The defendant did not give evidence on that topic. He said that the development approval was received just before his mother became very ill. I accept Ms Lang's evidence that her and the defendant's plan is to live in the Mona Vale property.
119 On the evidence as to the value of the distributable estate and the Curl Curl property, the defendant could acquire the Mona Vale property either by purchasing it for its market value from the estate, or by discharging a legacy to the plaintiff (to the extent the burden of the legacy fell on him) from the proceeds of the sale of the Curl Curl property. Even if the plaintiff received a legacy to the value of the entire estate, by selling the Curl Curl property, the defendant could still keep the Mona Vale property and have about $400,000 in hand to be added to his other investments. This would be more than adequate for his identified financial needs, including the need to support his younger son. It is so even on the basis that there would be a gradual reduction of his reserves of capital to meet the deficiency between his income and expenses. This is so even assuming Ms Lang does not have financial resources to contribute to the family, a matter about which he has not provided evidence.
120 I do not accept the defendant's submission that adequate provision for the proper maintenance of the plaintiff should be limited to a provision which would allow her to maintain an independent lifestyle only until she reaches stage 2 or stage 3 of the progression of her disease. Whilst at that point the costs of her maintenance will increase dramatically, neither the defendant's nor Mrs Hosking's claim on the estate warrant a refusal of provision which would enable her to live for some period at home with intensive personal care. The resources of the estate are inadequate to provide for such care until her death. (There is no evidence as to her life expectancy, except that Dr Walker clearly assumes that there is no reason to expect that she would not live beyond 65. There is no evidence as to whether, and if so, how, multiple sclerosis affects the life expectancy of those who suffer from the disease.) That does not gainsay that there would be considerable benefits to the plaintiff in maintaining her independence, even with a modified lifestyle, by being cared for at home. Neither the defendant's, nor Mrs Hosking's, claims on the estate, when assessed in terms of need, can stand comparison with those of the plaintiff.
121 If the only relevant criterion in determining what is adequate provision were the respective needs of the claimants on the estate, I consider the plaintiff would be entitled to the whole of the estate. However, need is not the only criterion, although it is usually the most significant criterion. Counsel for the defendant emphasised that he was the deceased's chosen recipient of her testamentary bounty. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, Dixon CJ said (at 19) that:
" All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. "
122 In Walker v Walker (Supreme Court of New South Wales, Young J, 17 May 1996, unreported) Young J (as his Honour then was) said (at 30-31):
" I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at 19 ."
123 This passage was approved by the Court of Appeal in Palmer v Dolman at [112] with a rider which is not presently material.
124 These observations stand as a reminder that the testator is often far better placed than the Court to make a just assessment of all of the claims on his or her estate, and that many material matters known to a testator may not surface by the time a claim for provision is adjudicated upon, or, where matters do surface, the materials made available to the Court may depart substantially from the true facts as known by the testator. That provides a very sound reason for the Court to be slow to depart from the testator's testamentary wishes (Pontifical Society for the Propagation of the Faith v Scales per Dixon CJ at 20). In the present case, this consideration has diminished weight. Whilst I can readily conceive that the deceased may have had good grounds for preferring her son as an object of her testamentary bounty compared with her daughters, having regard to the care he provided to her after her husband's death, and whilst I also readily accept that the earlier events during the upbringing of the plaintiff and Mrs Hosking cannot be reliably adjudicated on, so that the deceased may have had more grounds for preferring the defendant to her daughters as the object of her testamentary bounty, I cannot conceive how the deceased, if she were acting as a wise and just testatrix, could have made no differential provision between her daughters in her will. Both daughters were estranged from their mother. It is beyond question that the plaintiff had much greater need. By giving the plaintiff the same share of the estate as Mrs Hosking, the deceased demonstrated that she did not give proper consideration to the plaintiff's claims on her bounty. Not having done so in relation to the claims of the plaintiff compared with her other daughter readily leads to the conclusion that she did not give proper consideration to the relative claims of the plaintiff and her son. Nor does her will contain any acknowledgment of the very substantial benefits she provided to her son prior to making her will. In these circumstances, I do not consider that the fact that the defendant was the deceased's chosen recipient of her testamentary bounty should carry significant weight.
125 Notwithstanding these considerations, I do not consider that the entire estate should be awarded to the plaintiff by way of provision under s 7. Even though the deceased substantially recognised her son's contributions to her up to 2004 in the provisions she made for him during her lifetime, his exemplary care for his mother up to her death provides a claim on the estate which must be recognised. Notwithstanding her comfortable financial circumstances, and her estrangement from the deceased, I also consider that Mrs Hosking's medical condition, to a very limited extent, represents a claim which should be given effect to. For the reasons I have given in paras [96], I also consider the conduct of the plaintiff in not contacting her mother when she knew her mother was seriously ill and dying is a matter to be taken into account.
126 These matters have to be weighed against the financial needs of both the plaintiff and the defendant and their respective financial resources. The ultimate assessment of what provision is proper involves an intuitive assessment. In cases such as this, at the last and critical point of decision, the reasoning process breaks down because of the very general criteria to be applied.
127 As set out in para [17] above, I proceed on the basis that before costs of realisation, the distributable assets will be approximately $805,000. I exclude the value of the rings as the plaintiff did not suggest that any order for provision should be satisfied out of the sale of those assets. Of that estate, the plaintiff will be entitled to receive about $85,000. In other words, there is about another $720,000 of the estate from which further provision could be made in favour of the plaintiff, (less the costs of distribution).
128 The dominant considerations are the plaintiff's very substantial need and the mitigation of the defendant's claim on the estate by the other financial resources provided to him during the deceased's lifetime. In my view, the provision which should be awarded under s 7 of the Act in favour of the plaintiff out of the deceased's estate, in addition to her entitlement under the deceased's will, is a legacy of $620,000.
129 Section 13 provides that where the Court makes an order for provision out of the estate of a deceased person it may specify the beneficial entitlements in that estate which shall bear the burden of that provision and, in relation to each of those entitlements, the part of the burden which it shall bear. In the events which have happened, and before any order for provision is made, but after costs are taken into account, the entitlement of Mrs Hosking and the defendant to the estate, other than that which passes to the plaintiff under the will, is approximately 11.8% and 88.2%. If the provision to be made for the plaintiff were borne by Mrs Hosking and the defendant pro rata, Mrs Hosking's share of the estate would be reduced by $73,160 to about $12,186, and the defendant's share would be reduced by $546,840 to $88,263. Of course, a further $88,000 to be added to the defendant's financial resources would add a further measure of security for him.
130 I do not consider that such an order would work any hardship to the defendant or those dependent on him. If the defendant chose to satisfy the burden of the legacy which falls on him, he could do so by selling the Curl Curl property and moving into the Mona Vale property with his partner and child. The person who may be adversely affected by that outcome would be his elder son who would lose his residence which he is enjoying rent-free. He is an adult in employment. There is no evidence that that would be a hardship. In any event, I consider that the plaintiff's needs warrant a provision of that amount.
131 On those figures, Mrs Hosking would be left with only about $12,000 from her mother's estate, which may be further reduced by her share of the costs of realisation of assets. I see no reason to deprive her of that share in favour of the defendant. As I have said, although she is financially well-off, she has medical needs. Moreover, I am far from satisfied that the defendant has satisfied his obligation as an executor which obliged him to represent the interests of all beneficiaries. If the defendant proposed to submit, as he did, that Mrs Hosking, whose interests he was representing, should bear the burden of the plaintiff's provision in preference to him, it behoved him to give early notice of that position to her so that she could consider her position and take legal advice. It appears that the defendant did not do so. In those circumstances, I see no reason to make any order other than that the burden of the provision in favour of the plaintiff should be borne by the defendant and Mrs Hosking pro rata.
132 For these reasons, I conclude that provisions should be made in favour of the plaintiff out of the estate by a legacy of $620,000 to be in addition to the gift of a half share of the unit at Gladstone Street, Newport. The burden of the legacy should be borne pro rata by the defendant and Mrs Hosking out of their shares of the estate.
133 Counsel may wish to make submissions as to the precise order for provision to be made, and as to the time from which interest should run on the legacy. The defendant's notice of motion of 27 November 2007 will be dismissed. I will hear any argument as to costs of the notice of motion of 27 November 2007 and of the principal proceedings. Prima facie, the plaintiff is entitled to her costs of the proceedings, including reserved costs, on a party and party basis. Of course, this may or may not be affected by any offers of settlement which have been exchanged.
134 I direct the plaintiff's counsel to bring in short minutes of order in accordance with these reasons at a time to be arranged. I will then hear any argument on questions of costs.