Plaintiff v Defendant

Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

Coombes v Ward [2004] VSCA 51.

Grey v Harrison [1997] 2 VR 359.

Lee v Hearn [2005] VSCA 127.

MacEwan Shaw v Shaw [2003] VSC 318.

1 I have before me two originating motions, in each case seeking provision for the proper maintenance and support of the respective plaintiff out of the estate of William Peter Boyd deceased, pursuant to Part IV of the Administration and Probate Act 1958 ("the Act"). The plaintiffs Russell and Elizabeth Boyd are both children of the deceased.

2 In addition, Elizabeth Boyd seeks an order pursuant to s 99 of the Act that the time for bringing this application be extended by the court.

3 The two applications were heard together and although no formal order was made to this effect the parties treated the evidence in one as evidence in the other.

4 The deceased died on 3 November 2004. His wife predeceased him. He is survived by three children: Elizabeth Helen Boyd 57 years; Russell William Boyd 56 years with two children, both adults; and Stuart Mark Boyd with three children of school age.

5 The estate consists of a residential property at 63 Draper Street Ormond East and a small amount of cash. The liquid assets of the estate are insufficient to meet the costs of administration and this litigation.

6 In substance the will left Elizabeth a life interest in the residential property which had been the family home. After her death the house is to pass equally to her two brothers if living, otherwise their children absolutely. The residue of the estate was to be divided into three parts. The income of the first part is to be distributed to Elizabeth with power to advance capital and on her death the remaining capital is to be distributed among the grand children then living and who attain 21 years. The second and third parts go to Stuart and Russell in equal shares absolutely. As it turns out there is no residue.

7 Mr Luigi Papaleo is the managing director of FTL Judge & Papaleo Pty Ltd "Judge & Papaleo" which on 5 May 2006 was appointed by VCAT as administrator of the estate of Elizabeth with all powers and duties conferred by Part 5 Division 3 of the Guardianship and Administration Act 1986 limited to legal and financial issues concerning the estate of William Peter Boyd and arising from any proceeds received from the estate. Mr Papaleo has brought the proceedings on behalf of Elizabeth Boyd.

8 Russell is gainfully employed but has lost all his assets after a divorce.

9 In substance, Russell claims provision made under the will is inadequate for his proper maintenance and support. He claims his need is self evident and a capital sum will enable him to make a substantial deposit on accommodation. He says the provision under the will in favour of Elizabeth is excessive to her reasonable requirements. Assuming the value of the residence is $800,000 the net proceeds of sale of the property after costs of sale, administration and litigation would be approximately $650,000. He claims Elizabeth's accommodation would not need to be more that a one-bedroom apartment and that this would cost approximately $300,000. He says a sufficient capital sum to provide for her maintenance of the new property would be $75,000. The balance should be made available to make provision for Russell. He opposes Elizabeth's claim.

10 At the conclusion of the hearing, it was submitted on Russell's behalf that the following orders should be made:

That after payment by the estate of the just debts, funeral and testamentary expenses, the executors and trustees commission, the costs of administration and after provision of the estate for the defendant's costs of this proceeding the defendant

(a) pay the plaintiff Russell Boyd the sum of $200,000 and his cost of this proceeding including reserved costs, and

(b) pay the plaintiff Elizabeth Boyd her costs of this proceeding including reserved costs, and

(c) hold the balance of the estate on trust for Elizabeth for life with power to purchase accommodation and advance capital during her lifetime and then from and after her death for such of Russell Boyd and Stuart Boyd then living absolutely and if both then equally providing that if either are not then living but leave a child or children who have survived the deceased and attained the age of 21 years, then such child of children shall take and if more than one, equally the share in the balance of the estate which his, her or their father would have taken had he attained a vested interest at the date of this order.

11 Elizabeth Boyd seeks to have the house transferred to her unconditionally. She opposes her brother's claim. She also seeks an order pursuant to s 97(1)(c) that the defendant be retrained from selling the residence at 63 Draper Street, Ormond East until July 2008.

12 The executor submitted that it is appropriate that the property be sold and a smaller house or unit be purchased. In particular a unit be purchased for Elizabeth Boyd in the geographical vicinity of the property for a price not more than $500,000 in substitution of the property in the will. A legacy of $100,000 be paid to Russell Boyd. The plaintiffs' costs of their respective proceedings be paid from the estate on a solicitor-own client basis. The defendant's costs be paid out of the estate. Any balance then remaining from the proceeds of sale of the residence be applied to the upkeep of the unit purchase and the trustee's proper fees and expenditure.

13 Under the will Stuart was appointed as an advisory trustee under s 27 of the State Trustee Corporation of Victoria Act 1987 which was replaced by s 9 of the State Trustees (State Owned Company) Act 1994 (No 45 of 1994).

14 Stuart favour's an arrangement for selling the residence and using part of the fund to move his sister into alternate accommodation under an arrangement that maximises the remaining value of, and/or reimburses the estate after her eventual demise. Subject to this he suggests an appropriate sum should be advanced to his brother Russell on account of his future entitlements under the will.

Elizabeth Boyd's application for leave to issue proceedings out of time.

15 The deceased died on 3 November 2004. Probate of his will was granted to the executor on 11 March 2005. Russell Boyd issued his application on 5 September 2005 within the six months provided under s 99 of the Administration and Probate Act 1958. Elizabeth Boyd issued her proceedings on 4 September 2006. VCAT appointed Judge & Papaleo as Elizabeth's administrator on 5 May 2006.

16 Under s 99, the court has power to extend the time for a further period after hearing such of the parties affected as the court thinks necessary. The application for extension is to be made before the final distribution of the estate. Although Stuart Boyd was not represented he was present in court and swore an affidavit relied on by the executor. No submissions were made by any party on the issue save that the application was made in an affidavit sworn by Mr Papaleo and relied on by Elizabeth Boyd.

17 In those circumstances, I shall make an order extending the time for bringing the application by Elizabeth Boyd to 4.00pm on 4 September 2006.

18 It was submitted on behalf of Russell Boyd that the condition of the gift of the life interest to Elizabeth had not been fulfilled and that accordingly the gift lapsed into the residue to be distributed according to clause 3(c) of the will.

"3. BUT if my said wife does not so survive me then:-

(a) I APPOINT my son STUART MARK BOYD to be my Advisory Trustee within the meaning of Section 27 of the State Trust Corporation of Victoria Act 1987.

(b) I GIVE my house and land ("the house property") situated at and known as 63 Draper Street, Ormond East or such other residential property as I may own and be residing in at my death and the contents thereof to my Trustee ON TRUST to permit my daughter ELIZABETH HELEN BOYD to have the full use occupation and enjoyment thereof or the rents and profits therefrom during her lifetime on condition that she pays all rates, taxes, and other outgoings of a recurring nature in respect thereof and keeping all improvements thereon insured for their full insurable value against loss or damage and maintaining the property in good and tenantable repair to the satisfaction of my Trustee in all respects AND from and after her death ON TRUST for such of them my sons RUSSELL WILLIAM BOYD and STUART MARK BOYD if they are then living absolutely and if both then equally PROVIDED HOWEVER if either of my said sons are not living but leave a child or children who survive me and attain the age of 21 years then such child or children shall take and if more than one then equally the share in the house property which his her or their father would have taken had he attained a vested interest.

(c) I GIVE the residue of my estate subject to the aforesaid payments to my Trustee ON TRUST to divide the same into 3 equal parts and:-

(A) As to one such part to invest in any investments authorised by law for the investment of trust funds and:-

(i) To use the income from such investments during the lifetime of my daughter ELIZABETH HELEN BOYD to provide for her maintenance and benefit advancement in life and general well being and without in any way limiting the foregoing to pay hospital, nursing, home help, maintenance and if required any expenses mentioned in clause 3(b) and other incidental expenses of her during her lifetime and if the income from the said investments be insufficient to meet such expenses I EMPOWER my Trustee to use such part or parts of the capital so invested to meet any deficiency in income to provide for the said maintenance benefit and other expenses SAVE THAT my Trustee retain a portion of the capital necessary to pay for my daughter's funeral expenses AND SAVE ALSO THAT in the exercise of such discretion my Trustee should so far as the circumstances will permit not use or apply such income or capital if in the result any pension or other income or capital or other benefit to which my daughter may be entitled from any State or Federal Authority will be reduced.

(ii) ON the death of my daughter ELIZABETH HELEN BOYD either before or after my death I DIRECT my Trustee to hold the capital and income then remaining ON TRUST for such of them my grandchildren who are living at the time of my daughter's death and attain the age of 21 years absolutely and if more than one then equally.

(B) As to one such part for my son RUSSELL WILLIAM BOYD if he survives me absolutely.

(C) As to the remaining one such part for my son STUART MARK BOYD if he survives me absolutely.

PROVIDED HOWEVER if any of my said sons predecease me leaving a child or children who survive me and attain the age of 21 years then such child or children shall take and if more than one then equally the share which his her or their father would have taken had he attained a vested interest.

PROVIDED FURTHER if any of the trusts contained in paragraphs 3(c)(A) to 3(c)(C) above wholly fail I GIVE the part or parts contained in them to my Trustee ON TRUST to be distributed between the part or parts that do not fail in the same relative proportions as stated above.

4. I EMPOWER my Trustee to use the whole or any part of the capital and income of the share in my estate to which any child is presumptively entitled for such child's maintenance education or benefit until he or she attains the age of 21 years as my Trustee in its absolute discretion thinks fit."

19 In particular, it is said that Elizabeth has not paid all rates, taxes, and other outgoings of a recurring nature in respect thereof and kept all improvements thereon insured for their full insurable value against loss or damage and maintained the property in good and tenantable repair to the satisfaction of the trustee in all respects.

20 It was submitted on behalf of Russell Boyd that the State Trustees has paid the rates, the insurance and other outgoings of a recurring nature in respect of the property and that Elizabeth has failed to fulfil the condition.

21 No submissions were made on this issue on behalf of Elizabeth Boyd.

22 The defendant submitted that it was satisfied that the property was in good and tenantable repair and relied on a report on the property prepared by Kylie Lindsay of the State Trustees. The defendant also submitted it is at the discretion of the trustee to enforce the condition in the will and at the moment the trustee is content for Elizabeth to remain in the property but says that the property must be sold to meet the debts of the estate. The estate has been paying outgoings of the property including building and contents insurance, council rates, water and sewerage rates, property and maintenance fees. Accounts tendered indicated the residue of the estate of some $50,000 had been used up in meeting expenses of the estate including the outgoings on the property.

23 In my opinion, a failure on the part of Elizabeth to observe the conditions would not automatically lead to a lapse of her beneficial life interest as submitted by Russell Boyd. Rather, the conditions are conditions that the trustee may enforce so that if the trustee were obliged to meet the expenses that Elizabeth was otherwise obliged to meet the trustee might be able to recover those moneys from Elizabeth and failing that perhaps sell the life interest to recover them. It is unnecessary for me to specify precisely what remedies the trustee might have. All that is necessary for me to find, is that if she fails to observe the conditions the life interest would not automatically lapse and fall to be dealt with as residue as if she had died and the life interest ceased.

(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

(2) The Court must not make an order under sub-section (1) in favour of a person unless -

(b) another person has applied for the order on behalf of that person.

(3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -

(b) the operation of the provisions of Part I, Division 6; or

(c) both the will and the operation of the provisions -

does not make adequate provision for the proper maintenance and support of the person.

(a) whether or not the deceased had responsibility to make provision for a person; and

(b) whether or not the distribution of the estate of the deceased person as effected by -

(ii) the operation of the provisions of Part I, Division 6; or

(iii) both the will and the operation of the provisions -

makes adequate provision for the proper maintenance and support of the person; and

(c) the amount of provision (if any) which the Court may order for the person; and

(d) any other matter related to an application for an order under sub-section (1) -

(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;

(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;

(n) the liability of any other person to maintain the applicant;

(o) the character and conduct of the applicant or any other person;

(p) any other matter the Court considers relevant."

At the hearing of such application the Court shall inquire fully into the estate of the deceased, and for that purpose may -

(a) summon and examine such witnesses as may be necessary; and

(b) require the executor or administrator to furnish full particulars of the estate of the deceased; and

(c) accept any evidence of the deceased person's reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing."

26 The deceased was born on 20 August 1912. He was 92 years of age when he died on 3 November 2004. Russell's mother Elva May Boyd died in 2001. The deceased had three children Stuart Mark Boyd, Elizabeth Helen Boyd and Russell.

27 Russell was born on 13 December 1952 and was aged 55 at the time of the hearing. He was married to Susan Lam on 14 December 1974. Russell and Susan separated on 20 September 2004 (before his father died). There are two children of the marriage, Bianca Lee Boyd aged 27 and Nathan William Boyd aged 22. Russell does not have a current partner.

28 Russell commenced primary schooling at Ormond East Primary School in 1957 and completed grade 6 in 1964. He then went to secondary school, first at Oakleigh Technical School for 4 years and secondly at Brighton Technical School for another 18 months. While there he commenced a diploma course in photography but did not complete it.

29 Russell left school in 1970 and went to work at a photographic laboratory in East Bentleigh for about 4 months.

30 Russell then went to work at Victoria Police where he commenced as a dark room attendant and later became a photographic assistant. He remained there for 15 years. He then worked at a photographic laboratory in Dandenong for about 2½ years.

31 Following that he went into the glass industry and worked for Don Mathieson Glass in Dandenong successively as a labourer, furnace operator and supervisor for 4½ years.

32 In 1991, Russell and his wife decided to move to Queensland. They settled on the Sunshine Coast. They quickly found jobs. Susan worked for Woolworths and Russell obtained a position in the glass industry with G James Safety Glass in Narangba and Russell has been working there ever since, first as a labourer and now as a supervisor.

33 Russell always had a normal relationship with his father. Russell kept in regular contact with his parents even after he moved to Queensland. The evidence does not suggest that Russell was anything but a loving and attentive son.

34 Russell's financial position is poor to say the least. Apart from a car on which he owes its full value he has no assets to speak of. In fact his liabilities exceed his assets.

37 Russell's income is $730 per week approximately.

39 Russell's health is generally very good. He does sometimes suffer from asthma.

40 Russell probably has about five or so more years of working. He will then retire with no home and the pension he will ultimately receive at 65 may support a low level of accommodation.

41 Elizabeth suffers from severe schizophrenia and has never been able to work or support herself. She lives with the benefit of a pension and occupation of the residence. She is visited daily by a district nurse. Russell deposed and the representative of Elizabeth has accepted the following description of her position:

"18. Things became a bit difficult for us as children as all of us children grew into adolescence, particularly after my sister was diagnosed as having schizophrenia. She was very destructive which created quite a bit of tension at home.

I left home when I married at age 22, so did not experience all of the unpleasant times my parents suffered because of Elizabeth's condition. Elizabeth always remained with my parents and became dependent on them. Because of her illness she became quite reclusive...

19. From the time my sister had been diagnosed with schizophrenia both my parents had been very concerned about Elizabeth who had been in and out of L'Arundel [sic] as a teenager and young adult. I used to visit her there with my parents. While she was under supervision she seemed to improve, but when she came home she would stop taking her medication and her behaviour deteriorated and she would "go ballistic". She was very violent and destructive when she was experiencing an episode.

20. At one stage my father asked Stuart and me I [sic] if we would look after Elizabeth when he and my mother died. We each took the view that because of our family commitments and because we both lived interstate we could not promise to do that. I believe that it was not long after my father made his last will, so as to provide for Elizabeth."

42 Mr Papaleo deposed in his affidavit of 19 October 2007 which was not challenged that Elizabeth is in receipt of a disability support pension from Centre Link in the amount of $517.90 per fortnight. He does not believe that the plaintiff is in receipt of any other income from any other source. Out of such income the plaintiff pays all her living expenses save for those listed below. The expenses Elizabeth meets include an amount of $20.75 a week paid to the Royal District Nursing Service for its attendance on her. He had no information as to whether Elizabeth manages any savings out of her income.

43 The defendant informed Mr Papaleo that it had been meeting out of the estate the following expenses with respect to the residence in Draper Street occupied by Elizabeth:

44 Section 91(4) of the Act envisages a three stage approach to each application. The first stage is to determine whether or not the deceased had responsibility to make provision for a person; secondly whether or not the distribution of the estate of the deceased makes adequate provision for the proper maintenance and support of the person and thirdly the amount of the provision (if any) which the court may order for the person. In determining each of these matters the court must have regard to paras 91(4) (e) to (o) and, pursuant to s 91(4)(p), to any other matter considered to be relevant.

45 In Blair v Blair[1] Nettle JA said that:

"The court is bound in answering each of those questions to have regard to the matters mentioned in ss 91(4)(e)-(o) and pursuant to s 91(4)(p), to any other matter considered to be relevant. Self evidently, such matters (referring to the matters mentioned) in are of themselves incapable of providing an answer to either question (referring to the first two questions). To reason from the matters mentioned in ss 91(e) to (p) to a conclusion that a testator had a responsibility to make a provision for a claimant, or that the testator failed to made adequate provision for the claimant, necessitates the application of a test or standard to the matters considered. The test remains one of whether and if so what provision a wise and just testator would have thought is his moral duty to make in the interests of the claimant."

Nettle JA's observation was expressly approved by Callaway JA in Lee v Hearn[2] and is consistent with Grey v Harrison[3] and Collicoat v McMillan.[4] MacEwan Shaw v Shaw[5] and Lee v Hearn[6] make it clear that the 1997 amendments made by the Wills Act 1997 do not require or justify a different approach from that approved in Grey v Harrison and Collicoat v McMillan.

46 In Bosch v Perpetual Trustee Co Ltd the Privy Council said in relation to the moral duty test that:

"Their Lordships agree that in every case the court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father... The Act is ...designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances."[7]

47 Of course the Act is no longer limited to the spouse and children of the testator. But that is not relevant to these applications.

48 The breach of the moral duty is an objective test to be measured against all the relevant facts and in particular the matters referred to in 91(4)(e) to (o) if the Act and any other matter the court thinks relevant under (p).[8]

49 In Blair v Blair an adult son was successful in obtaining an order under s 91 of the Act.[9] Naturally each case turns on its own facts. But it is clear from Blair v Blair that an adult son need not establish a special need or special claim before the court can exercise its discretion in his favour.[10]

50 I now address each of the matters I am required to have regard to in paras 91(4)(e)-(o).

(e) The family relationship and the nature of the relationship

51 Russell left home in his twenties and made his own life with a wife and children. He kept in touch with his father and it is fair to say behaved as any normal son would do who was making his own way in the world.

52 Elizabeth lived with her father until he went into a home shortly before he died. Due to Elizabeth's illness the relationship must at times been difficult but she was much dependent on her father for her day to day existence.

(f) Any obligations or responsibilities of the deceased to the applicant

53 The deceased did not owe any special obligation to Russell other than as a father who has moneys to deal with in his estate and has before him a loving son who through the exigencies of life is faced with a bleak future with no home and the prospect of living off an old age pension and perhaps some small amount of superannuation. There was no reference to superannuation at the trial.

54 The deceased did owe an obligation to Elizabeth which he sought to acknowledge in his will. It is claimed on behalf of Russell that the deceased in dealing with that obligation from an objective point of view overlooked the moral obligation due to his son Russell in the circumstances that Russell found himself in at the time of the deceased's death (or as the Act suggests at the time of the hearing).

55 As it turned out the estate was for all practical purposes limited to the family home. To leave a life interest to Elizabeth in the house on conditions she pay the outgoings was not appropriate in the circumstances. She could not observe the conditions and the house ought to have been sold. The sale of the house would have enabled Elizabeth to be properly housed elsewhere and leave moneys over to satisfy any moral obligation to Russell. The value of the house is about $800,000. If it is sold and commission and expenses paid to the administrator and the executor and the costs of these proceedings are met out of the estate some $650,000 should fall into the residue.

(h) The financial resources and financial needs of the applicant

56 Russell needs a capital sum if he is to acquire his own accommodation before eking out a living on the pension. Elizabeth has a disability pension and requires secure accommodation with income to meet the property's outgoings.

(i) Any physical, mental or intellectual disability of any applicant

57 Russell is fit and healthy. Elizabeth suffers from schizophrenia.

58 Russell is 56 and Elizabeth is 58 or thereabouts.

(k) Any contribution of the applicant to building up the estate

59 Neither Russell nor Elizabeth made any material contribution to building up the estate.

(l) Any benefits previously given by the deceased to any applicant

(m) Whether the applicant was being maintained by the deceased etc

61 Russell was not being maintained. Save for Elizabeth's disability pension, Elizabeth was being maintained by the deceased.

(n) The liability of any other person to maintain the applicant

62 No one is liable to maintain Russell. Elizabeth receives a disability pension. Russell deposed that at one stage his father asked Stuart and him if they would look after Elizabeth when he and his mother died. He says they each took the view that because of family commitments and because they both lived interstate they could not promise to do that. Russell believes it was not long after that that his father made his last will so as to provide for Elizabeth.

(o) The character and conduct of the applicant or any other person

63 It was submitted on behalf of Elizabeth that both Russell and Stuart stated to the deceased that they could not look after Elizabeth.

64 It is relevant that Elizabeth's moral claims do not require her to have the use of a three bedroom house on a large suburban block requiring gardening and maintenance to the exclusion of all other claimants on the deceased's bounty. In other words the deceased could well have fulfilled his undoubted moral obligation by providing for the sale of the family home and the purchase of a more suitable accommodation for Elizabeth. Further, Elizabeth needs to be able to access a capital sum if the circumstances so require. A life interest does not provide sufficient flexibility to deal with possible exigencies, especially where the estate is now to make greater provision for Russell. To that extent, the deceased has failed to make proper provision for Elizabeth.

65 Under the existing will, Russell will share in the house if he survives Elizabeth. Whether that eventuality arises, if at all, in time to provide Russell with the means to acquire a home, is speculative.

Determination with respect to Russell Boyd and Elizabeth Boyd

66 Bearing in mind the moral basis of the responsibility to make provision for a person, in my opinion, a wise and just father, taking into account all the matters referred to above, would have acknowledged a moral obligation to Russell and Elizabeth to make adequate provision for the proper maintenance and support of Russell and Elizabeth.

67 After having regard to each of those matters I determine in respect of Russell Boyd that the deceased William Peter Boyd had a responsibility to make provision for Russell and that the distribution of the estate of the deceased person as affected by his will did not make adequate provision for the proper maintenance and support of Russell Boyd.

68 After having regard to each of those matters, I determine in respect of Elizabeth that the deceased William Peter Boyd had a responsibility to make provision for Elizabeth and that the distribution of the estate the deceased as affected by his will did not make adequate provision for the proper maintenance and support of Elizabeth Boyd.

69 I propose to order that Clause 3 (b) and (c) should read: That after realising the assets of the estate and payment there from by the estate of the just debts, funeral and testamentary expenses, the executors and trustees commission, the costs of administration and after provision out of the estate for costs of the plaintiffs and the defendant of these proceeding, the residue shall be paid as follows:

(b) the balance of two thirds to the defendant to hold on trust for Elizabeth Boyd for life with power to purchase accommodation and advance capital during her lifetime as the trustee in its absolute discretion determines and then from and after her death for such of Russell Boyd and Stuart Boyd then living absolutely and if both then equally providing that if either are not then living but leave a child or children who have survived the deceased and attained the age of 21 years, then such child of children shall take and if more than one, equally the share in the balance of the estate which his, her or their father would have taken had he attained a vested interest at the date of this order.

70 On the figures provided to me that should realise approximately $440,000 for the use of Elizabeth. After the purchase of a unit for about $300,000, about $140,000 should be realised, yielding about $7000 a year for the maintenance of the property and the maintenance and support of Elizabeth.

71 Bearing in mind the matters that I must, I find that such a distribution will make adequate provision for the maintenance and support of Elizabeth and Russell.

72 I reject the application that the house not be sold until 1 July 2008.

73 I shall hear counsel on the question of costs and the precise terms of the order.

[1] [2004] VSCA 149 at [41].

[2] [2005] VSCA 127.

[3] [1997] 2 VR 359.

[5] [2003] VSC 318.

[6] [2005] VSCA 127.

[7] [1938] AC 463 at 478-9.

[8] Grey v Harrison [1997] 2 VR 359 at 364 per Callaway JA.

[9] Blair v Blair [2004] VSCA 149. But see Coombes v Ward [2004] VSCA 51.

[10] Blair v Blair [2004] VSCA 149 at [20] per Chernov JA.