Faulkner v McLeod

Additional Legal Principles 59In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim such as this one. 60Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, in relation to the former Act, that it is not appropriate, to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role is not to reward an applicant, or to distribute the testator's estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant. 61In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant". 62The court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation ( Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system. 63The nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 64In relation to a claim under the Act by an adult child of the deceased, the following matters should also be noted: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where he, or she, can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation ( McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801). (c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia . (d)There is no obligation upon the deceased to have treated all of his, or her, children equally. In Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, Palmer J commented: "57 The strongest ground for relief urged by Rosemary and Marion, though put somewhat obliquely, is that the provision made for them by the testator is vastly disproportionate to the provision made for Alan. One can understand the sense of grievance which one child may have at being treated by a parent differently from another child. Some may be tempted to think that great disproportionality of testamentary treatment in itself indicates some essential error in the testamentary process which requires amelioration under the Family Provision Act so as to achieve approximate equality between a testator's children. 58 That is not, of course, a position from which one can begin in this, or in any other case under the family provision legislation." (e)There is no the need for an adult child to show some special need or some special claim: McCosker v McCosker ; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

Credibility of Witnesses 65I am satisfied that, generally, there were not many facts seriously in dispute between the parties. 66Mr Ellison SC submitted that the Plaintiff had not been entirely been frank about her expenditure. He pointed to the fact that she disclosed an estimated expenditure on her front door and security door of $4,500. He also said that how she had spent the proceeds of her superannuation, withdrawn in August 2010, had not been properly disclosed. 67Whilst the costs of the front door and the security door may seem high, and whilst the evidence of how she had expended the proceeds of her superannuation was a little confused, I am prepared to accept the evidence that she gave in both respects was truthful. In particular, I accept that she used the superannuation proceeds to reduce the debts that she had and that she incurred additional credit card debts associated with the repairs she then had to effect on her home. 68Overall, I found the Plaintiff to be a frank and forthright witness. I found that she gave her evidence, particularly, about the Defendant's role in the life of the deceased without prevarication, accepting that the Defendant had done what she could as the "main carer" of the deceased. She acknowledged that while the Defendant lived at their parents' house, she had a lot more contact with, and did a lot more for, them than she did. 69She also acknowledged that, whilst "everyone knew [the deceased] had a lot of cash in the house", there had been no conversation with the deceased about cash in envelopes, or the distribution of that cash equally to his three children. 70When asked about any financial assistance provided to her own children, the Plaintiff candidly admitted that she did not seek assistance from either, although, as a result, she is struggling with her expenditure exceeding her income by nearly $120 per week. She also admitted that she spent about $60 per week on cigarettes. Perhaps, that led her to make an equally candid acknowledgement that she "was living beyond her means". That would not be very hard to do if one's income was limited, as the Plaintiff's is, to a disability pension. She even stated that she had made an attempt to reduce her expenditure. 71I found Ms Wadick to be a witness whose evidence I accept unreservedly. To the extent that there is any conflict between her evidence and the evidence of the Defendant, I accept Ms Wadick's evidence. I come to this view not only because of Ms Wadick's demeanour in the witness box, but also because no reason why she would enter the witness box to give untruthful evidence was suggested. Furthermore, Ms Wadick is not making any claim for provision out of the estate. Finally, it was not suggested to Ms Wadick that she was attempting to assist the Plaintiff in her claim, or that she held any dislike of the Defendant, which dislike might provide a motive for giving false, or inaccurate, evidence. 72Having heard and seen Ms Wadick, I am satisfied that there was a conversation that she had with the deceased about a large amount of cash in the deceased's home, which was to be divided between the three children of the deceased. I am also satisfied that the deceased showed her three envelopes containing what appeared to be a large amount of cash. 73I am fortified in reaching this conclusion by the fact that the Defendant has disclosed cash in the estate of $95,000 and that she also referred to being shown a number of envelopes by the deceased, albeit at a different time, the contents of which envelopes she counted to be $167,000. 74However, as Mr Ellison SC submitted, the finding that I have made about the conversation may not take the determination of the Plaintiff's case very far. However, I am required to consider whether I should accept the Defendant's evidence that the deceased did not have a similar conversation with her. 75I was not impressed with the Defendant as a witness. She conceded that she had not disclosed, in a number of affidavits that were read in the proceedings (as well as in the affidavit of administrator filed in support of her application to obtain letters of administration with the Will annexed), the precise amounts that she knew, or that she had found, in the deceased's home. 76Her explanation for the omission to include the accurate information was that the deceased had told her not to disclose the amounts of cash. That explanation does not justify her omission to disclose fully and accurately the nature and value of the deceased's estate. 77Furthermore, her evidence about the amounts that she found in the deceased's home was confused. How the cash that she did find in the house had been spent was more vague and unconvincing. A notice to produce had been served upon her, which required the production of "all documents in relation to ... the expenses and repairs to the Sans Souci property". Only a few documents were produced and the total of the expenses disclosed thereon was inconsequential, although the Defendant gave oral evidence that other amounts, paid in cash, for the repairs and maintenance of the Sans Souci property had been made. 78The Defendant accepted that, subject to any payments made in cash to the nursing home where the deceased had spent the last months of his life, she had not produced any documents, or provided any explanation, that accounted for about $60,000. 79It must not be forgotten that the Defendant is the administrator of the deceased's estate and was duty bound to provide to the court, and to the Plaintiff, precise details of the nature and value of the deceased's estate at the date of death and at the hearing: Fiorentini v O'Neill [1998] NSWCA 79. That obligation would include, in this case, how cash held by the deceased had been spent by the Defendant before the hearing of the proceedings. 80I should point out that when the suggestion was made, in cross-examination, that the Defendant had given false evidence in the affidavits, an objection was taken to answering the question upon the basis that her evidence might incriminate her. No application for a certificate under s 128 Evidence Act 1995 was made, so the matter did not proceed further. I do not draw any inference from the reliance on her legal rights in this regard.

Relevant Facts 81I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act. (a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship 82The Plaintiff is the daughter of the deceased. There is nothing to suggest that their relationship was not happy, loving or harmonious. She states, and I accept, that she visited her parents, regularly, and that she took them on outings, shopping and to doctor's appointments. I am satisfied that the Plaintiff was a loving daughter to the deceased. 83Mr Ellison SC accepted that the relationship between the Plaintiff and the deceased was a close and loving one. This was hardly surprising bearing in mind the answers given in cross-examination by the Defendant. He also accepted that there was no conduct of the Plaintiff that would disentitle her to provision. (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate 84Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon him by statute or common law. 85However, an obligation, or responsibility, to make adequate provision for the Plaintiff's proper maintenance and advancement in life is recognised in the case of a child. 86The deceased adopted the Defendant at the age of six months. She lived with her parents then until, as an adult, she travelled abroad at various times, although when she did return to Australia, she stayed with her parents. For example, she says that she lived with them in the Sans Souci property between 1985 and 1991, between 1994 and 1998, 2003 and 2004. She returned to live in the Sans Souci property following the death of her mother in November 2006 and has lived there since that time. She was the primary carer of the deceased from then until he was hospitalised in August 2009. 87The deceased did assume some obligation, and responsibility, towards the Defendant, even though she was an adult and in employment. She was dependent upon him at the time of her death for accommodation as he was to her for the care she provided. Any obligation, or responsibility, otherwise, was that naturally arising from his parental relationship to her. (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered 88I have dealt with this earlier in this judgment. On any view, the deceased's estate is not a large one. 89There is no relevant notional estate. (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate 90The Plaintiff is a qualified Medication Endorsed Enrolled Nurse and she is trained as a "Scrub/Scout in general theatres". She previously worked as a nurse, although, currently, she is not employed. She has really not worked at all since Christmas 2009. She does not consider that she will be able to comply with the continuing educational requirements to enable her to continue to be registered as a nurse, although she can register herself as "non-performing". She says that so long as she continues to suffer from depression, she will be unable to work. 91The Plaintiff receives a disability support pension of $358 per week. Although two of her children live with her, one full time, she says that she receives no regular financial assistance from either, although each of her children works. On occasions, each might provide some food or household requirements, but this appears to be rare. The Plaintiff accepts that she has not sought any financial assistance from either of them. 92The Plaintiff estimated her weekly expenditure at about $477. This includes the costs of cigarettes (about $60 per week.) She states that she uses her credit cards to meet the surplus of expenditure (almost $119 per week). 93The assets, as at January 2011, that the Plaintiff has, are a town house at Engadine ($537,500), a car ($12,000) and household contents ($5,000). She has no superannuation (having obtained access to $23,288, which she used to pay off credit card debts, effect repairs to her home and purchase a lounge suite) and no moneys in bank. She has liabilities being credit card debts ($3,700), a HECS debt ($4,006) and legal costs of the proceedings ($31,300). (The HECS debt does not have to be repaid so long as the Plaintiff is unemployed, although it can be repaid if there were sufficient funds to enable her to do so. Furthermore, it is only any difference between indemnity costs and ordinary costs for which the Plaintiff will be liable if she is successful in the proceedings.) 94The Plaintiff says that: (a) her home requires urgent repair, the costs of which are estimated to be $18,500; (b) she requires a fund to enable her to pay off her debts ($7,706); the difference between costs calculated on the indemnity basis and costs calculated on the ordinary basis, of this claim which is about $7,000) is an amount she will also have to bear; (c)costs of ongoing physiotherapy and medication; (d)a capital sum for exigencies of life. 95It has been submitted that the Plaintiff should receive a lump sum of $250,000. This submission relies, at least by way of a suggested guide, on calculations of life expectancy and discount tables. It is submitted that the Plaintiff has a life expectancy of 30.38 years. Applying the 3% tables, she would require a capital sum of $125,991 to fund the deficiency of income. To this sum should be added a capital sum of $29,128 to pay for physiotherapy. When one adds the debts ($7,706), the costs of repairs to her home ($18,325), and an amount for contingencies, one arrives at the amount claimed. 96The Defendant has assets, including an apartment at Darlinghurst ($157,000), superannuation ($99,613), and cash and moneys in various financial institutions on deposit ($18,345). Her only liability is a debt secured on the Darlinghurst apartment ($68,951). Of course, subject to any order for provision made under the Act, she has an entitlement to the bulk of the deceased's estate. 97In an affidavit filed in August 2010, the Defendant discloses her annual income, which is said to consist of wages earned in employment ($19,890) and rental income from the Darlinghurst apartment ($9,168). She discloses her total annual outgoings of about $22,030. Accordingly, she has a surplus of income of about $7,000 per year. 98The Defendant says that she would like to remain living in the Sans Souci property as it has been her home for most of her life and because she has many ties in the area. (e) if the applicant is cohabiting with another person - the financial circumstances of the other person 99The Plaintiff is co-habiting with her two daughters, one of whom stays with her only for part of the time. There is no evidence of the income of either of the Plaintiff's daughters. 100I am unable to conclude, from the evidence of the Plaintiff, why one, or both, of her daughters, does not, assist the Plaintiff to meet some of the expenses of the household. It is unlikely, even if one was repaying a debt for her car, that she could not contribute a modest amount to assist the Plaintiff. 101There is no evidence about how long, one, or both, of the Plaintiff's children intend to continue with the present living arrangements. (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated 102There has been some evidence of the medical condition of the Plaintiff. She says that she suffers from depression, chronic back pain, for which she undertakes physiotherapy, asthma, diabetes and hypertension. She previously had a hiatus hernia for which she underwent an operation in May 2009. She describes her health as "overall, poor". 103The Defendant says that she suffers from "major depression", hypertension, eczema, dermatitis of the hands, and hypercholesterolaemia. The prognosis for each of these conditions appears to be good. 104The Defendant was, in December 2010, seeing a cardiologist for the investigation of chest pains. There is no evidence of a diagnosis or prognosis of this condition. (g) the age of the applicant when the application is being considered 105The Plaintiff is presently 58 years of age. (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant 106The Plaintiff does not identify any financial, or other, contributions to the acquisition, conservation and improvement of the estate of the deceased. 107In relation to the welfare of the deceased, the Plaintiff says, and I accept, that she cared for her parents whilst the Defendant was overseas, performing what she describes as "daughterly duties". She says that with her sister, Ms Wadick, she assisted her parents "whenever we could". They would spend time together often and regularly even after the Defendant returned to Sydney. 108In her affidavit, Ms Wadick corroborates the Plaintiff's contributions to the welfare of the deceased. She states that the Plaintiff was "a loving daughter". I accept this evidence. 109The Defendant does not dispute that description of the Plaintiff although Mr Ellison SC did ask her some questions about the regularity of her contact with the deceased. 110It has not been submitted that the Plaintiff received adequate consideration (not including any pension or other benefit) for what she did. (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate 111The deceased made no specific provision, during her lifetime for the Plaintiff. She receives a legacy of $5,000 under the deceased's Will. The amount of cash for the benefit of each of the daughters that I have found the deceased told Ms Wadick about has not been paid to the Plaintiff. (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person 112There is some evidence of the testamentary intentions of the deceased other than his Will, administration of which was granted. The Plaintiff says that she was told by the deceased that "my estate is to be split 3 ways". However, in cross-examination, the Plaintiff stated that any conversation of this kind occurred many years ago, in the 1970's and was not repeated subsequently. 113The Will of the deceased expressly provides that "I have left the rest and residue of my estate to my daughter ... as she has not had the opportunity to acquire assets to the extent of assets acquired by my other two daughters". 114The Will also provides that, in the event that the Defendant did not survive the deceased, the Plaintiff was to be the substitute residuary beneficiary. This suggests that the deceased regarded the Plaintiff as a suitable object of testamentary bounty. 115There is an earlier will of the deceased, made in October 1999, in which small legacies are provided to the Plaintiff, to Ms Wadick and to grandchildren. In the event that the deceased's wife did not survive him, the residue of the estate was left to the Defendant. (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so 116There is no evidence that the deceased maintained the Plaintiff, either wholly or partly, before his death. (l) whether any other person is liable to support the applicant 117Apart from the Commonwealth government's responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff. (m) the character and conduct of the applicant before and after the date of the death of the deceased person 118The Act does not limit the consideration of "conduct" to conduct towards the deceased. 119There was not very much evidence on this topic other than in respect of matters dealt with already. The Defendant did not suggest any conduct towards the deceased of the type that might disentitle the Plaintiff to relief under the Act. 120The conduct of the Plaintiff towards the Defendant does not seem to me to be helpful in the determination of the issues. To their credit, the parties were not critical of each other so far as the relationship of each with the deceased was concerned. (n) the conduct of any other person before, and after, the date of the death of the deceased person 121It was not suggested that the relationship with the Defendant had, in any way broken down. She is a chosen object of the deceased's testamentary beneficence. She had a very close relationship with the deceased. The Plaintiff described her as the deceased's "main carer". 122The criticism made by the Plaintiff of the Defendant is that she tried to control the deceased after she moved into the Sans Souci property. She says that the Defendant made her and Ms Wadick "feel unwelcome". That might have been so, but I do not think it is relevant to my considerations. (o) any relevant Aboriginal or Torres Strait Islander customary law 123This is not relevant in the present case. (p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered 124There are no other matters that I consider relevant.

Determination 125There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(b) of the Act. It is, thus, unnecessary to consider whether there are any factors warranting the making of her application. 126As the Plaintiff's proceedings were commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both. 127I have set out the provision made for the Plaintiff in the deceased's Will. That adequate provision for the proper maintenance or advancement in life of the Plaintiff was not made by the Will of the deceased, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both, is clear. Accordingly, I am satisfied that the Plaintiff has satisfied the jurisdictional threshold. There was no dispute that this finding should be made. In fact, Mr Ellison SC, at the conclusion of the evidence acknowledged that the provision made for the Plaintiff was not adequate and proper. 128It is necessary, then, to consider whether to make a family provision order and the nature of any such order. 129I have set out what the Plaintiff seeks, in lieu of the provision made in the deceased's Will, and how it is calculated. The Defendant submits that she should receive a lump sum of $75,000, plus her estimated costs, calculated on the ordinary basis, of $25,000. 130Mr Ellison SC cross-examined the Plaintiff on a number of items of proposed expenditure. He challenged the estimate of $4,500 for a front door and security door and the need for air-conditioning to be installed in the Plaintiff's bedroom, at a cost of about $4,000. He did this, presumably, in order to reduce the estimate of the amount the Plaintiff said she required to complete repairs on her home. 131In my view, these hardly constitute luxuries and I regard each as providing some degree of security, or comfort, to the Plaintiff, who, so it appears, does not live an extravagant lifestyle. 132In my view, the Plaintiff should receive a lump sum to enable her to pay off her debts (including the HECS debt), to pay for the repairs that she says that are required to be done on her home, and to provide her with a lump sum for exigencies of life. She has no superannuation or other lump sum available. In calculating that lump sum, I remember that freedom of testation is an important right. I also remember that the Defendant has expressed a not unreasonable desire to remain living in the Sans Souci property. 133I should deal briefly with the reliance by the Plaintiff on life tables. In Tchadovitch v Tchadovitch [2010] NSWCA 316, Campbell JA commented at [73]-[74] (Allsop P agreeing at [1]-[5] and Young JA agreeing at [94]): "73 I would not want my finding that it was within the discretion of the trial judge in the present case to take into account the expert evidence, to be taken as encouragement for parties in Family Provision Act cases to provide expert evidence of the type that was provided here. Presumably it would be of little assistance in many such cases because the assets were insufficient to meet all claims. In the present case, a sufficient reason why the judge was justified in taking it into account was that both parties conducted the case on the basis that such evidence was appropriate for him to consider. 74 There is no issue before us concerning the admissibility of such reports, but such an issue might arise in future cases. It might arise at the level of whether the assumptions were adequately established, or at the level of whether a ground for exclusion under section 135 Evidence Act 1995 was made out. Alternatively, if admitted, a question might arise about whether cross-examination should be limited. There are some other matters of potential concern besides admissibility. One is that, many testators manage to write wills that make proper provision for their family without calling on an actuary or accountant to help them do so. When the Act enables the Court to make proper provision for eligible people when a testator has failed to do so, it is far from clear that the Court ought to do so using a type of factual material that a testator is unlikely to have used. Another is that it would be a matter of concern if the costs of Family Provision Act cases were increased through regular use of such reports. The effect of these matters can be left for future decision." 134Mr Armfield acknowledged the force of the comments made and, ultimately, submitted that the calculations to which he had referred might be used as a guide for the ultimate conclusion on quantum. As Rein J said in Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431 at [88], the court should not treat a claim for a family provision order as if it were a personal injury claim. 135Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, I order that, in lieu of the provision made in the Will of the deceased for the Plaintiff, she is to receive out of the estate of the deceased, a lump sum of $170,000. The amount should constitute a charge on the Sans Souci property until such time as it is paid. The burden of the provision should be borne by the Defendant. 136After the payment of the debts and other anticipated expenses, the Plaintiff should have a capital sum remaining, which amount will provide capital and some income for her to meet the shortfall of income over expenditure. The capital will provide for exigencies of life. 137The payment of such an amount to the Plaintiff out of the estate should leave the Defendant with the ability to retain the Sans Souci property, even after the payment of the costs of the proceedings. 138The lump sum should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment. 139I order that the Plaintiff's costs, calculated on the ordinary basis, are to be paid out of the estate. I order that the Defendant's costs, calculated on the indemnity basis, are to be paid out of the estate. 140Exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2011