PITKIN v HENDERSON

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4304/99 MARY DRUSCILLA PITKIN v KENNETH BRUCE HENDERSON (ESTATE LATE KATHLEEN MONICA WALSH) JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 in respect of the Estate of the late Kathleen Monica Walsh who died on 29 November 1997 aged 79 years. The deceased was survived by her sister, the plaintiff. The deceased had no children and she had never married. The defendant is a solicitor of this Court who has, from time to time, acted for both the plaintiff and the deceased. The deceased made her last will and testament on 31 January 1994. Under that will the defendant was appointed Executor and Trustee. The whole of the estate was given to the defendant absolutely subject to certain provisos under which the defendant was to care for the plaintiff. That proviso was as follows:- "UPON TRUST for my solicitor KENNETH BRUCE HENDERSON absolutely provided however I direct my Trustee to set aside a certain portion of my residuary estate to be invested and the interest earned on that said part of my residuary estate shall be paid to my sister MARY DRUSILLA PITKIN during her lifetime. I have absolute faith in KENNETH BRUCE HENDERSON setting aside an ample sum to provide as aforesaid and I will leave it to his absolute discretion on how much my residuary estate should be set aside needless to say that should my sister predecease me then I direct that KENNETH BRUCE HENDERSON shall receive the whole of my residuary estate absolutely provided however should KENNETH BRUCE HENDERSON predecease me then I give devise and bequeath my residuary estate to JANE HENDERSON absolutely." 2 The deceased's assets at the date of death consisted of her property 21 Kareela Road, West Chatswood having an estimated value of $510,000. Furniture valued at $3,000, personal effects $500 and money in bank accounts $105,910.06. The estate has been distributed. The Chatswood property was transferred to the defendant as beneficiary on 17 August 1999 and he has allowed the furniture to remain in those premises which have continued to be occupied by the plaintiff. The defendant has distributed to himself the money in bank accounts and he has opened a bank account styled "Hendersons in trust for Kathleen Monica Walsh" pursuant to the direction in the will in which there is a balance of approximately $23,850. 3 Costs have been incurred in this application with those of the defendant amounting to $18,483 and those of the plaintiff amounting to $25,000. 4 It is useful to give a short chronology of some of the relevant events in the proceedings. The plaintiff was born on 16 September 1913 and is thus 87 years of age. Her two children are twins Paul and Peter Pitkin who were born 16 February 1943. Her husband died in 1969. It was in the late 1980s that the defendant first met the deceased and the plaintiff. In 1991 there were a number dealings in which the defendant acted for the plaintiff. A will was prepared in which he was an Executor along with the deceased. The defendant acted for the plaintiff when she sold her property at 79 Greville Street, West Chatswood in December 1991. This sale took some time and out of the proceeds of the sale the plaintiff gave $150,000 to her son, Peter, to enable him to purchase a property at 73/1C Kooringa Road, Chatswood. She also advanced $50,000 secured on mortgage to meet additional costs in respect of that property. 5 Having sold her home the plaintiff moved to live in with the deceased at the property which the deceased owned at 21 Kareela Road, West Chatswood. In 1993 the plaintiff spent some six weeks in the Macquarie Hospital for treatment of depression. As I have mentioned on 31 January 1994 the deceased made her last will and testament. This will was made by a solicitor, Mr Bruce Robertson, who had offices in the same building occupied by the defendant. He was not a partner of Mr Henderson. The deceased apparently told the defendant that he was to benefit under the will but did not elaborate on that statement. Mr Robertson did not, of course, inform the defendant of the terms of the will. 6 In October 1994 the plaintiff granted the defendant power of attorney so that she could have her affairs managed by the defendant. In 1995 the deceased had to move from her home at Chatswood to a nursing home. She was moved to several nursing homes until she finally obtained a satisfactory position in the Sirius Cove Nursing Home at Mosman. All the arrangements for these placements were made by the defendant, Mr Henderson. At this time he continued to visit the plaintiff at the Kareela Road property several times a month and was instrumental in helping look after her daily needs either through his own efforts or those of his staff and a nearby neighbour. The deceased's date of death was 29 November 1997 and the bank account for the plaintiff was opened on 8 December 1997. Probate was obtained on 29 May 1998. On 17 August 1999 the transfer of the Chatswood property to the defendant as beneficiary was made. On 22 September 1999 there was a meeting between the plaintiff and her now solicitor, Margaret Ball, from Patrick Grimes & Co. This was the first occasion that the plaintiff came to know of the provisions of her sister's will. A summons was filed on 13 October 1999 and on 14 October 1999 the plaintiff revoked the power of attorney which she had given to the defendant to manage her affairs. 7 For the plaintiff to be an eligible person it is necessary that she prove that she was, at any particular time, wholly or partly dependent upon the deceased and at that time or any other time a member of the household of which the deceased person was a member. In the present case the plaintiff was clearly a member of the household for some 5 years and 11 months. She paid no rent for her occupation and in that sense she was partially dependent. Accordingly, she is an eligible person. 8 The application is out of time and accordingly it is necessary for the court under section 16 of the Family Provision Act to allow an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 9 His Honour Young J has in several cases dealt with the principles governing applications to extend time under this Act. In Massie v Laundy (unreported 7 February 1986) he indicated that the factors which one looks at include the following:- (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 10 He also accepts apparently a view which was expressed by his Honour Needham J in Fancett v Ware (3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported 8 September 1989). 11 In De Winter v Johnston, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 12 In the present case the plaintiff had deposed to the fact that she had no knowledge her ability to make an application under the Act until 22 September 1999. The defendant does not oppose the granting of an extension of time provided the Court is satisfied that it is appropriate. In this case there is an adequate explanation particularly given the circumstances of the contact between the defendant and the plaintiff up until she retained fresh solicitors. There is no suggestion of prejudice if the time is extended and there is no unconscionable conduct which has to be taken into account.

13 However it is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 14 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

15 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 16 In the present circumstances the plaintiff is the only living relative of the deceased apart, of course, from the plaintiff's sons. Apparently the plaintiff and the deceased had been close all their lives the deceased having done the plaintiff's income tax returns. In addition they had lived together in the deceased's home for some 5 years and 11 months. In these circumstances it seems to me that the plaintiff would generally be regarded as a natural object of testamentary recognition by the deceased and on the traditional test I would be satisfied that factors warranting exist. In order to see whether there are reasonable prospects of success I will move on to the main proceedings. 17 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

18 I turn to the plaintiff's present situation. The plaintiff is 87 years of age, single and with no dependents. Her assets are as follows:- Funds on deposit $287,664.92 Shares in public listed companies: AMP Ltd $42,315.70 First registered mortgage to Peter Pitkin $50,000.00 Total $379,980.62 19 The plaintiff has no liabilities and because of her assets she does not receive a pension. Her life expectancy is 5.66 years and, as I have mentioned, she is living in the home at Chatswood. She was seen by Dr Chen who performed an assessment in February 2000 and on that he found that she had improved over recent years and was now reasonably alert, bright and having decent meals. She had a history of matters which included in 1993 psychotic depression for which she was treated with ECT and in 1997 Epistaxis cancer removal and cataract extraction. The doctor described her as being able to walk around the house and shower herself and "relies upon a carer to cook". She also relies on persons to look after the garden. He described her cognition, reasoning and memory as reasonable. Expression was within normal limits. Clearly she able to manage to live in the home at Chatswood. However, this is only on the basis that her two sons come and cook meals for her and help her around the house. This they continue to do. One of them, a short time ago, dismissed the carers which were provided for her to assist in these processes. 20 The relationship between the plaintiff and the deceased was a good one and obviously close throughout the sisters' lives. The deceased when making her will expressed a strong preference not to leave money outright to the plaintiff because she was worried that the plaintiff's sons would eventually end up with the money. She also did not wish to leave the plaintiff's sons any money for the reasons which she expressed. 21 There is no relevant building up of the estate by the plaintiff and, as I have recounted earlier, she lived rent free in the deceased's house for many years. She has been permitted by the defendant to reside in the house since the date of death and he is content that she should continue to reside there as long as she wishes. 22 I turn to the defendant's situation. He is 57 years of age and married. He has put no information as to his financial circumstances before the Court and, accordingly, the Court can assume that he does not wish it to take into account these matters when considering what provision should be made for the plaintiff. The only matter that the defendant has put before the Court in this regard is the care which he has extended to the defendant since 1991. It will be recalled that he acted for her in arranging a number of investments by way of mortgage loan. He acted for her and charged costs to the mortgagors for those matters. Subsequently he included in the care which he extended to the plaintiff care of the deceased. This was important and initially in the early years he would visit them either once or twice a week. Once the deceased required nursing home care in 1995 it was he who went to the trouble of trying to find a suitable nursing home. It was due to his efforts and others he contacted that the deceased was able to ultimately have a satisfactory nursing home in which she lived until she died. The care which was extended both to the plaintiff and the deceased was not only by the defendant but also by his staff. His staff would respond to telephone calls, make arrangements for delivery of food and other purchases for the deceased and the plaintiff. 23 The plaintiff in these proceedings submitted that she should receive an outright bequest of the home in which she is living. The defendant for his part in his affidavit evidence had indicated that he was prepared to allow the plaintiff to remain in the house. He also took the trouble to enquire from the plaintiff's solicitors as to what they thought was an appropriate provision that ought to be made for the plaintiff's accommodation. No response was forthcoming from the plaintiff's solicitors until the matter was raised at the court hearing before me. At the hearing the defendant submitted that the plaintiff should have a right of residence with provisions for change of home or nursing care accommodation 24 The substantial debate before me has been on the appropriateness of some order to provide for the plaintiff's accommodation. In the 1970s and 1980s there are a number of single judges' of this Court where judges have held that a life interest with particular attributes were appropriate. See for instance Crisp v Burns Philp & Co Holland J 18 December 1979, Banks v Hourigan Waddell CJ in Equity 2 March 1989, Cameron v Hills Needham J 26 October 1989. This perhaps reflects matters mentioned by the High Court in White v Barron (1979-1980) 144 CLR 431 where at page 444 the Court said:- "A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy." 25 A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1 that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J at pages 438 to 440 went to some length to point out that the jurisdiction was one which should not be unduly confined by judge made rules of purportedly general application. 26 By the late 1980s other judges in this division were taking a slightly different view. For instance in Court v Hunt Young J (unreported) 14 September 1987, he said: "Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one judges the evidence in these sort of proceedings against that background knowledge." 27 His Honour then went on to talk about the assumptions one could make about the fact that frequently, people, once they pass fifty-five, have to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution. 28 After talking about the evidence necessary, his Honour went on to say: "In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a court to alter a life estate to a more flexible non-capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd , 18 December 1979, unreported, but noted in Mason & Handler Probate Service, at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow." 29 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky, unreported 5 October 1993, it summarised widow's applications in the following terms: "In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:

(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor , above, 458; Hunter , above, 576;

(b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70;

(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA;

(e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252." 30 When talking of the need to provide a house and a sum for contingencies the President is clearly referring to passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott, unreported, 29 April 1986, such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased. 31 In Permanent Trustee v Fraser 36 NSWLR 24 at page 47 Sheller JA had the following to say:- "Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation: see Young J in Christie v Christie …The need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security." 32 It is to be noted that the facts which Sheller JA was dealing with are quite different from the present case. 33 In Salmon v Blackford 18 February 1997 the Court of Appeal was dealing with a case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said:- "The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case. The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over eleven years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty." 34 This seems to indicate a different approach to that referred to by the High Court in White v Barron. In the present case the plaintiff made a will in 1991 before the death of the deceased. In that she forgave part of the debt due by her son Peter and provided for loans to secure him some accommodation. The residue was held to pay the income to her two sons during their life and thereafter the capital was to go to her sister the deceased but if she predeceased the plaintiff (which happened) it was to pass to Mr Henderson, the defendant, or in default to his wife. 35 There is no evidence of any change to the will but if there was it would seem unlikely that the plaintiff's views of what her sons should receive would be likely to change. She clearly did not want them to have any substantial capital. 36 It is to be remembered that, of course, in this case I am dealing with the provision to be made by a sister for her sibling. One is not concerned with a widow's claim. Ordinarily, of course, such a claim by a sister would be one which would not call for the provision of a secure home. Even children, in the ordinary course, can not expect such a provision by a testator unless there is a very large estate. See for example Shearer v Public Trustee Young J 23 November 1998. 37 In the present case, however, there are no other claimants to the testator's estate except the defendant and his claim does not relate to his financial situation but to the care which he extended to the deceased over the last five or six years of her life. One can thus perhaps be somewhat more generous in an assessment of what is appropriate. For example, although this is not precisely in point, Young J in Anasson v Phillips, 4 March 1988, said the following: "... with a very large estate ... there is a great temptation on a court to be over-generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty. If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412."

38 An important matter to take account of in the present case is that the plaintiff has substantial funds of her own which will provide her with quite an adequate income and a fund for contingencies. It would provide something towards purchasing some right of residence in a nursing home. 39 There are a number of factors which, in my view, point to the appropriateness of her receiving the fee simple in the home.

(a) She has lived in the house since 1991, she is 88 years of age and is well settled in that environment.

(b) Her sons spend time with her, one of them residing at home. Given the plaintiff's view of what they should have it may make her uncomfortable if she has some lesser interest than full ownership of the house.

(c) The defendant's claim on the deceased's bounty only relates to help extended to her over the last five or six years and is well recompensed by the $100,000 he will receive under the will if provision is made for the plaintiff.

(d) There seems little likelihood that any substantial capital will pass to the sons of the plaintiff, a matter which concerned the deceased.

(e) She has a short life expectancy and may have to move to a nursing home. The provision of the fee simple will put beyond doubt her ability to buy into such a home. 40 In my view, the plaintiff should receive the fee simple in the home. 41 The house has, of course, been distributed to the beneficiary, Mr Henderson. Accordingly it is necessary to have regard as to whether it is appropriate to declare that property as notional estate. Section 27 of the Family Provision Act is in the following terms: "(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property; (b) the substantial justice and merits involved in making or refusing to make the order; and (c) any other matter which it considers relevant in the circumstances. (2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to: (a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person; (b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration; (c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be; (d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and (e) any other matter which it considers relevant in the circumstances." 42 There are no particular matters of expectation which have been advanced by the defendant. All he knew prior to the making of the deceased's will was that he was to receive some benefit. He did not know until after her death that he had been left the property. So far as the substantial justice and merits are concerned, these have been debated in the decision whether or not to make provision in the manner I have suggested. There are no other matters which would call for consideration. 43 I earlier referred to the application to extend the time for making the application. It follows from what I have decided about the appropriate provision that the plaintiff has prospects of success and, accordingly, time should be extended within which the application can be made. 44 Section 28 includes further restrictions on the power of the Court to designate property at notional estate. Section 28(5) provides as follows: "On an application in relation to a deceased person, being an application: ( a) made pursuant to an order under section 16 allowing the application to be made; or (b) for an order under section 8 for additional provision, the court shall not make an order designating property as notional estate of the deceased person be reason of a prescribed transaction or a distribution unless it is satisfied: (c) that: (i) the property was the subject of the prescribed transaction or distribution; (ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only; and (iii) the property is not vested in interest in any beneficiary under the trust; or (d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property." 45 In relation to this case the relevant section is Section 28(5)(d). Apart from stating incapacity as a special circumstance the subsection gives no other indication of what constitutes such special circumstance. However it is clear that Section 27 applies when a claim is made both before and after the time limited by Section 16. Section 28(5) in a case where an extension is to be allowed imposes is a further requirement over and above the matter which a court will consider under Section 27. It is notable that in Section 28(5)(d) the word "other" is used in describing special circumstances. That I think indicates view that there has to be something else over and above what is dealt with in Section 27. 46 In this case the special circumstances are that the plaintiff was an elderly, housebound lady who was visited regularly up to the date of death of the deceased by the defendant. When she eventually obtained different legal representation two years after the date of death she complained to her new solicitor that she did not know what she owned and she did not know what she had received from her sister's estate. That evidence was not denied by the defendant. After the death of the deceased the defendant continued to visit the plaintiff and assisted with her personal affairs. He was indeed her personal confident even though at this time he did not act for her professionally. The defendant held her power of attorney. Although the defendant opened an appropriate bank account for the plaintiff immediately after the death of the deceased there was no suggestion from him that he informed the plaintiff of the terms of the will and the very substantial benefit that he had received thereunder. This situation obviously continued up until after he had transferred the property into his name (17 August 1999) and the plaintiff obtained legal advice (22 September 1999). The lack of such advice in the context of the relationship between the defendant and the plaintiff is extraordinary to say the least. It seems to me that these circumstances are special and one could thus designate the property at Chatswood as notional estate. 47 Accordingly, the orders that I make are as follows:- (a) I delete from clause 3 of the will of the deceased the words:-"provided however I direct my Trustee to set aside a certain portion of my residuary estate to be invested and the interest earned on that said part of my residuary estate shall be paid to my sister MARY DRUSILLA PITKIN during her lifetime. I have absolute faith in KENNETH BRUCE HENDERSON setting aside an ample sum to provide as aforesaid and I will leave it to his absolute discretion on how much my residuary estate should be set aside needless to say that should my sister predecease me then I direct that KENNETH BRUCE HENDERSON shall receive the whole of my residuary estate absolutely provided however should KENNETH BRUCE HENDERSON predecease me then I give devise and bequeath my residuary estate to JANE HENDERSON absolutely."

(b) The plaintiff receive a bequest of the property 21 Kareela Road West Chatswood absolutely.

(c) The plaintiff's costs on a party and party basis and the defendant's on an indemnity basis be paid or retained out of the estate of the deceased.

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