Hyland v Burbidge [2000] NSWSC 12 | Case summary

Shares in Ismeme Holdings Pty Limited $12,021,130 Shares in Ismeme Pty Limited $ 5,951,588 Loans due by those companies to the Gartner Foundation $ 7,196,187 Other assets $ 1,536,539 8 Ismene Holdings Pty Limited is the holding company of Australian Feather Mills Pty Limited. The assets of Ismene Pty Limited are, for the most part, real estate properties. Parties and Representation 9 So that there is no misunderstanding I relate that the Gartner Foundation and Cura Treinstitut, the ninth and tenth defendants have been served but have not appeared, Mr Charles Lap Hyland, the eighth defendant, has had no part in the proceedings and has not been served or at least has not been proved to have been served, Parker Nominees Pty Limited has been de-registered and removed as a defendant, Ms Anne Chi Quang is the main beneficiary under the memorandum of wishes and was the sole beneficiary under the will. For this reason she has an interest in the proceedings but it seems that she was originally joined as a defendant because she had brought her own application, which was no doubt a defensive one, and also because payments had been made to her from the assets of the Foundation after the death of the deceased. 10 At the hearing Mr Officer QC and Mr Darke appeared for Edward Kavalee, Mr Hutley SC and Mrs Stewart appeared for Mrs Ludlow Hyland Larissa and Christian; Mr White S.C. and Mr Sieb appeared for Mr Burbidge, and Mr Brereton SC and Mr Stack appeared for Hartigan Nominees Pty Limited. As there was no actual estate the interest of Mr Burbidge in this aspect of the litigation was less than that of Hartigan Nominees Pty Limited. Nevertheless Mr Burbidge had a real interest in regard to the earlier questions and some proper interest in upholding the wishes of the deceased, but to some extent I limited cross-examination by the defendants when it related to the same interest. 11 Because this judgment deals only with certain questions and follows the earlier judgment I will not repeat the facts which are set out either in my earlier judgment or in the judgments in the Court of Appeal. The terms of the memorandum of wishes signed by the deceased on 5 March 1997 are of some relevance and are set out in my earlier judgment. I will not repeat them but those passages relevant here are those which refer to Mrs Ludlow Hyland, the sums of $150,000 to be paid to each of Larissa and Christian, and the directions regarding the advisers resisting any claim against the estate or Foundation by those three persons and the provision of funds for this purpose. Mr Burbidge was, of course, an adviser. General Facts 12 The deceased was born on 15 November 1914. Mrs Ludlow Hyland was born on 12 September 1939. She met the deceased in 1966 and after a somewhat whirlwind romance married him in Bangkok on 17 March 1967 in a civil ceremony at the American Embassy. The next day they had another ceremony at the Australian Embassy in Bangkok and it appears they were then married under Australian law. At the time they met, Mrs Ludlow Hyland had been in a close friendship with a Mr Renzo de la Penne who had proposed marriage to her. The meeting with the deceased brought an end to that prospect, but she and de la Penne remained friends. After their marriage Mrs Ludlow Hyland and the deceased lived between Thailand and Vietnam for some months and during this time Mrs Hyland spent some five weeks in the United States and elsewhere collecting her belongings and fulfilling other commitments which apparently annoyed the deceased. She began work as a receptionist with the United States Military Headquarters in Saigon. She says that she was busy adapting to a new life and managing three households. She found Vietnam a very dangerous place to live. On 6 February 1968 the deceased was captured by the Viet Cong and was held in captivity. Mrs Ludlow Hyland said, and I accept, that she went to considerable efforts to secure his release and to obtain assistance from influential people to try to bring that about. She came to Australia in March 1968 as she wished to be here for the birth of a child. Larissa was born in Sydney on 12 April 1968. During this time Mrs Ludlow Hyland remained in touch with the Australian External Affairs Department and was told that her husband was still alive. When she came to Sydney she lived at first in a house her husband owned in Greenoaks Avenue, Darling Point and after a relatively short time she purchased a house in Windsor Street, Paddington and moved there with her baby daughter. 13 The Viet Cong released the deceased on 26 November 1968 and Mrs Ludlow Hyland flew to Cambodia to meet him, leaving Larissa in San Diego with her family. After the meeting the deceased and his wife flew to Bangkok and subsequently it was arranged that they would go to Sydney, but separately. Mrs Ludlow Hyland went to Saigon to collect some clothes and other things for her husband and then flew to Sydney and the deceased arrived in Sydney some time in December 1968. There is no doubt that there were difficulties in the marital relationship after the deceased was released by the Viet Cong. I will return to these later. At the present time it is sufficient to relate that they met in Rome in April 1969 for a relatively short time during which Mrs Ludlow Hyland showed the deceased some of her designs which he thought might be useful for his business. In June 1969 they moved back to Saigon, a move which Mrs Ludlow Hyland did not like, as Saigon was then subject to bombing. At this time the deceased offered his wife $150,000 plus support and education for Larissa and some money to start up a business if she would agree to divorce him within twelve months. She did not agree and says that she was trying to make the marriage work again. She appreciated that her husband was under great emotional stress due to his sufferings while in captivity. She moved back to Bangkok with Larissa and the deceased visited every few weeks. Shortly thereafter she became pregnant with Christian. The deceased reacted very badly to her pregnancy saying that he did not accept the child was his and asking his wife to get an abortion for which he would pay. The deceased insisted that she be examined by doctors he chose, all of whom confirmed that it was likely that the child was his. In December 1969 Mrs Ludlow Hyland returned to Saigon with Larissa and subsequently the deceased insisted that they should go to Bangkok. He then took her passport from her apparently for the purpose of having her registered as a permanent resident in Thailand. 14 In February 1970 the deceased began proceedings for divorce in Thailand which failed, apparently because Mrs Ludlow Hyland was not domiciled there. Before this time Mrs Ludlow Hyland had seen a solicitor and obtained advice about getting a divorce. She said that this inquiry was of a defensive nature as she needed to know what her rights were in view of the erratic behaviour of the deceased. I accept this and consider that what it goes to show is that the marriage was very unstable from the time the deceased was released from captivity. Certainly statements of Mrs Ludlow Hyland to the effect that the first time she considered divorce was just prior to her commencing proceedings in Sydney were not correct. She petitioned for divorce in New South Wales. 15 Christian was born in Sydney on 12 May 1970. In August of that year the deceased came to Sydney for the divorce proceedings. He saw Christian on this occasion for the first and only time and took Larissa with him on a visit to some friends in Melbourne. He sent a bracelet and a Bible to Christian but never saw him again. In November 1970 he offered his wife $150,000 to start her own business if she would renounce all claims against him. At about this time he commenced sending $150 per month for the support of the children until February 1974, when he increased the amount to $300 per month, that amount being paid up to about the end of 1981. In 1971 the Full Court of the Supreme Court set aside the divorce granted to Mrs Ludlow Hyland on the basis that the deceased was not domiciled in New South Wales. Thus the position was that both parties had sought divorce and both had failed through want of jurisdiction. Once the efforts for a divorce failed the deceased started the work necessary to set up the Gartner Foundation and to transfer his assets outside the reach of persons who might otherwise be able to have some claim against them in the event of his death. Mrs Ludlow Hyland moved to the United States with her children and in August 1972 obtained an order for sole custody of them. She did speak to her husband from time to time and had a meeting with him in London in early 1974 to discuss the dissolution of the marriage and the welfare of the children, but nothing resulted from this. It was during this time that the payments for the children were increased from $150 to $300 per month. In 1975 Mrs Ludlow Hyland was sent a decree of divorce from the Republic of Haiti dated 7 November 1975 purporting to dissolve her marriage on the grounds of desertion and public insults and awarding custody of Larissa to the mother and custody of Christian to the father. No party suggests that this divorce, even if properly proved, would be valid in New South Wales, or as I understand it, in any other relevant country. 16 I will go into the further life of Mrs Ludlow Hyland and her children when dealing with their separate claims. At this point it is only relevant to say that Mrs Ludlow Hyland did make some effort to encourage the deceased to have contact with his children but he refused to do so. Claim of Edward Kavalee 17 The deceased met Elizabeth Macy Anne Kavalee, the mother of Edward Kavalee, some time in 1975 and he saw her regularly on his visits to Australia for some time thereafter. They spent a lot of time at Falls Creek together engaged in the building or re-building of a ski lodge. She became pregnant in 1978. This was unexpected and was late in being realised. Upon his discovery of the pregnancy the deceased expressed some concern as to whether the child was his. Nonetheless the deceased's name appears on the birth certificate of Edward as the father. Mrs Kavalee on affidavit said that the deceased was the father. There was no cross-examination or argument on this issue although for some reason paternity was not admitted. It is clear that the answer to the question as to whether or not Edward Kavalee was a child of the deceased, must be answered in the affirmative. In some ways the attitude of the executor towards this claim is a continuation of the attitude of the deceased towards this son. 18 As I have said Edward Kavalee was born on 30 June 1979. When his mother told the deceased in Bangkok in 1978 that she was pregnant to him he said, "If you go ahead and have the child you will live the rest of your life on charity." Mrs Kavalee replied, "You can't just abandon us." The deceased then said, "I can." He did not ever see Edward. Mrs Kavalee applied for child maintenance and on 9 October 1979 was awarded $350 per week. There was no cross-examination on this but the figure seems very high. In any event the maintenance order was redeemed by agreement dated 13 May 1980 under which the deceased paid to Mrs Kavalee the sum of $23,000 in satisfaction of any further claim for maintenance on behalf of Edward. One of the recitals in the deed is that the deceased denied paternity. It is accepted that this deed is of little significance other than to show that the deceased did provide that amount towards the maintenance of Edward during his life. Mrs Kavalee in fact used the $23,000 to purchase a property in Queensland. There were various sales of properties and purchases of other properties, but eventually she sold the property she then had in Queensland to pay off the debts of a business which was unsuccessful. She had a daughter from a previous marriage and after the business failed she and her two children moved to Sydney and lived with some friends in Bellevue Hill. She and Edward were living there at the date of death of the deceased. 19 The accommodation in Bellevue Hill comprised of a room in the garden of the house belonging to some friends. It had no separate facilities and they used those in the house and had their meals with the family who owned the house. Before they moved more or less permanently into the home in Bellevue Hill the plaintiff and his mother had lived in a room in Double Bay and subsequently in a flat which Mrs Kavalee could not afford. They then moved into a house with friends in Paddington, and Edward and his mother shared a room there before finally moving back to Bellevue Hill. At some stage Edward and Mrs Kavalee moved into a two bedroom apartment in Vaucluse where they are presently living and have been living it seems for about six years. 20 Edward went to Double Bay Primary School when he came to Sydney with his mother and then to the Vaucluse High School. He got his first job at the age of ten at Flemington Markets working on Saturday mornings from 2.00 a.m. to 10.00 a.m., but that did not last for very long. Subsequently when he was twelve he worked in a shop in Paddington in the afternoons, after school and on weekends, sometimes for twenty hours a week. This lasted about two and a half years. When he was fourteen he gained a casual position at the Civic Video Shop at Rose Bay North working on Saturdays and Sundays and he has had employment with Civic Video ever since. He has had other part time gardening jobs and clerical jobs. He passed the Higher School Certificate at Vaucluse High School in 1996 with a TER of 63.55 and enrolled in a fine arts degree at the University of Sydney in 1997. However, after a few weeks he withdrew from that course and in 1998 commenced a two year tourism course at the Ultimo TAFE. He completed the first year of this course, but in 1999 commenced a degree in the Faculty of Arts at the University of Sydney. He has been interested in films and the film industry since commencing work with Civic Video and the evidence is that at the present time he wishes to pursue a career in what is described as the "post production process in film making". He considers he will be assisted in this by completion of his Arts Degree. Although there was some suggestion that the subjects which he had chosen would be of no assistance and that his intention to get involved in post production work is merely a fleeting enthusiasm, I do not think that the subjects chosen could be regarded as unhelpful, nor that they reflect upon the genuineness of his desire to pursue a career in the technical side of post production film work. Having said that there is no doubt that this a recently conceived aim, albeit that Edward Kavalee has been interested in films since he started work in the video shop. 21 There is evidence that it is unlikely that Edward would obtain entry to the Australian Film, Television and Radio School and that therefore it would be desirable for him to seek to go to one of the prestigious overseas schools, which might give him access to a career in Australia after graduation from one of those schools. It is, of course, by no means certain that entry to one of those schools could be gained because places are few and keenly sought. There is some evidence as to the cost of these courses and the cost of living overseas. There does not seem to be any direct evidence of the duration of those courses but assuming that they are for a two year period, a sum of close to $100,000 would be needed to pay for the fees and the costs of accommodation and maintenance during attendance at such a course. 22 Edward Kavalee has no assets of any value apart from some computer equipment, worth about $800. He earns between $160 and $260 per week, depending upon the number of hours he works in the video shop. For the year ended 30 June 1999 he earned a gross amount of $13,140. He has been receiving a monthly payment for some years from Ismene Pty Ltd of $433. He uses this and his earnings towards paying his living expenses while attending university, for books and the like, and makes some contribution towards the household and general living expenses. He has a liability for HECS of $4,231, which is increasing, but which will not become repayable until his income reaches a certain level. He says that since he and his mother returned to Sydney they have always lived in the Eastern Suburbs albeit in difficult circumstances, that he went to school there, that all his friends are there, that his social life for the most part is in that district and the sporting activities with which he is involved take place in that district. Thus he claims a sum sufficient to enable him to obtain accommodation in the Eastern Suburbs. He would like to have a house, so that he can provide accommodation for his mother, but if not a house then a reasonably sized apartment. Based on the evidence of Mr McGrath, the average cost of a house with three bedrooms in the Rose Bay/Vaucluse/Watsons Bay area is over $1 million and an average two to three bedroom apartment in that area, not requiring renovation, costs $650,000. However, it is clear that properties are available at substantially lower prices than this in the area. 23 The question for decision is whether the deceased failed to make adequate provision for the proper maintenance, education and advancement of his son. As it is clear that apart from the sum of $23,000 the deceased made no provision whatsoever and that this plaintiff has a need for provision, then the answer to this question must be in the affirmative, unless proper minded members of the community would have considered that no provision for this plaintiff should have been made by the deceased. To the extent to which it is relevant the plaintiff should not be regarded as an adult able bodied working son. He is twenty years of age, he has managed to maintain himself through his own efforts and with the help of his mother, and he is still undertaking a first degree at the University, albeit that he has made some attempts at other courses over the past two years, but he is not in full time employment. To some extent therefore it is not necessary to recite those passages in the judgments usually relied upon in claims by adult children, namely Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Hughes v National Trustees, Executors and Agency Co of Australia Limited (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573 and Gorton v Parks (1989) 17 NSWLR 1, although as those principles are relevant to the claims of Christian and Larissa, it is appropriate to point out that orders can be made in favour of adult children who establish need for provision without any requirement to establish special circumstances, but that does not mean that special circumstances may not give rise to a claim which would not exist in their absence. Furthermore what was said in those cases and others, such as Walker v Walker (Young J, unreported, 17 May 1996), as to the attitude to be taken towards claims where there has been no contact between deceased and child is relevant to the claims of all three children As Bryson J pointed out in Gorton v Parks at page 9, community attitudes change as to the attitude taken toward and weight given to such matters as illegitimacy and responsibility for creating new life, but that does not mean that proof of paternity and proof of need necessarily establish entitlement to provision. There may be other facts or matters which are relevant. I agree with respect, with the remarks of Young J on these matters in Walker. 24 So far as the relevance of illegitimacy is concerned, whatever may have been the position before the passing of the Children (Equality of Status) Act 1976 (now Status of Children Act 1996), the law now demands that their status as children be the same as that of those born in wedlock. That does not mean that all children are entitled to the same provision as of right; what it means is that whether legitimate or illegitimate, they are eligible persons as children of the deceased without distinction. Thus in so far as it was held in Re Wade [1946] SASR 131 that the court should not reverse the general policy of the law (which then did not recognise any rights of illegitimate children to share in the intestate estate of a father), the court should now, in the same way, follow the policy of the law as indicated by statutory provision. Thus it is not necessary to consider further cases such as Re Wren deceased [1970] VR 449, but that is not to say that the relationship or lack of relationship between parent and child is not a matter to be taken into account in a claim of an illegitimate child just as it is in the case of claims by children born in wedlock. 25 The relevant facts here are that the deceased was the father of the plaintiff, that the deceased never saw the plaintiff because he determined not to; that this was in no way the fault of Mr Kavalee, who was only ten when his father died; and that apart from the sum of $23,000 paid to Mrs Kavalee by way of settlement of the maintenance proceedings, nothing whatsoever by way of love, companionship, or financial assistance or any other form of assistance was ever provided by the deceased to his son, whom he determined should have no part in his life at all. The lack of relationship had nothing whatsoever to do with this plaintiff. Mrs Kavalee has little in the way of assets. Whether the deceased knew of or took no steps to become aware of the fact there can be no doubt that, at least in the time immediately after their move to Sydney the plaintiff and his mother lived in entirely inadequate accommodation. The plaintiff has, for at least the last five years, made quite substantial contributions towards the household expenses of his mother and towards his own maintenance, entertainment and holidays from his part-time earnings. In such circumstances in making no provision for a son who was a result of an unexpected, and, on both sides, an unwanted pregnancy, it is certain that the deceased failed to make adequate provision for his son's proper maintenance, education and advancement in life. On any basis he needs an advancement for a start in life. Thus is it necessary to consider what order should be made. 26 There can be no doubt that the absence of any relationship whatsoever must be a matter to be taken into account in determining what order should be made. On the other hand, the fact that the absence of any relationship was by the choice and probably the insistence of the father, (although there is little if any evidence of such insistence) rather than the fault of the son must also be taken into account. Where a father of great wealth takes no part in the life of his child, it may well be that proper minded members of the community would think that adequate provision entailed the making available of an amount not to compensate for what has not been done in the past and not to punish the father or his estate for past bad behaviour, but to recognise that one who has in essence been abandoned may have at least as great a claim for provision as one who has had the normal advantages of a happy home provided by a very wealthy parent. In saying this, I am of course aware that an order for interim maintenance was made and that when the funds available from the estate came to an end the plaintiff received the sum of $433 per month from one of the Ismene companies. 27 As any order in favour of any of the plaintiffs must be made out of property which would be designated as notional estate it is necessary to consider the matters which arise under ss27 and 28 of the Family Provision Act 1982. None of these matters looms large in these claims. No evidence has been adduced by the defendants as to the effect orders being made would have on any other persons. The burden of those orders would be borne by those persons who are beneficiaries under the memorandum of wishes. The absence of any such evidence, the vast assets in the Gartner Foundation, and the extent of any orders which I think it appropriate to make in respect of all four claims under the Act does not make it necessary to consider this matter further. One can proceed on the basis that having regard to the value of the property the subject of a prescribed transaction, the fact that no consideration was given for the prescribed transaction and the fact that no evidence has been put forward on behalf of those who would be affected by a designating order, the court can proceed to make that order which is required. This does not mean that the court should be generous. What it means is that there are no countervailing claims which must be taken into account, thereby limiting the extent of any order for provision which would otherwise be made. 28 Counsel for Mr Kavalee says that the provision which should be made for this plaintiff is a sum sufficient to enable him to pursue his desired career in the post production film business, to enable him to purchase a property in the Eastern Suburbs, and to enable him to set up a business when qualified to do so. Mr Kavalee said that if he was given sufficient money to buy a house in the Eastern Suburbs he would like to house his mother until he is married and his counsel submits this should not be taken to be an unreasonable expectation, having regard to the life which he has lived in the past. Against this, counsel for both defendants state that while there has been a gradual change in attitude towards the claims of an ex-nuptial child, such a person should not be given any special consideration. They say that Mr Kavalee is now in good health and able to work. He has obtained university admission, and has demonstrated that he is well able to work and can be expected to be able to maintain himself in the future. They point out that the $23,000 paid to Mrs Kavalee to buy out the maintenance order was lost or the benefit of it was lost as a result of the failure of a business of hers, not through the fault of the deceased. Mr White also points out that there is no certainty that the plaintiff would get into one of the overseas courses for which he has stated he wishes to apply; that he has only just inquired about them; and that his interest in this possible career is recently acquired. In addition Mr White points out that the cost of accommodation for those courses would not necessarily be the equivalent to the cost of accommodation in London. All of this is correct, but it does not overcome the fact that right minded members of the community might well think that where a child has led a difficult life because his mother has had no help from the father towards his maintenance, but where, at the time of death of the parent, and at the time of hearing, circumstances have changed so that there is an opportunity to provide some of the benefits, whether by way of education or advancement for the future which the maintaining parent was not able to provide at an earlier time, then adequate provision requires something additional to be provided for the future. Views may vary on this. The fact that the average parent does not provide the average child with a house has little to do with the matter. The fact that a son has done what he can to provide for his own maintenance and his own education does not mean that provision should not be made for his future education and perhaps for his maintenance for a period. 29 This is a difficult and unusual case. There is, for instance, no particular reason why it would be proper to think that the plaintiff had established a need for what might be described as first class accommodation in the Eastern Suburbs, nor that this was something that should have been provided for him by the deceased and that proper maintenance and advancement requires it. On the other hand, inattention may create a greater entitlement than in the case of a child properly attended to by the father. Considering the wealth of the deceased, or in this case, the wealth available for him to access as found by the Court of Appeal, and considering the inadequate accommodation and relatively hard life or basic lifestyle which the plaintiff has had in Sydney and the lack of resources available to the mother, I consider that provision should be made for this plaintiff which would enable him to purchase a home unit of average quality in what could best be described as a reasonably attractive location. That does not mean a harbourside unit or necessarily one with water views, nor necessarily one in Vaucluse. It seems to me that the circumstances in this case do not require provision for such specific accommodation. Nevertheless I consider that a sum of $350,000 should be allowed for this. In addition to that I think that provision should be made for this plaintiff of an additional sum of $150,000 to give him a fund for a start in life which he needs. Whether he expends that on obtaining qualifications overseas, or spends it on capital to set up his own business, or whether he uses it as a fund for security for his future or to repay HECS debts is to some extent not material. Adequate provision for advancement does not always depend on particular requirements. I think that is a proper sum. In those circumstances I have come to the conclusion that the proper order to be made in favour of this plaintiff is for the sum of $500,000. Claims of Mrs Ludlow Hyland, Larissa and Christian 30 There seems to be little doubt that as a result of the treatment to which he was subjected during the time he was in captivity under the control of the Viet Cong, the deceased came to the conclusion that his wife had been unfaithful to him and as a result of this his attitude towards her changed completely. He insulted her in public and he accused her of not being a good and faithful wife. Additionally, when he offered payment of $150,000 to Mrs Ludlow Hyland to leave he said that he wanted her to go because he did not wish to get attached to the baby Larissa, and Mrs Ludlow Hyland to start using Larissa "to get at him". When she told him that she needed time to think about the proposition she says that the deceased said to her, "Do not try and stall me. You just remember that I am very influential in this part of the world and you will come out the worse for it if you take me on, girlie." The deceased behaved in a similar erratic and difficult manner when the deceased was told about the second pregnancy. Mrs Ludlow Hyland, in her affidavit of 29 April 1999, gave further evidence of behaviour on the part of the deceased in connection with the children. She said that she agreed to a divorce in January 1970 but asked that they wait until the second child was born, after which she would move into another house until the divorce was settled. The deceased then told her that they would live together until he obtained a divorce and that he would get that done quickly and that Larissa would then stay with him. Then he said "You will not get one red cent from me". When Mrs Ludlow Hyland said that as the mother Larissa should stay with her, she said that the deceased said, "You don't seem to understand, I know what I can do in Thailand, so I can get rid of you and keep the baby. I can and I will." I accept all this evidence which it seems caused Mrs Ludlow Hyland to come to the conclusion that there was no hope of reconciliation. On the advice of her lawyers she decided to leave Thailand and left at the beginning of 1970, leaving everything she owned in Bangkok and thereafter the divorce proceedings which I have mentioned commenced. 31 Mrs Ludlow Hyland left Australia in March 1971 and returned to the United States with the children. She lived in the home of her godfather, Mr O'Reilly in New York. She stayed there for about eighteen months and during that time she sold her Paddington house to pay for legal expenses and to repay Mr O'Reilly for the financial assistance he had given to her. 32 There were some conversations between the husband and wife between 1970 and 1975 and there was one meeting in London in 1974 arranged for the purpose of trying to come to a settlement but it was quite unsuccessful. The deceased sent Christmas cards to the children up to 1978 but that was the extent of his contact with them. 33 In the meantime, after her return to the United States, Mrs Ludlow Hyland attended Columbia University and obtained a masters degree in international affairs. She also undertook examinations to become a securities broker and worked as such in a Wall Street firm between 1972 and 1974. Her income was then quite good and she acquired an apartment in New York City. However, she found this job too demanding while raising the children and left it in 1974 and became involved in a business called "Yassa Design Inc" marketing her designs and at the same time she established an art gallery or artefact and design gallery, and then later a gallery of West African art. Her businesses seem to have been quite successful up till about 1981 when additional funds were needed to set up a new gallery. She was not able to obtain the necessary funds for this and the business was lost in 1981, and she was forced to sell all her assets. During these years Mrs Ludlow Hyland contracted a disease known as Falciparum Malaria, which has left her with chronic anaemia. There was however one bright spark in that Mr O'Reilly left a property in Larchmont, Westchester to Mrs Ludlow Hyland under his will. It was not in good condition and she was not able to maintain it, and had to sell it some time in 1982. By this time her debts as a result of her business failure were such that the whole of the proceeds of sale were used to pay out the debtors. Mrs Ludlow Hyland moved then to Sag Harbour on Long Island. Before doing so she had a telephone conversation with the deceased, asking for some support for the children and their education. She said that the deceased said he would pay for Christian, but would do nothing for Larissa. She did not accept that and in the event no assistance resulted. 34 After the family moved to Sag Harbor Mrs Ludlow Hyland obtained a real estate agent's licence. She worked at this and when there was not much income coming in, she did other part time jobs as well. She also took in boarders. She filed her own petition for bankruptcy in December 1984 and was discharged in January 1986. She was constantly in debt and was having great difficulty keeping the Sag Harbor house and eventually lost it. She did not know of the death of the deceased until August 1989 when Larissa and Christian received letters from Mr Burbidge informing them that their father had died. Mrs Ludlow Hyland had other health problems. She was diagnosed as suffering from Lyme's Disease in 1987 and had problems with gallstones in 1989. She could not afford the appropriate treatment for this and she had no medical insurance. She has more recently been diagnosed as suffering from idiopathic immune thrombocytopenic purpura for which she must be tested every two months at the country health clinic as she is unable to afford to go to the laboratory to which her doctors referred her. 35 Mrs Ludlow Hyland is now living in rented premises at Watermill in the State of New York. She has an old motor car. Her only job is a newspaper run which she conducts in her own motor vehicle, earning $US220 per week from this. To complete the run she rises at 4.30 a.m. every morning. Apart from that she is unemployed, but she does receive unemployment benefits of $US289 per week under an insurance scheme from her last job. This is a result of her employment having been terminated by her last employer in January 1999, that employer apparently requiring her to achieve sales goals of $60,000 per month, which she did not achieve. She is hoping she will get her real estate agent's licence again and may then obtain a position in this industry. She has no assets apart from the motor car and some personal possessions of about $US9,000 and some antiques from her father's estate worth about $US7,000. She has liabilities of nearly $US50,000. At the present time her net income after tax is about $US446 per month and her outgoings, which are very modest, use the whole of that amount. The outgoings include $US225 per week for rent. 36 Counsel for Mrs Ludlow-Hyland puts forward her claim as being to a large extent founded on the following matters:

Hyland v Burbidge

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