FAMILY PROVISION
40Pursuant to the Probate Administration Act 1898 (NSW), s 61B, Rehana Ali is entitled to the prescribed amount of $200,000 together with half of the residue of the estate. The remaining one-half of the residue of the estate is to be divided between the two daughters, Jasveen and Adilah. On initial estimates of the defendant this meant that Rehana would receive about $406,000 on intestacy and the daughters about $103,000 each.
41The plaintiff Adilah Ali is 19 years old and during the deceased's lifetime was wholly financially dependent upon him. She finished high school in 2008 and studied business for one year at the University of Western Sydney and in 2010 enrolled in a first-year course towards a Bachelor of Psychology at Macquarie University. In her first affidavit of 27 January 2011 she said that she had assets in a Commonwealth Bank savings account in the amount of $600 and that she had car expenses and other living expenses of $500 per week. She said that she had been employed at various times in 2010 working in postal logistics, and as a marketing assistant and holds a permanent casual clerical position with the Mezzo Group.
42She stated that she would need university fees in the future and would need living expenses until she was able to graduate and commence working full-time.
43In her later affidavit filed shortly before the hearing on 17 February 2011 she said that she was in the second year of a psychology degree which is a six-year course. She receives some income from the Mezzo Group as a business information researcher during university term of about $400 per week gross together with $240 per fortnight by way of Youth Allowance. During university vacation periods she works longer hours with the Mezzo Group and receives about $500 to $600 per week but this excludes receipt of the Youth Allowance. She said that she had debts to HECS in an amount of $25,000 and anticipates that her future eduction costs will amount to a total of $96,000 at the end of the six-year period. She wants to practise as a clinical psychologist and set up her own private practice. She also states that she would like to purchase a small unit in which to live which she estimates would cost in the order of $310,000.
44In addition she says that she enjoyed a close and loving relationship with the deceased. She disclosed that on his death she received an amount of $41,776 from an insurance company and used this money to buy a car and pay for the on-going costs of attending university. This disclosure was not made until shortly before the hearing.
45The plaintiff Jasveen Ali filed an affidavit on 28 January 2011 in which she confirms that she was studying law in the period 2007 to 2010. She is 23 years old. In a subsequent affidavit of 17 February 2011 she states that she had always had a close and loving relationship with the deceased. She states that she owed $95,000 for fees incurred during her law degree at Bond University and approximately $10,000 HECS fees for business and commerce studies at Sydney University in 2005. She graduated from Bond University on 12 February 2011 and says that she also owes about $3,000 to Optus for a telephone debt.
46Having just completed her degree she has no present source of income and she must attend the College of Law to finish off her legal studies. She intends to do an MBA degree and then a Real Estate Agent's course. She proposes to ultimately work as a business broker.
47She discloses in the later affidavit filed shortly before the hearing that she has received $50,728 from the insurance group AXA as a consequence of her father's death and has spent about $20,000 of this on university fees at Bond University. The balance was spent on day-to-day living as a student. In addition she discloses that she received $25,000 in 2007 from Westpac Bank from a life insurance policy of the deceased and gave this money to her mother. She anticipates that her future education expenses would be $6,000 for practice legal training, $30,000 for an MBA degree and $1,500 for a Real Estate Agent's course. In addition she needs to discharge a fee debt of $95,000 and HECS debts of $10,000. She states that she seeks a provision that would enable her to put down a substantial deposit on a property which she anticipates would cost in the order of $300,000 to $330,000.
48I am satisfied that after cross-examination there has now been full disclosure, although belated, of the daughters' financial position.
49The plaintiffs' mother Janifa, confirms that she married the deceased in October 1985 and confirms that Jasveen was a law student at Bond University and that her tuition and accommodation fees and living expenses were high. She also confirms that there was a close and loving relationship between the daughters and the deceased. She says that the deceased has provided cash sums to the daughters and herself and purchased clothing for them when they visited him in Fiji after 2001 and that the deceased had interests in two AXA superannuation funds.
50She states that the assets of the deceased in Fiji at the date of death included shares in the company Eastwind and that he also had shares in an investment company together with several parcels of land.
51She states that the deceased made payments to bank accounts of Jasveen totalling $38,078 between May 2003 and April 2007 and to accounts of Adilah totalling $14,850 during 2004 and 2005. She states that the deceased made deposits to an account of hers totalling $36,700 between October 2003 and April 2004. In addition the deceased has provided cash sums to Jasveen, Adilah and herself and purchased clothing for them on occasions when they visited him in Fiji.
52In her affidavit of 21 October 2010 she states that she received rent from the Esk Avenue properties and from that source she made payments of rates and insurance on the properties and paid some of the daughters' living expenses. Under the relevant law in Fiji it appears that the administrator on intestacy holds the properties in trust to distribute as to the personal chattels plus $2,000 and one-third of the residuary estate to the surviving wife and as to the remaining two-thirds to the issue of the deceased.
53Rehana Ali gave evidence that she is 39 years old and that she met the deceased in 1998 and began a de facto relationship with him which continued to his death in 2007. In October 1998 there was a Muslim betrothal ceremony with the deceased. Since that date they have lived as husband and wife in a "de facto" relationship. She has a number of substantial business interests in Fiji. She has two children from a previous relationship who are now aged 19 and 18 and are both financially dependent on her.
54Her present financial circumstances are that she works for the company Eastwind on a full-time basis putting in long hours. This work involves managing a staff workforce of 60 people at 6 different locations in Fiji, dealing with bankers, suppliers and creditors. She receives an amount of AUD$538 per fortnight from Eastwind. Her fortnightly expenses are $774 and she says that her income does not satisfy her living expenses but she receives financial assistance from various family members. She has assets in the form of property and states that her total assets amount to $670,000. All the properties are mortgaged to the Colonial National Bank and she says that her liabilities total $522,000. Although she receives about $2,970 per month from properties in Suva, these moneys are used to repay mortgages. Her total equity in assets is said to be $148,000 approximately.
55In about April 2010 she says she received approximately AUD$205,900 from AXA from the deceased's retirement fund and at December 2010 she had used approximately AUD$161,412 to pay for expenses in the administration of the estate. She also states that the daughters were given a sum of money from the retirement fund at that time which has previously been referred to as the AXA payments. She states that as at the date of death the Fijian assets of the deceased amount to AUD$287,727. (I note that documents show the Fijian estate was sworn to have a value of Fijian$550,000. Some at least of the estate in Fiji is tied up in assets and securities and will not be available until sometime in the future.)
56On her calculations in accordance with New South Wales intestacy laws she would be entitled to approximately $432,400 from the estate and to be reimbursed for expenses in administering it. She calculates that Adilah and Jasveen under New South Wales law of intestacy would receive approximately $116,000 each from the estate but this amount does not include an adjustment for further legal and other expenses estimated to be AUD$25,000. She expresses an intention to come to live eventually in Australia but has no immediate plans. She states that Fijian law does not recognise de facto relationships and that under Fijian law on her calculations Janifa will receive approximately $10,920 from the Fijian assets together with personal chattels and one-third of the residuary estate, totalling approximately $103,200 and the plaintiffs would receive two-thirds of the residuary, so that on her calculations Adilah and Jasveen would each receive approximately AUD$92,270 from the Fijian estate.
57The plaintiffs are adults and have received substantial amounts of funds from the deceased and their mother, they have very substantial present debts and large commitments in relation to their past and future education. They are both young and at the beginning of their lifetime careers. Although they may later earn substantial sums in their respective professions, at present they are in need of substantial support having regard to their education needs. In addition to these they will have substantial liabilities in relation to securing accommodation and other expenses of living such as clothing, food, transport, insurance, some reasonable entertainment and perhaps some travel.
58They are by no means left in what could be described as a "destitute" position or a position of "hardship" and they may be entitled to receive approximately $100,000 each on intestacy together with other moneys from Fiji. In the immediate foreseeable future I consider that they have substantial need for further provision and that it is appropriate for their proper maintenance, advancement and education in all the circumstances to receive a significant increase over and above what they would receive on an intestacy. I have taken into account the fact that they will probably receive some additional financial benefits from the Fijian assets but I do not think that this disentitles them from receiving a significant provision from the estate of the deceased in New South Wales.
59Counsel for the daughters referred to the fact that the deceased had made a will in 2005 leaving the Esk Avenue properties to his daughters. This was not the subject of a grant of probate and I note that in December 2010 a motion for revocation of the Letters of Administration brought by Adilah was dismissed by the Court. Counsel also said that it was relevant to take into account that Rehana Ali did not contribute to the building up of the deceased's estate in New South Wales. I have taken this into account.
60In coming to a conclusion as to the amount of any provision, I have taken into account the position of Rehana Ali and formed the view that her needs are not of the same event, order or significance as those of the daughters. The evidence before me indicates that she is an experienced, astute and successful businesswoman who is able to administer a number of properties and at least one substantial enterprise in Fiji with a staff in the order of 60 people.
61Having regard to all the circumstances in the present case and the competing needs of the parties I am satisfied that the relative entitlements of the widow and the two plaintiffs on the intestacy in this matter should be adjusted and varied. I consider that this can best be done by a provision that each of the plaintiffs and the defendant in the family provision proceeding should receive one-third of the net distributable amount in the New South Wales estate after taking into account all appropriate assets and expenditure including legal costs. At this stage it is not feasible to specify a precise amount because this will depend on the consequences of taking an account and the precise figures arrived at as a consequence of that accounting.
62Accordingly, I propose to make an order that the estate be adjusted as I have indicated so that the shares of the parties in the New South Wales assets of the deceased are varied to provide that each daughter and Rehana Ali is to receive one-third of the net distributable amount.