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[2026] NSWSC 1083
Supreme Court of NSW
2026-09-09
Bennett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Luxton v Ishihara (No 2) [2026] NSWSC 1083
Hearing dates: On the papers
Date of orders: 09 September 2026
Decision date: 09 September 2026
Jurisdiction: Equity
Before: Bennett J
Decision: Accept defendants’ proposed orders for orders 6(e), 9(e) and 9(f), and plaintiff’s proposed order 9(d). See [47].
Catchwords: PROCEDURE — Final orders — Where parties ordered to confer on appropriate orders to give effect to reasons in principal judgment — Where parties could not reach agreement on all orders — Where principal judgment contemplated orders for $850,000 portable life estate — Whether portable life estate not used for accommodation should be invested by plaintiff or defendants — Whether any property acquired should be in the name of the plaintiff or defendants — Final orders made.
Legislation Cited: Succession Act 2006 s 59
Cases Cited: Bowers v Bowers [2020] NSWSC 109
Leary v NSW Trustee and Guardian [2017] NSWSC 1113
Luxton v Ishihara [2026] NSWSC 943
Nevin v Nevin-Large [2026] NSWSC 1009
Category: Consequential orders
Parties: Rosalie Fransisca Luxton (Plaintiff)
Melissa Rosalind Ishihara (First Defendant)
Vanessa Ruth Luxton (Second Defendant)
Representation: Counsel:
M Young SC (Plaintiff)
M Condon SC (Defendants)
Solicitors:
Phoenix Attorneys (Plaintiff)
Robertson Saxton Osborne (Defendants)
File Number(s): 2024/00335222
Publication restriction: Nil
I published the principal judgment in these proceedings on 6 August 2026: Luxton v Ishihara [2026] NSWSC 943 (Principal Judgment or PJ). This judgment presumes familiarity with the Principal Judgment. Defined terms in the Principal Judgment will be used here. I will also continue to refer to the parties to the proceedings by their first names, without intending any disrespect or overfamiliarity.
In the Principal Judgment, Rosalie, the widow of the deceased, was successful in her application for a family provision order. The defendants were the two daughters of deceased from his first marriage. In deciding to make an order for family provision, I had been satisfied as to the following (at PJ [297]):
“1. Adequate provision for the proper maintenance, education or advancement in life of Rosalie was not made by the Will of the deceased; and
- The appropriate order for further provision would be for Rosalie to be entitled to a further $1,150,000 of provision, $850,000 of which will be the subject of a portable life estate, or other arrangement where that amount is to be returned to the estate on Rosalie’s death.”
In the orders I made on 6 August 2026, I made an order for the parties to provide by email to my Chambers agreed short minutes of order to give effect to the Principal Judgment and to resolve the issue of costs by 27 August 2026.
Failing any agreement, I also made orders timetabling the provision of written submissions by the parties, together with an order that issue of appropriate orders and/or costs would be dealt with on the papers.
Whilst the parties agreed on most of the orders to give effect to the Principal Judgment, including the orders as to costs, the terms of four of the orders, being Rosalie’s proposed orders 6(e), 9(d), 9(e) and 9(f), were not agreed.
Accordingly, the parties have provided my Chambers with written submissions in accordance with the Court’s orders. I have received and had regard to the following sets of proposed orders and written submissions:
Plaintiff’s proposed orders (PPO);
Defendants’ proposed orders (DPO);
Plaintiff’s written submissions dated 27 August 2026 (PWS1);
Defendants’ written submissions dated 27 August 2026 (DWS1);
Plaintiff’s written submissions in reply dated 31 August 2026 (PWS2); and
Defendants’ written submissions in reply dated 1 September 2026 (DWS2).
As the core task of the parties following the publication of the Principal Judgment was to provide agreed short minutes of order “to give effect to this judgment”, the starting point of any consideration of competing versions of proposed orders is to confirm the relevant terms of the Principal Judgment.
By way of background to this issue, at a broad and impressionistic level, I consider that the majority of the evidence of Rosalie, the evidence of the defendants, the time spent during cross-examination, and the oral and written submissions provided, centred on the issue of accommodation for Rosalie. In keeping with this, when considering Rosalie’s future needs in the Principal Judgment, whilst I gave some consideration to Rosalie’s future needs in general (PJ [170]-[172]), I gave extensive consideration to her accommodation needs in particular (PJ [173]-[196]). Rosalie’s accommodation needs were ultimately central to my conclusion that adequate provision for the proper maintenance and advancement of Rosalie had not been made by the Will of the deceased (compare PJ [242]-[245] on accommodation with [246] on future needs in general).
Such a focus stemmed from what Rosalie herself had claimed. For example, I recounted a distilled summary of submissions Rosalie had made in relation to provision (PJ [260]):
“Underpinning the terms of Rosalie’s Plan A and Plan B was said to be her various needs: $2,604,800 for Hyegrove; $24,000 to repay the loan to her ex brother-in-law; cash to buy a replacement car; plus an amount for future contingencies (TR P64 L1-22).”
As PJ [260] highlights, in relation to potential suitable accommodation, Rosalie’s only proposal was for accommodation at Hyegrove, which I in turn accepted was the “only suitable [accommodation] option from those put forward in evidence” (PJ [243]).
In weighing up all of the relevant considerations, I came to the following conclusion (PJ [276]-[278]):
“[276] In relation to the order I propose to make, I note that Rosalie will already have $1,750,000 (or perhaps more on the executors’ 2026 estimate) to put toward the “Hyegrove costs”, which total $2,604,000. I have calculated the Hyegrove costs by adding together the cost of the accommodation ($2,100,000) and the “membership fee” ($504,000). If Rosalie is provided a further $850,000 (to her own $1,750,000), then she will have available a total of $2,600,000, which will essentially meet the Hyegrove costs.
[277] This total of $2,600,000 will be tied up in (portable) accommodation during Rosalie’s lifetime, with the $850,000 portable life estate component from the estate of the deceased will be returnable to the estate on Rosalie’s death.
[278] Not the subject of the portable life estate, however, will be $300,000 of the $1,150,000. This will be available to Rosalie to assist in maintaining her lifestyle (which might include travel), supplementing her income, and provide a buffer for contingencies.”
In coming to the conclusion that part of the provision that ought to be made ought to be the subject of a portable life estate, I balanced the interests of Rosalie, on the one hand, against the interests of the defendants (and others), on the other hand.
It is evident from the terms of PJ [277] that, in the context of the pellucidly clear submissions made by Rosalie of her pressing need for funds to go towards accommodation, Hyegrove in particular (PJ [260]) (see [9] above), that my expectation was that Rosalie would use the “$850,000 portable life estate component” for accommodation.
More generally, a consideration evident throughout the Principal Judgment was a respect for Rosalie’s independence and self-reliance (PJ [38]-[40], [46]). In keeping with this, in addition to the $850,000 for accommodation, I made provision for a further $300,000 that was not subject to a life estate. In this, Rosalie will be in a position to make independent and autonomous decisions about how she will use this cash and/or otherwise invest it securely.
It will be noted, however, that I did not impose a condition in relation to the “$850,000 portable life estate component” that it must be used in securing accommodation (see Leary v NSW Trustee and Guardian [2017] NSWSC 1113 (per Ward CJ in Eq) and Bowers v Bowers [2020] NSWSC 109 (per Hallen J)). It will be for Rosalie to decide how she chooses to use the provision made for her. Those choices will be made in the context of the nature of the provision, where a component of the provision is a portable life estate and a portion is Rosalie’s absolutely, which was the order the Court considered ought to be made having regard to all of the circumstances.
I came to the conclusion that it is for Rosalie to decide how she uses the provision made for her because, as I have observed elsewhere, I am of the view that community expectations are such that independence and self-determination is the default position when making provision for an adult living in the community (Nevin v Nevin-Large [2026] NSWSC 1009 at [576]). Independence and self-determination will only be restricted to the extent the Court considers it required when exercising its discretion, again, having regard to all of the circumstances. An example of this will be where an order for a portable life estate is made. Accordingly, I note it is open to Rosalie to choose to use the benefit of the funds for a purpose other than accommodation. For example, it would be open to Rosalie to decide to use the $850,000 portable life estate component to obtain the benefit of the interest on it, once invested.
I will now address the plaintiff’s four proposed orders not agreed, being 6(e), 9(d), 9(e) and 9(f).
In these reasons, when I refer to “accommodation”, I am also referring to any accommodation, including “Retirement Accommodation”, that Rosalie might choose.
“6. Order that, upon sale of the North Willoughby Property, and in lieu of the provisions in the deceased’s Will in relation to that property, the net proceeds of that sale (that is the proceeds of sale less expenses such as conveyancing costs and agents commission) are to be paid as follows:
…
e. fifthly, the sum of $850,000 is to be paid to the Plaintiff to be held by her as a life estate, to constitute the Fund and be held in accordance with the terms of Order 9 below;”
**“**9. The life estate provided for by order 1(b)(ii) shall be constituted as follows:
…
(e) if the Fund, or any portion of the Fund, is not required to acquire an interest in real estate for her own accommodation or Retirement Accommodation, then (subject to the plaintiff’s overriding duty to preserve the capital of the Fund, such portion is to be invested by the plaintiff in the manner that a prudent investor would invest money, with the plaintiff being entitled to any interest, income or other fruits generated by the Fund. In the event that the plaintiff proposes to make any investment of any part of the Fund as per this provision, however, she must notify the Estate in writing of the proposed investment at least 14 days in advance of making it, and then upon making the investment she is to notify the Estate within 7 days of the investment that the investment has been made and of all details pertinent to the investment;
(f) the Estate may make reasonable enquiries of the plaintiff from time to time in relation to the application of the Fund, which the plaintiff is obliged to answer within a reasonable time. The Estate can also call upon the plaintiff from time to time to provide an account in relation to the application of the Fund, but no more frequently than once per year;”
“(e) if the Fund, or any portion of the Fund, is not required to acquire an interest in real estate for her own accommodation or Retirement Accommodation, then (subject to the plaintiff’s overriding duty to preserve the capital of the Fund, such portion is to be invested by the plaintiff in an interest-bearing account with an Australian financial institution, with the plaintiff being entitled to any interest, income or other fruits generated by the Fund. In the event that the plaintiff proposes to make any investment of any part of the Fund as per this provision, however, she must notify the Estate in writing of the proposed investment at least 14 days in advance of making it, and then upon making the investment she is to notify the Estate within 7 days of the investment that the investment has been made and of all details pertinent to the investment;”
As already stated above (at [12]), in coming to the conclusion that part of the provision that ought to be made will be the subject of a portable life estate, I balanced the interests of Rosalie, on the one hand, against the interests of the defendants (and others), on the other hand.
For their part, the defendants propose the following versions of the above PPO:
“6. Order that, upon sale of the North Willoughby Property, and in lieu of the provisions in the deceased’s Will in relation to that property, the net proceeds of that sale (that is the proceeds of sale less expenses such as conveyancing costs and agents commission) are to be paid as follows:
…
e. fifthly, the sum of $850,000 is to be paid to the defendants as executors, to be held by them pending utilisation as the Fund (as defined herein);
…
9. The life estate provided for by order 1(b)(ii) shall be constituted as follows:
…
(e) if the Fund, or any portion of the Fund, is not required to acquire an interest in real estate for her own accommodation or Retirement Accommodation, then such portion is to be paid to the executors of the deceased’s estate to be invested in an interest-bearing account with an Australian financial institution as reasonably required by the plaintiff who shall be entitled to any interest, generated by that capital, save that any such investment is subject to the overriding duty to preserve the capital of the fund;”
Given the terms of DPO 9(e), there is no need for a response to PPO 9(f).
(a) Although previously “civil enough”, it cannot be said the parties were ever on “good terms”, as particularly demonstrated by the recent “hotly contested” family provision proceedings (PWS1 at [6]); (b) The orders are crafted so as the parties are “forced to interact in future as little as possible” (PWS1 [7]); (c) If the $850,000 portable life estate, or any part of it, is held by the defendants, the defendants will effectively be acting as trustees. Rosalie will have to go to them “cap-in-hand” if she wishes to invest any of the funds, and must rely on them to pay any income that arises from investment (PWS1 [10]); (d) Rosalie will be required, for the rest of her life, to “interact repeatedly with the Defendants to ensure that her $850,000 life estate is applied according to the Plaintiff’s wishes” (PWS1 [11]); and (e) The DPO “gives power to the Defendants over every major financial decision for the reminder of the Plaintiff’s life” (PWS1 [11]).
The defendants, for their part, have had regard to the terms of the Principal Judgment and properly noted that PJ “[276] - [277] determines that the sum of $850,000 will be ‘tied up in (portable) accommodation during Rosalie’s lifetime’”, and that the intended use of much of any provision was to be for use in securing appropriate accommodation (DWS1 [1] and [3]).
The defendants submitted that they have a legitimate interest in preserving the $850,000 portable life estate as remaindermen to whom the money will flow back on the plaintiff’s passing (DWS1 [5]; DWS2 [3]). The defendants pointed to the fact that the defendants owe a duty of care as executors of the estate to ensure the money is managed appropriately (DWS1 [7]).
I am of the view that the defendants’ submissions properly reflect the terms of the Principal Judgement and accept them. In this, I consider that the defendants’ proposed orders, rather than Rosalie’s proposed orders, best give effect to the judgment.
If Rosalie is to acquire an interest in any accommodation and the defendants, on behalf of the estate, were to be involved in the transfer of any funds, then this will likely be a one-off event. I consider it inherently improbable that a 79-year-old widow, with multiple medical conditions, will be regularly changing her accommodation.
Further, Rosalie’s submissions surrounding Hyegrove emphasised that being looked after as she aged, Hyegrove’s particular services, such as emergency care response, and Hyegrove’s location, were important elements of that accommodation choice (PJ [175]-[183]). Frequent changing of accommodation was not foreshadowed and is otherwise inconsistent with the submissions made by Rosalie on the issue of accommodation.
While I accept it is conceivable Rosalie could change accommodation a second time and, at a stretch, three times, I do not consider it likely that she will be regularly changing accommodation.
Therefore, I do not consider that having to contact the defendants when an accommodation change is required will be onerous, nor do I consider that any consequent contact is properly described as having to “interact repeatedly” with the defendants.
The accommodation Rosalie chooses to acquire an interest in, or not, is up to Rosalie. If Rosalie chooses accommodation that will only be suitable for her for a short while, and that requires frequent changing, there is nothing to stop her from choosing that option. Similarly, if Rosalie decides to acquire an interest in accommodation, but in doing so, chooses not to rely on the $850,000 portable life estate component, then that is also a matter for her. However, there will be consequences that flow from each of these decisions, which Rosalie herself will be responsible for having set in motion. One of those consequences may be an increased need to interact with the defendants.
If Rosalie uses the $850,000 portable life estate component to go towards the acquisition of an interest in accommodation, be it Hyegrove or some other suitable option, and if that accommodation is able to meet her needs as she ages and as her needs increase, then contact with the defendants will most probably be one-off (DWS2 [4]).
To the extent that Rosalie must interact with the defendants to use or reapply the $850,000, for instance if Rosalie wishes to use it to buy property, Rosalie will not be required to go to the defendants “cap-in-hand”. As pointed out by the defendants, Rosalie has an “unequivocal right” to that sum of money, including to receive the interest of any invested sums thereon or to use of the funds to acquire an interest in accommodation (DWS2 [4]).
I note Rosalie will also have access to some $2,050,000 of her own funds (the likely $1,750,000 for her half of the Marital Home, plus the $300,000 provision), over which she will have complete control and for which she will not be accountable to the defendants.
For these reasons, I accept the terms of the defendants’ proposed orders and am of the view that they achieve a balance between independence and self-reliance for Rosalie on the one hand, and, on the other, security for and avoidance of risk to the estate (see both DWS1 and DWS2). Whilst I note the updated, more precise form of 9(e) proposed by the plaintiffs, I am still of the view that, should any of the $850,000 not be used to acquire an interest in real estate, resulting in risk, that risk would be more appropriately managed by the defendants as executors of the estate.
“9. The life estate provided for by order 1(b)(ii) shall be constituted as follows:
…
(d) the plaintiff is entitled to use the Fund from time to time to acquire the right to occupy retirement or nursing home accommodation in Australia (or any substitute thereof) (collectively Retirement Accommodation);”
“(d) the plaintiff is entitled to use the Fund from time to time to acquire the right to occupy retirement or nursing home accommodation in Australia (or any substitute thereof) (collectively Retirement Accommodation), with such right to be in the name of the executors of the deceased’s estate unless the provider of the Retirement Accommodation requires the right to be in the name of the plaintiff;”
Rosalie does not provide any specific argument against this proposed order, and I gather she relies on the general tenor of her submissions, centrally being that she wishes to have control of her finances and to limit the contact she has with the defendants.
In support of DPO 9(d) the defendants claim the order will provide a “measure of protection”, however do not state how this order would provide such a measure of protection over and above all of the protections that will already be in place. The protections already in place under the defendants’ proposed orders are the orders that:
The $850,000 provision is designated as being subject to a life estate, which is to be paid to the deceased’s estate on Rosalie’s death (DPO 1; 9(a));
Rosalie must preserve the capital of the $850,000 (DPO 9(b));
Rosalie consents to the defendants lodging a caveat over any realty acquired with the $850,000, giving notice of its interests in the $850,000 (DPO 9(f)); and
In the event Rosalie uses the $850,000, or any portion of it, to acquire Retirement Accommodation, then Rosalie must upon request by the defendants provide an irrevocable authority to the provider of the Retirement Accommodation, in the form reasonably required by the defendants, requiring the $850,000 (or such of it as is refundable by the provider of the Retirement Accommodation) to be repaid to the deceased’s estate upon Rosalie’s death (DPO 9(g)); and
Rosalie must provide details to the defendants of any interest in the Retirement Accommodation she has used the $850,000 to acquire, and a copy of the contract by which she acquired such an interest, within 14 days of the acquisition (DPO 10).
I am of the view that the agreed orders referred to above provide ample protection to the defendants in relation to ensuring that the $850,000 portable life estate component eventually returns to the estate of the deceased upon Rosalie’s death.
I do accept the defendants’ submission that Rosalie’s name being attached to any accommodation she occupies may delay the return of the $850,000 to the deceased’s estate after Rosalie’s death. However, I consider that the return of Rosalie’s life estate to the deceased’s estate will always take some unravelling, and this process is not likely to be expeditious in either scenario.
I am of the view that, as a matter or ordinary human experience, it may be important to Rosalie for her own name to be attached to any accommodation she lives in, in keeping with basic understandings of independence and autonomy. So much was a central concern in the Principal Judgment, as, in determining the amount of provision to be given to Rosalie, I considered that Rosalie’s lifestyle prior to the death of the deceased included living “with dignity and peace of mind” (PJ [170]), and that appropriate provision would assist Rosalie in maintaining her lifestyle (PJ [278]). To the extent that Rosalie wishes not to have DPO 9(d) in place, I give Rosalie’s wishes greater weight than the defendants’ concerns around an expedient return of the $850,000 to the deceased’s estate. Accordingly, I decline to make the order sought by the defendants.
The final orders set out below are largely those agreed by the parties. For the four orders that were the subject of dispute, for the reasons already explained, I have accepted the defendants’ proposed orders for 6(e), 9(e) and 9(f), and the plaintiff’s proposed order for 9(d).
In stating this, I note that in reply submissions there appeared to be some agreement in relation to PPO 9(e) as amended, however, the agreement ultimately appeared to me to be illusory (PWS2 at [4] and DWS2 at [2]) and so I preferred the clarity of the original DPO 9(e).
For the reasons set out above, I make the following orders:
Order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) that, in lieu of the provision made for the plaintiff in clauses 6 and 7(d) of the will of the late John Robert Luxton (the deceased) (including any right to the residue of the estate):
(a) the property known as X Cambridge Street, North Willoughby (the North Willoughby Property) be sold within 6 months of the making of these orders and otherwise pursuant to these orders and the agreement noted herein; and (b) the plaintiff receive a legacy payable as follows from the deceased’s half interest in the North Willoughby Property:
(i) $300,000 absolutely; and (ii) $850,000 subject to a life estate on the terms set out in these orders and in favour of the defendants as executors of the deceased’s estate.
(a) the North Willoughby Property to be marketed and prepared for sale; and (b) for vacant possession to be given upon completion,
including but not limited to removing rubbish, effecting necessary cleaning and minor repairs and permitting prospective purchasers to inspect it.
(a) they will use their best endeavours to agree upon the identity of, and appoint, an agent for sale. (b) If they cannot agree on the selection of the sale agent within 14 days of the making of these orders, they parties will do all things necessary to jointly request that the President of the Real Estate Institute of NSW nominate a sale agent (the Agent). That nomination made by the Real Estate Institute of NSW shall be binding upon the parties. (c) Within 14 days of the selection or nomination of the Agent for the North Willoughby Property as provided for above, the parties will execute all documents reasonably requested by the Agent for the sale of the property and, in the event that the parties cannot agree on the terms of the Agent’s contract within that time, the Agent’s contract is to be the Agent’s standard terms and conditions with the agent’s standard fees. (d) The parties shall give such instructions to a solicitor or licenced conveyancer (the Conveyancer) to act on the sale of the property as agreed by the parties within 14 days from the selection or nomination of the Agent, and failing agreement do all things necessary to request nomination of a solicitor by the President of the Law Society of New South Wales, and such nomination shall be binding upon the parties. (e) The North Willoughby Property shall be made available for sale by public auction if not sold beforehand at a price agreed acceptable to the parties, and that auction is to be held on a date within six weeks from the date of selection of the Agent at a reserve price to be agreed between the parties and, failing agreement of a reserve price, to be determined by the Agent (the First Auction). (f) In the event the North Willoughby Property does not sell at the First Auction, then the parties shall market the property for sale with the Agent by way of private treaty for a further period of 6 weeks during which time the parties shall accept any offer made to purchase the property which is within 5% of the reserve price of the First Auction unless the parties otherwise agree in writing. (g) In the event the North Willoughby Property is not sold at the First Auction and is not sold in the period provided for sale by way of private treaty pursuant paragraph 4(f), then the parties shall market the property for sale by public auction to be held on a date within 6 weeks of the date of the conclusion of the period of sale by private treaty at a reserve price 5% below the reserve price at the First Auction, unless the parties otherwise agree by writing and if the property does not sell at the next auction sale, then it shall be offered for sale at recurring periods of 6 weeks and the reserve price shall reduce on each occasion by 5% less than the previous reserve price until the property is sold. (h) In the event that the reserve price set for the auction is not reached, the parties will be available (in person or by telephone) to negotiate with the highest and second highest bidder and accept any offer to purchase that is the highest made within 5% of the reserve price set for that auction unless the parties otherwise agree in writing. (i) The parties together are to execute the contract for sale, and in the event that the parties fail to agree on the terms of the contract for sale, the terms recommended by the Conveyancer acting on the sale shall be adopted. (j) The parties are to cooperate in every way with the Agent in relation to the sale of the Property at all times as requested by the Agent and ensure that the Property is at all times in a clean and tidy condition. (k) The parties are to execute all other documents necessary to complete the sale within the time required by the contract for the sale to ensure that the purchasers do not have the right to terminate or rescind due to failure to do so.
(a) first, by way of reimbursement of the Estate for the costs incurred by it referred to in order 3 above; (b) secondly, the plaintiff is to receive, in her capacity of tenant-in-common of the North Willoughby Property, 50% of the remaining proceeds of sale (representing the proceeds of her half share as tenant in common); (c) thirdly, the costs of all of the parties of these proceedings are to be paid from the remainder (or, if already paid, reimbursed from the remainder), with the defendants’ cost to be paid upon an indemnity basis and the plaintiff’s costs on a party/party basis (or if those sums have not been quantified, the sums to be paid on this account are to be the defendants’ reasonable estimate of the costs payable); (d) fourthly, the sum of $300,000 is to be paid to the plaintiff absolutely in satisfaction of order 1(b)(i); (e) fifthly, the sum of $850,000 is to be paid to the defendants as executors, to be held by them pending utilisation as the Fund (as defined herein); (f) sixthly, the sum of $5,000 be paid to the Trustees of the Roman Catholic Church for Our Lady of Dolours in the Catholic Parish of Chatswood; (g) seventhly, the sum of $5,000 be paid to the Trustees of the Roman Catholic Church for the Catholic Parish of Lower Noth Shore; and (h) eighthly, the remainder of the proceeds of sale are to be paid to the defendants equally in their capacity of beneficiaries of the Estate.
(a) the sum of $850,000 received by the Plaintiff (the Fund) is held by the plaintiff only for the duration of her life and upon her death is to be paid from the plaintiff’s estate to the deceased’s estate; (b) the plaintiff must preserve the capital of the Fund, however the plaintiff is entitled to retain for her own benefit any interest, income or other fruits generated by that capital; and (c) the plaintiff is entitled to use the Fund from time to time to acquire an interest in real estate in Australia for her own accommodation; (d) the plaintiff is entitled to use the Fund from time to time to acquire the right to occupy retirement or nursing home accommodation in Australia (or any substitute thereof) (collectively Retirement Accommodation); (e) if the Fund, or any portion of the Fund, is not required to acquire an interest in real estate for her own accommodation or Retirement Accommodation, then such portion is to be paid to the executors of the deceased’s estate to be invested in an interest-bearing account with an Australian financial institution as reasonably required by the plaintiff who shall be entitled to any interest generated by that capital, save that any such investment is subject to the overriding duty to preserve the capital of the fund; (f) the plaintiff consents to the defendants lodging a caveat over any realty acquired with the Fund, giving notice of its interest in the Fund; and (g) in the event the plaintiff uses the Fund, or any portion of it, to acquire Retirement Accommodation, then the plaintiff must upon request by the executors of the deceased’s estate provide an irrevocable authority to the provider of the Retirement Accommodation, in the form reasonably required by the executors of the deceased’s estate, requiring the Fund (or such of it as is refundable by the provider of the Retirement Accommodation) to be repaid to the deceased’s estate upon the plaintiff’s death.
(a) details of any interest in any Retirement Accommodation she has used the Fund to acquire; and (b) a copy of any contract by which she acquired such an interest,
such information to be provided within 14 days of the acquisition thereof.
**********
Luxton
Ishihara (No 2)