Moore v Randall & Anor

Judgment 1HIS HONOUR : These proceedings concern the estate of Lorna May Randall, who died on 12 March 1999. Probate of her will was granted to the defendants on 21 December 1999. 2The plaintiff, Margaret Moore, is one of four children of the deceased. She brings the proceedings by her tutor, the NSW Trustee and Guardian. The Protective Commissioner (now the NSW Trustee and Guardian) was appointed as financial manager of the plaintiff's estate by the Guardianship Tribunal on 30 September 2005. 3The summons was filed on 19 April 2011. The relief claimed in the summons is, in substance, an order pursuant to s 16(2) of the Family Provision Act 1982, for the extension of time for the commencement of proceedings for an order for provision under that Act. If that extension is given, an order is sought pursuant to s 7 of the Family Provision Act for provision for the plaintiff out of the estate and the notional estate of the deceased. In the course of submissions I was advised by counsel for the plaintiff that the order for provision that would be sought would be in the sum of $70,000. If that order for provision were made, it would be satisfied out of the deceased's estate, which is still in the hands of the trustees. It was indicated that no order would be sought to designate property as notional estate. 4The further substantive relief sought is for defendants, who are the trustees of the estate, to provide accounts. In the summons the order sought was for the provision of accounts for the period commencing on 12 December 1999 to date. But in submissions, counsel for the plaintiff indicated that accounts would be sought only from the period from 14 March 2008. I will return to the significance of that date shortly. 5The deceased left a will made on 18 November 1998. After making specific pecuniary legacies, she dealt with the residue of her estate as follows: " RESIDUE OF ESTATE 12) The residue of my Estate not otherwise disposed of is to be divided into four (4) equal parts and held upon trust and distributed as my Trustee in his absolute discretion thinks fit as to one such part to each of my beloved children Margaret, Yvonne, Keith and Brian. 13) My Trustee shall have the absolute discretion to postpone the sale of my real estate. ... TRUST 18) My Trustee is to hold on trust for her life the one part of the residue of my estate for Margaret. 19) My Trustee as he thinks fit in his absolute discretion, may pay to Margaret her share of my residual estate such part of the capital and any income arising from it to her for her advancement and benefit in life. Part of such capital and income arising may, at the discretion of my Trustee, be utilised by Yvonne to accompany Margaret on an overseas or domestic travel tour. 20) The three parts of the residue of my estate to be distributed to Yvonne, Keith and Brian, may in full or part, at the discretion of the respective child and with the agreement of my Trustee, be held in trust for their respective life. RESIDUE OF TRUST 21) Upon the death of Margaret, that part of the capital and income arising from her part of my residual estate that remains with my Trustee shall be divided equally between Cassandra, John, Andrew and Michael as shall survive Margaret and be distributed as my Trustee in his absolute discretion thinks fit. " 6From time to time, all parties appeared to have assumed that the effect of the will was that each of the children of the deceased became entitled absolutely to a one-quarter share of the residue. At least so far as the share of the plaintiff is concerned, that is not correct. 7The effect of cll 12 and 13 of the will is that the trustees have a discretion in relation to the distribution of the four equal parts of the residue. Under those clauses, the trustees do not have a discretion to give one child more than a one-quarter of residue. The discretion as to distribution is a discretion as to the time at which distribution can be made, or perhaps, the manner in which distribution should be made, such as whether a share of the estate be distributed in specie, or whether the estate should be all converted to money and be distributed in money. 8By cl 18, read with cll 19 and 21, the interest of the plaintiff in the one-quarter part of residue is a life estate. If cl 18 stood alone, the plaintiff would be entitled to the income of the estate referable to her one-quarter share of residue. 9This is qualified by cl 19. By cl 19, the trustees have a power to advance capital to the plaintiff which would otherwise pass on the plaintiff's death to her children under cl 21. They have the power under cl 19 to pay capital referable to the plaintiff's one-quarter share for the plaintiff's advancement and benefit in life. That is a discretionary power, and is to be exercised in good faith. 10Clause 19 also confers a discretionary power to pay income, referable to the part of the residue held for the plaintiff, for her advancement and benefit in life. 11The necessary implication of that power to pay income is that the trustees also have a discretion to defer payment of income to the plaintiff. If that were not so, the provisions of cl 19 conferring a power to pay income would otiose because the plaintiff would in any event be entitled to income pursuant to cl 18. 12The plaintiff remains entitled to the income attributable to her one-quarter share of residue, even if the trustees defer payment of it from time to time. It is only if, and to the extent, that capital or income has not been paid to the plaintiff referable to her share of residue, that property will pass to her children under cl 21. 13The effect is that by the will the trustees have the discretion as to how much of the plaintiff's share of the residuary estate is to be paid to her and when it is to be paid. That discretion is perfectly explicable by the disability from which the plaintiff suffers: a disability recognised by the testatrix in the will. She urged her children to take good care each other and of Margaret. 14As I have said, on 30 September 2005, the Guardianship Tribunal ordered that the estate of the plaintiff be subject to management under the Protected Estates Act 1993 and committed the management of the estate to the Protective Commissioner. The Tribunal referred to the plaintiff's admission that she could not manage her money, or budget for necessities. It accepted evidence that she is vulnerable and easily influenced by those with whom she is in immediate contact. 15The first defendant, Mr Keith Randall, proposed himself for appointment as the plaintiff's financial manager. The Tribunal considered that if Mr Keith Randall were appointed as his sister's financial manager, he would be placed in a situation of conflict in making decisions on his sister's behalf as her financial manager when those acting on her behalf may need to challenge actions that had been, and would in the future be taken by him, as executor of the deceased's estate. 16On 16 January 2006, a solicitor who had been assisting the plaintiff prior to the making of the financial management order, provided advice to the Office of the Protective Commissioner in relation to the plaintiff's interest in the estate. Relevantly, for present purposes, the solicitor advised that there was an issue as to whether the defendant's trusteeship could be " overturned ", so that funds would be held beneficially for the plaintiff and be administered for the Protective Commissioner. He advised that the most direct means of dealing with that question would be by bringing proceedings under the Family Provision Act on the basis that the performance of the trustees to that date indicated that the provision made for the plaintiff in the will was not adequate provision for the plaintiff's proper maintenance and advancement in life. He said that whilst such a claim would be outside the limitation period, because the plaintiff was under a disability, and because the Protective Commissioner had only been recently been appointed as financial manager, it was likely that the time limitation would not be a problem. 17Proceedings were filed by the plaintiff through the Protective Commissioner as her tutor on 23 February 2007 against the first and second defendants. The orders sought included an order that the defendants verify, file and pass accounts in respect of their administration of the deceased's estate and an order that they be removed as trustees. No order was sought for provision pursuant to s 7 of the Family Provision Act . 18On 14 March 2008 McLaughlin AsJ ordered that the summons be dismissed and that the plaintiff pay the defendant's costs. His Honour recorded that the parties had reached an agreement: " that the defendants should pay to the Protective Commissioner a sum of $71,000 for the absolute use of the plaintiff in full settlement of the plaintiff's interest in the estate of the deceased, and that there should, in return for that payment, be a release of the defendants from certain undertakings which had been given to the Court. " 19His Honour observed that payment of a lump sum from the defendant to the plaintiff was not part of the relief sought in the summons. The parties had not reached a concluded agreement in relation to such a payment. 20McLaughlin AsJ recorded that the proposal was agreed to by the plaintiff, only on the basis that the plaintiff's costs in the sum of $18,300 be paid by the defendants to the plaintiff. The effect of the estate bearing those costs would be that three of the four beneficiaries would, in practical terms, bear three-quarters of the plaintiff's costs. There being no concluded agreement in respect of that matter, his Honour dealt with the claims for relief in the summons. His Honour said: " 12 It does not appear, from the material before me, that the Protective Commissioner, through the members of his office, was fully aware of the absolute discretion vested in the defendants under the terms of the will. The Protective Commissioner seems to have adopted the approach that he was entitled to require the defendants to verify, file and pass accounts in respect to their administration of the deceased's estate before satisfying himself that there was any conduct on the part of the defendants which would justify them ever being required to carry out that task. ... 16 If there had been some evidence that the defendant executors were failing to carry out their responsibilities under the terms of the will then doubtless the Protective Commissioner would ultimately have been entitled to the first relief which is sought in the summons. Certainly there is no ground whatsoever for an application on the part of the Protective Commissioner for the removal of the defendants as trustees of the discretionary trust created in favour of the plaintiff. ... 26 I am not persuaded that the plaintiff has upon the evidence established an entitlement to relief of the nature sought in the summons. I have already expressed my view that the application for the verification, filing and passing of accounts is premature, and that there is no evidence whatsoever which would justify the removal of the defendants as trustees. Accordingly, I propose to dismiss the summons. Since costs normally follow the event, I propose to make an order the plaintiff pay the costs of the proceedings. " 21With respect, it is not the case that a beneficiary's entitlement to an account from a trustee is dependent upon there being some evidence that the trustee has failed properly to carry out his or her responsibilities. The trustee is obliged to keep proper accounts and to allow them to be inspected by the beneficiaries. 22Nonetheless, there was no appeal from his Honour's orders and the matter of the obligation of the defendants to verify, file and pass accounts up to 14 March 2008 is res judicata. That is to say, it is something which cannot be reopened. 23Had a concluded agreement been made between the parties in 2008, it presumably would have been open to the parties to have implemented that agreement by the trustees exercising their discretion under cl 19 of the will to advance the plaintiff's share of capital to the Protective Commissioner to be held on her behalf. 24There is no evidence as to why in 2008 the Protective Commissioner did not seek on behalf of the plaintiff an order for provision under the Family Provision Act . It may be that a view was taken that that relief could be obtained in substance through negotiation. But given that there was no concluded agreement in relation to a payment to the plaintiff, and given the advice that the Protective Commissioner had received in 2006, it is hard to see why such relief was not sought in the summons filed in 2007. 25It is the policy of the law that all matters in dispute between parties should be attempted to be resolved in the one piece of litigation. It is conducive to delay and costs if claims are split. 26After the dismissal of the summons in 2008 some negotiations continued between the Office of the Protective Commissioner and Mr Randall. On 16 October 2008 the Office of the Protective Commissioner advised Mr Randall that the plaintiff had recently advised that she had formally applied to the trustees in Victoria as to her future financial management. Mr Franklin, for the Protective Commissioner, asked that the sum of $71,000 be paid into her account with the Office of the Protective Commissioner. He provided a budget report for the plaintiff for the period from 30 September 2008 to 29 September 2009 projecting an expenditure for the plaintiff in that year of just over $14,000. Mr Randall asked to be provided with a financial plan as to how the Protective Commissioner would invest the funds of $71,000, if the trustees exercised their discretion to advance the capital to it. 27On 4 November 2008 the Office of the Protective Commissioner provided information as to its proposed investment strategy and as to a proposed budget. It was noted that at the time the plaintiff was receiving a Centrelink disability support pension of just over $14,100 and the Office of the Protective Commissioner gave details of a proposed budget of that amount. It advised that its plan for investment would be to retain sufficient funds in cash for 12 months' expenditure, and draw down capital to meet expenditure requirements on an annual basis with interest and distribution from investments to be reinvested to maximise the growth potential of the portfolio. 28The Office of the Protective Commissioner identified that a recommended investment strategy would be to allocate 70 per cent to growth and 30 per cent to cash and fixed interest investments. Whether that strategy at that time (being when the global financial crisis had struck) was a conservative approach for the investment of the assets of the plaintiff, who was then 61, may be open to doubt. Mr Randall did not consider that the proposal provided by the Protective Commissioner was a satisfactory financial plan and expressed doubt about the proposed allocation of assets for investment. 29After November 2008 it does not appear that anything further was done to advance the question as to whether the capital, the subject of the plaintiff's share of residue, should be advanced to her by being paid to the Office of the Protective Commissioner. 30About two years later, on 5 November 2010, Mr Christopher Zucker, who had been retained to act for the NSW Trustee and Guardian, wrote to Mr Randall and inquired about the amount of the capital then held on trust for the benefit of the plaintiff, the amount of the income she had received from time to time, the present corpus of the trust, where and in what manner the funds were held, and the trustee's intentions regarding payments out of capital and income for the plaintiff. 31After a deal of correspondence in relation to whether Mr Zucker was acting for the NSW Trustee and Guardian, Mr Randall replied on 9 March 2011. He said that the residue of the estate was awaiting " the resolution of a number of long outstanding issues before final distribution to the residual beneficiaries ". He said that " No funds are currently being held specifically in trust or in specific accounts for [the plaintiff]", and that the reply to Mr Zucker's first question, namely what was " The amount of capital held pursuant to the trust for the benefit of [the plaintiff] ' was " Nil ", and that was also the position in relation to the amount of income that had been received from time to time and the present corpus of the trust. 32This reply was a matter of real concern. The suggestion appearing from that answer that no assets were then held on trust for the plaintiff (which would have been a clear breach of trust) was mitigated by other statements in the letter. 33Mr Randall said that " An expected distribution to [the plaintiff] was likely to be of the order as discussed with [her former solicitor in 2008] . " No resolution was reached in correspondence. 34Mr Randall offered to provide copies of the bank statements showing where moneys were presently held to demonstrate that sufficient funds were held in the estate to meet the plaintiff's share of capital, but no accounts were provided. 35The estate is not a large one. The inventory attached to the grant of probate dated 12 March 1999, estimated that the value of the estate was then $616,406. Documents entitled " Partial Distribution Statement " dated 26 April and 9 June 2005 suggest that following the sale of the house, which was the principal asset of the estate, there was received a net amount of $524,000 approximately. 36The Partial Distribution Statement of 9 June 2005 suggests that after payment of specific legacies, legal costs and various other expenses of the estate, including the repayment of loans, the net amount available for the distribution was about $253,000. As I have said, and as Mr Randall accepted, the parties seem to have accepted in the course of the 2008 proceedings that the plaintiff's share of the estate, her one-quarter share, had a value of $71,000. 37Section 16 of the Family Provision Act relevantly provides: " 16 Time for application for provision (1) In this section, "prescribed period" in respect of an application in relation to a deceased person, means: (b) in any other case-the period of 18 months after the death of the deceased person. (2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow. (3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: (a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or (b) sufficient cause is shown for the application not having been made within that period. " 38It is clear from the structure of s 16(2) and (3) that an applicant for the extension of time must show " sufficient cause " for the application not having been made within the prescribed period. If such sufficient cause is shown, but only if such sufficient cause is shown, the Court has discretion having regard to all the circumstances of the case to extend the time for the making of an application. 39The expression " sufficient cause " means sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period. If there is such a sufficient explanation then other factors relevant to the exercise of the discretion under s 16(2) include any prejudice to the beneficiaries, whether the plaintiff has been guilty of unconscionable conduct by the lulling of the beneficiaries into a false sense of security, and the strength of the plaintiff's case ( Taylor v Farrugia [2009] NSWSC 801 at [14]; Burton v Moss [2010] NSWSC 163 at [32]-[38] and [51]-[52]; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47]; John v John [2010] NSWSC 937 at [37]-[51]; Popovski v Kenjar [2011] NSWSC 731 at [84]-[92] and cases there cited). 40The prescribed period expired on 12 September 2000. These proceedings were commenced more than ten years after the expiry of the prescribed period. I accept the submission of counsel for the plaintiff that a sufficient explanation has been given for the failure to bring the claim prior to 12 September 2000. The plaintiff suffers a lifelong intellectual disability and it seems that during that period she was vulnerable to exploitation by others. 41The principal asset of the estate had not been sold. Given the evidence as to the plaintiff's capacity, it is unlikely that she would have appreciated the nature of the trusts of the will. Indeed she appears to consider that she has an absolute entitlement to one-quarter of the residuary estate. Probate was not obtained until December 1999. 42The question then is whether it would be a proper exercise of the discretion under s 16(2) to allow this application to proceed. That is to be considered having regard to all of the circumstances of the case. The usual, but not the invariable, practice for dealing with applications for the extension of time in family provision applications is for the application to be dealt with at the same time as the application for substantive relief. (See De Winter v Johnstone (New South Wales Supreme Court, 23 August 1995 unreported). There are exceptions to that usual practice (e.g. Vasconelos v Bonetig [2011] NSWSC 1029). 43In this case all of the claims for relief in the summons were fixed for hearing before me today. That order was made by the Registrar on 8 November 2011. The defendants are self-represented. It would not be possible to deal with the merits of the application for a financial provision order at the hearing today. That is because the defendants have not complied with the requirements of paragraph 5 or paragraph 9(2)(c) of Schedule J to the Supreme Court Rules in relation to the content of the administrator's affidavit or in relation to the service of notice on persons who are entitled to share in the distributable estate of the deceased. 44However, it was not only the defendants who are in default. At the time the proceedings were fixed for hearing, the plaintiff had not complied with r 9(1) requiring service of notice on the defendants stating who were eligible persons. As I understood Mr Randall's submission, the defendants say that any default on their part was caused, or contributed to, by the plaintiff's failure to comply with that rule. The notice of eligible persons should have been served with the summons. 45Notwithstanding the difficulty of proceeding with the merits of the claim for a family provision order if an extension of time were granted, I am satisfied that it is appropriate to deal with the extension of time. The principal issue on the extension of time is the lack of an adequate explanation for the delay between 30 September 2005 and 19 April 2011 in an application being made for an order under the Act, notwithstanding that proceedings were brought by the plaintiff through the Protective Commissioner in 2007. 46Counsel submitted that the plaintiff should not be prejudiced by any failure on the part of the Protective Commissioner or the NSW Trustee and Guardian to cause such proceedings to be brought. 47I take into account the fact that the delay has not been apparently attributable to the fault of the plaintiff personally as she does not appear to be capable of forming the requisite opinion as to whether the proceedings should be brought or taking steps to institute the proceedings. Nonetheless, the delay cannot be removed from consideration because it was not occasioned by the plaintiff personally. The fact that the delay is that of the NSW Trustee and Guardian is not itself a sufficient reason for the Court to extend time. (See in relation to delay by solicitors Charles v Charles (Unreported 15 March 1998) and Kalmar v Kalmar [2006] NSWSC 437 at [23].) 48In Re Estate of Nichos (dec'd); Grigoriou v Nitsos [1999] WASCA 42 Ipp J said (at [17]): " [17] In my opinion, where delay in making an application in terms of s7(1) is due to the conduct of an applicant's solicitors, the 'justice of the case' requires all the relevant circumstances to be examined to determine the extent to which the solicitors' fault is to be attributed to the applicant. It should not automatically follow that the solicitors' neglect will be visited upon the applicant: after all, that might not meet the justice of the case. This underlies the approach in Brown v Holt [1961] VR 435 and Re Traeger deceased [1948] SASR 248, both being cases involving a failure by solicitors to give timeous notice of applications under legislation similar to the Inheritance (Family and Dependants Provision) Act . In both cases the reasonableness of the conduct of the applicant, as well as that of the applicant's solicitors, was regarded as relevant. See also Bourke v Kecskes [1967] VR 894 (which was an application for the dismissal of an action for want of prosecution), where Lush J examined the question whether ' it is fair to place on the facts the interpretation that the plaintiff was passively accepting a situation which he ought to have realised was wrong' (because of unreasonable delay on the part of his solicitor). " 49I think it is of some significance in this case that, so far as it appears, the plaintiff herself has taken no active part in the decision to bring the proceedings and it does not appear she was aware of them. It seems that the NSW Trustee and Guardian has belatedly considered that in the proper exercise of its functions in managing her estate, this claim should be brought. 50It is relevant to the exercise of the discretion that the estate always was a small one and is now smaller. 51Mr Randall said that a distribution of $150,000 had been made to the three other residuary beneficiaries. The funds presently held in the estate total only $107,574. The plaintiff's claim has now been confined to a claim for $71,000. The costs of the plaintiff to date amount to $21,250. Further costs would be incurred if the application for provision were to be heard on the merits. 52It is said that the delay does not cause prejudice to any of the other beneficiaries under the will. That is true to the extent that the plaintiff's claim would now be confined to obtaining immediate payment of her share of the residuary estate without disturbing the entitlement of the other beneficiaries entitled to three-fourths of the estate. 53Nonetheless, to allow the claim to proceed would further delay the finalisation of the estate. If the plaintiff were successful and obtained an order for costs, those costs would come out of the remaining assets of the estate. At present the defendants are not incurring costs. They represent themselves in these proceedings as they did before McLaughlin AsJ. Nonetheless, there is a potential for costs to be incurred also by the defendants. 54I think the continued delays in the finalising of the estate by making distributions to the residuary beneficiaries amounts to some prejudice, albeit not great prejudice, having regard to the lapse of time in any event. 55There is no evidence that the delay in making the application has lulled the defendants or the beneficiaries into the belief that no later claim may be made. 56I turn then to the question of the prima facie strength of the plaintiff's case. 57The gist of the plaintiff's claim seems to be that it can be seen from the way in which the estate has been administered to date that to give discretionary powers to the trustees as to how much income and how much capital should be applied for the plaintiff's benefit does not adequately provide for her maintenance and advancement in life. 58In support of that contention the plaintiff has tendered without objection a report from a Ms Rosanna Wong dated 28 February 2011, whose occupation is a " Senior Disability Adviser ". She provided a report based on a telephone conversation with the plaintiff on 21 February 2011. The gist of her report is that whilst the plaintiff's need for food and accommodation is being met through her current supported accommodation in Victoria, the plaintiff needs extra funds to improve her quality of life. There is also a suggestion in the report that the plaintiff might require funds to move into her own rental accommodation. 59Ms Wong says that current unmet needs for the plaintiff are for a new bed, a bar fridge, a recliner chair, a sound system with DVD/VCR, linen, and increased personal allowance. She also says the plaintiff has other ongoing needs for pharmaceuticals, private medical and dental treatment, shoes and clothing, holidays and other allowances. 60This material is responded to by Mr Randall. He points to the fact that Ms Wong has confined her inquiry to one telephone conversation with the plaintiff, and that no contact had been made with the managers of the facility in which the plaintiff is presently accommodated, nor with others who have knowledge of her needs. He criticises particular aspects of the report and says that in relation to some of the items which Ms Wong identified as being needed by the plaintiff, these and other items had been discussed with the plaintiff from time to time over the years and, where practical, had been provided. 61His evidence and statements made from the bar table by the second defendant, Ms Robinson, include that the plaintiff, if given too much cash is apt to spend it on junk food which is particularly harmful to her as she suffers from type 2 diabetes and apparently has become insulin dependent. 62Given that the claim for a family provision order, if it were to proceed, would be confined to a claim for payment to the NSW Trustee and Guardian of the plaintiff's capital of the estate, the question which would need to be asked is whether it has been demonstrated that the plaintiff's needs, so far as they can be satisfied from that share of the estate, would not adequately be met by the proper exercise of discretion by the defendants. 63The evidence does not establish that the defendants have not properly exercised their discretion in relation to the payments to be made out of capital or income for the plaintiff's benefit to date. It is said that nothing, or very little, has been distributed, and certainly nothing has been paid to the Office of the NSW Trustee and Guardian. 64Nonetheless, the question under the Family Provision Act would be whether the defendants could not be expected to make adequate provision for the plaintiff's needs out of her one-quarter share of the estate. It is true that any distributions the defendants make should be made to the Office of the NSW Trustee and Guardian, whereas it seems the distributions in small amounts are being made to either the plaintiff herself or to others who provide services for her. 65However, so far as the proper maintenance and advancement in life of the plaintiff is concerned, it would not matter whether or not payments were made through the Office of the NSW Trustee and Guardian, provided her needs were properly addressed. 66Perhaps of greater significance is the fact that the plaintiff's need for capital and income can be expected to increase as she gets older. In those circumstances it cannot be said that the fact that little appears to have been paid to her yet out of the estate means that her needs are not being addressed. It remains the position that she is entitled to the income that has been earned on her one-quarter share of residue, albeit that the defendants have a discretion as to when that income is to be paid. The defendants, being her brother and sister, could be expected to have closer appreciation of her needs than an officer from the Office of the NSW Trustee and Guardian. 67Accordingly, I do not accept that, prima facie , the plaintiff would have a strong claim for an order for provision out of the estate. Having regard to the lengthy delay in bringing the claim and the small size of the estate, I do not think that further litigation is warranted. 68For these reasons I refuse the application in paragraph 1 of the summons for an extension of time for the bringing of the proceedings under the Family Provision Act . 69It follows that the claim for relief in order 2 of the summons will also be dismissed. 70Order 3 seeks an order that the defendants provide to the plaintiff's financial manager within 14 days certified copies of the accounts for the estate from 12 December 1999. For the reasons I have given, the plaintiff, being a beneficiary of the estate, is entitled to inspect the accounts of the estate. But, for the reasons I have given, the plaintiff is not entitled to that order for a period prior to 14 March 2008. 71The evidence of Mr Randall is that the accounts have been kept and tax returns have been prepared. Although there may be some difficulties in extracting accounts which are kept on software which would have to be retrieved, I do not understand the task of providing the accounts would be excessively onerous. I understood him to accept that as the accounts have been kept annually, as well, I understood it, by quarter, it would be convenient to provide the accounts for the year ended 30 June 2008 and subsequent periods, and I will make that order. 72I understand that as the accounts are prepared quarterly, they should be available up to 31 December 2011, although it may well be (and I understand it is the case) that there would be some work to be done to complete the accounts up to that date for at least the last quarter ending 31 December 2011. 73Mr Randall has had the burden of keeping the accounts for the estate, although I understand accountants have been employed. He seeks a period until mid to late March for the provision of the accounts. I think, having regard to the delays in this matter, that that is not an unreasonable request. 74Paragraph 4 of the summons sought in the alternative to order 3 an inquiry into the management by the defendants of the trusts of the will. The evidence does not justify an inquiry and I will in any event be making an order for accounts. 75Paragraphs 6 and 7 of the summons deal with questions of costs. The defendants are self-represented and I am told by Mr Randall that they have not yet incurred costs in relation to these proceedings. Because the plaintiff has failed in relation to her claim under the Family Provision Act , but succeeded in relation to her claim for accounts, I will hear counsel, but my prima facie view would be that there be no order as to the plaintiff's costs. 76Subject to hearing from the parties as to the precise form of the orders to be made, I propose to make the following orders: