CLAYTON OSWALD ACHARD as Executor of the Estate of WINIFRED AMELIA ACHARD (DEC)

MATTER : Inheritance (Family and Dependants Provision) Act 1972

Will and Estate of WINIFRED AMELIA ACHARD, late of 75 Lalor Road, Kenwick, in the State of Western Australia (Dec)

CLAYTON OSWALD ACHARD as Executor of the Estate of WINIFRED AMELIA ACHARD (DEC)

Trusts and trustees - Resulting trusts - Mother and son living in house together for approximately 30 years until the former's death - House being purchased under contract of sale with State Housing Commission - Agreement that son would inherit the house from his mother if he met all payments under the contract of sale - Subsequent contribution by son towards only part of those payments - Son one of five equal beneficiaries under mother's Will - Whether the house subject to a resulting or constructive trust in favour of the son

Succession - Inheritance - Whether adequate provision for support or advancement of adult son - Plaintiff one of five children of testator made equal beneficiaries of estate - Moral claim based upon special relationship with mother and contributions made towards purchase of major asset of estate

Inheritance (Family and Dependants Provision) Act 1972, s 6(1), s 6(3)

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137

Bondelmonte v Blanckensee [1989] WAR 305

Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463

Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494

Collicoat v McMillen (1999) 3 VR 803

Kitson v Franks [2001] WASCA 134

Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24

Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201

Vigolo v Bostin [2002] WASCA 327

1 BLAXELL J: These proceedings arise from an unfortunate dispute amongst five siblings as to the distribution of their late mother's relatively modest estate. The dispute has resulted in two separate matters that I must now determine and these are:

(1) No 2157 of 2004 -

The plaintiff's claim for a declaration that the only major asset of the estate (the house property at 75 Lalor Road, Kenwick) is subject to a resulting and/or constructive and/or implied trust in his favour.

(2) No 2158 of 2004 -

An application by the plaintiff pursuant to s 6 of the Inheritance (Family and Dependants' Provision) Act 1972 ("the Inheritance Act") for adequate provision to be made out of the estate for his proper maintenance, support, education or advancement in life.

2 As at the date of the deceased's death on 18 August 2003 the net value of the estate was estimated to be $137,044.82. However, as a result (mainly) of the costs of subsequent litigation, the net value as at 23 August 2005 (ignoring the executor's claim for "commission") had reduced to an estimated $62,179.29. Resolution of the dispute is complicated by the fact that the plaintiff is unrepresented. Furthermore, he is suffering from a terminal illness.

3 In view of these circumstances, the parties attended a directions hearing on 7 July 2005 and sensibly agreed that the proceedings should be finalised as speedily and inexpensively as possible. Accordingly, directions were made which included the following:

(1) Pleadings be dispensed with in action 2157 of 2004.

(2) Action 2157 of 2004 and application 2158 of 2004 be heard together, and the evidence in each of the proceedings be treated as evidence in the other.

(3) All further interlocutory proceedings be dispensed with.

(4) The evidence-in-chief of each party be adduced by that party reading aloud the affidavit or affidavits of that party as filed in either of the proceedings.

(5) Any further evidence to be adduced be the subject of an affidavit or witness statement to be filed no later than seven days prior to the hearing.

(6) The hearing be set down for 27 July 2005 (which date was subsequently postponed to 30 August 2005).

4 The parents of the parties were James Cyril Achard, who died in March 1974, and Winifred Amelia Achard ("the deceased"), who died on 18 August 2003. For ease of reference and in order to avoid confusion, I will refer to each of the parties by his or her first name.

5 The plaintiff Bryan was born on 7 February 1950, is now aged 55 years, and is the second-youngest member of the family. His siblings, in order of birth, are Clayton (67 years), Maureen (65 years), James (61 years), and Jean (51 years). They were all born in Burma, and the family migrated to Australia some time prior to 1968.

6 In 1972 the deceased and her husband entered into a contract of sale with the State Housing Commission for the purchase of the house property at lot 87 Lalor Road, Kenwick ("the property"). The purchase price was the sum of $11,020 payable by a deposit of $520, followed by monthly instalments and interest over a period of 45 years. At all material times these instalments were $49.70 per month. As the parties and their parents have always believed that this contract of sale was a mortgage and it has been referred to in evidence as such, I will also refer to it in these reasons as "the mortgage".

7 By the time of Mr Achard senior's death in 1974, all of the parties other than Bryan were themselves married, and he and Jean were the only children still living in the family home. Jean remained in the property with her husband Nicholas until 1975.

8 One of the major issues between the parties is whether or not Mr Achard senior made a "dying wish" that Bryan should continue to live with his mother until her death, and then inherit the property. This assertion is the foundation on which Bryan bases his present claims, but his siblings either deny or do not remember such a "dying wish".

9 What is not in doubt is that Bryan did continue to live in the property with his mother until her death, other than (perhaps) for a period of about 18 months around 1984 when Clayton and James claim that he was "evicted". When Bryan married in 1981, his wife Noeline also moved into the property and they subsequently raised their two children there.

10 Bryan also asserts that in December 1975 while he was living alone with his mother, the two of them had a conversation and came to an agreement:

"It was agreed between us, that in exchange for me living in the property with the deceased and looking after her and for me paying all of the payments towards the mortgage and upkeep of the property, the deceased would in her Will leave the property to me solely." (Paragraph 19 of affidavit sworn 22 August 2005).

11 Subsequently, on 27 February 1976, the deceased executed a Will ("the first Will") which remained in force and was unrevoked until 25 July 2003 (approximately three weeks prior to her death). At all material times the property was the only substantial asset of the deceased, and by her first Will she devised and bequeathed the whole of her estate to Bryan.

12 Bryan has given conflicting evidence as to whether or not he was aware of the first Will at the time. In par 16 of his affidavit sworn 17 September 2004 he deposed that, "The deceased told me shortly thereafter that she had made a Will leaving the property to me." However, in his viva voce evidence he was adamant that he was not aware of the first Will during his mother's lifetime, and only became aware of it when contacted by the trustee after her death (T33).

13 There are issues between the parties as to the extent to which Bryan funded the payments made under the mortgage subsequent to 1975. Bryan himself has given conflicting evidence on this point, and Clayton claims to have made all payments between 1974 and 1981. Clayton also claims that throughout his mother's lifetime he paid all of her major bills, including water rates and land rates on the property.

14 It is Bryan's unchallenged evidence that at the time of his marriage in 1981 he initially decided that he would move out of the property. He and his new wife successfully applied for a Homeswest property, but his mother then persuaded them that they should continue to live with her. It is also Bryan's evidence that at that time his mother reiterated her intention that he would inherit the whole of her estate. Accordingly, Bryan and his wife continued to reside at the property up to and subsequent to the deceased's death.

15 For all but a six-month period since 1982, Bryan has been unemployed. Up until the onset of his terminal illness in about 2003, there was no reason why Bryan could not have obtained work, and his decision to remain unemployed was simply a matter of choice. Accordingly (and as I understand the evidence) all occupants of the property at all material times depended upon social security payments for their financial support.

16 On 17 June 2003, the deceased was admitted to Royal Perth Hospital with the terminal illness from which she ultimately died. While in hospital on 25 July 2003 the deceased made a new Will ("the second Will") bequeathing the whole of her estate to her five children in equal shares.

17 Following the deceased's death on 18 August 2003, Bryan and his family continued to reside in the property and he also paid all monthly instalments on the mortgage as and when they fell due. Clayton, as Executor of the deceased's estate, subsequently sought to evict Bryan, but the latter refused to move. Ultimately, there were proceedings in the Local Court resulting in an order made on 25 February 2005 that the executor be given vacant possession of the property.

18 At all material times the registered proprietor of the property continued to be the State Housing Commission. However, on 28 September 2004 the property was transferred to Clayton as Executor following payment of the balance of $5,056.55 then due under the contract of sale. This payment was funded out of moneys lent to the estate by Jean.

19 Apart from the present proceedings and the Local Court matter I have referred to, there have been other disputes the subject of litigation between the parties. These have included contentious probate proceedings for removal of a caveat lodged by Bryan, applications to remove caveats placed on the property by Bryan, an appeal to the District Court from the order made in the Local Court, and Supreme Court proceedings by Bryan seeking a writ of certiorari and an injunction.

20 As already noted, the costs associated with these proceedings have substantially depleted the estate.

21 The parties differ as to whether or not their father made a dying wish which resulted in their mother making an agreement with Bryan that he would inherit the property after her death. Bryan's version of events is corroborated by the evidence of Mr Alan Aukim (an old friend of the family), and of Lloyd Achard (who is Clayton's son).

22 Mr Aukim was one of the witnesses present at the execution of the second Will, and according to him he had telephoned Clayton approximately two weeks beforehand to inquire as to the deceased's state of health. During that conversation, Clayton:

" ... mentioned that his father had left instructions to his mother that the house should be left to the youngest brother, Bryan, and I in fact commented that it seemed pretty unfair. That didn't seem to be the way I would have expected. I would have expected an equal share for all of them not knowing any of the facts that existed there. That was my comment to him at that time." (T90).

23 Lloyd Achard's evidence-in-chief on this issue was as follows:

"2. For nearly 3 decades, it has been my understanding and I believe the understanding of most of the senior members of the family, that there was a verbal agreement between Nana and her son Bryan Achard that in return for continuing to live with her for the remainder of her life and for contributing to the house payments, maintenance and bills,, Bryan would assume sole ownership of the property on her passing. I understand from statements made to me by 2 of her adult children, that this agreement was initiated by Nana's husband, James Achard ('papa'), on his deathbed in 1974. I have become aware over the years that the agreement was known and accepted by all of Papa and Nana's 5 adult children.

3. Clayton Achard has referred to this agreement in my presence many times over the years and as recently as July 2003 in Royal Perth Hospital (RPH) when Nana had been diagnosed with terminal cancer. On this occasion he had acknowledged the existence of this family agreement which had been initiated by his father but went on to say that if Papa had seen the way Bryan treated his mother, he would have changed his mind about Bryan acquiring the house on her passing. It was plainly obvious to me that Clayton Achard had intended to renege on the long-standing agreement and sought to rationalise this action, quite unfairly, in my view. When referring to the agreement on previous occasions over the years, he had indicated support for his brother Bryan to acquire ownership of Nana's house on her eventual passing." (Affidavit sworn 8 August 2005).

24 Prior to Alan Aukim's and Lloyd Achard's evidence being made known to the defendants, Clayton was adamant that there had been no dying wish by his father or an agreement by his mother as claimed (see pars 11, 22, and 23 of affidavit sworn 25 November 2004). However, during cross-examination by Bryan, Clayton's evidence changed:

"My father's dying wish - my father in 1973, and your father, made a suggestion that - because at the time you were a good son, right, he made a suggestion that as we all had our own houses at the time, if and when mum passed away and you still didn't have a house, he suggested that the house be given to you, but there was a lot of changes took place after that. You got married. You started to ill-treat mum." (T121-2).

25 The evidence of Jean (T58-9), James (T65), and Maureen (T104), is to the effect that each was unaware of either the alleged "dying wish" or the agreement that Bryan claims to have made with their mother.

26 I have already noted that there is also an issue between Bryan and Clayton as to which of them paid the mortgage instalments and other major expenses in respect of the property at particular times. There is no documentary evidence which addresses this issue other than some scribbled jottings by the deceased on the back of some TAB betting slips (Exh 5-10 inclusive). These exhibits suggest that on the particular occasions the subject of the jottings, these expenses were shared equally between the deceased and Bryan.

27 Bryan's evidence in affidavits filed prior to trial was to the effect that from 1975 onwards he met all mortgage payments and other significant household expenses from his own funds. The deceased nevertheless contributed towards some of the incidental expenses such as telephone, utilities, food and her own clothing (pars 13 and 19 of affidavit sworn 17 September 2004, and pars 11-17 and 26 of affidavit sworn 22 August 2005). His evidence during cross-examination was sometimes to the same effect (T23 and 39), but he also referred to the relevant expenses being met "half each" (T24, 25, and 37). In the end I sought to clarify this conflict in Bryan's evidence by reference to the deceased's jottings on Ex 7 and he conceded that the mortgage payments and other relevant expenses had always been met equally (T46). He then provided (at T49) a different version of the agreement with his mother:

" ... the agreement we had from the time I lived with her, all expenses to be shared and upon her death the property will be mine". (Emphasis added).

28 There is a further issue as to whether or not Bryan and his wife were evicted from the property by James at the request of the deceased for a period of approximately 18 months in about 1984. Bryan denies that this happened (par 57 of affidavit sworn 22 August 2005) whereas James (T72-3) and Clayton (pars 24, 49-51 of affidavit sworn 25 November 2004 and T 113) assert that it did. Clayton's son Lloyd corroborates Bryan on this issue and his evidence in answer to a question from the plaintiff was:

"I visited your house many, many times over the years and I have never known you not to be living there." (T81).

29 There are other issues between the parties as to Bryan's alleged "mistreatment" of his mother during her latter years. In this regard it is alleged that he and his wife "would not offer her any food" and refused to take her with them to family functions (pars 18 and 19 of James's affidavit sworn 25 November 2004), did not care for her when she was sick (pars 35-38 of Jean's affidavit sworn 25 November 2004), made her feel "uncomfortable and alone" (par 18 of Maureen's affidavit sworn 25 November 2004), and made her "feel unwelcome in her own house" (par 95 of Clayton's affidavit sworn 25 November 2004). Bryan's denial of these and similar allegations is supported by Lloyd Achard who has testified that:

" ... I had many an opportunity to witness their (viz. Bryan's and the deceased's) relationship over a long span of years and my clear recollection is that it was always loving and mutually supportive, without exception." (Par 5 of affidavit sworn 8 August 2005).

30 Furthermore, Bryan's son Brendan has given evidence to the effect that there was a happy relationship between his father and grandmother.

31 Lloyd Achard has also testified that he is a registered general nurse and that from 2001 onwards he believed that his grandmother was suffering from age-related depression. He shared this concern with her and often urged her to obtain medical help. During the course of such conversations the deceased would confide to him complaints that she had about all of her children, and the most frequent subjects of those complaints were James and Jean. According to Lloyd:

"As I had contact with Jim and Jean and knew them well, I formed the view which I still hold that they were both generally loving and supportive of their mother, as were all of her children and their spouses, without exception. I remain convinced that Nana's emotional pain and her perception of others' words and actions were more of a result of her mental illness than of any real neglect or mistreatment by members of the family. She was subsequently diagnosed by the medical team in RPH as suffering severe depression." (Par 7 of affidavit sworn 8 August 2005).

32 As will be clear from the passages of evidence referred to above, there are very significant discrepancies in the evidence of both Bryan and Clayton. Having observed their demeanour in court, it is apparent to me that Bryan is overwhelmed if not obsessed by a genuine sense of grievance, and he appears to be completely unperturbed by the contradictions in his evidence. Clayton, on the other hand, manifests considerable hostility towards his youngest brother and, in my view, is incapable of being objective about the matters in issue. I have come to the inevitable conclusion that the evidence of neither of them can be relied upon as being truthful and accurate.

33 I am also unimpressed by the evidence of the remaining siblings, and I consider that Jean and James, in particular, have been less than forthright. In this regard Jean denies that she was present at the signing of her mother's second Will (T61) when Mr Aukim (T92 - an independent witness whose evidence I accept) clearly recollects that she was. James's evidence as to the eviction of Bryan was unconvincing, and he also fails to recollect that Jean and his mother were estranged and did not speak to each other for three years (T66). This latter fact is freely admitted by Jean (T61).

34 Given the unsatisfactory nature of the bulk of the evidence, it was refreshing to hear from Lloyd Achard whom I consider to be a very credible witness. He impressed me as being patently honest and his objectivity was demonstrated by evidence such as the last excerpt that I have referred to above. To the extent that he was able to throw light on critical issues, he appeared to do so dispassionately and to the best of his ability. I do not accept that Lloyd Achard has given false testimony by reason of a falling out with his father, and I consider that his evidence is reliable. I also have no hesitation in accepting the evidence of Mr Aukim, who was independent and also obviously dispassionate about the matters in issue.

35 I am satisfied that in 1974 the late Mr Achard senior made a "dying wish" that Bryan should continue to reside with his mother until her death and then inherit the property. In this regard I am prepared to accept Bryan's evidence of that fact because it is supported by the assertion to the same effect made by Clayton to Mr Aukim. I also accept Lloyd Achard's evidence that it is not unusual in Burmese culture for the patriarch of a family to make such a request, particularly at the time of dying. The customary reason for such a request is to provide for the care of the widow rather than to confer a benefit on the child who takes on that responsibility (T82).

36 I also make the finding that consistent with this request it was mutually understood amongst all members of the family that in return for Bryan caring for his mother and taking financial responsibility for the property, he would inherit it upon her death. It was because of this understanding that the deceased executed her first Will in 1976, leaving all of her estate to Bryan.

37 I also find that at about the time of execution of the first Will, Bryan and his mother entered into a concurrent understanding or "agreement" that he would meet all future payments due under the mortgage and the other major expenses in respect of the property.

38 At the time of that agreement Bryan was working and no doubt had the means to fulfil the obligations he had undertaken. However, over time he ceased to fully comply with the agreement, and for the bulk of the period that he lived with his mother he made only a partial contribution to mortgage and other expenses. The evidence does not allow a precise calculation of the quantum of his total contribution, but it may well have been in the vicinity of one-half.

39 I make the further finding that at all material times Bryan maintained a reasonable filial relationship with his mother and did not mistreat her during her final years. In this regard, I accept the evidence of Lloyd Achard that his grandmother appeared to be depressed and consequently raised unjustified complaints about all members of her family. It may well be that her complaints of this nature against Bryan became the basis of the allegations of mistreatment in the present proceedings.

40 I accept the evidence of each of the parties as to their respective means. In broad terms the four siblings other than Bryan are in a substantially similar financial situation with modest assets and income which do not allow them to live extravagantly. The fact that Bryan does not have assets equivalent to those of his brothers and sisters is entirely due to his decision in 1982 to cease work. That was a decision that he was entitled to make, but to the extent that it has prevented him from acquiring assets, it cannot provide a basis for any moral claim to his mother's estate over and above that of his siblings.

41 I nevertheless find that Bryan was deprived of the potential to acquire a future asset when, in 1981, he decided to remain with his mother rather than move to another Homeswest house. It is reasonable to assume that if Bryan had moved out of the property at that time, he would have had the means and motivation to gradually purchase such a house.

42 Accordingly, Bryan's fulfilment of his father's dying wish has caused him some financial disadvantage vis a vis his siblings. However, this disadvantage is to some extent countered by the fact that he did not have to pay any rent while living with his mother.

Whether there is an implied, resulting, or constructive trust

43 On the facts as found, the "agreement" by the deceased in 1975 did not create a trust because the same was not in writing (as required by s 34 of the Property Law Act 1969), and in any event was incompletely constituted. In reality, there was simply an agreement to create a trust in the future if in the meantime Bryan funded the mortgage and other expenses in respect of the property.

44 Nevertheless, the events subsequent to 1975 provide scope for the creation of a resulting or constructive trust in Bryan's favour. Quite obviously, the existence of such a trust cannot be based upon the deceased's actual intention, because her intention was to confer a benefit to the whole of the property in return for Bryan meeting all of the mortgage and other expenses in the meantime. Thereafter, Bryan did not fully comply with the "agreement", but the fact remains that he did contribute to the purchase of the property by meeting a large proportion of the mortgage and other expenses. In these circumstances equity will treat the property as being beneficially held by the deceased and Bryan in proportion to their respective contributions towards the purchase price. (Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, 146-7).

45 Accordingly, I find that it is contrary to equity and good conscience for the executor to deny Bryan an interest in the property proportionate to the contribution that he has made. Unfortunately for Bryan, he is unable to prove the extent of that contribution and therefore cannot satisfy me as to the appropriate declaration that should be made. However, in light of the following decision in respect of his application under the Inheritance Act it is probably unnecessary that he do so.

Whether provision should be made under the Inheritance Act

46 Section 6 of the Inheritance Act provides that:

"(1) If any person (in this Act called "the deceased" ) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will ... is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of ... the Court may, at its discretion, ... order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose."

47 In Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208, the High Court noted that this provision involves a two-stage process. The first stage calls for the determination of whether the applicant has been left without adequate provision. The second stage only arises if that determination is made in favour of the applicant, and it requires the Court to decide what provision ought to be made out of the deceased's estate.

48 It is also a long-established principle that the first stage of this process requires a determination as at the date of death of the deceased, whereas the discretionary power to make further provision, if exercised, must have regard to the facts as they exist at the time of making the order (Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494).

49 The determination of whether the provision made was inadequate should have regard to such factors as the plaintiff's financial position, the size of the estate, the totality of the relationship between the plaintiff and the deceased, and the relationship between the deceased and other beneficiaries who have legitimate claims to her bounty. Very often the assessment of these factors will also govern the further provision that ought to be made, in the event that that second stage of the process is in fact reached (Singer at 209-10).

50 Prior to Singer, the Court often approached the assessment of these matters by comparing the relative merits of competing "moral claims". For instance, in Bondelmonte v Blanckensee [1989] WAR 305, 309, the Full Court applied the following test as approved in Bosch v Perpetual Trustee Co (Ltd) [1938] AC 463, 479:

"The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."

51 However, in Singer, the majority of the High Court (at 209) doubted that this statement provided "useful assistance in elucidating the statutory provisions" and described the references to "moral duty" and "moral obligation" as perhaps "amounting to a gloss on the statutory language".

52 It must be said that subsequent authorities in this State are not entirely clear on this question. For example, in Kitson v Franks [2001] WASCA 134, the Full Court explicitly held that:

"The provision which the Court may make in relation to applications under the Act is that which a wise and just testatatrix would have thought it her moral duty to make in the interests of the relevant applicants."

53 On the other hand, in the more recent decision in Vigolo v Bostin [2002] WASCA 327 the Full Court referred to "the difficulty of importing the notion of a moral claim into the resolution of questions under the legislation". Sheppard AUJ (with whom the other members of the Court agreed) expressed a preference for the views expressed by (inter alia) Kirby P in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 to the effect that:

" ... the judicial development of the concept of moral duty may have departed from the original rationale behind the statutory protection for the neglected dependants of testators."

54 However, the apparent inconsistencies between Kitson and Vigolo can be reconciled if regard is had to the following decision by Ormiston J in Collicoat v McMillen (1999) 3 VR 803 (which was referred to with approval in Vigolo):

"I consider that the expression 'moral duty' remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances. Having regard to what I have said, it is unnecessary to consider further in detail the meaning of the word 'moral' or indeed the application of theories of morality to the law ... It is sufficient to say that the word 'moral' used in connexion with the legislation is apt to describe what is generally considered, according to accepted community standards, to be the obligation of a testator to do what is right and proper for those members of his or her family whom one would expect to be entitled to share in the distribution of his or her estate on death. Indeed the word is particularly apposite when considering family relationships and the obligations arising from them for the purpose of ascertaining what is right and just as between members of a family."

55 Accordingly, in determining in the present matter whether or not the provision for Bryan was adequate, it is appropriate to consider whether the dispositions under the second Will reflect "a wise and just assessment of the interests of all persons who might fairly ask to be taken into account". This consideration should be based on the assumption that the testator was fully aware of all relevant circumstances as at the date of her death (which did not include the plaintiff's present terminal illness, it not having been diagnosed at that time.)

56 In my view, a wise and just testatrix in the position of the deceased would have come to the conclusion that each of her children had a legitimate claim to a share of her bounty. However, she would also have realised that Bryan could fairly ask for a greater share than the others, he having fulfilled her husband's dying wish that he take care of her, and having made a substantial contribution towards the purchase of the only major asset in her estate.

57 For this reason, I am of the opinion that the disposition of the estate into equal shares was not such as to make adequate provision for the proper support and advancement in life of Bryan. Accordingly, it is appropriate that I should exercise my discretion to order that there be further provision in this regard.

58 In my opinion, when regard is had to the relative merits of the competing claims, including Bryan's special claim, it is appropriate that he should receive half of the estate.

59 For these reasons, the orders that I now make are as follows:

1. The claim in action No 2157 of 2004 be dismissed.

2. (In 2158 of 2004) that provision be made for the plaintiff out of the estate of the deceased by:

(1) Deleting the provision in the Will of the deceased whereby the whole of her estate was to be divided into equal shares to her five beneficiaries.

(2) Substituting a provision that the plaintiff receive one-half of her estate and that the remaining four beneficiaries receive the other half of her estate in equal shares.

(3) Otherwise leaving the provisions of the Will intact.

60 In all of the circumstances I consider that no order for costs should be made in either of the proceedings.