, an entitlement to which I consider she has established, should not, on account of the competing claim of the Defendant, be reduced, let alone extinguished.

53 Counsel for the Defendant requested that an opportunity should be given to him to make submissions concerning costs, in the light of my reasons for judgment herein. Such an opportunity will be given.

54 Accordingly, unless within seven days from the date hereof Counsel for either party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders:

1. I order that, in addition to the benefits given to her by the will of the late Agnes Beatrice Poole (“the Deceased”), the Plaintiff receive a legacy of $50,000, such legacy not to bear interest if paid on or before 27 May 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898.

2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

3. The exhibits may be returned.