Consideration
146It is necessary that I determine first, whether at this time, adequate provision for the proper maintenance or advancement in life of Ms Gardiner has not been made by the will of the deceased.
147That enquiry involves a consideration not only of the needs of Ms Gardiner, and the circumstances concerning the relationship between Ms Gardiner and the deceased, and the value of that estate, which have been identified in the authorities referred to above, but also the proper claims on the bounty of the deceased of the other two beneficiaries.
148It will be convenient in this case as a first step to defer consideration of the significance of the circumstances of Mr Gardiner and Ms Bowman, and assess the adequacy of the provision made for Ms Gardiner in the will as between Ms Gardiner and the deceased. That exercise essentially involves a determination of whether the provision for Ms Gardiner would be inadequate on the assumption that the other beneficiaries had no interest in or call upon the estate.
149There are a number of features in this case that limit the ability of the Court to determine in a straightforward way whether Ms Gardiner has satisfied the requirements of the first stage of the process. These difficulties have been discussed above, and may be summarised as follows: First, Ms Gardiner gave evidence of her recurrent expenditure needs. That evidence was not challenged. For reasons that will be considered below, it is difficult to see how Ms Gardiner could fund that level of recurrent expenditure on any realistic outcome of the present proceedings.
150Secondly, Ms Gardiner only provided tenuous evidence to the Court about the cost of purchasing suitable accommodation for her needs. She gave a range of $480,000-$650,000 for a two-bedroom townhouse in the Hornsby/Asquith area. Her claim was ultimately put right at the bottom of this range. That was necessary because the value of the estate after the payment of the legal costs will be about $640,000. Not only is it not clear that Ms Gardiner will in fact be able to acquire the desired property, but there is no evidence of the cost of any alternative property, either in the nature of an apartment, or a one-bedroom property, or a property in some less expensive location than Hornsby/Asquith. As even $480,000 is a very substantial proportion of the available estate, being some 75% of its value, it is inevitable that the Court will need to consider permutations that involve the possible purchase of a less valuable dwelling. That exercise is hamstrung by the absence of evidence, and obliges the Court to proceed in a speculative manner.
151Neither party provided to the Court any detailed calculations concerning whether or not Ms Gardiner's needs could adequately have been serviced if Ms Gardiner had accepted the gift made to her in the deceased's will, or how those needs could be met if various alternative possible provisions were made for her out of the estate. In relation to the former of those matters, it is logically necessary to make some calculations, which will inevitably be imprecise, in order to assess the adequacy of the provision made in the will. I have made certain calculations, which are set out below. They may be fallible, as they were not put, and have not been considered, by the parties. The significance of any error will be made less significant by the consideration that the calculations are only approximate and indicative, and in some respects speculative.
152If Ms Gardiner had accepted the gift made to her in the will, she would have had assets valued at $431,000, consisting of her current $60,000 in assets, the $91,000 that she has spent on legal costs, and the $280,000 value of her one third interest in the estate.
153In the total absence of any useful evidence being provided by the parties, the Court can take judicial notice of the circumstance that it is possible within the State of New South Wales to acquire civilised accommodation for a price less than $480,000, albeit that the acquisition may be of a home unit, may have one-bedroom, and may be outside the Sydney metropolitan area. The Court can infer that Ms Gardiner would have been able to buy a home using part of the $431,000, if not all of it, even though the purchase would not have accorded with her preferences. Ms Gardiner would have had a choice whether to rent accommodation, and for that purpose to invest her capital to earn interest to assist in payment of the rent, or whether to apply part of her capital to purchase accommodation, and to invest the balance to augment her disability support pension. The rules governing the circumstances in which her entitlement to receive the maximum disability support pension would be reduced by reason of owning assets, or receiving additional income, would be relevant to a consideration of the choice that would have been most rational for Ms Gardiner to make. Because the value of a pensioner's own home is ignored, for the purpose of determining whether the pension should be reduced, it is likely that the rules will favour a choice to purchase accommodation.
154Both alternatives must be considered. I will turn first to the possibility that Ms Gardiner could have invested the whole of her assets and rented accommodation. In par 10 of her 14 August 2013 affidavit Ms Gardiner gave evidence of her expected level of return from investing a sum of money, and the effect of the interest earned on the investment on her entitlement to receive the full disability support pension. Her evidence was that she could receive bank interest at 3.65% on the basis of a 12 months term investment. The evidence was not challenged. For want of better evidence I will accept that percentage return. $431,000 invested for 12 months at 3.65% would yield $15,731.50, say $15,700. That is about $600 per fortnight.
155Ms Gardiner gave evidence that the full disability support pension would be $733.70 per fortnight, say $734. That entitlement would be reduced by 50 cents for every dollar over $156 of other income received per fortnight. $600 less $156 equals $444. Half of that sum is $222. $734 less $222 equals $515. That is the amount of the reduced pension to which Ms Gardiner would be entitled. To that sum must be added the $600 interest per fortnight that she would receive, which gives $1115 per fortnight. I note that this analysis ignores the potential impact of income tax. There was no evidence on this subject.
156In her 19 July 2013 affidavit Ms Gardiner gave evidence that her annual recurrent expenditure on living expenses has been $49,430.90. That evidence was not challenged. Her fortnightly expenditure is therefore about $1900. Ms Gardiner's evidence, in the same affidavit, of the level of her rent payments, assuming that the forecast increase of $10 per week happens, would be $14,560 per annum, or $560 per fortnight. There was no suggestion that the level of her present accommodation is excessive, or in any way luxurious; rather the evidence was to the contrary.
157If rent payments of $560 per fortnight are deducted from the $1115 that has been calculated as being available from the investment of all of Ms Gardiner's capital, the amount available for other living expenses would be $555. If rent payments are deducted from her needs of $1900 per fortnight, the balance is $1340. There would be a shortfall of $1340 less $555, which equals $785. Ms Gardiner's income after payment of rent would be slightly more than 40% of her requirements. Ms Gardiner would be required either to reduce her recurrent living expenses by some 60%, or to eat into her capital.
158The alternative assumption is that Ms Gardiner applies part of her capital to buy a home. I will make an arbitrary assumption that she might spend $300,000 to buy a home. As I have mentioned, if such a home can be bought, it will not conform with Ms Gardiner's preferences. Obviously, Ms Gardiner might choose to pay more, or even less if an acceptable home could be purchased for less.
159In this case the balance of Ms Gardiner's capital would be $131,000. If that amount was invested at 3.65% per annum the return would be $4781.50, which equals about $184 per fortnight. That amount is $28 more than the sum of $156 per fortnight at which the pension begins to reduce. Half of $28 is $14. Ms Gardiner's fortnightly income would be a pension of $720 plus interest received of $184, giving $904.
160As Ms Gardiner would not have to pay rent, her fortnightly expenditure requirements would, on the evidence, be $1341. There would be a shortfall of $437 per fortnight.
161Comparing the two alternatives, if Ms Gardiner invested all of her capital, and rented accommodation, her shortfall would be $785. It would be $437 if she were able to purchase her own accommodation for $300,000. Plainly, in each case there would be a substantial shortfall.
162In this context it is relevant to note that if Ms Gardiner's recurrent living expenses after provision for accommodation are $1341 per fortnight, the amount needed to be invested at 3.65% per annum to yield that amount is, on my calculations, about $1,350,000. There does not appear to be any way, in any possible eventuality, that Ms Gardiner would be able to fund her present level of expenditure on living expenses.
163I will next consider whether, on the evidence, the Court should find that the deceased gave proper consideration to her testamentary obligations to Ms Gardiner, and whether from that perspective, the provision that she made was adequate in the required sense.
164In the present case there is clear evidence that the deceased gave consideration to how she wished to distribute her estate by her will. She consulted Mr Kinchington, her solicitor, in person about the matter, and received from him his letter of advice dated 26 August 2010. That letter recorded that, at the time the deceased spoke to her solicitor, she wished to make further provision for Ms Gardiner as Ms Gardiner was carrying the greater burden of the care in the home, and could not continue to provide care in the long term without some financial assistance. The letter referred to Ms Gardiner being precluded for four years from obtaining a pension due to her workers compensation claim payout.
165The deceased delivered to Mr Kinchinton the Client's Instruction Sheet, which contained an instruction to make Ms Gardiner "half owner of the house via title deed and to leave the rest divided into three equal shares".
166Mr Leek gave evidence that on 26 March 2011 the deceased stated to him that she intended to change her will to make a special provision for Ms Gardiner.
167Mr Kinchington gave evidence that, some three or so weeks before her death, on 25 May 2011, following a request for instructions by him, the deceased advised him that she had decided to leave her will the way it was, which meant that her estate would be distributed in equal shares to her three children. That evidence was not directly challenged. However, as I have noted above, Ms Gardiner gave evidence of statements made by Mr Kinchington at the end of the meeting at the Hyacinth Street property that are quite inconsistent with the solicitor having received immediately beforehand an instruction that the deceased had decided not to change her will. I have also noted the improbability of Mr Kinchington making the statements that he did to Ms Gardiner when informed of the deceased's death, if he recalled that he had received recent instructions that the deceased did not wish to change her will. Ms Gardiner's evidence was also not challenged. In the circumstances it would not be proper for the Court to reject entirely Mr Kinchington's evidence concerning his understanding of the instruction given to him by the deceased. However, I am also not prepared to make a finding on the basis of all of this evidence that the deceased made a carefully considered and final decision that she did not have the wish or the obligation to make any special provision for Ms Gardiner in her will.
168Mr Gardiner gave evidence in his 7 December 2012 affidavit, at par 43, that he was told by a good friend of the deceased not long before her death that the deceased had decided not to change her will; that the deceased had told Ms Gardiner of that decision; and that Ms Gardner was angry with the deceased. Little weight should be placed by the Court on hearsay evidence of that nature.
169The instruction that the deceased gave to her solicitor by means of the Client's Instruction Sheet establishes the special gift that the deceased contemplated, at one stage, she might make in favour of Ms Gardiner in her will. If the Hyacinth Street property is taken as having a value of $675,000, then half that sum is $337,500. The other half share of the property plus the other assets, valued at $165,000, would give $502,500. If that amount had been distributed equally between the three children, each would have received $167,500. The gift to Ms Gardiner would have been worth $505,000 in total. The other two children would have received $167,500 each. Ms Gardiner's share of the estate would have been 60%.
170Even when the deceased was inclined towards making a special testamentary provision in favour of Ms Gardiner, she was still of the view that each of her other two children were deserving of substantial bequests.
171On the evidence I conclude that the deceased recognised that Ms Gardiner may have a proper claim to a testamentary disposition that was relatively greater than that of her siblings. It appears that the deceased vacillated as to whether or not she should recognise that claim in her will, or bequeath her estate equally to her three children. The evidence does not justify a conclusion that the instruction that the deceased gave to Mr Kitchington on 25 May 2011 was her absolutely determined last and final word on the subject. Had the deceased not died shortly afterwards, so far as the evidence shows, she may have changed her mind.
172Although the evidence is not as direct as it could have been, I have concluded that it establishes on the balance of probabilities that the deceased, by words and conduct, caused Ms Gardiner to believe that the deceased would, in her will, make some special provision for Ms Gardiner's future needs that was greater than the provision that would be made for the other two beneficiaries. The evidence does not allow a finding that the deceased informed Ms Gardiner that the deceased would make a specific bequest in her favour in the deceased's will. There is no evidence that the deceased informed Ms Gardiner that she would receive either the provision that Ms Gardiner originally claimed in these proceedings, or even the alternative claims that were made in submissions. There is no basis for the Court to infer that the deceased suggested to Ms Gardiner at any time that the bequest to be made in her favour would be any more advantageous than that which the deceased set out in her written instruction to Mr Kinchington. That was to the effect that Ms Gardiner would receive half of the value of the Hyacinth Street property, and one third of the balance of the estate, which I have calculated represents 60% of the estate.
173I find, on the balance of probabilities, that the deceased caused Ms Gardiner to believe that special provision would be made for her in the deceased's will, and that Ms Gardiner continued to provide an especially high level of support for the deceased on the basis of that expectation.
174I will now turn to a consideration of the position of Mr Gardiner and Ms Bowman from the perspective of how their claims on the bounty of the deceased might affect the determination of stage one of the process. In doing this I acknowledge that I am necessarily blurring my consideration of the two stages in the manner recognised by the High Court in Singer v Berghouse and Vigolo v Bostin that I have set out above.
175For all practical purposes the three children of the deceased are of equivalent age.
176I have set out above the evidence given respectively by the children as to their past and present financial circumstances, and their aspirations. Neither party seriously challenged the evidence given by the other, and neither made a submission that I should not accept the other's evidence. All three children were cross-examined, and I am prepared generally to accept the evidence that they gave.
177As it was not challenged, and as it was in any case persuasive, I accept the evidence concerning Ms Gardiner's psychological condition, and the other circumstances related to her general health.
178However, a general acceptance of the medical evidence does not preclude the need to consider carefully the significance of that evidence. I refer in particular to the evidence that is said to support Ms Gardner's claim that because of her anxiety, and separation from and fear of other persons, she cannot reasonably be expected to live in any accommodation that will regularly bring her into contact with other residents at the same address, or to deal with other persons in the context of a strata title property and the workings of an owners corporation.
179I accept that these more marginal aspects of Ms Gardiner's psychological condition are real, in the sense that they are not fabricated. Were the assets of the estate not limited, Ms Gardiner's concerns may well have justified the desirability of her being able to live in a home on a property to which she had sole title. However, having had the benefit of listening to the cross examination of Ms Gardiner, in the context of this case, I would characterise those concerns more in terms of desire than need. I do not accept that the evidence justifies a provision to Ms Gardiner of a home to which she has sole title, if the effect is to deprive the other beneficiaries of any distribution from the estate, or to substantially have that effect.
180Each of the three beneficiaries has a serious, or potentially serious, medical or psychological condition. The medical condition of Ms Gardiner is serious, at least to the extent that it will prevent her from entering into employment. In my view, in relative terms, the medical circumstances of Ms Bowman are very serious. It would be extremely unsympathetic for the Court to take any view other than that she has a substantial entitlement to the bounty of the deceased in respect of protection against the vicissitudes of life, from many of which she is already suffering. Mr Gardiner accepts that his general health is good, but given his age and the diagnosis of prostate cancer, it would be wrong for the Court not to make some allowance in his favour for the possibility of failing health.
181Ms Gardiner does not own her own home, and will be committed to rental accommodation unless she receives a distribution from the estate of the deceased that is sufficient to enable her to buy a home. She worked from about 1972 to 2000, some 28 years, before she commenced employment at Oxford Art Supplies and Books Pty Ltd. She was unable to make provision for the acquisition of her own home over this period. It was only in the period of employment after 2000 that the cause of her present medical and psychological predicament arose. Ms Gardiner's present anxiety about not owning her own home is understandable, but it must be doubtful that she would have been able to buy a house of her own in her remaining employable years, even if she had not experienced the maltreatment from her employer that was the cause of her present medical condition.
182Ms Bowman does own her own home, but she also is not capable of employment, and cannot be expected to continue to generate income by taking in home-stay students. For the indefinite future Ms Bowman's income will be limited to the disability support pension, the amount of which is liable to be reduced in proportion to the income that Ms Bowman's partner, Mr Campbell, is able to earn.
183Mr Gardiner also does not own his own home. The arrangement that he made to board with his parents during their lifetimes may have been financially advantageous to him in some way, although the evidence does not enable the Court to make any particular finding on that subject. The Court has to proceed upon the basis that the arrangement was regarded by Mr Gardiner and his parents as mutually advantageous. However, the evidence establishes on the balance of probabilities that the deceased asked Mr Gardiner to leave the Hyacinth Street property some time before her death, to enable Ms Gardiner to move in, to care for her, but Mr Gardiner ignored that request. Now that it is clear that the Hyacinth Street property must be sold, Mr Gardiner will have to find alternative accommodation, and he is as much entitled to be able to own his own home, as is Ms Gardiner.
184Mr Gardiner realises that his financial position will not realistically permit him to buy a home in the Hornsby/Asquith area, even though that would be convenient to him, at least during the balance of his working life. He aspires to buy a home on the Central Coast. For that purpose he hopes to use his share of the estate to pay part of the purchase price of a home, and to borrow the balance from a bank, to be repaid over 10 years.
185I reject Ms Gardiner's argument that her application should be dealt with on the basis that Mr Gardiner can, and will, continue in employment until he is 70 years old. I find that it is likely that Mr Gardiner will continue in his present employment, notwithstanding his expressed desire to retire. That is likely to follow from his need to buy a home of his own, for himself and his wife, which is likely to involve the repayment of a bank loan over some period, irrespective of the distribution he receives from the estate. However, it would be quite wrong for the Court to expect Mr Gardiner to work past the present retirement age for entitlement to a pension of 65 ½ years (as Mr Gardiner was born between 21 July 1952 and 31 December 1953), or to assess the value of his assets on the basis that it is assumed that he will work to the age of 70. There are some questions about the arithmetical logic behind Ms Gardiner's calculation that by the age of 70 Mr Gardiner will have assets worth almost $2 million. In fairness, the calculations were put in an indicative way only, although there was some suggestion that the calculation was conservative. It is not necessary for the Court to enter into the detail of the suggested calculations.
186At present Mr Gardiner's assets are worth about $760,000. It may be expected that if Mr Gardiner continues in his employment until about the age of 65, the amount of his superannuation and other financial assets will increase over the period in a way that is proportional to the increases that he has enjoyed to date. However, Mr Gardiner will have to pay for a house. Except for the distribution that he may receive under the deceased's will, the need to buy a house will diminish the value of his other assets. He will need to support himself for the rest of his life using the balance of his superannuation. No evidence was put before the Court concerning the relationship between the return that Mr Gardiner might hope to receive from his superannuation, and the possibility that he might at some time receive the age pension. Mr Gardiner may also have to support his wife. The issue of whether she can or does come to live in Australia, and, if she does whether she can upgrade her teaching qualifications, and gain employment as a teacher, is a matter that at the present time must be considered to be speculative. Ms Gardiner accepted this final proposition.
187In her final submissions Ms Gardiner accepted that Ms Bowman should receive $100,000, but argued that Mr Gardiner should not receive a skerrick from his mother's estate.
188I do not accept Ms Gardiner's argument that the evidence justifies a conclusion that the estate ought to be distributed between Ms Gardiner, Mr Gardiner and Ms Bowman in the proportions $540,000: $0: $100,000. The proper application of s 59(1)(c) and s 59(2) of the Act will require that Mr Gardiner receives something, and that Mr Gardiner and Ms Bowman receive between them more than $100,000.
189The present question is whether the Court should find that each of Mr Gardiner and Ms Bowman has a sufficiently strong entitlement to receive the whole of the $280,000 third share of the estate given to them by the will of the deceased, so that that entitlement prevents Ms Gardiner from satisfying the first stage requirements of s 59(1)(c) of the Act. Must the Court conclude that, notwithstanding the objective inadequacy of the provision made for Ms Gardiner, the provision was nonetheless adequate in all of the circumstances?
190I have concluded that Ms Gardiner has satisfied the requirements of s 59(1)(c). My reasons are, first, that the evidence establishes that the assets that would have been available to Ms Gardiner had she not instituted a claim for a family provision order would not have been adequate for her proper maintenance and advancement in life. I have set out the reasons for reaching this conclusion above when considering the outcome of her investing all of her capital, or using part of it to purchase a home. The provision would have been inadequate, even though it appears that, in any event, Ms Gardiner will have to moderate the level of her recurrent expenditure on living expenses.
191Secondly, even though the evidence is obscure as to the nature of the expectation that the deceased caused Ms Gardiner to have, I am satisfied that Ms Gardiner was entitled to have the expectation fulfilled in a way that gave her some level of preferential distribution over that given to the other beneficiaries.
192Finally, while I have concluded that Ms Gardiner has not successfully established that the entitlement of the other beneficiaries should be limited to a distribution of $100,000 between them, I have not concluded that those beneficiaries' entitlement is sufficient to restrict the proper provision to Ms Gardiner to the $280,000 that she received under the will.
193I must therefore move on to the second stage of the process to consider what is the provision that ought to be made for the maintenance, education or advancement in life of Ms Gardiner, having regard to the facts now known to the Court: s 59(2) of the Act. Those facts have been set out above. This ultimately involves the making of a discretionary judgment of an evaluative nature, as suggested by the authorities referred to above. It also involves an intuitive assessment. It is not susceptible of complete exposition.
194In the light of the substantial discussion I have already undertaken of many of the factors listed in s 60(2) of the Act above, I do not propose to consider each of the factors separately and in detail. I have proceeded on the basis that the factors set out in pars (a) - (d) and (f) - (j) are the most relevant. It would be repetitive for me now to deal with these factors again.
195As I have foreshadowed above, the legal costs that will be expended by the parties to this action will have a material effect on the orders that can now be made in relation to the distribution that ought to be made of the property of the estate of the deceased. There is no other way for the Court practically to proceed except to work out first how much of the legal costs should be paid out of the estate, and then consider how the balance ought to be distributed between those persons who have claims on the estate, in order to apply s 59(2) of the Act.
196It is clear that Mr Gardiner's costs should be paid in full out of the estate. For the purposes of these reasons I have made an assumption that Mr Gardiner's costs will equal $69,000, but he will, of course, be entitled to have all of his costs paid out of the estate, even if that means that the amount that is available to be distributed to the beneficiaries becomes less than the amount that I have assumed in these reasons for judgment.
197I have considered separately above the evidence concerning the amount of the legal costs that the parties will probably incur, and also the reasons why Ms Gardiner has incurred costs at the level that she has. The evidence satisfies me that Ms Gardiner has incurred excessive costs, both because she has ignored her solicitor's advice as to the level of her involvement in the preparation of her evidence that was warranted, and because her costs cover issues that are not sufficiently related to the making of her application for a family provision order. The only evidence of the amount by which the costs incurred are excessive is the estimate of $30,000 given by Mr Carroll in his affidavit. For reasons given above, I suspect that that estimate is insufficient. However, the estimate was not challenged, and there is no evidence which would provide a proper basis for me to make a finding that the amount of excessive costs exceeded $30,000.
198I have concluded in the circumstances that it will be appropriate for Ms Gardiner to bear $30,000 of the costs of the proceedings out of her own share of the assets of the deceased's estate. Even if the excessive costs were in part the result of Ms Gardiner's psychological condition, I do not think that is an adequate reason to visit any part of the excess in costs on the other beneficiaries.
199The result is that I will proceed upon the basis that the total of the legal costs that will be payable out of the estate of the deceased will be $170,000, rather than $200,000. Ms Gardiner has already paid the $30,000 to her solicitor, Mr Carroll.
200It follows that I should proceed on the basis that the value of the estate is $670,000, rather than $640,000. One third of $670,000 is $223,300. The costs incurred have the effect of reducing each beneficiary's third share under the will by $56,700.
201I have treated the value of the Hyacinth Street property as being $675,000. That property will have to be sold, and the net proceeds of sale may be more or less than that sum. It was in any event only a hypothetical allowance for the value of the property, rather than the result of the determination of the value of the property. It will be appropriate for the Court to determine the proportions of the estate that should be distributed to the three beneficiaries as a percentage of the assumed value of the estate, rather than to make orders that specific sums be given to any particular beneficiary. I am satisfied that the evidence does not justify orders that provide a specific sum to one beneficiary in a way that throws onto the other beneficiaries the risk that on sale the Hyacinth Street property will not reach the assumed price.
202Ms Gardiner has satisfied me that a provision ought to be made in her favour that is greater than that which was made in the deceased's will. She has not, however, satisfied me that the residual provisions that should be made in favour of Mr Gardiner and Ms Bowman should fairly and properly be reduced to the level suggested by Ms Gardiner.
203Under the will the estate is divided equally between the three beneficiaries. In the manner that I have discussed above, I have concluded that the deceased's true testamentary intentions are clouded. However, it is clear that, even when the deceased's intentions were expressed most favourably to Ms Gardiner, the provision that was contemplated to be made in her favour was some 60% or so of the value of the estate. I have not taken this fact to be determinative, but I have concluded that it should be given substantial weight. It would be an extreme and unjustifiable step for the Court to ignore the deceased's wishes entirely and make no provision for a particular beneficiary out of the estate. It is to be borne in mind, however, that the evidence suggests that the period in which Ms Gardiner provided a relatively intense level of support and care to the deceased was about 1½ years.
204The essential problem at the heart of this matter is that, if the provision that ought to be made in favour of each of the beneficiaries was considered separately, and in isolation, and on an equivalent basis, the aggregate value of the three provisions would be substantially more than the net actual value of the estate. Put colloquially, the cake is too small. The problem is exacerbated by the level of the legal fees. This problem introduces an unavoidable element of arbitrariness into a process of determination that is necessarily discretionary, evaluative and intuitive.
205 Ultimately, the issue of what order ought to be made in favour of Ms Gardiner distils in a practical sense into the question of whether, and if so by how much, the third shares of Mr Gardiner and Ms Bowman of $223,300, that are left after the costs of Ms Gardiner's application are taken into account, should be reduced in order to increase Ms Gardiner's share. That proposition does not mean that I am departing from a consideration of all of the factors that are relevant contained in s 60 of the Act. The question is how far can the provisions made in favour of Mr Gardiner and Ms Bowman properly be reduced in order to increase the provision made in favour of Ms Gardiner so that that provision is as great as on balance can be achieved.
206A problem arises at this stage of the consideration. The evidence makes it clear that Ms Gardiner's expectation that she can buy her own home for a price of $480,000, and still fund her recurrent living expenses cannot realistically be achieved. Indeed, as observed above, there does not appear to be any realistic basis upon which Ms Gardiner could fund her living expenses. There was no evidence about how Ms Gardiner could get by with the expenditure of less money on living expenses, or how she could find appropriate accommodation at a lesser cost than is her preference. The consequence is that the Court is deprived of the ability to enter into arithmetical considerations to attempt to determine the amount that ought to be distributed to Ms Gardiner that is the least amount that is adequate and proper in all of the circumstances, and which least reduces the diminution in the provision to the other beneficiaries that naturally follows an increase in the distribution to Ms Gardiner.
207The approach that Ms Gardiner has taken in putting evidence before the Court in support of her application has largely been to limit that evidence to that which tends to support the making by the Court of the family provision order that Ms Gardiner desires. It is quite reasonable for applicants for family provision orders to provide evidence that is expected to persuade the Court in favour of a desired outcome. It is, however, undesirable for applicants to fail to provide the Court with reasonably specific evidence, capable of being understood in financial terms, as to a range of possible family provision orders that the Court may be prepared to make, if it is not persuaded to make the order that is desired. Applicants should recognise that the Court may assess the provision that should properly be made for other beneficiaries differently than does the applicant.
208Ms Gardiner has made it difficult for the Court to make a rational judgment as to the extent to which the other beneficiaries' shares in the estate could reasonably be reduced in order to make a proper and adequate provision for Ms Gardiner, that can be justified by an objective assessment of the accommodation and living arrangements that Ms Gardiner will be able to achieve from the provision in her favour as a result of a particular family provision order.
209I have come to the conclusion, however, that the approach that Ms Gardiner has taken does not deprive her of an entitlement to the benefit of a family provision order under s 59(2) of the Act. Rather, the approach makes it more difficult for the Court to determine the order that can properly be made in her favour
210As mentioned, Ms Gardiner has accepted that Ms Bowman should receive at least $100,000. In my judgment that is an insufficient amount in all of the circumstances. Ms Bowman's health is more parlous than that of Ms Gardiner, for the reasons given above. While she owns her own home, she is on the same pension as Ms Gardiner will be. Ms Bowman may well face substantial vicissitudes. Her future may not be settled. In the range between $100,000 and $223,300, (remembering that it is Ms Gardiner's claim that has reduced Ms Bowman's expectation from $280,000), Ms Bowman should in my judgment receive $175,000.
211Although Mr Gardiner's health appears to be better than his sisters, he does not own his own home. He may have a moderately substantial superannuation fund, but it is obvious that he has worked long and hard in arduous employment for some 30 years to achieve that result. It would not be warranted for the Court to make an order in favour of Ms Gardiner that left Mr Gardiner with less than $125,000. I have concluded that it is proper to recognise that Mr Gardiner has effectively already received a benefit from the estate in the form of about $50,000 as a result of his enjoying rent-free accommodation in the Hyacinth Street property for almost three years. In adopting this figure I have discounted the $70,200 put forward by Ms Gardiner, as I am not satisfied that the weekly rent of about $475 that is implied by that figure is justified. The allowance that I have made is somewhat arbitrary. On that basis Mr Gardiner would also receive a notional distribution of $175,000, albeit only $125,000 in cash.
212If a total of $300,000 is distributed to Mr Gardiner and Ms Bowman, the amount left out of the assumed $670,000 is $370,000. That is about 55.25% of the sum of $670,000. Of her assumed legal fees of $130,000, she has paid $91,000 to her solicitor. An order that she bear $30,000 of the costs will have the effect that $61,000 will be reimbursed to her out of the estate, and the unpaid balance paid by the estate. On these assumptions, the financial position of Ms Gardiner would be her existing $60,000, $61,000 reimbursement for legal costs already paid, plus the $370,000 distribution as a result of the proposed family provision order referred to above, which is $491,000.
213That amount is $60,000 more than the $431,000 Ms Gardiner would have had if she had not brought these proceedings. That is an unfortunate outcome for all concerned. It has occurred largely because of the effect of the expenditure of the assets of the estate on costs, which I regard as being unnecessarily high, even allowing for the order that Ms Gardiner pay $30,000 of the costs herself. It has also occurred because in my view Ms Gardiner underestimated the reasonable entitlement of her siblings to share in the estate.
214If the value of the deceased's estate after payment of the costs of the proceedings that will be borne by the estate is assumed to be $675,000, of which $370,000 is to be distributed to Ms Gardiner, $125,000 to Mr Gardiner, and $175,000 to Ms Bowman, the percentage entitlements of the three beneficiaries will be, after rounding, 55%, 19 % and 26 % respectively.