Plaintiff v Defendants

"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."

8 This statement was quoted with approval by the Privy Council in the leading case of Bosch v Perpetual Trustees Co,[2] the latter case being quoted with approval by the High Court on a number of occasions. See by way of example McCosker v McCosker.[3]

9 The law in this State required the Court to determine whether it had jurisdiction and if enlivened, the issue was what provision should be made. The latter question was a discretionary matter. In 1962 an amendment to s.91 of the Act gave jurisdiction to the Court where on an intestacy the effect of the statutory provisions relating to what was to occur failed to make proper provision for the deceased's dependents. The essential jurisdictional question was whether the deceased's will or the effect of the statutory intestacy provisions or both failed to make adequate provision for the proper maintenance and support of the deceased's widow or others who were defined.

10 In White v Barron,[4] the High Court emphasised that the first question, being one of jurisdiction, did not involve the exercise of any discretionary judgment but the subsequent decision once the jurisdiction was enlivened, whether to make an order, was a discretionary judgment.

11 Up until 1994, it had been accepted in Australia that the correct approach to be adopted by a court invested with jurisdiction under the Part IV legislation was the statement of principle by Salmond J in Re Allen; Allen v Manchester.[5] I have set out the principle in paragraph 7 above. In 1994 the High Court decided Singer v Berghouse.[6] Three judges raised doubts whether Salmond J's statement provided any useful assistance in applying the statutory provisions. In Collicoat and ors v McMillan and anor[7] Ormiston J demonstrated that what their Honours said was contrary to well accepted law and he refused to follow what they said. After a full and detailed consideration of the authorities, his Honour stated:[8]

"In my opinion the expression 'moral claim' has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of the persons within the class specified. That 'moral obligation', as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards."

" ... I consider that the expression 'moral duty' remains a simple and convenient way of referring to the obligation, hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interests of all persons who might fairly ask to be taken into account in determining what adequate provision for proper maintenance and support should have been made for them had the testator been fully aware of all the relevant circumstances ... It is sufficient to say that the word 'moral' used in connexion with the legislation is apt to describe what is generally considered, according to accepted community standards, to be the obligation of a testator to do what is right and proper for those members of his or her family whom one would expect to be entitled to a share in the distribution of his or her estate on death. Indeed the word is particularly apposite when considering family relationships and the obligations arising from them for the purpose of ascertaining what is right and just as between members of a family. The legislation must be construed as making a legislative requirement which is intended to overcome the freedom of disposition which the common law ... formerly allowed to a testator, in contradistinction to the formal requirements for the division of a deceased person's estate among his or her family imposed by many civil law countries. The legislative scheme is much more flexible in that it allows the court to determine to which persons and in what manner a deceased person should have felt it was right and proper in all the circumstances to distribute his or her estate, but only to the extent that it is necessary for their maintenance and support."

13 His Honour declined to follow the dicta in Singer v Berghouse.[10]

14 I interpolate to observe that his Honour's reasoning applies whether it is a will which effected the distribution or the statutory provisions concerning intestacy or a combination of both. Since his Honour made those observations, a number of events have occurred. First of all a number of substantial amendments were made to Part IV of the Act. These amendments were made by the Wills Act 1997, ss.55-59 (inclusive). The second event was the High Court revisited the observations made in the Singer case. See Vigolo v Bostin.[11]

15 Section 91 of the Act gives authority to the Court to order adequate provision for the proper maintenance and support of a specified class of persons. It was substituted by s.55 of the Wills Act 1997. The new section like the old section gives power to the Court to order adequate provision for the proper maintenance and support "of a person". A number of other amendments were made to the sections in Part IV. Despite the controversy arising as a result of the dicta in the Singer case and the detailed criticism made by Ormiston J, the new provisions in 1997 did not give any guidance to the Court as to what was the proper approach in considering whether it should exercise the jurisdiction and what order or orders it should make.

16 The new provisions altered the law as follows:

(i) The Applicant

17 The old section gave the right to apply for provision out of the estate to the deceased's widow, widower or children and in respect of the widow it included any former wife of the deceased who at the date of death was in receipt of or entitled to payments of alimony or payments. The new provision gave a right to "a person for whom the deceased had responsibility to make provision." See s.91(1). This has considerably broadened the category of persons who have the right to apply for adequate provision out of the estate.

(ii) Person bringing application

18 The Court must not make an order unless the person applying for the order is entitled to a provision out of the estate or another person has applied for an order on behalf of that person. See s.91(2). It would appear that this sub-section is intended to enable applications by guardians of persons who cannot for some reason make the application on their own behalf.

(iii) Matters to consider

19 The Court, in determining the issues of whether the deceased had any responsibility for the applicant, whether the distribution made adequate provision for the proper maintenance and support of the person applying, and the amount of the provision and any other matter related to the application, is obliged to have regard to specified matters set out in s.91(4)(e)-(p) (inclusive). The Court is bound to have regard to these matters but having had regard to them, there is nothing in the new provisions which guides the Court as to any test to apply. The specified matters that the Court must have regard to are the matters the Court considered under the former legislation. It is noted that s.91(4)(p) is a catch-all clause and provides:

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

20 It is noted the Court must take into account matters that the Court considers relevant in the particular circumstances.

(iv) Evidence of reasons

21 There was some controversy about whether evidence of the reasons given by the testator as to his will and distribution were admissible. In Hughes v National Trustees and Executors and Agency Co of Australia,[12] Gibbs J held that any statement made by the testator could not be admitted as the truth of the fact. Section 94 was amended by the new Wills Act and empowered the Court to "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."

(v) Consider net estate and means

22 Section 95 of the former Part IV required the Court in fixing the amount to have regard to, amongst other things, the net estate and the widow's or children's means. This section was repealed. However, it is noted that s.91(4) paras (f), (g) and (h) require the Court to have regard to similar matters.

(vi) Conduct disentitling

23 Section 96(1) of the former provisions gave power to the Court to refuse any application if the character or conduct of the applicant in the opinion of the Court disentitled him or her to any benefit. Section 96(1) has been repealed. It is noted that in considering the matters that the Court must have regard to, the character and conduct of the applicant or any other person is a matter to be considered. See s.91(4)(o).

(vii) Costs

24 The new legislative provisions deal with the question of costs in s.97(6) which merely repeats the old sub-section that costs are in the discretion of the Court but s.97(7) makes it clear that if the application fails and the Court comes to a certain view as to whether the proceeding should have been brought, the Court may order the costs to be paid by the applicant.

25 One looks in vain through the provisions of Part IV as amended by the 1997 Wills Act for any indication of how the Court should approach the issues of jurisdiction and if enlivened, any provision being made in the discretion of the Court. Nothing is stated, express or implied, and accordingly it is my opinion that the Court's approach under the new provisions is the same as under the old provisions save and except that in my opinion the Court must deal specifically with the matters set out in s.91(4)(e)-(p) (inclusive). But having considered these matters, the Court is then bound to decide the issues in the same way as it has in the past.

26 In the recent High Court case of Vigolo v Bostin, the various members of the High Court discussed what the three judges had said in the Singer case and it would appear that the approach stated by Salmond J and applied in so many cases in the past is still the proper approach. In Vigolo, Gleeson CJ, dealing with legislation similar to the original legislation, said this:[13]

"In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and the application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning."

27 See also judgment of Callinan and Heydon JJ.[14]

28 Whether the will or the intestacy provisions or both do not make adequate provision for the proper maintenance and support of the plaintiff in this proceeding, that issue must be determined by a consideration of the facts existing at the date of death of the testator and the circumstances which might reasonably have been foreseen by him, whereas what order should be made is determined by reference to the facts existing at the time of the hearing. See Coates v National trustees Executors and Agency Co Ltd.[15] In considering the issues in an application such as the present, it is not for the Court to do what it thinks in a general way is a fair distribution. The legislation is aimed at remedying within a wide discretion breaches of a testator's moral duty to make adequate provision for the proper maintenance of those persons to whom he has a responsibility. In determining whether there has been a breach of a moral duty which is to be remedied, the factors set out in s.91(4) must be considered. Whether or not there are any other relevant matters to have regard to will depend upon the particular case and it is impossible to state what other factors may be relevant in all cases.

29 The new s.91 commenced in sub-s.(1) with the discretionary jurisdiction to make an order but subject to proof of one of the matters which enlivened the jurisdiction of the Court. Section 91(1) provides:

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

(Emphasis added).

30 The initial jurisdictional question involves the consideration and determination of the issue, the burden of which rests on the applicant, namely:

Did the deceased have a responsibility to make provision out of his estate for the applicant?

31 The second matter the applicant has to prove is that either he or she is the applicant or another person has applied for an order on behalf of that person. See s.91(2).

32 The third matter to prove is that the deceased's will, and on intestacy, the statutory provisions or both:

"Do not make adequate provision for the proper maintenance and support of the applicant."

33 Section 91(4) specifies what the Court must have regard to not only in respect to the applicant's entitlement (the identity issue) but also whether the distribution makes adequate provision (the pure jurisdiction issue) and the discretionary aspect of the jurisdiction (the discretion). It is noted that there is a catch-all paragraph in s.91(4)(p).

34 Section 91(4) relevantly provides:

(a) ... (the identity issue - responsibility to make a provision)

(b) ... (the jurisdiction issue - did the testamentary result make adequate provision?)

(c) ... (the amount of the provision) and

(d) ... (any other matter related to the application)

must have regard to

(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;

(j) the age of the applicant;

(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."

(Emphasis added.)

35 It is observed that these matters must be considered in relation to each element of proof and hence there will be an overlap.

36 In my opinion, the test laid down in the old cases, namely, whether the deceased as a wise and just testator had a moral duty to make provision for the maintenance and support of an applicant has failed to comply with the duty, is still the test to apply. The law has changed but little. Much ink and paper has been used as judges grapple with the new legislation and how to apply it. The Court of Appeal has considered the new legislation on three occasions.[16] Many judges have considered the new legislation.

37 The plaintiff in the present case would not have been able to bring a proceeding under the old legislation.

Facts

38 The plaintiff swore her affidavit in support on 28 September 2004 and the deceased's children swore a joint affidavit on 29 November 2004. The plaintiff responded to the children's affidavit by affidavit sworn 8 February 2005. The executors filed an affidavit sworn 12 July 2005, of the financial position of the estate.

39 The plaintiff's affidavits must be scrutinised with care because portions of them concern matters which cannot be refuted because the only person who could have done so is the deceased. It behoves the Court to closely scrutinise her evidence. Further, in her first affidavit she failed to reveal that when the deceased and she purchased a business at Kangaroo Flat, he contributed at least $40,000 to the purchase price of the business. Whilst I accept the submission of Mr Harrison, counsel for the plaintiff, that in paragraph 12 of her affidavit she noted the purchase price was $195,000, whereas the true purchase price was $240,000 and accordingly she had overlooked the contribution made by the deceased, the fact is that she omitted to make any reference to the contribution made by the deceased. The evidence revealed that he of the two was the only person who had any cash at the time when the business was purchased. In my opinion, that was a deliberate omission and reflects upon her credibility. In addition, after the deceased's death, the partnership accounts were retrospectively amended. In 1997 the plaintiff sold her home in Maldon and used the balance of the purchase price of $73,491.37 to pay out the mortgage over the joint property. Whilst it was noted in the balance sheet that the mortgage had been discharged, there was no entry suggesting that the contribution was anything other than a contribution to capital by the plaintiff. After death the accounts were amended to reveal that the amount paid was in fact a loan. The plaintiff gave instructions to the accountants, and was a party to the change. On no view during the deceased's lifetime were the contributions made by both to the acquisition of the real estate and business treated as loans. The plaintiff was a party to the change. It reflects on her credibility. I say that because on the most benevolent view of the facts, even assuming that it was to correct an error in the accounts, the fact was that the initial contribution made by the deceased was never treated as a loan and after the retrospective amendments did not feature as a loan. In my view, the conduct of the plaintiff reflects upon her credibility.

40 The children's affidavit in the main is argumentative and raises queries about matters that the plaintiff has deposed to. The children were not in a position to know of their own knowledge many of the facts deposed to by the plaintiff. I will now state the facts as I find them.

41 The deceased was born on 2 November 1943 and at the date of his death was aged 59 years. He was married and had two children, Craig Sitch, born 13 September 1972, now aged 32 years; and Kirsty Sitch, born 19 November 1975, now aged 29 years. The plaintiff was born on 31 October 1951 and is now aged 54 years. At the date of the deceased's death she was aged 51 years. She had three children, Alison Gillies, born 2 February 1974, now aged 31 years; Rowan Gillies, born 6 March 1975, now aged 30 years; and Cameron Gillies, born 26 April 1977, now aged 28 years. According to her evidence, the three children had left home by the time the deceased commenced co-habitation on a permanent basis.

42 The deceased and the plaintiff met some time in 1983 and shared a love of gardening. At that time the deceased was conducting a plant nursery. The plaintiff was living with her husband and her three children. In or about 1988, the plaintiff separated from her husband and the parties settled their property matters, resulting in the plaintiff receiving funds which enabled her to purchase a house in Maldon. It was unencumbered. In 1989 the deceased separated from his wife and shortly thereafter formed a relationship with the plaintiff. However, the relationship did not immediately result in them living together as husband and wife. The first time that the deceased moved in with the plaintiff it lasted a matter of days and he left. A few months later he moved in for a few months and then moved out. It was not until some six to 12 months later that he returned and they lived together thereafter as husband and wife. This would appear to have been some time around late 1990. They resided together at the plaintiff's house at Maldon. The deceased contributed $100 per week towards household expenses and the plaintiff paid the expenses associated with the home, namely rates, insurance and other outgoings.

43 After the deceased had separated from his wife and about the time he commenced a relationship with the plaintiff, he executed his last will. This was on 8 August 1989. He left his whole estate to his trustees in trust for the maintenance, education and benefit of his infant children, and when the children attained 21 years they were to receive his estate in equal shares.

44 It appears that after taking up residence with the plaintiff, the deceased earned income as a landscape gardener.

45 On 23 August 1991, the deceased and his former wife entered into a settlement of their property matters and the deceased received $105,000, together with entitlement to his superannuation which at that stage was valued in the order of about $20,000. By this time the plaintiff was working at a nursery at 15 Wesley Street, Kangaroo Flat, known as the Wesley Street Garden Centre. The deceased used some of his funds to purchase a Daimler SP250 sports car and spent many hours restoring it. Jumping ahead, it appears that in 1996 he bought a 1966 Daimler sedan.

46 The parties made a decision to purchase the plant nursery business and the real property at 15 Wesley Street, Kangaroo Flat. They negotiated with the owners and eventually it was agreed that they would purchase the real estate, the nursery business, stock, plant and equipment for $240,000. At that stage the plaintiff owned her property at Maldon and the deceased had the moneys from his property settlement. According to the settlement statement dated 6 October 1992, the total purchase price was $240,000. A deposit of $61,000 was paid. A loan was obtained from the State Bank which totalled approximately $130,000 which included stamp duty and registration fees. The parties obtained a loan of some $80,000 from the plaintiff's mother, Mrs Cashmore. According to the plaintiff, the deceased contributed $40,000 to the purchase price which she said was about the cost of the stock. It is suggested by the deceased's children that he made a greater contribution of some $61,000 but their evidence is based upon a mathematical calculation which does not bear close examination. Whilst I am concerned about the plaintiff's credibility in respect to the acquisition and the amount contributed by the deceased, I find on the balance of probabilities that he contributed $40,000 out of his own funds to the partnership.

47 It is pertinent to observe that the property was registered in the names of the plaintiff and the deceased as tenants in common in equal shares. The business thereafter was conducted as a partnership business and this continued up to 30 June 2000. The parties worked the business in partnership seven days per week. They purchased a panel van which was used in the business. The deceased grew the plants and tended to them, and the plaintiff was responsible for the retail sales side of the business. She also kept the accounts which were handed to an accountant each year in order to prepare the financial statements. All expenses of their living were paid out of the business. Up to 1997, the parties lived at the plaintiff's house in Maldon. The expenses of the home were paid out of the partnership business. Each party drew regular drawings which were paid into their individual accounts and were treated as their own. The business expenses, including the loans, were paid out of the business. The house on the nursery property was from time to time rented out and the income went into the partnership. However, I gathered from the plaintiff's evidence that it was empty more often than it was occupied.

48 In 1997 the plaintiff sold her residence at Maldon. She applied the proceeds of $73,491.37 to pay off the mortgage to the bank in respect of the business and the property. The partnership accounts to 30 June 1998 right through to the date of death did not record this payment as a loan by the plaintiff to the partnership. As stated, after the death the accounts were prepared for the year ending 30 June 2002 and for the first time in the accounts a liability was noted in the balance sheet to 30 June 2002 being a loan of the plaintiff to the partnership in the sum of $73,491. The previous year's accounts to 30 June 2001 are also noted in those accounts and the same item is revealed. On the other hand, looking at the original accounts to 30 June 2001, no such item appears. The accounts were retrospectively amended. In addition, another amendment was made. There has been a change in the creditors of the business from nothing in the original 2001 accounts to the amended accounts to 30 June 2002 where the creditors were then noted at $34,159 and the following year there was a further increase to $40,935. These changes raise a real concern about the accuracy of the accounts and also the honesty of the plaintiff because she had to be the source of the information that was given to the accountants. I was not impressed with her evidence in relation to the sudden appearance of a $34,159 creditors' debt in the accounts to 30 June 2001 which did not appear in the earlier accounts. The plaintiff stated that she thought that may be interest due to her mother. On the other hand, she gave evidence that there were no records kept of moneys paid to her mother. She informed the Court the parties proceeded on the basis that they always paid the interest payment to the mother and they had never failed to pay it and hence there was no necessity for any records. Reference to the profit and loss statement to 30 June 2001 shows payment of interest to her mother of $5,040 which represents a monthly amount of about $450. The plaintiff stated that the parties paid the interest up to the deceased's date of death but she has not paid any interest since. The changing of the accounts to some extent reflects upon the accountants. It may be that errors were made but it does appear that these changes occurred after the date of death and that the source of the information was indeed the plaintiff. Naturally, the children in their affidavit raised a query as to whether the $73,491 was actually paid by the plaintiff to pay out the mortgage.

49 During the course of the trial, further financial statements were placed in evidence and I am satisfied that that moneys received by the plaintiff on sale of her property were in fact used to pay off the partnership mortgage. Although this mortgage was paid out, and the deceased started taking outside landscape work, the business faced substantial competition and at the end of financial year 30 June 2000, they closed the business. This was approximately two and a half years prior to the death of the deceased. The parties spent some money on upgrading their panel van and over that period went travelling and camping, according to the plaintiff, on about 22 occasions. Her evidence was that they went away for two or three days at a time, or thereabouts, and travelled in this State and to South Australia and to New South Wales. During this period the deceased continued the partnership business as a landscape gardening business and worked on the average about two to three days per week. On some occasions he would work five days per week and then the following week would not work. This continued until his death. The plaintiff, for her part, worked two days per fortnight assisting intellectually disabled persons run a plant nursery. The parties were able to follow this lifestyle of travelling and camping and working on an irregular basis. The demand for landscape gardening varied, and the plaintiff and the deceased travelled when the opportunity presented itself. It is clear in this period from 1 July 2000 until the date of death that the deceased made a greater financial contribution to the household than did the plaintiff.

50 The parties continued to pay the interest bill to the plaintiff's mother but did not pay off any of the principal.

51 In her affidavit, the plaintiff stated that after commencing the nursery business "all expenses of operating the nursery and our joint living expenses were paid through the business cheque account. We each took an equal amount of drawings weekly to pay for any of our personal items and home living expenses. We contributed equally to our costs of living such as food et cetera." In her oral evidence, the plaintiff stated that each party had his or her own bank account, and the drawings taken by each partner were paid into that partner's bank account.

52 Approximately seven days prior to his death, the deceased cut his foot, suffered a deep vein thrombosis and died on 7 December 2002.

53 In her affidavit, the plaintiff stated that from time to time during the relationship the deceased and she discussed the question of altering their respective wills. The fact was that neither did. The plaintiff stated that she never made a will after her divorce and under the terms of her will made many years ago her former husband was the beneficiary. The divorce revokes any disposition to the divorced spouse. See s.14(1)(a) of the Wills Act 1997. She further deposes to the fact that the deceased expressed an opinion to her that if anything should happen to him he did not want her to have any problems with ownership of the nursery land. This somewhat vague statement is difficult to accept bearing in mind the way the parties dealt with their assets. In addition, the property is large, bigger than the plaintiff's requirements and the nursery area is presently leased out by her. I do not accept her evidence that she and the deceased discussed changing their wills or that if anything should happen to the deceased he did not want her to have any problems with the ownership of the property. The fact was that no effort was made to change the wills. The land when acquired in 1992 was registered in both names as tenants in common. Each party evinced an intention to preserve their right to the property. The plaintiff gave evidence that the parties expected that on the deceased's retirement in 2008 he would sell the two motor vehicles, collect his superannuation, buy a mobile home and they would travel around Australia.

54 After the deceased's death, the plaintiff stopped paying her mother any interest. It appears there is a principal sum of $50,000 owing to her mother by the plaintiff and the estate, together with interest. It appears that the interest rate was in the order of 10%.

55 The plaintiff is now employed at Goldfields Revegetation Nursery at Mandurang and her net weekly income after tax is $494.75. Her assets comprise the half share in the property at Kangaroo Flat which according to the valuation evidence is valued at $290,000. Accordingly her half interest is valued at $145,000. She presently has possession of the Holden panel van which is valued at about $8,000. She has a half interest in that vehicle. She gave evidence that she has a sum of approximately $13,000 in a savings account. This is the balance of proceeds she obtained from the deceased's superannuation.

56 She also says she has furniture, household and personal effects of $10,000. She has a liability to her mother jointly with the estate of $50,000. Her share is $25,000, together with half of the unpaid interest. Her liability for interest is in the order of approximately $7,000.

57 The inventory which accompanied the application for probate revealed the assets in the estate being $6,092 in respect to the partnership business, motor vehicles valued at $30,000, shares in the Commonwealth Bank of $7,063.04, an amount of $23,570.19 superannuation, and the half interest in the property at Kangaroo Flat of $110,000. The liabilities were the loan owing to the plaintiff's mother of some $94,663 which appears to be incorrect, and the alleged loan owing to the plaintiff of $73,491. This left assets valued at $8,571.23 but if the loan to the plaintiff is ignored, the value of the net assets was in the order of $82,000.

58 The present position of the estate is different. The first matter that I must note is that although the inventory noted there was a superannuation payout of $23,570.19, it appears that the deceased did not nominate any beneficiaries under the policy. The plaintiff claimed that amount, and without going into all the details, the matter went to a superannuation tribunal and eventually the plaintiff and the deceased's children compromised their differences. The plaintiff received $20,000 and the two children received approximately $4,000 each.

59 After taking into account the receipts by the estate and the payments made, the present net cash position is $15,074.40. The real property is worth $290,000, and taking into account the estate's half interest, together with the moneys held in trust, the total assets are $160,835.47. The liabilities are noted as a creditor of $770, the estate's liability for the half share of the loan from the plaintiff's mother, Mrs Cashmore, not including accrued interest, namely, $25,000, and the estimated costs of the proceeding in the order of $50,000. After taking into account those liabilities, the net assets are $85,065.47. This compares with the plaintiff's assets in the order of $140,000.

60 The plaintiff has, since September last year, leased out the nursery area of the joint property and received rent from September 2004 to January 2005 at the rate of $120 per week, giving a total of $2,400 and from February to the present, being some six months, at $140 a week, giving a total of $3,360. The total amount is approximately $5,760. She has not accounted to the estate for half of this amount, namely, $2,880. The amount is taxable and she has paid out all the outgoings on the property. In my view this obligation can be ignored. It does not appear that the executors are seeking to enforce it. In addition, it was submitted that since she is a tenant in common in equal shares and is residing in the property, she should be making some contribution to the estate by way of rental but in my view that can also be ignored.

61 In considering the facts relevant to the issues in this proceeding, it is pertinent to observe that there are a number of features about the relationship of the plaintiff and the deceased which showed that they were equal partners, having a half interest in the assets of the partnership, each sharing the expenses of living but treating the other assets as each party's own. In support of that, I observe that they formed a relationship on a fairly permanent basis in about 1990. The plaintiff had her own home and that is where the parties lived. There were no children living with them. The deceased contributed about $100 per week towards the expenses prior to the acquisition of the plant nursery business. Thereafter all expenses were paid by the business. The deceased made a will in 1989 which left his estate to the children. In 1992 when they purchased the property and the business, again it was on a 50/50 basis. The real estate was registered in their names as tenants in common in equal shares, no effort was made to change wills, the partnership conducted the business and paid all expenses relating to their living and the business expenses, and each party had their own drawings which were their own and which were paid into their own accounts. They worked together as a couple. Neither had any dependants. They clearly worked very hard, side by side, seven days a week, for most of the year. In the period from about 1990 to death, they lived as husband and wife. However, they never married.

Approach to the Issues

62 It is clear from s.91(4) of the Act that the Court must have regard to the matters referred to in paragraphs (e) to (o) (inclusive). In addition, the Court is obliged to consider "any other matter the Court considers relevant". See s.91(4)(p). The Court is bound to consider all those matters when determining the three questions, namely, the obligation to the applicant, whether there has been adequate provision for the proper maintenance and support of the applicant, and if the jurisdiction is enlivened the discretionary judgment. But considering each of those relevant matters does not lead to a particular result. The Court considers and determines the issues in accordance with the well established principles of law worked out by the highest courts over the past 100 years.

63 The first thing to note is that in respect of the jurisdictional questions it is the situation at the date of death of the deceased that must be considered. In determining the jurisdictional questions the Court takes into account the facts as at the date of death, together with any other later facts which might reasonably have been foreseen by the wise and just testator at the date of his death. See Dun v Dun.[17]

64 Once the jurisdiction is enlivened then the question of what provision should be made is an exercise of discretion and is determined in accordance with the circumstances at the time of the hearing before the Court. In Blore v Lang[18] Dixon CJ said:[19]

"Once it is decided that the case is one in which the Court may make an order providing for the applicant, the question what provision ought to be made depends on somewhat different considerations. For it must be determined according to the circumstances that obtain at the time the application is before the Court."

65 The Court's approach was stated in the New Zealand case of In re Allardice.[20] The Court said:

"It is the duty of the Court so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children as the case may be. If the Court finds that the testator has been plainly guilty of a breach of such moral duty, then it is the duty of the Court to make such an order as appears to be sufficient, but no more than sufficient to repair it."

66 In re Allardice was affirmed in the Privy Council.[21]

67 In a later case, the Privy Council described the issue -

"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 or foolish husband and father."[22]

68 In approaching the issues, the Court must not overlook that it is not invested with a discretion to remake a testator's will upon some principle of fairness.[23]

69 The Court must not overlook the right of a testator to make a will of his choosing. In many cases the testator is in a far better position than a court to know and understand the claims on his or her bounty. See Stott v Cook.[24]

70 The new s.91 does not change the law as to the approach to determining the various matters in issue. The Court is bound to consider the matters set out in s.91(4) and it is appropriate in my opinion for the Court to consider each of the relevant matters and make findings. But in the end having performed that exercise, the Court should apply the principles which have been stated over the years which require the Court to place itself in the armchair of the testator and consider the duty that rested upon him with respect to his obligations to his family or others and determine whether or not he has, as a wise and just person, properly disposed of his estate.

Section 91(4)(e) - the relationship

71 The plaintiff and the deceased commenced their relationship in 1988/9 and by some time in 1990 had assumed a de facto relationship which continued right up to the tragic death in December 2002. It is clear that both provided to the other assistance in a personal and business capacity. Their relationship was close, and they worked and carried on a business together until 2000. Subsequently to 2000, as good friends they spent time travelling together, and working from time to time. Up to 2000, each made a substantial financial contribution to the acquisition of the nursery and property, they worked together, the finances of the business were used for all household and like expenses, and they drew drawings which each kept as his or her own. The nature of the relationship had a number of features of partnership. The acquisition of the nursery and the residence was on a basis of half each. The property was registered in the names of the parties as tenants in common in equal shares. Each maintained his or her own bank account. It was accepted that the moneys in those accounts were for the particular person. Each did not make a will leaving anything to the other. On the other hand, their relationship was a close and supportive one.

Section 91(4)(f) - obligations of deceased to applicant and others

72 The plaintiff and the deceased commenced living together on a permanent basis as husband and wife in the year 1990 and remained so until the death in 2002. Each made a substantial contribution to the acquisition of their joint property and each worked extremely hard over a period of eight years in the partnership. However, as I have stated, they kept their own property in the form of drawings in a bank account and each appeared to treat his or her property as their own.

73 The beneficiaries of the estate are the two adult children of the deceased. The deceased and their mother ceased to cohabit in about 1988 when the son would have been 16 years of age and the daughter 13 years of age. The deceased commenced to live with the plaintiff in or about the end of 1989. Those two children were deprived of the presence of their father living at home. They are his children, and would expect that his bounty would be left in a way which recognised that fact. The deceased's will reflects that this was his intention.

74 After the plant nursery was closed, the deceased accepted a degree of responsibility for looking after the plaintiff. He was the main bread winner in the family and the parties adopted a lifestyle which revolved around his obligations as a landscape gardener. In my opinion, he did accept a degree of responsibility towards the plaintiff in that period.

Section 91(4)(g) - size of the estate

75 The estate is not large. According to the executors' affidavit sworn 12 July 2005 the financial position of the estate at present can be summarised -

Half interest in the property and dwelling at 15 Wesley Street, Kangaroo Flat -

Money held in trust by executors' solicitors after sale of shares and two motor vehicles and payment of legal costs re application for probate less payments made -

(ii) deceased's half share of loan from ML Cashmore but not including accrued interest -

76 The evidence revealed that no interest has been paid to Mrs Cashmore since the date of the death. The evidence further revealed accrued interest of about $7,000 owing by the estate. This would leave the net assets at $78,065.47.

77 One matter that in my opinion cannot be overlooked is that the deceased had a superannuation policy and subsequent to his death after a dispute arose between the plaintiff and the deceased's two children, it was compromised and she received $20,000 and each of the children received approximately $4,000.

78 On any view the estate is an extremely small one.

Section 91(4)(h) - financial resources of applicant and beneficiaries

79 The plaintiff owns a half interest in the property which is valued at $145,000. She has in her bank account approximately $13,000 which is the balance of the superannuation moneys. In addition, she has a panel van which was partnership property and which in my opinion is half owned by the estate. However, it has a value of no more than $8,000. Her only liability is the amount of $25,000 plus accrued interest owing to her mother, a total of $32,000. On any view, she is in a far better position than the estate.

80 She has rented out the nursery part of the property since September last year and has received money in the order of about $6,000, but for reasons which I have earlier stated the sum can be put to one side and ignored.

81 Her state of health is good. More importantly, she is working in a nursery and is earning a net weekly income after tax of $494.75. There is no reason why she should not work until aged 65 years.

82 In my opinion, provided she has her own home unencumbered, the plaintiff is able to earn a living and look after herself and there is no reason why she should not work to the age of 65 years. In other words, her financial needs are adequately covered by the fact that she owns a home and is earning a reasonable salary for a person living on her own.

83 I interpolate that her gross salary would be in the order of $700 per week.

84 The son, Craig Sitch, now aged 32 years, is a university graduate who conducts a business in partnership with his de facto partner. He conducts a business manufacturing antique-type items for purchase over the internet. His partner works on a part-time basis in the business. They have a son, Lucien, now aged eight years. His assets comprise a property at Nerrina which is a suburb of Ballarat, valued at $160,000, a 1994 Commodore station wagon, business assets of about $10,000 and liabilities in the order of $40,000.

85 He stated that he earned about $80,000 gross per year in his manufacturing business.

86 His sister, Kirsty, is now aged 29 years and is employed as a Senior Community Corrections Officer earning $45,000 per year. She has a property at 122A Olinda Street, Bendigo worth $180,000, a motor vehicle worth $7,000, money in the bank of $1,000 and liabilities in the order of $140,000.

87 Both children are fit and healthy and would be expected to continue deriving income as they presently do. Their asset position is substantially less than that of the plaintiff.

Section 91(4)(i) - any disabilities

88 The plaintiff and the two children are physically and mentally sound and there is no suggestion of any physical, mental or intellectual disability.

Section 91(4)(j) - age of applicant

89 The plaintiff was born on 31 October 1951 and is aged 53 years.

Section 91(4)(k) - contribution by applicant (not for adequate consideration) to building up the estate or the welfare of the deceased or his family

90 At the outset it is important to note that this relevant matter only has substance if in fact a contribution was made by the plaintiff which has not been for adequate consideration, for example, where the plaintiff makes a contribution to the building up of the estate or the welfare of the deceased or his family which is not covered by some consideration supplied by the deceased. The present case provides an example of the plaintiff's contributions being met by contributions of the deceased up to 30 June 2000. In 1992, it was the deceased who had the funds to use in the acquisition of the land and nursery business. He contributed at least $40,000 to the acquisition. Five years later the plaintiff sold her house in Maldon and used $73,491.37 of the sale price to pay out the mortgage on the nursery property. Making some allowance for the drop in value of money between 1992 and 1997, it may be said that the plaintiff provided approximately $25,000 extra to the building up of the estate. However, since the property was purchased in the names of both the plaintiff and the deceased, the true measure of her additional contribution was in the order of $12,500. It was submitted on her behalf that she allowed him to use her van from time to time in the early 1990s, but in my view that was an insignificant contribution and I ignore it. However, there was another contribution that cannot be overlooked. From the beginning of the relationship which I find became a continuing de facto one in about 1990, the parties resided at the plaintiff's home in Maldon right up to 1997 when the home was sold. The deceased contributed $100 per week towards household expenses up to the commencement of the partnership. For a period of about two years he contributed $100 per week. In my opinion, his contribution would have covered his living expenses and some small contribution to the other household expenses, but in the end I think that in that two year period his contribution did not quite meet the plaintiff's contribution. However, I think in the circumstances there was a small difference only. I accept this was a small contribution to the welfare of the deceased.

Section 91(4)(l) - benefits previously given by deceased to applicant or other beneficiary

91 No benefits were given in the lifetime of the deceased to either the plaintiff or the two children. The plaintiff received approximately $20,000 of the superannuation after the death and each of the children received approximately $4,000 from the same source. These are matters that I take into account under sub-paragraph (p).

Section 91(4)(m) - maintenance of applicant by deceased and the extent of assumption of responsibility

92 From the very inception of their relationship, there is no doubt that both the plaintiff and the deceased made their contributions to the household and looked after each other. However, when the business was shut down in June 2000, for the next two and a half years the deceased accepted a degree of responsibility for the plaintiff. The parties decided, after the closure of the business, to spend time travelling which they did by camping trips and the like of a duration of two to three days. In the meantime, each worked but it was the deceased who worked about three days a week landscaping and brought in most of the income, whereas the plaintiff worked for approximately two days per fortnight. In this period it appears to have been accepted by the parties that they would pursue a certain lifestyle, working on a part-time basis to derive income, and to enjoy each other's company and travel. It was in that period that the deceased assumed a greater responsibility for the household income.

Section 91(4)(n) - liability of another to maintain applicant

93 No other person or persons has any liability or obligation to maintain the plaintiff and she has not entered into any other relationship. She maintains herself from her earnings.

Section 91(4)(o) - character and conduct of applicant or any other person

94 How the Court should treat this paragraph is not made clear by the legislation. The paragraph is to be compared with s.96(1) of the legislation prior to the 1997 amendments. It provided -

"(1) The Court may refuse any such application if the character or conduct of the applicant is such as in the opinion of the Court to disentitle him or her to the benefit of any provision under this part."

(Emphasis added.)

95 This provision was repealed. The fact that Parliament did not add the disentitling words to s.91(4)(o) means that the character and conduct of the applicant or another person are matters to consider in determining jurisdiction and, if it is enlivened, the discretionary judgment to determine the proper provision. The paragraph is not confined to character or conduct disentitling. On the other hand no guidance is given as to how the Court is to use any evidence of good or bad character or conduct in deciding the issues. Each case will have to be considered in accordance with its special circumstances. Conduct or character of a plaintiff may disentitle him or her to any provision out of the estate. In the present case it is said that the character of the plaintiff is without flaw. It is submitted, correctly, there is no evidence of misconduct on her part towards the deceased which caused or contributed in any way to her situation or the absence of any provision by the deceased for her. An attack is then made upon the two children in that it is asserted they have made irrelevant allegations against the plaintiff and her daughter. In addition, one of the children wrongfully detained the panel van from the plaintiff, resulting in the plaintiff bringing a proceeding in the Magistrates' Court to recover the panel van.

96 On the other hand, there are a number of features in the presentation of this case which reflect adversely on the conduct of the plaintiff. First of all, she made no mention whatsoever of the fact that the deceased contributed at least $40,000 to the acquisition of the nursery business and property. In addition, she played some part in causing the accounts of the partnership to be altered. Whilst it may be correct to assert that the alteration was made in good faith in that it was believed the contribution was a loan, the fact is that no mention was made of the deceased's initial contribution of at least $40,000 which also should have been treated the same way. In addition the retrospective insertion in the accounts of a sum for creditors was not adequately explained by the plaintiff. This conduct reflects on the plaintiff and her credibility.

97 In the joint affidavit, the children referred to the fact that the deceased told them that the plaintiff's daughter had taken them for thousands of dollars as a result of her drug dependence. I do not accept that they are entirely irrelevant allegations, because they impact upon the assets of the plaintiff and the estate and are relevant to the relationship and what the wise testator may consider. Unfortunately in many cases the Court is left with an incomplete picture of the relationship and is faced with the difficult task of determining what the wise testator should have done.[25] I accept that the plaintiff is not responsible for the problem. Likewise, the joint affidavit notes that the deceased's sister told the children that the deceased wanted to get out of the relationship. I note that. However, the objective facts do not appear to support that, especially the period from mid 2000 until death. I do not accept that these allegations are irrelevant, nor do I think they reflect in any way upon the two children. I also note that they depose to the fact that their father said that he loved them and he wanted them to succeed to his estate.

98 However, I am concerned by the conduct of the plaintiff in relation to the partnership accounts which resulted in a claim being made on the estate for payment of a liability of $73,491. If I had come to the conclusion that the plaintiff set out to defraud the estate I would have refused her application. I am prepared to give her the benefit of the doubt and proceed on the basis that in discussions with the accountants it was thought it was a loan by her to the partnership and that the accounts should properly reflect the liabilities of the partnership.

Section 91(4)(p) - any other relevant matter

99 It is a matter for the Court to consider whether there is any other matter that is relevant to the questions for consideration and determination. It was submitted on behalf of the plaintiff that given the small size of the estate she is to be provided with a roof over her head and a nest egg and this must mean the entire estate. It is noted that the children are adults, both young and employed and there is no reason why they cannot continue to earn sufficient income to keep themselves. It is noted that the daughter, Kirsty, has no dependents. It is then asserted that the plaintiff has limited future income prospects and limited future asset acquisition prospects. I do not accept that for one moment. She is now aged 54 years, she has worked in a nursery as a partner between 1992 to 2000, and over the last few years has been working in a nursery earning at least $475 clear per week. There is no reason why she should not continue to age 65. Her health is excellent. She has no dependents.

100 It is said that there is a real question whether the plaintiff has an ability to meet her financial responsibilities. The only one mentioned is the loan to her mother. This means a principal sum of $25,000 together with interest in the order of $7,000. What the plaintiff has done with her income in the past two and a half years and more particularly $7,000 of the $20,000 she received from the superannuation policy was not given in evidence. I do not accept that she is not in a position to meet her liabilities to her mother. Further, it is clear her mother is not pressing for payment.

101 The next matter relied upon is that it appeared that the plaintiff and the deceased had a good supportive relationship. I accept that that was so.

102 The final matter relied upon is the evidence given by the plaintiff that during the relationship she and the deceased discussed on occasions altering their respective wills. It is also noted that the deceased expressed an opinion that if anything should happen to him he did not want the plaintiff to have any problems with ownership of the nursery land. Further, it was noted that there were discussions that in 2008 when the deceased retired he proposed to sell the Daimler vehicles, collect his superannuation, buy a mobile home and travel around Australia. One of course has to approach this evidence with considerable care. The only person who could have refuted it is the deceased. It is hearsay evidence. One must approach it with considerable caution, especially in light of my view that the plaintiff's credibility has been adversely affected by the matters to which I have referred above. All the objective evidence suggests that each party treated his or her own property as their own. Once the nursery was closed down in the year 2000, it is hard to accept that there was any advantage in the parties living in the house on a large block of land which was 1.85 hectares with a large garden. On the site is a dwelling and nursery outbuildings. The dwelling comprises two separate residence. The residence at the front comprised a loungeroom, living room, two bedrooms and other rooms, and the area at the back comprised a kitchen/meals/living area, two bedrooms, bathroom and laundry. The rear residence was more modern and presents in a good condition. The nursery sales area is approximately 1152m, it is a steel framed building with a metal roof, western red cedar around the base of the walls and glass above. There is also a large garage on the property. In my opinion, if the deceased had lived, the parties would have sold the property and purchased a smaller residential property. Indeed, the upkeep and maintenance of the property would be substantial and demanding for people in late middle age.

103 I have carefully considered all the matters required to be considered by s.91(4) of the Act. It now becomes a question of considering each of the issues to be determined.

Jurisdiction

104 The jurisdictional question is -

Did the deceased have a responsibility to make adequate provision for the proper maintenance and support of the plaintiff and if so, did he make adequate provision?

105 In answering this question, the Court must have regard to the matters referred to in s.91(4) including of course any other matters that the Court considers relevant. Further, the question has to be answered as at the date of death of the deceased, taking into account all relevant circumstances and matters. In answering the question it is important to bear in mind that it must be proven on the balance of probabilities that the deceased had a responsibility to make an adequate provision for the proper maintenance and support of the plaintiff.

106 In Cooper v Dungan,[26] Stephen J[27] reminded the Court to be vigilant in guarding "against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant." His Honour's observations in my view equally apply to the jurisdictional question as well as the discretionary nature of the jurisdiction to make further provision.

107 Further, the Court must not lightly interfere with the right of a testator to leave his estate to beneficiaries of his choice.

108 What should the deceased have considered and taken into account at the date of his death in deciding whether any provision should be made for the proper maintenance and support of his de facto wife of 12 years? Given that some provision should be made, what should the provision be?

109 At the outset I wish to dispel a view which appears to be the view of the plaintiff and to some extent of her legal representatives. The mere fact that two persons lived together under the same roof and for a substantial period does not, of itself without anything more, impose an obligation on the first person to die to support the survivor. The plaintiff seems to be of the view in this case that because she had had a de facto relationship of some 12 years with the deceased, she was entitled to his estate. This was made clear by her observation in evidence that she was of the view that when he died she was entitled as his de facto widow to his superannuation. Persons come together and reside in the same premises and support each other for a variety of reasons. It is only when circumstances establish that the deceased person had a responsibility to make provision for the proper maintenance and support of the other person and failed to do so that the jurisdiction is enlivened. My observations can be tested by considering the situation where you have two friends living under the same roof and finding it convenient, appropriate and even necessary to live together and share expenses. Does it follow that if one should die the other is entitled to his or her estate or a portion thereof? What if the deceased had not died ahead of the plaintiff in the present proceeding? Would Mr Geoffrey Sitch have been entitled to make an application as the plaintiff has by reason of the fact that he and Mrs Gillies had resided together as man and wife?

110 Counsel for the estate conceded that the deceased should have made some provision for the plaintiff. He did not identify any particular matters which enlivened the jurisdiction and went on to submit that the estate should be divided one-third to plaintiff and one-third to each of the two children. It was put on behalf of the plaintiff that she should receive the entire estate. It was argued on her behalf that the estate was not large, that the plaintiff's circumstances were not financially strong and that the children had no greater moral claim than she did.

111 In my opinion, the jurisdiction has been enlivened. In my opinion the wise and just testator in the position of the deceased on his death bed would have realised that the plaintiff made a significant contribution in the early years to the deceased's welfare by reason of him living at her home, that she made a contribution probably marginally greater than his to the joint property and business, and finally, that in the latter years he assumed a degree of responsibility for her. He would have taken into account that in order for the estate to discharge its liabilities it would be necessary to sell the joint real property and that in any event that would occur because it was too large for the plaintiff to maintain and look after. The wise testator, knowing all the relevant circumstances, would have realised that in order for the real estate to be sold for the estate to meet its debts, in particular the loan to the plaintiff's mother, there would be an expense involved and in the circumstances the plaintiff may be left with insufficient funds to provide a suitable residence for herself. He would have appreciated that it was important that she should have a suitable residence, unencumbered. He would have also appreciated that she would be able to adequately live on an income earned as an employee working in a plant nursery which she was well qualified to do. In my opinion, the deceased did have a responsibility to make provision for the plaintiff in his will for her proper maintenance and support and failed to do so.

Adequate Provision

112 The estate is extremely small. The evidence revealed that the nursery land and residence was valued at $290,000. It is unencumbered. It is a large area. The property should be sold. There will be a cost involved in the sale and there will also be a cost involved in the plaintiff obtaining a suitable residence. I have little doubt that she could purchase a suitable residence for herself in an area around Bendigo for an amount between $150,000 to $200,000.

113 In my opinion, taking into account again all the matters under s.91(4), I think that a just and wise testator in the circumstances would make a provision for the plaintiff in the sum of $50,000 to meet the expenses of sale and the purchase of a smaller suitable residence. The provision is to cushion the plaintiff against a possibility that on a sale of the property she may not have sufficient to purchase outright a suitable home. In arriving at that figure, of course I am taking into account the very small size of the estate and also the claims on the bounty of the deceased, that is, his two children.

114 As the plaintiff has received the sum of $20,000 being the proceeds from the superannuation, in my view the further provision should be the sum of $30,000 which together with the superannuation payout represents $50,000.

115 In addition, the just and wise testator, realising that the panel van was a joint asset which was used by the couple for their travelling and own purposes, would have transferred the other half interest to the plaintiff. I propose to make provision for that.

Conclusion

116 In my opinion, the plaintiff has established that the deceased failed to make adequate provision for the proper maintenance and support of her in his will, that he did have a responsibility to make a provision in her favour and that in the circumstances she should receive a total of $50,000 together with the half interest in the panel van. As she has received $20,000, I will make an order reflecting that fact.

117 Subject to any submissions by counsel, I propose to make the following orders:

1. Declare that the distribution of the estate of Geoffrey George Sitch deceased effected by his will dated 8 August 1989 does not make adequate provision for the proper maintenance and support of the plaintiff Marjorie Dianne Gillies.

2. Order that provision for the plaintiff be made out of the estate of the deceased by adding the following paragraph 2A to the will -

"2A(i) I give and bequeath to Marjorie Dianne Gillies the sum of $30,000 without legacy interest;

(ii) I give and bequeath to the said Marjorie Dianne Gillies all my interest in the jointly owned Holden Sandman panel van."

3. Order that the costs of the plaintiff of this proceeding be taxed on a solicitor and client basis and when taxed be paid by the estate.

4. Order that the executors' costs and expenses of the proceeding be had and retained out of the estate.

5. Liberty to apply generally.

[1] [1922] NZLR 218 at 220-1.

[2] [1938] AC 463 at 479.

[3] [1957] HCA 82; (1957) 97 CLR 566 at 571-2.

[4] [1980] HCA 14; (1980) 144 CLR 431 at 442-3.

[5] supra, at 220-1.

[6] [1994] HCA 40; (1994) 181 CLR 201.

[7] [1999] 3 VR 803.

[8] At p.818.

[9] At p.819.

[10] At p.209.

[11] [2005] HCA 11; (2005) 79 ALJR 731.

[12] [1979] HCA 2; (1979) 143 CLR 134.

[13] At paragraph 25.

[14] At paragraph 113 and following.

[15] [1956] HCA 23; (1956) 95 CLR 494.

[16] See Coombes v. Ward [2004] VSCA 51; Blair v. Blair [2004] VSCA 149; and Lee v. Hearn [2005] VSCA 124.

[17] [1959] AC 272.

[18] [1960] HCA 73; (1960) 104 CLR 124.

[19] At p.130.

[20] (1910) 29 NZLR 959 at 972.

[21] see [1911] AC 730.

[22] See Bosch v Perpetual Trustee Co Ltd [1938] AC 436 at 438-9.

[23] See Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1 at p.20.

[24] (1960) 33 ALJR 447 at 453 per Taylor J.

[25] See Stott v. Cook (1960) 33 ALJR 447 at 449, per Dixon CJ.

[26] (1976) 50 ALJR 539.

[27] At p.542.