Coller v Coller [1998] VSC 80

(a) Raymond Coller, born 27 September 1951, the executor and the first defendant

13. The deceased died on 16 February 1997. Probate was granted on 25 March 1997. At the date of his death, the deceased and the plaintiff had been living apart for some sixteen years. In 1981, the deceased left premises at Alexandra where he and the plaintiff were living and returned to live in the original matrimonial home at 12 Kerferd Street Essendon North.

16. At the time the originating motion was filed a summons was also filed seeking interim injunctions restraining the five children from distributing the estate of the deceased or disposing of any part of it which had come into their possession. It had come to the attention of the plaintiff and her advisers that the executor had distributed substantial sums of money to each of the deceased's children notwithstanding the fact that he, as executor, had been made aware of the prospective application of the plaintiff. An ex-parte application was made on 23 April, 1997 before Beach J, and an ex-parte order made against each of the children restraining them from expending, disposing of, dispersing or encumbering any assets of or derived from the deceased's estate or any assets representing assets of the estate of the deceased until 4.00pm on 30 April 1997, to which date the proceedings were adjourned.

19. On 30 April 1997 counsel appeared for the plaintiff and for the first defendant, Raymond Coller, and Kenneth Andrew Coller and Maureen Suminar. The two remaining children, Kathleen Lambert and Eileen Maree Hunt did not appear. On that day Beach J, ordered that the remaining four children be added as defendants and that the originating motion be amended accordingly. Orders were made that the amended originating motion be served upon them. The injunctions were extended until the hearing and determination of the proceeding or further order and directions given about the filing of material and the listing for trial. Costs of that application and the earlier application were reserved. An amended originating motion was filed on 8 May 1997 in which the further defendants were added. I note that it records Raymond George Coller, Keith Kenneth Andrew Coller and Maureen Suminar as having an address for service care of Timothy Anderson and Associates. The address for service of Kathleen Lambert and Eileen Maree Hunt was recorded as their home addresses. Before me counsel announced an appearance for the plaintiff and for the "defendant" and no appearance was announced for other defendants. They all, except Kenneth Andrew Coller, participated, however, by giving evidence in the proceedings.

22. At the date of his death, the deceased's estate comprised the house at 12 Kerferd Street, Essendon North which has an agreed value of $155,000. The deceased had also accumulated substantial cash savings of $221,700.37. He also possessed miscellaneous furniture and household items valued at $3,000. The total value of the estate appears to have been $379,700.37.

25. The following distributions were made to beneficiaries by the executor:

33. As at 26 August 1998 an amount of $221,700.37 had been distributed from the estate by the executor. This included the $146,000 distributed to four of the surviving children and a sum of $60,371.38 transferred to the trust account of the defendants' solicitors for payment of legal costs. Some $25,328.99 has also been spent on various items including rates, legal fees and the probate application.

36. The last will and testament of the deceased was made on 10 July 1990. It appointed Raymond George Coller executor and trustee with Maureen Marsden (now Suminar) nominated to fill the office should there be any vacancy in the office of the executor and trustee. The deceased made the following gifts in his will:

1. A legacy of $10,000 to his daughter Maureen Marsden

2. Legacies of $2,000 to each of his grandchildren that survived him (9 in total)

3. He gave all his "tools, etc." to his two sons Raymond George Coller and Kenneth Andrew Coller and his sons-in-law Rodney Hunt and Peter Lambert to be divided equally between them.

4. He gave his house at 12 Kerferd Street to Maureen Marsden.

5.- He divided the residue of his estate equally between his children as tenants in common

Thus no provision was made in his will for the plaintiff.

45. At the date of the death of the deceased, the plaintiff was in receipt of an invalid pension. As at 2 May 1997 her situation had changed. She was in receipt of a TPI pension from the Repatriation Commission and a Department of Social Security old age pension. The latter is means tested. As at 2 May 1997, the pensions provided her with a fortnightly income of $495 comprising $375 per fortnight for the TPI pension and $120 per fortnight for the old age pension. At the time of the deceased's death she also became entitled to the superannuation scheme benefits which had accrued as a result of the contribution made by the deceased and the Metropolitan Fire Brigade, his employer, during his life time. Shortly after his death she received the benefits from the superannuation scheme in a lump sum which totalled $31,736.

48. At the date of his death she was renting accommodation from the Housing Commission at $50 per week. The plaintiff deposed in her affidavit of 2 May 1997 that she had other significant weekly expenses being food and household expenses of $75.00 per week, electricity expenses of $20.00 per week, taxi fares of at least $20.00 per week. She said she also had other expenses such as telephone, pharmaceutical expenses, clothing and medical costs. The latter, however, are largely covered now by the Repatriation Commission and should she need an operation for her spine that too will be dealt with by the Repatriation Commission.

51. She had at the date of the deceased's death some cash reserves left from the sale of a house at Alexandra which had been purchased in her name during the marriage. At 2 May 1997 the cash reserves totalled $5,700.00. She has retained $12,000.00 of the superannuation lump sum and placed $14,000.00 from the lump sum on trust with her solicitors. She explained in oral evidence that she had eaten into her capital reserves by spending some $10,000.00 on various necessities, for example, a complete change of clothing because she cannot do anything up at the back anymore. She had to have a complete change of underwear, trousers instead of frocks, different shoes and so on. She also has to wear support hose which cost $90.00 for the two lots she gets at any time. She also had to erect a shed for her scooter and to pay a gardener to come and do the garden. At one point she had to obtain extra money from Kathleen to pay the phone bill and electric light bill. She needs to go to the podiatrist regularly. She had to pay for that until recently. Veteran Affairs will cover the cost but only allow six visits each year. She is negotiating with them to have extra ones covered.

55. The parties accept the two stage approach described by the High Court in Singer v. Berghouse (No. 2) [1994] HCA 40; (1994) 181 C.L.R. 201. The first stage involves an enquiry as to whether adequate provision was made for the proper maintenance and support of the plaintiff. The second stage concerns the question of what provision ought to be made out of the estate of the deceased for the plaintiff in the event that the inadequacy of the provision made in the will is demonstrated. The High Court in Singer v. Berghouse (at 209 - 10) commented that :

"The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for 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."

As to the second stage their Honours commented (at 210) that:

"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 the court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision of proper maintenance."

61. In dealing with the first stage it is necessary for the court to place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case as a wise and just testator rather than a fond or foolish one and all relevant circumstances must be considered even though the deceased was not aware of them (Bosch v. Perpetual Trustee Co [1938]. A.C. 463 at 478 - 479 and In re Allen [1922] N.Z.L.R. 218 at 220 - 221). The issues relevant to the first stage are to be determined by considering the facts existing and eventualities which might reasonably have been foreseen at the date of the testator's death. When considering the second stage, however, reference may be made to the facts existing at the time of the hearing (Prosser v. Twiss [1970] VicRp 29; (1970) V.R. 225 citing Coates v. National Trustees Executors (1956) C.L.R. 494).

64. A potential issue raised by this particular case is the relevance of the consideration of pensions to which an applicant and those with moral and other claims upon the bounty of the deceased may be receiving at the time of the death of the deceased. Ultimately I do not have to resolve the potentially difficult questions raised by such circumstances referred to by Hedigan J., in King v. White [1992] VicRp 72; [1992] 2 V.R. 417 at 424. The parties proceeded before me on the basis that it is relevant to have regard to the income being received at the relevant dates in determining the threshold question and the exercise of the discretion. It is accepted by both parties, however, that means tested sources of income should not generally be taken into account as income available to the widow by a just and wise testator when making provision for his widow, or at least for the plaintiff. Reliance was placed by the defendant, however, on the decision of Rath J., in Shah v. Perpetual Trustee Co (1981) 7 Fam L.R.97. There his Honour commented:

"I think the wise and just testator would make provision for his widow out of his estate without regard to a means tested pension. The position could be different in the case where the competing claims on the testator would cause strains on his capacity to provide. That is not this case."

The present case does raise competing claims and, as I understood the position taken by counsel for the plaintiff, it was not seriously suggested that her non-means tested pension entitlements could be ignored. It is to be noted that the main competing claimant, Maureen Suminar, is married with two young children, her husband is unemployed and is on the Work Start Allowance. The defendant Raymond Coller is on a disability pension and seeking compensation for a back injury through the Workers Compensation system. In comparing the positions of those beneficiaries with that of the plaintiff, it does seem artificial to ignore completely their respective pension entitlements. The above appears to have been the position of three claimants at the date of the deceased's death.

69. The plaintiff also relies upon the comments of Hedigan J., in King v. White (above 424) in which his Honour comments on the reality that there is no certainty so far as social service or old age pension entitlements are concerned. His Honour stated

"There would, I think, be strong public policy reasons against permitting the moral obligation of testators to make adequate provision for the proper maintenance and support of those with claims on their bounty to be deflected by resort to the expectation of the continued payment from the public purse to survivors of some in satisfaction of the testators duty. Moreover, there could be no legitimate expectation that the payment of social service or old age entitlement would continue at any particular level on the same conditions, or be appropriately linked to rising costs. Further the provision of such benefits are subject to political vagaries. It is a fact well known in the community that receipt of the old age pension is now assets and means tested. Indeed, in this very case this issue has been partly addressed in relation to the possible provision of an additional source of income for the widow."

73. The plaintiff also relies upon the passages cited with approval by Hedigan J., in King v. White concerning the correct approach to a claim by a widow. His Honour there referred (at pp 424 & 425) to a number of unreported decision of Young J and Powell J., of the Supreme Court of New South Wales. From the discussion in those authorities and in Worladge v. Dodridge (1957) 97 C.L.R and other cases referred to, it would appear that it would be relevant for a just and wise testator to direct his mind to the question whether and to what extent provision should have been made to free the widow's mind from reasonable fear of insufficiency as age increases and health fails and to enable her to live with comfort without pecuniary anxiety and in such a state of life as she would have lived if he had done his duty during his life. I note that the statements his Honour refers to, in particular those from Elliot v. Elliot (unreported, Supreme Court of New South Wales, Powell, J 18 May 1984) and Worladge were cases where there were ample funds and minimal if non-existent competing claims and this affects the particular statements made. Nonetheless, the issues to which I have referred would appear to me to be issues that a just and wise testator would have needed to consider in determining whether adequate provision had been made for the proper maintenance and support of the plaintiff.

76. Finally, I note that in Singer v. Berghouse, above, at 212 - 213, Mason, C.J, Deane, J and McHugh, J. commented

"as recent cases in this Court have made plain it is important that the courts do not disregard or discount the non financial contributions made to the property and finances of the parties to a marriage or marriage like relationship, such as the contributions made by parties as homemakers and parents, which are not directly productive of a monetary return."

In the report there is a footnote to the quoted passage which refers by way of example to the case of Mallett v. Mallet [1984] HCA 21; (1984) 156 C.L.R. 605 at 623 and the remarks there of Mason, J as he then was in whose decision Deane, J. concurred. In that footnoted passage reference is made to the concepts developed in the Family Court designed to give recognition to the housewife

"who, by her attention to the home and children, frees her husband to earn income and acquire assets..."

Reference is also made to the accepted view in the Family Court that

"the wife's contribution as homemaker should be recognised in a substantial and not merely in a token way."

Statements in the affidavit of Raymond Coller would suggest that he does not share these views. They indicate, however, the matters Mason, J. had in mind in his comments in Singer v. Berghouse (see also Gaudron, J. at 228).

86. The plaintiff submits that the deceased failed to make adequate provision for her proper maintenance and support. She submits that she should have been left at least half of the estate and that such provision was required for adequate provision for her proper maintenance and support. She seeks the property at Kerferd Street and a capital sum of at least $50,000.00.

89. She argues that she has a strong moral claim. She is the widow of the deceased and the mother of their six children. She was the person upon whom the task fell of raising the children. She also, it is argued, had to care for the deceased who throughout the marriage had serious psychiatric difficulties as a result of his war experiences and later difficulties with drugs. She alleges that through the thirty two years that they lived together she had to put up with violence and abuse, something for which the deceased had to bear the responsibility. She further argues that she contributed directly and indirectly to the estate which he possessed at the time of his death in a number of ways. Firstly, she performed the role of wife and mother and homemaker. Secondly, at his insistence , she paid to him a total of approximately $15,000 at the time she sold the house at Alexandra, an amount which he regarded as due to him on the sale of that property. In addition, from the time they moved to Alexandra to live in the house in 1977 through to the death of the deceased, she alleges that she received only minimal financial support from him and much of that during the time when they lived together at Alexandra from 1977 to 1981. From material compiled by the defendant from the records he found amongst the deceased's papers it may be demonstrated that an amount of approximately $11,000 was paid by him either to the plaintiff or in respect of the purchase of the house at Alexandra between December 1978 and August 1994. It is submitted on her behalf that this fell far short of the maintenance to which she would otherwise have been entitled. He had been on a TPI pension from Veteran Affairs and the Metropolitan Fire Brigade Superannuation pension and a Veteran Affairs Service pension. At the date of his death his total fortnightly income was $1,197.00. It is also said that when they went to Alexandra, the plaintiff and the deceased had saved approximately $10,000 in cash and owned the house in Kerferd Street Essendon. It is submitted on behalf of the plaintiff that the cash reserves possessed by the deceased at his death were largely attributable to the fact that he had been able to avoid paying any maintenance of any substance or significance to the plaintiff. Finally, reliance is placed on evidence of some part time work carried out by the plaintiff during the marriage.

92. For the plaintiff it is also submitted that she has demonstrated a financial need in that at the date of death of the deceased she was renting a very modest Housing Commission one bedroom flat at $50 per week at Alexandra and had only limited cash reserves available to her.

95. For the defendant it is submitted that in all the circumstances there was no obligation on the part of the deceased to make provision in his will because provision had already been made outside the will during his life. It is put that regard may be had to her ownership of the house at Alexandra, the sums paid after the separation by the deceased and the pension entitlements of the plaintiff which existed at the date of the deceased - namely the government pensions and her entitlement to the lump sum under the superannuation scheme to which he had belonged.

98. On behalf of the defendant it is conceded that at the date of the separation in 1981 a moral claim of the normal kind existed (Singer v. Berghouse, above. at 210 - 212). It is argued, however, that the plaintiff abrogated her responsibilities to the deceased by refusing to live with him and look after him for the last 16 years of his life. As a result of the separation, the moral claim had diminished, it is said, to the point where the benefits she had received during the life of the deceased and as a consequence of his death, and the pension rights, created the situation that on his death, adequate provision for the proper maintenance and support of the plaintiff had been made. It is put that regard also must be had to the competing claims of Maureen Suminar and the other beneficiaries. Those claims are based on moral grounds or financial need or both. The defendant executor also challenges the case put for the plaintiff that she paid approximately $15,000 to the deceased in late 1994 or early 1995 which, according to the plaintiff, was money paid to reimburse the deceased for his proper share of the proceeds of sale.

101. The defendant has argued in the alternative that, if the threshold question is satisfied, the most a just and wise testator would have done in making adequate provision would have been to create a life estate. In that respect the plaintiff relies again on the judgment of Hedigan J., in King v. White to argue against such a provision. I will refer to issues raised in that regard later in these reasons.

104. I note that counsel for both parties have adopted the language traditionally employed in these cases and in particular have looked at the so called "moral" claim issues by considering whether circumstances gave rise to a moral duty on the part of the deceased to make provision in his will for the plaintiff. I note that some doubt has been raised in recent times about the appropriateness of examining whether a moral duty arose. I touched on this issue in the matter of Steer v. State Trustee Limited and John Gazan (unreported, 31 January 1995, at p. 2 - 4). The more recent judgments of the Court of Appeal in Grey v. Harrison [1997] 2 V.R. 359, appear to me to remove any doubts that may have been created by the High Court. The approach of the parties in this case is a proper and appropriate one. It is relevant for me to consider what moral duty was imposed upon a just and wise testator in the circumstances of this case and, in particular, to have regard to the relationship between the claimants and the deceased and their contributions, if any, to the assets possessed by the deceased at his death.

107. I turn first to the question of the relationship of the plaintiff and the deceased.

The Relationship Between The Plaintiff And The Deceased

111. The primary source of evidence as to the relationship is provided by the plaintiff. The credibility of the plaintiff was challenged by counsel for the defendant. Two matters, in particular, were relied upon to attack her credibility.

114. The first concerned statements she had made at different times as to why she did not return to live with her late husband in Essendon in the 1980's and 1990's. It is true that, on the face of it, different explanations were offered but, on proper analysis, all in my view are consistent and all reasons applied. The situation was that the plaintiff did not state all her reasons in dealing with Doctor Young or the Repatriation Department.

117. The other area of attack concerned what was said to be her attempt in her first affidavit to create the impression that she had effectively paid for the Alexandra property out of her own funds. I am satisfied that the affidavit did attempt to give the impression to which I have referred and that the reality was different in that the funds came from their joint funds and that the deceased made a substantial contribution to the purchase of the property. I accept that the reality was that the deposit was provided, inter alia, out of monies saved from payments made for board by the children over the years and that the payments for the property of $117 made by the deceased in the last 1970's and early 1980's were drawn from a joint cheque account into which the pensions of both were paid. That account was not closed until the deceased moved permanently to Melbourne. While the issue places a question mark on the credibility of the plaintiff, it was in my view the only issue of any substance and, it seemed to me, that she handled the issue frankly and honestly when in the witness box.

120. Generally, I found the plaintiff to be an impressive witness. She bore no malice towards the deceased. I note that I saw nothing untoward in the fact that she had taken steps to secure the deceased's medical records. Her evidence was also supported in substantial respects by her children in particular Eileen Maree Hunt and Kathleen Lambert.

123. Raymond Coller and Maureen Suminar filed affidavits in opposition, and sought to play down the significance of the plaintiff's role as mother, wife and home maker and the conduct of the deceased. Raymond revealed hostility towards his mother. His distribution of the estate reflected badly on him. He could offer no satisfactory explanation. Maureen also revealed a degree of hostility towards her mother and uncritical loyalty to the deceased. She, for example, denied that the deceased had had a drug addiction problem. She saw his problem as simply that he could not sleep because he had flashbacks of the war. As to their perception of the family history, it must be borne in mind that perceptions of events will vary and the plaintiff had over the years tried to cover up and conceal problems. Raymond had periods away from home when a teenager; for example, when he ran away with a circus or stayed at the show or at a racing stable. Maureen was born in 1961 and so was not present during the early more violent years. This may explain, in part, why she denied observing her father striking the plaintiff. She conceded that there were arguments but also acknowledged that when they occurred she went next door. Their views of their parents' relationship from 1981 onwards were dependent largely upon information from the deceased. Many of the basic facts concerning the relationship, and their father however, at least until 1981 were not disputed by them. To the extent that their evidence conflicted with that of the plaintiff, I found the plaintiff's evidence the more persuasive.

126. Exploring the relationship between the plaintiff and the deceased is best done by examining two distinct periods - the periods before and after the separation in 1981.

129. The plaintiff and the deceased first met at a Brunswick RSL social dance in June 1947. The deceased was then aged 22 and the plaintiff 19. The deceased had served in the Second World War. It appears from letters that he wrote to the plaintiff after their separation that at the age of 18 he had been serving as a guard at Cowra and had had to defend himself in the Cowra breakout by shooting the escaping Japanese. He later saw service in Borneo. During action in Borneo during the Second World War the deceased suffered a shell blast head injury which caused hearing problems. He was also treated for tropical ulcers and anxiety attacks. His war experiences had a profound effect on him and on his relationship with the plaintiff and their children. The plaintiff describes the deceased as being treated following the war for "nerves, nightmares, severe head pains, ear trouble, blackouts" and a "general anxiety state".

132. The plaintiff and the deceased married on 17 December 1949. They owned no assets of any significance at that time. The plaintiff was then working as a stenographer and was in the middle of an accounting course. She worked full time as a stenographer until June 1950 when she gave up work and her course due to the pending birth of their first child. From June 1950 until the separation in 1981, the plaintiff devoted herself to being a wife, parent and home maker. There was a short period however, in 1969, when she worked as a shop assistant in a milk bar on a part time basis, working 15 to 20 hours per week for about 8 months. At the time of the marriage the deceased was a carpenter and joiner. He had worked intermittently until he joined the Metropolitan Fire Brigade at the beginning of 1950. He continued to work for the Metropolitan Fire Brigade until some time in the 1970's.

135. During the first ten years of the marriage the deceased suffered episodes from time to time in which, on occasions, he was violent towards the plaintiff. He would be conscious during the episodes but then black out and, on regaining consciousness, have no recollection of the event. The plaintiff suffered bruising and a broken nose.

138. By late 1959 there were four young children in the home ranging in age from approximately 2 year to 9 years. In late 1959 or early 1960 the plaintiff was approximately 3 months pregnant. An incident occurred where the deceased threw a glass at the plaintiff, cutting her forehead. She began to miscarry. The deceased did nothing to help. She had to walk to a public telephone to ring the doctor and then get public transport to a surgery. The doctor drove to meet her on the bus and took her to his surgery. He then took her home. After her return home she lost the baby. In the ensuing weeks relations were very bad. The deceased tended to go to the hotel after work and not return home until late notwithstanding 6 o'clock closing at the time. Matters came to a head when the plaintiff delivered an ultimatum to the deceased that if he did not return home immediately after work she would leave him. Anticipating that he would not, she took the children to where his car was parked near the hotel, left them there and departed to Seymour where she had organised a job in a hotel. She had made no specific arrangements for the care of the children. I am satisfied that this was an act of desperation.

141. Initially she wanted nothing further to do with the deceased, although he pursued her in Seymour and, again later, when she moved to Bass. The children in the meantime were being cared for principally by her mother and she sent money to her mother to assist in their support. At Bass, he ultimately persuaded her to return to the relationship. I accept her evidence that her return occurred shortly after the deceased had seen her in Bass and had threatened to throw one of the children over a cliff if she did not return. While this may have been a reason for her return, I am satisfied that there was still a strong emotional bond between them and that she was a person with a strong sense of responsibility and would have been concerned about her obligation to care for her children and her husband. She would have been well aware that her husband's behavioural problems sprang from his war experiences.

144. The plaintiff and the deceased resumed their marital relationship. Two more children were born - Maureen and Eileen, in 1961 and 1964. Steps were taken, however, to address the deceased's difficulties. From the early 1960's he was admitted on a number of occasions to the Royal Melbourne Hospital for treatment because of his blackouts and injuries sustained as a result of falls suffered during the blackouts. While it seems that the amount of violence decreased there were, nonetheless, violent episodes. For example in 1966, the plaintiff awoke in bed to find the deceased sitting on top of her with a knife at her throat. She begged him not to murder her in bed but to go outside to a park to do it there. In buying time she managed to deal with the problem and eventually, having gone outside, he calmed down. He had no recollection of the incident. She described this and other occasional violent outbursts as caused by "flash-backs" from his war experiences. He was on medication throughout and the plaintiff attributes much of the violence to the medication that the deceased was taking.

147. Another incident referred to in evidence concerned the daughter Kathleen. In 1967, she was aged about 10. She went into the kitchen for a drink. The deceased was sitting at the table wearing pyjamas. He did not seem to recognise her and jumped up grabbing a carving knife. The plaintiff tried to reason with him but he did not recognise her either. She said that she and Raymond grabbed the other children and fled into the street. The deceased followed them into the street. He blacked out and fell to the paving hitting his head heavily on the concrete pathway. This occurred prior to the arrival of the ambulance and the police. He was admitted to hospital. Maureen has deposed to two occasions where her father "lost the plot". She described one in terms similar to the above. In the other, he had a sword which he pushed through the weatherboards at the back of the house. Eileen deposed to another occasion when her father was on medication and he and her mother were "fighting". She said that he picked up an axe and threatened both of them. They had to flee. She said that they feared for their lives. Kathleen gave evidence that she left home at 15 because she couldn't cope with her father mixing drugs and alcohol. He would harp, nag and yell. He would be abusive and ultimately collapse.

150. In the submission that she prepared for the deceased's application for a TPI pension in January 1979, the plaintiff said:

"I admit for Mr. Coller the war has never ended, he seems to re-live it just about every day of his life and does have a very bad drug problem."

Doctor Upjohn, Brigade Medical Officer, in a report on 27 August 1980 to the Department of Veteran Affairs stated that the deceased had been under his care from 7 April 1965 until 5 October 1971. He described the deceased as

"suffering from a nervous disorder in the nature of a severe chronic anxiety state throughout that time."

He went on to advise that he had certified him unfit for duty with the Metropolitan Fire Brigade on 5 October 1971.

From the early 1960's to the mid 1970's he became highly dependent on drugs. In 1966 he was admitted into a psychiatric ward at the Heidelberg Repatriation Hospital because of anxiety attacks. From 1966 his use of medication became worse. He became addicted to the prescribed drugs. He had been prescribed Tunial and later Mandrax for his anxiety state. On occasions he overdosed with the drugs prescribed to alleviate his depression and to control anxiety attacks and general neurosis. The plaintiff states that he tended to overdose when suffering from fits of depression. She mentioned one occasion in 1969 when he overdosed on Tunial and was unconscious for many hours. She referred to another occasion in 1972 when he had overdosed on drugs and was taken in the custody of detectives to Preston and Northcote Community Hospital and then on to the Heidelberg Repatriation Hospital.

158. In spite of his problems, the deceased had a successful career at the Metropolitan Fire Brigade. He had in 1959 received a citation for bravery. He had at great risk to himself saved other fire fighters trapped in a vehicle in a fire. He was, however, unable to continue working as a fireman after 1971. He eventually was discharged from the Metropolitan Fire Brigade in the late 1970's. Having regard to his problems it was remarkable that he had been able to work successfully with the Brigade for some 21 years. Mr Coller also, remarkably and to his great credit, operated a lawn mower business in Essendon during the 1960's and 1970's when on days off from his duties with the Brigade. This was a business in the end which seemed to involve members of the family including Maureen and the defendant Raymond, the son Kenneth, Kathleen and their spouses. In the 1970's, however, he had increasingly difficulty operating that business as his anxiety state seemed to worsen. Raymond described it as a loss of confidence. That combined with leg problems caused him to end the business in about 1974.

161. I accept that throughout the marriage and up until 1981, the plaintiff was solely responsible for raising the children and received little assistance from the deceased. She was also responsible for the running of the house and all domestic tasks whether it be cleaning, ironing, cooking, washing or gardening. The children were also allocated some household chores; picking up clothes, putting ironing away, washing dishes, and cleaning the above ground pool. The deceased on the other hand worked hard at the Metropolitan Fire Brigade and in the lawn mowing business to supplement the family income and plainly tried very hard to support his family while trying to cope with his psychological problems. They in turn must have created great problems for the family and, in particular, for the plaintiff. It must have been difficult enough to raise 6 children and run the home without also having to cope with the problems created by the deceased's mental difficulties, violence and drug addictions.

164. In October 1976, the plaintiff and the deceased purchased a property at Alexandra. It was purchased as a holiday home. It was bought in the name of the plaintiff. I am satisfied this was done to avoid any difficulties in the deceased claiming an invalid pension. The house in Preston had been purchased in the deceased's name through the War Service Home Loan Scheme. It was registered in his name alone because if the plaintiff had been registered as a joint proprietor with him the cost through the War Service Home Loan Scheme would have been increased. The loan was repaid by 1971. The property at Alexandra was purchased because of the pleasure the deceased gained from hunting and fishing with his sons, in particular, Daniel and because members of his family lived in the area. In 1976, the deceased also had $10,000.00 injury compensation invested in MMBW stocks.

167. In late December 1976, the plaintiff and the deceased went for a holiday to an on site caravan that they owned at Ocean Grove. They left behind in their house at Essendon their eldest son Daniel who had just lost custody of his child. While they were away Daniel committed suicide on New Years Day by shooting himself in the bungalow of the Essendon house. It was the plaintiff who identified the body, cleaned his room, and organised the burial and funeral arrangements. She described this as a "particularly traumatic experience". The deceased and the plaintiff were devastated by the death. Raymond Coller said in evidence that they were not the same people afterwards. They decided to move to live in the house in Alexandra. There it seems that the relationship between them became more difficult. Eileen and Maureen followed their parents later and joined them at the Alexandra property, Maureen for about six months.

170. The experiences of the plaintiff had taken their toll on her. Evidence was given by Doctor Young who was her treating doctor at Alexandra for a number of years. Doctor Young was plainly very sympathetic towards the plaintiff but he did not attempt to suggest otherwise and had good reason in my view for that sympathy. He first saw her on 24 October 1978, when she was complaining of "nerves" which she attributed to looking after her husband. She had had anxiety attacks. Dr. Young attributed her problems to stress associated with her life with the deceased. He prescribed anti-anxiety and sleeping tablets for her and anti-depressants. He described two incidents that he had observed in 1979 when he was called by Mrs Coller to help late at night. He said that Mr Coller was sitting on the floor with his back to the wall and his legs outstretched. In his view, Mr Coller was very drunk and very abusive towards his wife. The doctor and Mrs Coller managed to get him into a chair and once seated there he cradled a cardboard shoe box of drugs. Dr Young said that the box had in it Mandrax, Doloxeneco, Librium and Tuinal (which was a mixture of amytal and seconal). He said that he could smell the alcohol. He said that all of the drugs in question were addictive and contra-indicated in the presence of alcohol abuse. He said that Mr Coller demanded prescriptions but he refused and the deceased was very abusive and declined further attention. The other incident was not described in detail but appears to have followed a similar pattern with the deceased being verbally abusive and a similar atmosphere of violence existing in the home. Dr. Young said that he himself saw the deceased as his patient on several occasions from 30 May 1977 to 17 June 1977. The deceased saw him in relation to an infected left ear drum but also sought to enlist his aid to obtain a repatriation entitlement in relation to an alleged perforated right ear drum. Doctor Young formed a poor opinion of the deceased as a result of these consultations believing that he was someone who was trying to make false claims. He also tried to obtain prescriptions for drugs from him which he declined. He prescribed only Serepax and an anti-depressant. He says that as a result the deceased ceased to use his services. He said that the deceased declined to see him and attended another clinic after he refused a further supply of habituating drugs.

173. Doctor Young came into possession of the records of a Doctor Lim referring to consultations with the deceased from 19 July 1977 to 28 September 1978. The summary referred to frequent orders for Serapax, Doloxene, Phenobarb, Mogodon, Surmontil and Librium all of which Doctor Young described as being habituating drugs. He said the orders were frequent. He gave the following example of tablets being prescribed on the following dates:

Doctor Lim's notes record that the deceased told him on 5 April 1978 that he took 4 to 6 Serapax and 4 Mogodon to get to sleep at night.

181. On 4 November 1977 the deceased was admitted to the Repatriation Hospital following two grand mal fits on the night prior to admission. He had also lost two stone in weight over the previous three months and was complaining of headaches, poor vision and dizziness. The past history recorded in the case history for that admission included the following

I note that the plaintiff and the children deny that the deceased was an alcoholic. The plaintiff said that he did not sit around and drink all day but if he had a drink he would have to have a dozen. I am satisfied, however, that he did drink alcohol and did so in excess on occasions and when on medication. The history also recorded that he smoked 50 - 60 cigarettes per day. He was described on examination as being

The E.E.G. testing was described as basically normal but that

"during photic stimulation there appears to be a photo convulsive effect. This is of uncertain significance."

The summary of case history went on to state that he had been seen by a neurologist who suggested investigating the epilepsy and the possibility of anti-convulsant medications. It states that he was also assessed by a psychiatrist who

"..noted the patient's long history of aggressive dependent personality problems with poor impulse control and dependency on both drugs and alcohol. It was felt he was more passive aggressive than depressed and suicidal and needed full explanation of treatment and tests while in hospital.."

The record noted that the deceased had had a similar abnormal EEG on previous admissions and that he was prescribed an anti-convulsant medication.

194. The Repatriation Department wrote to Doctor Lim on 17 January 1978 advising of a further examination at the Repatriation Hospital Out Patients Department on that day. The letter described Mr Coller as being quite well since his discharge with no fits, and stated:

"..cannot sleep despite fairly considerable sleeping tablets. He is virtually a non drinker, but smokes heavily."

"..depressed and a little agitated following a fast trip to Melbourne"

200. In about mid 1979 the deceased decided to return to Essendon. The plaintiff did not return with him. There were several reasons. She did feel that her health would not enable her to look after him. She was suffering from ulcers and depression. She was not able to lift him when he sat up at night, took his medication before sleeping and collapsed at the kitchen table - a regular occurrence. I am also satisfied that the Essendon home brought back too many painful memories of violence and of their son's death.

203. When the deceased returned to Essendon in mid 1979, the plaintiff applied for and received a deserted wives pension. She supplemented her income by working a few hours a day as a baby-sitter.

206. I am satisfied that when the deceased returned to Melbourne he did not suggest to the plaintiff that this was a permanent decision. She believed that he would return. She wanted him back, although she was relieved that he had gone to Essendon. He had suffered a mild stroke in Melbourne in 1979. She visited him a few times after the stroke but it was not easy for her to do so. She had not been allowed to obtain a driver's licence. He returned to live at Alexandra at the beginning of 1980.

While he was living with her at Alexandra in 1980 and 1981 I am satisfied that the plaintiff directed a lot of effort into obtaining a TPI pension for the deceased. She made submissions to the Repatriation Board and to the Repatriation Review Tribunal which submissions were ultimately successful and had the result that the financial position of the deceased was substantially improved. Her task had been made difficult because the deceased denied the effect of the drugs. The plaintiff took photographs of Mr Coller when he was unconscious to assist the case.

210. Relations were strained. They deteriorated further, however, when the deceased urinated in bed, and on the plaintiff, in his sleep on more than one occasion. He denied any such incident had occurred and accused her of pouring water on him. The plaintiff thereafter slept in - the "junk-room". The deceased in 1981 returned to Essendon. I note that one of the problems during the marriage, particularly in Alexandra, was that the deceased could be very jealous and possessive and would accuse the plaintiff of infidelity without any foundation for such accusation.

213. Turning to the post separation period, between 1981 and 1984 there was considerable bitterness between the deceased and the plaintiff revealed in some of the few letters that have been retained by the plaintiff and tendered in evidence. During that time it seems that the plaintiff obtained a silent number because of abusive telephone calls from the deceased and refused to make it available to the deceased although other members of the family had it. The deceased tried, unfairly, to give people the impression that she had thrown him out. He told her at an engagement party in 1982 that it was her place to be with him looking after him. At the same time he did not ask her to come back. From about 1984, however, it seems that the relationship improved and thereafter there was reasonably regular contact between them by telephone. I do not accept the evidence that the plaintiff had difficulty being present with the deceased at functions. Clearly both accepted the separation as a permanent one. His subsequent letters are letters written by a person in a close relationship with the other and written with respect and, at least, affection. The deceased appeared to have come to some sort of appreciation of the causes of the problems between them although there was no direct evidence to prove that that was so. His behaviour generally appeared to improve in this period and he became more self-sufficient.

216. The plaintiff refused to join the deceased in Essendon. I am satisfied, however, that she and the deceased's father attempted to persuade the deceased to sell the house in Essendon and purchase another property where the deceased and plaintiff could live together. He, for reasons that are not clear, declined to do so.

219. I think it is significant that neither of the parties sought a divorce. I am satisfied that neither looked for another partner during the 16 years of separation and both regarded themselves as still married to the other. I accept that the plaintiff also did not seek a divorce because of her concern about how he would react.

222. The plaintiff's condition has deteriorated over the years. Her spine has deteriorated. She now has to use an electric scooter to go to the shops and to socialise. Doctor Young's view is that the stress of trying to assist Mr Coller, including lifting, had aggravated her spinal degeneration. While often Mr Coller would have been simply made comfortable on the floor, I am satisfied that there was lifting and carrying by her which would have exacerbated her spinal condition.

225. From 1981 until his death, the deceased lived at the Essendon property. The evidence indicates that he was a difficult person for the family to deal with during those years. He would be invited to family social functions, such as the wedding of Eileen, but would ring up well in advance of the date of the function to indicate that he didn't expect to be well enough to be there**.** To a neighbour, Mrs Whyman, he claimed he was not invited and that Eileen had asked for money.

228. From 1981 until 1994 the plaintiff continued to live in the property in Alexandra. She received some, but very limited, financial assistance from the deceased. From 1981 to 1985 she worked part time as a house cleaner. She ceased that work when she broke her arm. In about 1984 she received $800 from the deceased to buy carpet for the property. This was a loan which she repaid in full. He refused to lend her money for the erection of a fence but later lent her $400 to enable her to "keep afloat" prior to the sale of the Alexandra property in 1994.

231. The house at Alexandra was an old house and by 1994 the plaintiff found that she did not have the financial resources to continue to maintain it. She had managed until then partly because her daughter Eileen had lived there and had used her income from her employment in the Alexandra area to meet many of the costs associated with the house. Eileen in particular had purchased much of the furniture in the house but had taken that with her when she departed. The furniture was not replaced by the plaintiff who borrowed some furniture from her daughter Kathleen. Kathleen and her husband also gave her considerable help with her food, clothing and expenses.

234. Being unable to maintain the property at Alexandra the plaintiff was forced to sell it. She received a net sum of $56,309.73 from the sale proceeds in September of 1994. The deceased wanted to receive some of the proceeds of the sale. She agreed to pay him $11,500 which represented the initial purchase price of the property. At the time she believed that her husband's will was the same as hers - that is that each left his or her estate to the other. I accept her evidence that she felt morally obliged to pay the money because he had advanced her monies at various stages and had put up the title to the Essendon property as security for the loan. He also told her he was battling. I also accept that he later demanded $3,000 from her because she had made money on the house as a result of the capital appreciation. This episode is a revealing one in a number of ways. It demonstrates that, while to Raymond, for example, the plaintiff had the dominant personality, the deceased was the dominant person in the relationship. It also reveals much about the plaintiff. On any objective basis she was under no moral obligation to make any payment to the deceased, he having essentially failed to support her during that period notwithstanding that he was in the financial position to do so. I accept that the monies were paid to the deceased in January of 1996 in cash. She also gave $2,000 to her daughter Eileen by way of gift, paid Raymond's legal fees in respect of matrimonial disputes of $788 and purchased furniture and household effects for $10,000 for the purpose of the Housing Commission unit into which she moved. She also spent $5,000 on holidays and in travelling to Queensland to see her son Kenneth. She bought new dentures, glasses and surgical stockings. I am satisfied that she had been unable to afford those items previously. She also repaid the loan of $400 made by the deceased to her prior to the sale of the property. She spent $3,500 to pre -pay her funeral. Finally some $8,000 was placed on trust for Kathleen for her own use. As at 2 May 1997, her savings had been reduced to $5,700 held in two accounts with the Commonwealth Bank of Australia.

237. She has played bingo from time to time in Alexandra. She has on one or two occasions gone to casinos. Her lack of funds, however, is not the result of gambling as suggested by Raymond. I accept Kathleen's evidence that her mother has struggled to meet her day to day needs.

240. During the marriage she had few holidays. She said that when the children were younger, they went to a shack near Echuca. In the 1970's the deceased paid for a holiday for the plaintiff, Kathleen and his mother to Mildura out of the proceeds of compensation received for a car accident. In the early 1980's she had driven to Bateman's Bay and back over 4 to 5 days with Maureen and Eileen and a friend of the latter. In 1996, she went to Queensland with her daughter, her daughter's husband and children, then stayed with her son in Brisbane and later went to Tasmania - over a period of 3 to 4 weeks. She has had the odd day out with a senior citizens club. This year she went to Sydney for 5 days with the club.

The children other than Maureen do not appear to have had a close relationship with the deceased and have experienced re-buffs in trying to make approaches to him. His letters to the plaintiff and notes prepared by him and found in his papers at his death suggest a father who was difficult to please and who was critical of his children. Kathleen's evidence was that there were times when he didn't like Maureen. She said that he played "his kids against each other". Maureen, however, appear to have sustained the relationship with him. As a child, she assisted him with his lawn mowing rounds sweeping up the clippings. I accept that she had a special relationship with him from childhood. She often would get up in the night when she would hear him get up and make him a cup of tea and have some biscuits with him. On occasions, when she heard him fall, she would get out of bed to make him comfortable as he lay unconscious on the floor. She would sit beside him until he recovered consciousness and then help him up and make him some tea.

245. After the deceased moved back to Melbourne in early 1979 Maureen obtained a job as a stock controller at the Essendon airport. She was then living with her father at the Essendon property. On the first day of her job it seems that her father suffered a stroke. It was Maureen who found him after his stroke and accepted the responsibility of looking after him until he returned to Alexandra. She continued to look after him when he returned in 1981 and until he died with the exception of 12 months spent in Bali in 1993. During that time neighbours, her friends and Raymond kept an eye on him. She kept contact from Indonesia. She was also absent for two weeks at a time on a number of occasions when holidaying in Indonesia or other South East Asian locations. Similar arrangements were made on those occasions. In looking after him she visited, prepared food (principally casseroles which he enjoyed), took him to doctors and other professionals and took him shopping. The Whymans, next door neighbours in Essendon, also helped him with shopping, errands and the like, socialising and providing supper.

248. Eileen acknowledges that she did not have a relationship with her father. She made a point, however, of dropping in to see him when she was in Melbourne. She also left presents for him on his birthday and for Christmas.

251. Kathleen invited him to a lot of family functions such as Christmas dinner, weddings, christenings and birthdays. He often chose not to come. She saw him regularly, once a week or once a month until the last two or three years. Her visits became less frequent because "a few things" happened between them.

254. The children appear to have assisted financially towards the housekeeping and indirectly to the accumulation of assets in a modest way when living with their parents. The practice was that any child living at home and earning an income was required to pay a portion of their income for his or her board and medical expenses. This applied, for example, to Raymond and Maureen, and Eileen when living in Alexandra. As noted above, they also helped in the lawn mower business.

257. I accept that the deceased was made gifts of money to his children and grandchildren. He used to give $50 to each family to buy Christmas presents for the children and in later years he gave $100. He never missed a birthday without sending a cheque to his children and their partners and the grandchildren.

261. Raymond Coller is a panel beater by trade. Twenty years ago the deceased lent him $5,000.00 to start a panel beating business. This money was repaid. The business was eventually sold and he was employed by Freighters Australia at Ballarat. He injured his back at work however, and he has been on workcover for the last two years. He believes an operation is required. He receives a sickness benefit now of $283.00 per fortnight and is in dispute with the Workcover authority. He married in 1971 and has four children by that marriage. They are aged between 22 and 16. He and his wife divorced in 1995. The children live with their mother. He pays $80.00 per week maintenance. He is in a defacto relationship with another lady at present. He says that he is not able to work as a panel beater and spray painter because of his back problems. His defacto wife is also on a pension. They live in a house in Inglewood that he purchased with the money he distributed to himself from the estate. He said the home is worth $35,000.00. He has about $900 in the bank. He has his tools of trade. He has two very old cars; one is a 1956 Ford utility, the other an old XB panel van. At the time his father died he did not own a house.

264. Kenneth Coller works in the Customs department for Ansett in Queensland. He is single and apparently in good health . He is buying a house.

Kathleen Lambert lives in Essendon North. She is married with three children aged between three and ten. The evidence is that they are financially comfortable. Maureen Suminar has been married twice. She has two young children. She lives at Airport West with her second husband in a house worth approximately $90,000. She and her husband owe approximately $71,000 secured by a mortgage. The debt is represented by $51,000 balance owing in respect of the house and $18,000 owed on a motor car. The house is a weatherboard house purchased in 1992. If they keep the $44,000 distributed to her by Raymond Coller their total debt would be about $27,000. Her husband was employed as a storeman at the date of the deceased's death at a salary of $370.00 per week. He has, however, been unemployed since April. The car that was purchased was a 1997 Commodore. It was purchased second hand in 1997 and they paid $22,000 for it. The repayments under the La Trobe Home Loan covering the money borrowed to purchase the house and the car are $200 per week. She has deposed that the family's living expenses comprise the following: food ($80 per week), gas and electricity ($20 per week), telephone ($40 per month), Council rates ($480 per year), water ($120 per quarter). Their income at present from Job Start is $570 per fortnight. Maureen Suminar has worked in a milk bar, in a green grocer's shop, has picked sprouts. She has worked as a receptionist and in property management and house cleaning. She enjoys working but is unable to at the moment because her children are not old enough to go to school. As noted above, Maureen Suminar has over the years enjoyed numerous holidays overseas in South East Asia.

268. Eileen Hunt is married but is separated from her husband. She lives in Narre Warren. No detailed information was given about her financial position.

272. The plaintiff had a very substantial moral claim on the bounty of the deceased having regard to the contribution that she made as devoted wife, parent and homemaker, and, in particular, the psychological and emotional support she gave to the deceased for many years despite abuse and violence and at great cost to herself. This claim far exceeded anything which could be advanced for the children including, in particular, that which can be advanced for Maureen. The plaintiff's failure to follow the deceased to Melbourne in 1981 and their continued separation were ultimately the deceased's responsibility not the plaintiff's. A just and wise testator would not have blamed her for their inability to live together. The deceased was put to the test when the plaintiff and his father proposed that the house at Essendon be sold and another home purchased where the plaintiff would not have to deal with the violent and painful memories associated with the Essendon house. He refused to do so. The plaintiff also contributed substantially to the size of the estate in the sense that she battled to make ends meet because of a lack of financial support from the deceased. Instead he saved the income he was receiving. Further, that income in large part was due to her efforts to obtain a TPI pension for him. It is true that she was provided with the home in Alexandra, such as it was, and received the benefit of the superannuation entitlement. The monies that he did pay to her fell far short of what should have been provided. She even returned monies to him which assisted in increasing the size of the estate which he left. His failure to support her also meant that she was forced to sell the house at Alexandra. As a result at the time of his death she was living in Housing Commission accommodation which she was renting and thus had no security. She also had very little capital, no financial security and was battling to live on her pension.

275. Some or all of the children have contributed financially and emotionally in one way or another over the years, Maureen significantly more than the others, but the contribution of the plaintiff was far greater. Some of the children were in financial need, but not as seriously as the plaintiff. The estate was of sufficient size to enable a significant provision to be made for the plaintiff while still making adequate provision for other claimants.

278. Having regard to these matters the deceased clearly failed to make adequate provision for the proper maintenance of the plaintiff.

282. I have referred above to the positions taken by the parties on what would be an appropriate provision. The defendant argues that a life interest is all that is required. In King v. White [1992] VicRp 72; [1992] 2 V.R 417 Hedigan, J. considered the authorities on the question of the appropriateness of the life interest. His Honour referred in particular to a statement by Young, J. in Court v. Hunt (unreported, Supreme Court of New South Wales, 28 October 1987) that

"in this day and age, a testator who only gives a life estate to his widow, and has no other direct claims on his bounty, is usually not making proper provision for the widow. At the very least, the testator should consider the fact that if the widow does survive him for a number of years, her health position will mean that she needs flexibility in her accommodation, and "this sort of life estate almost always does not provide such flexibility."

He returned to this theme in Caldwell v. Ang (unreported, Supreme Court of New South Wales, 22 March 1991) when he stated

"...a life estate is not likely to be adequate provision because of the changing circumstances of the spouse as old age advances. In addition to such problems there are usually other unavoidable problems connected with who should bear expenses of a capital nature of the estate whilst the surviving spouse is enjoying its fruits."

288. In the circumstances of this case it seems to me that a life interest would not be adequate provision for such reasons. In addition, relations between the executor appointed by the deceased and his widow are not good, at least, on the executor's side, and for a life estate to be feasible, it is necessary that there be a satisfactory relationship between the life tenant and the executor. They have to work together to deal with the problems that can arise in the administration of a life estate. Further, it seems to me that a just and wise testator looking at the position of his family would have appreciated at the date of his death that a number of his children were in need of financial help then and there and it would not be beneficial to them to have such funds delayed. It seems to me that if a life estate was to be created it should encompass the whole of the estate of the deceased and thus the children of the deceased would have to wait until the life tenant died unless she could be persuaded to agree to payment of monies to them. In that situation a just and wise testator would have needed to balance the needs and claims of the respective members of his family but it seems to me, in the circumstances of this case, would have needed to give substantial primacy to the claim of his widow.

For the plaintiff it is submitted that the deceased should have placed her in a position where she could have purchased an appropriate home in the Alexandra region at a cost of $90,000 to $100,000. That in turn would have required funding to cover stamp duty and other expenses associated with the purchase of the house and thus a figure of about $120,000 was required. Counsel also submits that the testator should have provided a fund to enable her to purchase the occasional luxury and to enjoy the occasional holiday. He should, it is said, also have supplied her with a capital sum to be invested to add to her income. It would also provide her with some protection against any adverse changes in her circumstances and some flexibility to cope with changes in her circumstances. To achieve this result counsel submits that testator should have devised the former matrimonial home to the plaintiff together with a sum from the estate of $50,000.

292. In my view a just and wise testator in making appropriate provision for the plaintiff would have given her a capital sum to purchase a home and a capital sum which, when combined with the superannuation settlement, would have provided her with as much financial security for the remainder of her life as he properly could, having regard to competing claims. A just and wise testator would not have regarded the Alexandra property as an item of property which he had in effect given to the plaintiff. He had been paid out by the plaintiff. As to chattels and furniture, they should not be seen as anything other than what she was entitled to in any event whatever other provision was made.

295. It seems to me that, looking at the assets available, a just and wise testator would have dealt with the competing claims by devising the property in Essendon to her and providing her with a sum from the estate to give her the equivalent of a lump sum of $120,000 to purchase a home and a further $70,000 to add to the superannuation and thus give her a capital amount of approximately $100,000. To achieve that a gift of the house at Essendon and a legacy of $35,000 would have been required. This would have left the children with between $25,000.00 and $30,000.00 each from the residue, assuming no more than ordinary costs and expenses associated with the administration of the estate.

299. I have given consideration to the question whether any of the other legacies in the will or the share of the residue should be required to bear the burden of the pecuniary legacy. There is no evidence before me that would enable a view to be formed about whether the legacies to the grandchildren should bear any of the burden. Further, they have not been separately represented and they include infants among their number. They cannot be shown to have opposed the application. On the other hand, the adult children have been joined and have had the opportunity to present a case that their interests should be given priority over the grandchildren or each other and have chosen not to do so. As to the legacy to Maureen, it should be allowed to stand in view of her special claim on the deceased's bounty. It seems to me that on balance the other legacies should be permitted to operate and the proposed legacy to the plaintiff should be borne by the residue.

303. The costs and expenses of the estate will have to be met and these have been added to significantly by this litigation. The best estimates given to me from the bar table were that the legal costs of the plaintiff and the defendant were likely to be of the order of $50,000 to $60,000 combined. They should be paid out of the residue. There is an issue as to the costs incurred in respect of the injunction application precipitated by the actions of the executor Raymond Coller in distributing the estate. I note that not only he, but also Kathleen Lambert, Maureen Suminar and Eileen Hunt benefited from that distribution. On that basis the costs associated with that unwarranted distribution should be borne by those beneficiaries. Thus they should come out of their share of the residue of the estate.

306. I will invite submissions on the orders required to give effect to the decisions I have reached.