62 The quantum of the plaintiff's future needs is difficult to determine, largely because it is not possible to say with any certainty what the plaintiff's life expectancy is. The plaintiff concedes that he is not in good health for his age.
63 Counsel for the plaintiff submitted that any additional provision should enable the plaintiff to meet his immediate capital needs of updating household furniture and appliances, extinguish any indebtedness he may have to the estate, and provide a "nest egg" which will allow him to have a greater weekly disposable income. This in turn will improve the standard of his accommodation and give him a financial buffer for life's general contingencies such as medical and associated expenses.
64 The plaintiff's only assets are his wheelchair and scooter, furniture, household goods and clothing. He has no realistic employment capacity.
65 His short-term capital needs are said to total approximately $23,600. Of that total, some $16,600 relate to mobility aids, being $7,579 for a scooter he has recently purchased, and approximately $9,000 for the cost of his next scooter; his scooters require replacement every four years or so. The remaining $7,000 is said to be for updated household furniture and appliances, in the form of a new lounge suite and a larger television, as well as new clothing. He has apparently had no new clothing since his daughter bought him some in 2003; otherwise he shops for used clothing at charity shops. Whilst a larger television might sound like a luxury item to some people, his failing eyesight makes it harder for him to see a small screen and, given his mobility problems, television is one of his major daily activities.
66 The plaintiff is currently living in a small, one bedroom flat in public housing. His scooter and wheelchair take up much of the small living room and his current accommodation is extremely cramped. It seems unlikely that, as a single person, he would be able to get a two bedroom flat in public housing. On the plus side, his current accommodation is on the ground floor, has wheelchair access, is close to all amenities he needs and is in an area in which he is happy to live and close to his friends and carers. Importantly, he also has security of tenure.
67 He would like to have enough funds to be able to privately rent a 2 bedroom apartment in the same general suburban area, to give him more room to move himself and his mobility aids around. However, as counsel for the defendants pointed out, entering the private rental market would make the plaintiff more financially vulnerable, as he would be subject to market rent increases and less secure tenure than in public housing. Private rental accommodation would also be significantly more expensive than his current rent of approximately $60 per week, perhaps four to five times as expensive.
68 The size of the estate is such that it may not be sufficient to enable him to move into private rental accommodation at $300 per week. Very little evidence was presented as to just what might be available privately and at what price. Nevertheless, he may be able to rent a larger flat in the private market for something between his current rental and $300 per week.
69 The standard of lifestyle to which an applicant was accustomed to enjoying as a result of support from the deceased is a relevant factor in determining the applicant's needs[7]. Although far from luxurious, thanks to his mother's support for the past dozen years of her life, he was accustomed to a much better standard of living than he now experiences.
70 There was no evidence before me as to the possible effect of receipt of provision under the will on the plaintiff's disability pension. For the reasons expressed by Smith J in Coller v Coller[8], I agree that means tested sources of income should not generally be taken into account by a just and wise testator when making provision.
71 An important factor in calculating provision is the existence of any competing claims against the estate. Here there are no such claims; none of the other beneficiaries has any financial need sufficient to found a claim of their own for an entitlement to financial provision.
72 The calculation of an appropriate provision is not a scientific exercise, and involves a degree of "instinctive synthesis"[9], in an area in which minds may legitimately differ as to the provision which should be made.
73 As mentioned earlier, the total net estate is approximately $190,000-$195,000.
74 Counsel for the plaintiff proposed that I should replace the plaintiff's existing entitlement under the deceased's will of approximately $57,800, with the sum of $123,579, being $23,579 for short term capital needs and $100,000 as a financial buffer and income stream to supplement his pension over the rest of his lifetime.
75 An alternative submission put forward by counsel for the plaintiff was that I could, in lieu of the plaintiff's existing entitlements, award him a fixed legacy of $57,800, representing roughly the value of his existing entitlements, and then set aside a further amount of, say, $65,000 which could be held on trust for the plaintiff and drawn on for specific fixed purposes. I could specify that it be treated as a fund of "last resort", and any monies remaining in the fund at the time of the plaintiff's death would then revert back to the deceased's estate.
76 Whilst there is considerable attraction in the latter route, in that it does not give a windfall to the plaintiff's beneficiaries in the event that he dies sooner rather than later, it is impracticable in the present circumstances. Both counsel agreed that the size of the proposed trust fund, some $65,000, is too small to justify appointing a professional trustee to manage it; the fund would largely be consumed in professional fees. Unfortunately, the parties are unable to agree on a trustee who would be willing to manage the trust fund on a voluntary basis. Given the lack of trust and communication between the parties, were I to select a family member on either side to administer the trust, I have no doubt that would only produce further disputes and probably further litigation.
77 Although I would have preferred a fixed legacy and trust fund proposal, the lack of a suitable trustee means that a lump sum is the only practical solution.
78 In my view, based on all the circumstances and having considered all of the matters which I am obliged to consider under s.91(4) of the Act, further provision should be made for the plaintiff out of the estate of the deceased so that, after the payment of: