Cummings v De Santis; De Santis v De Santis

Supreme Court of NSW|2002-08-21|Before: Mr J, Macready J

CITATION : Cummings v De Santis; De Santis v De Santis [2002] NSWSC 729 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3289/00; 1009/02 HEARING DATE(S) : 04/04/02, 05/04/02 JUDGMENT DATE : 21 August 2002

PARTIES : Pamela Helen Cummings v David De Santis Mary De Santis v David De Santis & Ors JUDGMENT OF : Acting Justice Macready at 1

Mr LJ Ellison for Pamela Cummings COUNSEL : Mr J.O. Anderson for Mary De Santis Mr R. Weaver for David De Santis Gibson Owen Lawyer Inc for Pamela Cummings SOLICITORS : Jackson Smith for Mary De Santis M.R. Barber & Associates for David De Santis CATCHWORDS : Family Provision. Applications by the widow and the de facto partner of deceased. Small legacy to the widow and the claim of the de facto partner dismissed. - Succession. Construction of bequest containing an expression of purpose. Whether bequest entitles the beneficiaries to call for a transfer of a legal life estate. DECISION : Paragraph 40

1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3289/2000 PAMELA HELEN CUMMINGS v DAVID DE SANTIS - ESTATE OF ANTONIO DE SANTIS 1009/2002 MARY DE SANTIS v DAVID DE SANTIS & OTHERS JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the late Antonio De Santis who died on 26 January 1999. The deceased was survived by his wife, three sons and the plaintiff in matter number 3289 of 2000. The plaintiff, Mrs Cummings, lived with the deceased as his de facto wife for the last 15 years of his life. The deceased's widow has now brought proceedings in matter number 1009 of 2002 and I have heard both matters together with the evidence in one being evidence in the other. 2 The deceased's last will was made on 20 January 1999. Mrs Cummings and the defendant David De Santis were appointed executors and trustees of the will. The will contained a number of specific bequests before giving the residue of his estate to Mrs Cummings in clause 8. The specific bequests which are important are, first, the bequest in clause 3 which dealt with the deceased's one-third share in the property known as 72-74 Stanley Street, East Sydney. The terms of that bequest is as follows: -- "I give my one-third undivided share in the property known as 72-74 Stanley Street, East Sydney in the said State to my Trustees upon trust to transfer to my spouse Mary De Santis and to Pamela Helen Cummings in equal shares as joint tenants for life for the purposes of receipt of all my share of nett income from the said property and no income received from the said property after my death shall be apportioned to or treated as capital of my estate and the whole shall belong to the said Mary De Santis and Pamela Helen Cummings in equal shares. The said life estate shall be terminable in respect of the share of either or both of the beneficiaries on remarriage of or entering into a de facto relationship. I give the remainder to each of my sons David Francesco De Santis, Roberto De Santis and James De Santis in equal shares as tenants in common." 3 The ultimate position reached in the matter was that apart from a period many years ago when there were some book entries showing rent paid by the partnership for the property, it has not been rented for many years. The business in which the deceased was a partner operated "Bill and Toni's" restaurant at the premises and did so pursuant to an arrangement whereby the business occupied the real estate which is also owned by the partners in the business for no fee. 4 Clause 4 of the will gave the deceased's interest in the property at Major Bay Road, Concord to Mrs Cummings. It was the family home which had been occupied by the deceased and Mrs Cummings for many years and was owned by them as tenants in common. 5 In clause 5 the deceased purported to leave his interest in a home which he owned jointly with his wife, Mary De Santis, to his son James. That bequest was ineffective as the property was owned by the deceased and Mary De Santis as joint tenants and accordingly passed to her by virtue of survivorship. 6 In clause 6 the deceased gave his interest in the unit in Western Australia to his sons together with Mrs Cummings and Adam Cummings. It was ineffective as the deceased was the joint tenant in respect of that property. Accordingly his interest passed to Mrs Cummings and her mother. The unit was one which had been purchased to provide accommodation for Mrs Cummings' mother in her retirement. 7 In clause 7 the deceased gave his interest in the business "Bill and Toni's" restaurant to his three sons David, Roberto, and James. They have continued to operate the business in partnership with the deceased's former partners up to and including the time of the hearing before me. 8 At the date of death the estate of the deceased consisted of the following assets: --

1/3 share of 72-74 Stanley Street East Sydney $1,000.000 1/2 share of 139 Majors Bay Road Concord $ 250,000 Superannuation $ 17,338.88 Shares $ 5,117 1/3 interest in restaurant and business $ 100,100 Debts due to deceased $ 8,500 Total $1,380,955.88 9 As at the date of death of the deceased his debts and funeral expenses amounted to $33,657. The one third interest in Stanley Street is now held by David De Santis and Mrs Cummings as trustees of the will pursuant to clause 3. As yet there has been no transfer to Mrs De Santis and Mrs Cummings. Mrs Cummings has received 139 Majors Bay Road, Concord and she and her mother have received the unit in Western Australia. In addition to the properties that I have referred to the deceased and Mrs Cummings held as joint tenants a property at 95 Copacabana Drive, Copacabana. This was transferred to Mrs Cummings. 10 In December 1999 Mrs Cummings sold the property at Majors Bay Road, Concord for $545,000. She paid some $22,695 to discharge the mortgage and then moved to Western Australia where she purchased a property in at 12 Geordie Court, Coogee for $405,000. In April 2000 she sold 95 Copacabana Drive, Copacabana for $316,300. 11 It can be seen that the only assets remaining in the estate are the one third interest in the property at Stanley Street and the one third interest in the restaurant to the extent that that has not in fact been transferred to the sons of the deceased. Mrs Cummings has paid out the debts in the estate and has collected all the small amounts that are presently recoverable in the estate. 12 Costs have been incurred by all parties in this matter. Those of Mrs Cummings amount to $46,201, Mrs De Santis $23,877 and the Defendants' $24,300. 13 Both plaintiffs are eligible persons and the application in 1009 of 2002 was commenced out of the time allowed under s 16 of the Act. The defendants in those proceeding consent to an extension of time. Accordingly, I propose to extend time pursuant to s 16 (3) of the Act. 14 It is useful to refer to a little of the history in the matter in order to put matters into context. Mary De Santis was born in Jerusalem on 17 June 1941. She migrated to Australia via England with her mother in 1947. Mrs Cummings was born on 29 November 1949. On 29 January 1960 the deceased and Mary De Santis married. Thereafter they worked together for many years to build up the business which the deceased ultimately ran up until the date of his death. The deceased and plaintiff first met in 1976 and in 1984 they commenced a de facto relationship. In September 1987 the deceased and Mrs Cummings purchased the home at Concord to which I have referred. Mrs Cummings had been working full-time with Coopers Animal Health and at the deceased's request in 1990 she ceased that full-time work and commenced work in the restaurant in which the deceased had an interest. In 1992 the deceased and plaintiff purchased the unit in Western Australia to which I have referred. 15 The deceased made a will on 19 December 1992. In 1994 they purchased the holiday home at Copacabana. Prior to the deceased making his last will there were discussions between Mrs Cummings and the deceased about what provision would be made for her. The deceased indicated that he was making arrangements for her to receive $750 per week in order to support her. The deceased's last will was made on 20 January 1999 and the deceased died six days later. After the death of the deceased payments of $500 each week were made to the plaintiff by the deceased's sons. The plaintiff continued to work at the deceased's restaurant until December 1999 at which time she sold her property at Concord. She moved to her new property in Western Australia in January 2000. The summons was filed in July 2000 and the payments to Mrs Cummings of $500 per week ceased in February 2001. For many years during the deceased's lifetime the deceased had made payments to his wife of between $300 and $350 a week. These payments continued via the deceased's son, David, after the death of his father and have continued until the present day.

16 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

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

17 I turn to consider the situation of the plaintiff, Mrs Cummings. She is 52 years old, single and has a life expectancy of 34 years. Her children are not dependent upon her. Her present assets consist of the following: --

Home at 12 Geordie Court Coogee WA $420,000 ½ interest in unit occupied by her mother $ 55,000 Furniture $ 30,000 Motor car $ 32,000 Bank accounts and term investments $334,000 Shares $ 25,655 Her interest under clause 3 of the deceased's will 18 Mrs Cummings has no debts and she has received an income by way of interest of approximately $1,000 per month and by way of dividends of approximately $66 per month. Her outgoings have been estimated at $4,689 per month. That includes the depreciation on her motor vehicle amounting to $333. Her estimates of home repairs, which seems to include some one off matters such as repainting the house, was put at $560 per month. I would have thought that a reasonable estimate for outgoings, taking into account the matters mentioned in cross-examination, would be the order of $4,000 per month. There was cross-examination intended to show that Mrs Cummings had a gambling problem and that she spent money on regular occasions on poker machines. Where she now lives in Western Australia there are no such machines and she would have to go to a casino in order to gamble. The evidence does not suggest that she does this frequently. Although she may have had a problem after the death of the deceased while she was grieving for the deceased, this does not seem to be demonstrated at the present time. 19 It is necessary to see what was the nature of the relationship between the deceased and Mrs Cummings. The evidence does not suggest anything other than a normal relationship over the 14 years that the deceased and Mrs Cummings lived together. They purchased a house together and Mrs Cummings worked in the business in order to assist the deceased. 20 At the time the deceased and Mrs Cummings commenced their relationship in 1984 she owned a car and a half interest in her home in Western Australia. That property was sold in 1987 for $69,000 and she received her half share of the proceeds. The evidence does not address what happened to these funds but it is likely that they were used for the purchase of the house at Concord. The house at Concord was purchased in 1987 for $245,000 with borrowed funds of $150,000 from Westpac. 21 Mrs Cummings paid $720 per month of the $2,520 per month repayments between 1987 and February 1990. In 1990 she ceased full time work and assisted the deceased in the restaurant business. 22 It is necessary to consider the situation of the plaintiff Mary De Santis. She is aged 60 years, single with no dependants. She has problems which her doctor says if left untreated could be detrimental to her health in the future such as gross obesity and hypertension. The extent of these problems could affect her ability to perform her domestic duties. She has not worked for many years since she separated from the deceased. Mary De Santis has her home at 29 Manchester Street, Dulwich Hill which is worth $330,000. She also has a bank account with a small amount of money and funds are held on her behalf in another bank account by her son David which amount to $20,000. She has income from the pension of $410.50 per fortnight. She also receives from her sons the amount of $700 per fortnight. Her expenses for supporting herself amount to $924 per month. Clearly she has an excess of income and each month she gives her son David $1,000 to deposit in a bank account from which he pays council rates and similar liabilities. 23 Mary De Santis lives alone in the house at Dulwich Hill where her sons who obviously look after her and care for her visit her. She has an unfortunate compulsive trait which leads her to spend money on collecting-household items which she stores in her house. These are ordinary household items which she buys and saves for the future perhaps to give them to her grandchildren or her friend who lives in New Zealand. The matter is really quite harmless and does not affect her ability to look after herself except to the extent identified by the rehabilitation consultant who has given a report on the matter. 24 It is also necessary to consider the situation of anyone else who has a claim on the bounty of the deceased. In this case the only relevant people would be the deceased's sons. They have chosen not to put before the court any details of their financial situation and, accordingly, the court can assume that it is not required to take such matters into account in determining the claims of the two parties. Although at one stage the sons brought a cross-claim that, by consent, has been dismissed. There is no doubt that there was a good relationship between the deceased and his sons. The deceased's sons worked with the deceased in his restaurant business for many years and are still working there today. They would have contributed in many ways is to the building up of the business, the success of the business and thus the increase in the value of the real estate over time. 25 It is necessary to see how both plaintiffs say they have been left without adequate and proper provision for their maintenance, education and advancement in life. The plaintiff, Mrs Cummings, puts forward a claim that she should receive additional provision to provide her with an income supplement for the future. Clearly she has an appropriate home and a more than sufficient fund for contingencies. 26 The plaintiff, Mary De Santis, put forward a claim to receive a lump sum to enable her to do some repairs to the house and also to obtain help with her household tasks which she cannot manage because of her obesity. The building work would appear to be necessary to put the house in good order and the costs involved amount to $34,779. There are a number of minor matters in respect of household appliances which would need a further fund of $1,600. These relate to a sewing machine and a washing machine. The plaintiff also seeks to have a mobile phone so that she can communicate with her sons and this is a sensible matter. The cost of the phone would be approximately $50 per month. 27 There was evidence given by a rehabilitation consultant of the needs that arise for the plaintiff, Mary De Santis, because of the difficulties she experiences in managing her home. This involves matters such as house property maintenance, cleaning and similar matters. There is also a need identified for an orthopaedic mattress to be replaced every ten years at a cost of $500. Those needs are assessed in the consultant's report and she concludes that the present value of the future services for care and assistance would be $65,251. The only matter to note in relation to this is that some of the matters which are dealt with are obviously attended to by her sons at the present time and there is every reason to believe her sons who appear to have their mother's interests at heart will continue to assist her with her needs at home. 28 Both plaintiffs are entitled to the benefit of clause 3 in the will. It is necessary to give some consideration to what is meant by that clause which is in the following form:- "I give my one-third undivided share in the property known as 72-74 Stanley Street, East Sydney in the said State to my Trustees upon trust to transfer to my spouse Mary De Santis and to Pamela Helen Cummings in equal shares as joint tenants for life for the purposes of receipt of all my share of nett income from the said property and no income received from the said property after my death shall be apportioned to or treated as capital of my estate and the whole shall belong to the said Mary De Santis and Pamela Helen Cummings in equal shares. The said life estate shall be terminable in respect of the share of either or both of the beneficiaries on remarriage of or entering into a De facto relationship. I give the remainder to each of my sons David Francesco De Santis, Roberto De Santis and James De Santis in equal shares as tenants in common." 29 It is apparent from the terms of the clause that the deceased has expressed a purpose for the bequest. As I have already indicated, at the moment that purpose is not being fulfilled because no income is received in respect of the property. The question that arises is what effect the expression of purpose has upon the bequest. In Re Sanderson's Trust (1857) 3 K. & J. 497 at page 503 the Vice-Chancellor Page Wood had the following to say about such an expression of purpose: -- "There are two classes of cases between which the general distinction is sufficiently clear, although the precise line of demarcation is occasionally somewhat difficult to ascertain. If a gross sum be given, or if the whole income of the property be given, and a special purpose be assigned for that gift, this court always regards the gift as absolute, and the purpose merely as the motive of the gift, and therefore holds that the gift takes affect as to the whole sum or the whole income, as the case may be." 30 This principle has been applied in many cases see, for example, in Re Andrews Trust [1905] 2 Ch 48 and in Re Osoba deceased [1979] 1 WLR 247 at 251. It seems to me that this principle is applicable in this case particularly as it is plain from the words used that the property is to be held by the two devisees "in equal shares as joint tenants for life". I was referred to Mason v Mason (1910) 1 Ch 695 at 700 for the proposition that no gift or interest in land was intended. That case, however, was more concerned with the effect of an indeterminate gift of income rather than the problem of construction with which I am faced. 31 Since the Probate Act 1890 it has not been possible to create a legal life estate by direct devise. This is a result of the testator's property vesting in the personal representatives on grant of probate or administration. See section 44 and 45 of the Wills Probate and Administration Act 1898 for the present equivalents. 32 Section 47 of that Act provides:- "47 Real estate to be held upon trusts of will Subject to the provisions of this part, the real estate of every such deceased person devising such estate by the person's will, shall be held by the person's executor to whom probate has been granted, or the administrator with the will annexed, according to the trusts and dispositions of such will." 33 It should also be noted that the bequest is expressed in terms which provides for a transfer to the two beneficiaries and that thereafter they hold the property for life. In these circumstances as soon as administration is complete both Mary De Santis and Pamela Helen Cummings are entitled to call for a transfer of a life interest in the property to them and thus have a legal life estate. The transmission application could be registered and a folio of the register issued to record this legal life estate. Such legal life estate is one which is determinable on remarriage or entering into a de facto relationship. 34 The question that arises is whether this interest has any practical benefit to the two plaintiffs. Importantly a legal life interest does have the entitlement to possession. In contrast an equitable life interest may or may not have such an interest depending upon the trustee's duties.

35 Assuming that there was no consensual arrangement for the payment of income by the operators of the restaurant it would be necessary if any practical use would be made of the bequest for the plaintiffs to be able to force a sale of the freehold in order to give them a sum which could be invested to provide an income. Section 66 G. of the Conveyancing Act provides for such matters. Any one or more of the co-owners may make an application. This is defined in section 66 F in the following terms: "(1) "Co-ownership" means ownership whether at law or in equity in possession by two or more persons as joint tenants or as tenants in common; and "co-owner" has a corresponding meaning and includes an incumbrancer of the interest of a joint tenant or tenant in common." 36 As Mrs Cummings and Mrs De Santis will have a legal life estate they do have the right to possession. It would seem that so far as Mrs Cummings is concerned it is likely that she will be able to force a sale of the property and effectively obtain a sum to provide her with an income equivalent to the amount which would be received on $500,000 properly invested. Although submissions were made that such would not happen because of hardship grounds I would regard the defence on this basis as unlikely to succeed particularly in the face of a refusal to pay any income to the plaintiff. 37 I have dealt with this matter because it is important for the court to determine what are the assets and liabilities of an applicant. Unless it does so it cannot determine whether they have been left without adequate and proper provision for their maintenance, education and advancement in life. 38 In respect of Mrs Cummings' claim it is necessary to note that she was in a de facto relationship with the deceased for some 14 years. The usual orders to be made in respect of such persons were dealt with recently by the Court of Appeal in Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47. At paragraph 63 to 66 the court addressed these matters in these terms:- "The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased. The Master referred to the following statement of principle which appears in Luciano v Rosenblum 2 NSWLR 65 at 69 It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here. So although I accept that the claim in this case is a strong one, it is not as strong as some claims made by surviving spouses. However, even assuming that the requirements of Luciano should be satisfied, my opinion is that they are satisfied in this case. 39 In the light of these comments the important matters to consider apart from the length of the relationship include the fact that Mrs Cummings did not have a major role in raising the deceased's children. There is also the simple fact that it was only a de facto relationship without the formal and binding commitment to which His Honour refers. There was some contribution to the estate of the deceased and the purchase of the home and there was assistance given by Mrs Cummings in running the business. I have set out Mrs Cummings' assets in paragraph 17 above. I have also now referred to the extent of her interest under clause 3 of the will. In these circumstances it seems to me that she has been left with proper provision for her maintenance, education and advancement in life. Indeed it is arguable, given the length of the relationship that, even absent her interest under clause 3 of the will, appropriate provision has been made for her. 40 I turn to the claim of the plaintiff, Mary De Santis. Before she brought a claim Mary De Santis swore an affidavit in support of her son's position. In that affidavit she said the following:- "9. I have had the benefit of ongoing payments of approximately $350 per week from Toni and subsequently from my son's who've taken over Toni's share of the business Bill and Tonis. 10. I never discussed at any time with Toni the idea that I would be granted any interest in the freehold of 72 -- 74 Stanley Street. I do not wish to accept that bequest as I believe it should be left to my sons. 11. I am presently in receipt of the pension entitlement and, as I own my own home, I am more than comfortable with my pension and the continuing support of my children. 41 After commencing her own proceedings she referred in her affidavit of the 30th of January to her needs which I have referred to above. In submissions made on behalf of Mary De Santis it was suggested that an appropriate order would be to set aside the devise in clause 3 of the life estate and to order that provision be made for Mrs De Santis by the payment from her three sons interest in the restaurant business of the sum of $100,000. The sum was arrived at by adding together the building costs and the services to which I have referred. This would be substantially less than her present entitlement under clause 3 of the will. 42 No party in these matters made any submission that the material in paragraph 10 amounted to a disclaimer by Mary De Santis of her interest under clause 3 of the will. Such a disclaimer is made by clear manifestation of an intention to disclaim the gift. No formality is required. As Latham J said in Commissioner of Taxation (Cth) v Cornell (1946) 73 CLR 394 at 401:- "….the dissent need not be evidence by disclaimer in a court of record or by deed; any evidence of actual dissent is sufficient." 43 The reason why no such submission was made may be two-fold. Once the benefit of a gift has been accepted it cannot be disclaimed. See Re Hodge [1940] Ch 260. Here there has been a continuation of payment to Mary De Santis after the death of the deceased and these may be referable to the income payable under clause 3. The second reason may be because a disclaimer by one joint tenant amounts to a release in favour of the co-tenant rather than the interest falling back into the estate. See Re Wilks; Child v Bulmer [1891] 3 Ch 59 and Re Schar; Midland Bank Executor & Trustee Co Ltd v Damer [1951] Ch 280 at 285; cf JW Broomhead (Vic) Pty Ltd v JW Broomhead Pty Ltd (1985) VR 891 at 935. Such a result would not be desired by Mary De Santis as she makes plain in her affidavit. 44 If anything the submission of the plaintiff, Mary De Santis, proceeded upon the assumption that she still has the benefit of the gift. These submissions were made in her case which commenced after the signing of the affidavit to which I have referred. A beneficiary who has voluntarily disclaimed an interest may retract the disclaimer at any time provided that no-one has changed position in reliance upon it. See Re Young [1913] 1 Ch 272 and Re Cranstoun [1949] Ch 523. There is no suggestion of a change in position and the present submissions and the conduct of her case tend to suggest that if there was a voluntary disclaimer it has been retracted. 45 In the circumstances I think I should deal with the matter on the basis that for the purposes of the present applications that the plaintiff, Mary De Santis, still has her interest under clause 3 of the will. 46 In cross-examination it appeared that one wish of Mrs De Santis was to sell the house and buy a new house. This is not how her case was presented and there was no proper evidence of the cost of any new house she might wish to obtain. There is absolutely no reason why I should accept the submissions of the plaintiff and make an order in her favour in lieu of her interest by way of life interest in the property. That life interest presently secures to her a right to income that her sons have in effect been providing. Given that she has the life interest it will more than adequately provide for assistance to meet the cost of carers which are referred to in the rehabilitation consultants report. It seems to me that repairs should be carried out now and, even if the property is sold in the not too distant future, then this work would no doubt assist with the sale of the property. 47 An appropriate award would be for a legacy in favour of the plaintiff Mary De Santis in the sum of $38,000. 48 It is perfectly apparent in this case that the parties would prefer not to continue their future involvement by way of the life estate provided for in clause 3. The plaintiff, Mrs Cummings asked to court to grant her a further lump sum in lieu of her entitlement under clause 3. The court cannot do that unless she has been left without proper provision. She also reserved her rights in respect of clause 3 in the event that she was not successful. The parties could have resolved this matter by agreement but it is obvious that agreement could not be reached. The claims, which are brought on behalf of the two plaintiffs, are only claims for provision under the Family Provision Act. I have not been asked to construe the will but have had to consider it in order to determine the assets of the plaintiffs. Unfortunately the litigation between the parties may not yet be over but the present proceedings are not the ones to finally resolve all matters. 49 The orders that I make are as follows:- 1. I dismiss the summons of the plaintiff Pamela Helen Cummings filed on 21 July 2000. 2. Subject to submissions I order the plaintiff Pamela Helen Cummings to pay the defendant's costs of her claim. 3. I extend the time for the plaintiff Mary De Santis to make her application up until 7 January 2002. 4. I order that in addition to the benefits received by the plaintiff, Mary De Santis, under the will of the deceased that she receive a legacy of $38,000 dollars. 5. Subject to submissions (a) I order that the costs of the plaintiff, Mary De Santis, on a party and party basis and the defendants' costs in proceedings 1009/02 on an indemnity basis be paid or retained out of the estate of the deceased. (b) I order that the costs of the defendant on an indemnity basis in proceedings 3289/00, to the extent that they are not met by the plaintiff, be paid or retained out of the estate of the deceased. **********

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