(as Executors of the Estate of the late Freda Evelyn Jackson Deceased)

HEARING DATE: 1, 2 and 3 August and 3 and 4 October 2012

Succession - Family provision and maintenance - Principles upon which relief granted - Application of children - Adult daughters.

Testator's Family Maintenance Act 1912 (Tas), s3(1).

Judgment Number: [2012] TASSC 67

(as Executors of the Estate of the late Freda Evelyn Jackson Deceased)

1 The testatrix died a widow aged 81 years on 18 October 2009. She left three daughters. Under the terms of her will, made 1 September 2006, there were two small bequests of $15,000 and $10,000 respectively for the benefit of the two children of the eldest daughter. The balance of her estate was left in equal portions to the second and third daughters. The eldest daughter, who was left nothing, has applied for an order pursuant to the Testator's Family Maintenance Act 1912 ("the Act"), s3(1), which is as follows:

"(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."

2 The applicant, being a child of the testatrix, is a person by whom an application may be made. The Act, s3A. In the terms of s3(1) the discretion is not enlivened unless it is first determined that the applicant has been "left without adequate provision for (her) proper maintenance and support". This assessment is undertaken "having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty". Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210. The question is answered as at the date of death. White v Barron [1980] HCA 14; (1980) 144 CLR 431 at 437.

3 Where the discretion is enlivened by a determination that an applicant has been left without adequate provision for his or her proper maintenance and support, the exercise of the discretion will be influenced by similar considerations to those applicable at the first stage of the enquiry. Singer at 210. The extent of the power to interfere is limited to that which a wise and just testatrix, knowing the circumstances, would have done to make adequate provision. Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478 - 479. The nature and extent of any order should primarily be based on the situation at the date of death "... it is not a discretion to make a provision for proper maintenance and support which exceeds any provision that the foresight, wisdom and fairness of a reasonable man in the testator's situation would have led him to make for the proper maintenance and support of the widow or child applying." Coates v National Trustees, Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 per Dixon CJ at 509. Regard, however, may be had to the value of the estate as it stands at the time of the order, rather than its value at the date of death. White v Barron at 437.

4 In addition to the matters already mentioned, on the hearing of an application under s3(1), regard may be had to the testatrix's reasons for not making provision or further provision. The Act, s8A. Finally, an application may be refused "if the character or conduct of any person by or on behalf of whom the application is made is such that in the opinion of the court or judge should disentitle him or her to the benefit of any provision". The Act, s8(1). There was no submission, however, that this was a case where the application might be refused under s8.

5 Counsel for the applicant and counsel for the respondent both sought to address me on the credit of the applicant but neither, when asked, was able to identify any material fact asserted by or on behalf of the applicant which was in issue and which might have an impact on the disposition of the dispute. Absent such identification of an issue of fact, I declined to hear counsel on matters of credit. Most of the evidence presented on behalf of the respondents was not disputed. Accordingly, the relevant facts can be set out substantially in narrative form.

The applicant's financial position at the date of death of the testatrix

6 At the date of death the applicant was aged 59 years. She and her husband had been married for 17 years. The husband was aged 59 years. She had two adult children from previous marriages who were not dependent upon her. She had no dependent stepchildren. The applicant and her husband jointly owned their family home at Lysterfield, an outer suburb of Melbourne. The government valuation of the home was $629,000. The applicant and her husband also jointly owned a residential investment property and a block of land which they intended developing for residential investment. The government valuations for these properties were respectively $315,000 and $116,000. They had mortgage debts of $484,000. They had savings of about $41,000. Both the applicant and her husband were in employment. The tax returns for the financial year ended 30 June 2010 show that the applicant had a gross salary of about $55,000 and her husband a gross salary of about $54,000. Superannuation statements show that the applicant had investments valued at about $9,500, and her husband had investments valued at about $67,000.

7 There was no controversy at the trial about these financial matters except that the applicant gave evidence that the block of land, having a government valuation of $116,000, was in reality only worth about $40,000. In support of this contention no valuation evidence was provided. The applicant said that the land was flood prone and that it had been on the market for three years without any expressions of interest having been received. She said that the real estate agent had been instructed to advise that any offer would be considered and the applicant said she would accept $40,000 for the land, if offered. I do not consider that a determination needs to be made as to the true value of the block of land. It is sufficient that the applicant's general financial position be ascertained and that can be done without the need to determine the value of the block of land.

8 At the date of death of the testatrix, the applicant and her husband had assets significantly exceeding liabilities and superannuation resources so that their combined net worth was in the vicinity of $700,000. They were each in employment earning between them more than $100,000 per year. However, the applicant and her husband were both nearing the end of their working lives and were unlikely to accrue sufficient savings to enable them to live as comfortably in their retirement as they had in their working lives. In the foreseeable events of ill-health, loss of employment or divorce, the applicant's financial position would deteriorate.

9 According to the statement of assets and liabilities filed at the time of the grant of probate the estate had a net value of about $360,000. It comprised the home of the testatrix at Devonport, stated as having a value of $285,000, and about $80,000 in cash.

10 The testatrix's husband had pre-deceased her in June 2002, after 56 years of marriage. By his will he made some minor specific bequests and left the balance of his estate to the testatrix. Although the value of his estate is unknown, I infer that the estate of the testatrix in substance represented the combined assets and resources of the couple acquired during the course of the marriage.

The totality of the relationship between the applicant and the testatrix

11 The testatrix and her husband had three children. The applicant was born in January 1950, and the middle child was born about two years later. The family moved from Tasmania to Melbourne to live in 1959. The youngest child was born about two years later.

12 Following their retirement, the testatrix and her husband returned to Tasmania in 1979 to live at Hellyer on the north-west coast. The three daughters followed shortly thereafter, but the applicant, being unable to find employment, returned to live in Melbourne after a short time.

13 In 1989, the testatrix and her husband moved from Hellyer to Devonport where they purchased a home just a few minutes' walk from the home of their middle daughter. They later moved to another home in Devonport, still within easy walking distance of the home of the middle daughter. The youngest daughter lived in the nearby town of Ulverstone but worked in Devonport.

14 After the death of her husband the testatrix continued to live in the family home at Devonport until her death a little over seven years later.

15 The testatrix disapproved of the applicant's husband. There is no evidence of anything in his character or conduct to justify such disapproval. This was the source of an argument between the applicant and the testatrix in about mid-2000. During the course of the argument, the applicant alluded to an extra-marital affair which she believed the testatrix had in the early 1960s. At the hearing the applicant gave and adduced some evidence to prove the fact of the affair so as to justify her remark, but that evidence was far from sufficient to establish the fact. It comprised solely of speculation and hearsay. As a result of this argument the relationship between the applicant and the testatrix deteriorated.

16 Matters worsened when the applicant returned to Tasmania for the funeral of her father in mid-2002. The applicant was dissatisfied with the seating arrangements at the funeral and the fact that her sisters had been given items belonging to her father to wear at the funeral and the applicant had not. The reception following the funeral was held at the home of the applicant's sister in Devonport. It commenced at about 6pm, and the applicant left at about 11pm. According to the applicant's account of events, her husband heard the testatrix say: "Get Maree out of here. She's nothing but an alcoholic. All she needs is a top-up." The applicant's husband immediately went over to the applicant and suggested that they should leave, but the applicant refused. Her husband left on his own to walk back to the testatrix's house where they were staying. The applicant says that she was then forced into a car and driven back to the testatrix's house by two of the sons of the applicant's sister who had been hosting the reception.

17 A few weeks later the testatrix sent a hand written letter to the applicant enclosing a recording of the funeral service. The covering letter addressed the applicant's complaints about the funeral service and the reception. It referred to the testatrix now being left in an empty house after 56 years of marriage. The letter included the following:

"It was not a show put on for my benefit as you suggested Maree, it was a final loving farewell to your father, as for your accusations on my & others behaviour on that day, I have no idea what you are talking about, that day passed in a (illegible) for me. Thank goodness I had the tape because I couldn't remember much of the service so I'm not apologising for something I'm not aware of.

As for John's behaviour towards you Maree, you should gets your facts right before you accuse. He was no where near you nor did he lay a hand on you Ryan & Taylor took you home that night a job your own husband should have taken care of.

About your complaints of me not ringing you Maree, you managed just 2 calls in that week you left here, to enquire about your father's health. If his sick & aged sisters & brothers could ring every day also his G. Children, nieces, nephews could call daily, some twice daily, surely it wasn't too much to ask his daughter to find a minute in her busy life to call, I tried ringing you the weekend after you left Maree all I got was the answering Machine and have no intentions of talking to a machine knowing full well my daughter is home but refused to talk to me, so don't tell me I haven't tried.

I'm so very sorry Maree you have such little thoughts about your family, but that is some thing you must take care of yourself, not one of us can help you with that.

You must remember you left here with my love & best wishes & went Home to your own home husband family & friends, as your sisters have also done. But I'm left alone after 56 years ... in a empty house & all I have is my precious memories & I don't want nor need them destroyed by Hate Bitterness & regrets, all I need from my family is their Love & support

Your father would be devastated about all the bitter hatred & regrets, that his passing has caused all he ever wanted for his family was to have them united in love. His last words to me (in a letter) was 'Be Happy go on & live in contentment with young (illegible). May those words bring some Peace into your heart Maree

I wish you nothing but good luck Happiness contentment, in what ever you do Maree & if I don't get any response from you, I'll know you don't want any part of our family anymore.

I will respect your wishes & leave you in Peace. But, go in the knowledge that I will alway be your Loving Mother

18 The applicant responded on 19 August 2002 with a five and a half page closely typed letter. The response was the opposite of what was requested. It was bitter and did not communicate love or support. It comprised many criticisms of the testatrix and family members. The general thrust of the letter is illustrated by the last two paragraphs which are as follows:

"There are many, many other instances I could put in this letter, but it is too long now and has taken a long time to write. I know there is a lot of anger and hurt coming out but it is difficult to stop it. There are also those questions I said I wouldn't ask but I have. In the long run it all has to come out before I can get along with my life. This situation has me marking time, going neither backwards nor forwards and this is not good. As I said in the beginning, try and put yourself in my shoes and see how you would feel under the same circumstances. Become aware of the years you, Carol and John have hurt and humiliated me. There are times I have felt betrayed by you all. But now it is time to let you know that I no will longer meekly submit to anyone of you just to keep the peace. I will speak out if I feel I'm being attacked in any way. My life is my business not any one else's. If I need advice I will ask. If I need protection I will ask. If I need help I will ask. Do not assume that I need or want any of these things. If you think I might then ask the question. I am much stronger than you think. I have never committed adultery or even wanted to, dealt in drugs, put my nose in other peoples business where it is neither wanted nor appreciated or tried to big-note myself. Little miss perfect? Not by a very long shot. And the same goes for all of you over there. So why do you all reek of a high-and-mighty, holier-that-thou attitude? If there is something I have done wrong then let me know so I can correct it. If not, might I suggest you stop trying to put me down as you are only doing yourselves a disservice. I have kept my own counsel all these years and not interfered in other people lives. Some of my past decisions may have lead to an unintentional hurt for some and I am very sorry for that. So, like you I apologize to no one for the way I feel as I do not believe I have done anything to apologize for. I must also say that I have left Tassie in tears, or at the very least quite sad, more times than I have left happy.

This is not a feel-sorry-for-me letter. It is how I feel and how angry, hurt and confused I am. Do not think for one minute that I am looking for sympathy, because I am not. I would like you to see and understand things from my perspective. As I said, there are many other instances but enough is enough at this time. If we ever get to talk at length, I would like to explore the many thoughts that are behind this letter as well as adding a few more. I may be the black sheep of the family but I am still family and I would like to be treated as such. I think that is a minimum expectation.

19 The testatrix's earlier letter had said that all the testatrix needed was love and support "and if I don't get any response from you, I'll know you don't want any part of our family any more". The testatrix plainly did not regard the applicant's letter as a satisfactory response. The testatrix replied to the applicant's letter and from then on did not initiate any contact with the applicant. The letter in reply was as follows:

Do not really want to write this letter Maree, but decided not to be rude & ignore your letter

I have no intention of going over any more hurts only cause more upsets & I've had enough of that.

Your letter was insulting, full of lies (god only knows where you get your information from) innuendoes, paranoia & self pity, it was all about 'Me me & me' you had no thought for anyone else's feelings, if only you would Maree, you would be a far happier & contended person, anyway hopefully you have got it all off your chest now & feel better for that.

I have enough personal worries of my own at the moment, & I don't need any more shit heaped on me

I'm glad to hear you are happy in your own home life, so enjoy it & be contented.

But please in my last few remaining years leave me in peace & quiet. I want no more abuse to myself or the rest of my family.

No matter what I say Maree will be twisted & thrown back, so the least said is the easiest mended.

20 The relationship between the applicant and the testatrix was never repaired. However, the applicant did not cease contact with the testatrix altogether. She telephoned the testatrix from time-to-time, but many of the calls went unanswered. The applicant travelled to Tasmania on five occasions between her father's funeral in mid-2002 and December 2008 to visit her daughter. During each of these visits she met with the testatrix. From 2004, the applicant sent birthday, Christmas and mother's day cards but received no acknowledgement from the testatrix. There is no evidence of the applicant writing letters to the testatrix since sending her letter of 19 August 2002. The testatrix did not invite the applicant to her 80th birthday party in 2008. The last contact which the applicant had with the testatrix was a telephone conversation with her about four days before her death.

The relationship between the testatrix and her other two daughters

21 In contrast to the situation with the applicant, the testatrix enjoyed much support and affection from her other two daughters in the final years of her life.

22 In 2005, the testatrix was diagnosed with cancer. She had chemotherapy treatment and was hospitalised for between five and ten days on average four to five times per year. Upon each hospital discharge she would spend time, sometimes up to a month, living and recuperating at the Devonport home of her middle daughter. She would be driven to medical appointments, including appointments in Launceston and Burnie. The daughter's sons maintained the garden and lawns at the testatrix's home. When the testatrix was well enough to return home, the daughter would often cook for her. In November 2008, the daughter gave up work to provide full-time care for the testatrix. The testatrix was promised accommodation in the daughter's Devonport home in the event that she became incapable of independent living.

23 The youngest daughter provided less assistance as she lived further away in Ulverstone. Nonetheless, she kept in close contact with the testatrix and frequently visited her and regularly took her to her home. On one occasion she accompanied the testatrix to Melbourne where she was to undergo medical treatment.

The financial positions of the other two daughters at the date of death of the testatrix

24 At the date of death of the testatrix, the middle daughter was aged 57 years. She had been married for 38 years. The family home in Devonport had a government valuation of $340,000, which home was mortgage free. In an affidavit sworn by the daughter's husband about ten months after the death of the testatrix, the following evidence was given which was not challenged in cross-examination:

"(8) John and Carol Haley's financial position and health

(i) Our home at 9 Cambridge Court, which has a value of approximately $400,000.00.

(ii) Two motor cars to a total value of approximately $9,000.00.

(iii) I have superannuation with a total entitlement of approximately $80,000.00.

(iv) My income is approximately $70,000.00 per annum gross.

(v) Carol does not work and has not worked in a paid position for approximately two years.

(b) My health - I am 61 years old and enjoy reasonable health. I have high blood pressure and a high cholesterol count and am on medication for both.

(c) Carol's health - Carol is 58 years old and is in good health.

(d) Our future - I will have to continue to work for at least another five (5) years in order to make adequate provision for our joint superannuation."

25 The youngest daughter was aged about 48 years at the date of death of the testatrix. She was not married but had been in a relationship for several years. She lives with her partner in a house which he owns at Ulverstone sitting on 1.7 hectares of land and at about the date of death having a government valuation of $428,000. She and her partner also own a residential investment unit in Ulverstone which, at about the date of death, had a government valuation of $241,000, mortgaged to secure the repayment of monies including the residential investment loan which stood at about $250,000 in June 2010. She had a superannuation investment worth about $65,000. She had permanent part-time employment and her taxable income for the year ended 30 June 2010 was about $31,000. In a financial statement dated February 2011, she estimated her partner's weekly income to be $700 after tax.

The reasons for the testatrix making no provision for the applicant

26 The testatrix expressed her reasons for making no provision for the applicant in cl 8 of her will and in a document executed by her at about the same time. I set out cl 8 and the document:

"8 I DECLARE that in the course of making my Will I have considered my daughter MAREE HELEN WARD. Maree currently lives in Melbourne. I have had minimal contact with her since the death of my husband. To the best of my knowledge she does not have any significant health issues and I consider her and her husband to be financially independent.

I, FREDA EVELYN JACKSON of 5 Winston Place, Devonport in Tasmania, DECLARE as follows:

1. I have specifically excluded my daughter, MAREE HELEN WARD, from any bequest under my Estate as we have been estranged for many years with little if any contact.
2. I have been supported and cared for totally by my two daughters, CAROLYN DENISE HALEY and LEE TRACEY MICHELL, and their respective families.
3. I have made specific provision in my Will for my said daughter Maree's two children, SIMONE KRAMME and KEYRAN GIBB, which I believe to be generous and this was done in lieu of any bequest to my said daughter, Maree.
4. In addition, Maree has stepchildren from her marriage to her husband, TREVOR WARD, and I was concerned of the potential that those stepchildren could benefit from my estate rather than my said grandchildren, Simone Kramme and Keyran Gibb, in the event that Maree predeceased her husband or alternatively she included those stepchildren in any disposal of her assets including my estate.
5. In view of the foregoing I do not desire nor do I believe it is appropriate for my daughter Maree to benefit from my estate and it is my desire that she respect my wishes and that she desist from any potential legal action in relation thereto.

27 The applicant's financial circumstances, her deteriorated relationship with the testatrix and the support and care provided by the other two daughters are plainly relevant. However, on the question of whether the applicant was "left without adequate provision for (her) proper maintenance and support", the small bequests to the applicant's two children have no relevance. These children were adults and the provision to them confers no financial benefit on the applicant. Similarly, a desire to prevent the applicant's stepchildren from gaining any benefit cannot impact on the obligation, if there was an obligation, to make provision for the applicant.

In the circumstances has the applicant been left without adequate provision for her proper maintenance and support?

28 The onus is on the applicant to demonstrate that she should have the benefit of an order under the Act. In considering the application I respectfully adopt the observations of Kaye J in Leyden v McVeigh [2009] VSC 164 at par[30], namely:

"In determining whether the testator owed the plaintiff a duty to make provision for his maintenance and support in his will, and in determining the extent of such provision, the courts have long recognised the importance of the basic right of a testator to exercise freedom of testamentary disposition in respect of his or her estate. That right is only subordinated where, and to the extent, that the plaintiff can demonstrate that the testator has failed to discharge his moral duty to make provision in the plaintiff's favour pursuant to Part 4 of the Act. That legislation, however, does not entitle a court to re-write the will of the testator, in order to better accommodate it to the court's individual view as to how the testator should, or might, have exercised his testamentary power."

29 The legislation calls upon the court to make a value judgment in deciding whether the discretion to interfere has been enlivened. The duty to make the value judgment cannot be abrogated by generalisations such as that married daughters with husbands in satisfactory employment can never, or only in exceptional cases, be regarded as having been left without adequate provision for their proper maintenance and support. The answer to the question rests upon an analysis of all of the circumstances which do not go beyond the scope and purpose of the legislation. A testator with a large fortune and no spouse or dependant children may have an obligation to make provision for adult children who are progressing satisfactorily in life. A testator with a small estate and a spouse or dependant children may have no duty to adult children.

30 Here the only persons having claims on the estate are the three adult daughters of the testatrix. Each has progressed satisfactorily in life. None are wealthy and none are impoverished. Each could have done with a little extra money to provide a buffer against the vicissitudes of life such as ill-health or unemployment. Although at the date of the death of the testatrix the applicant was in the best financial position of the three daughters, she was not in a vastly superior financial position to that of the middle daughter. The youngest daughter was not as well off as the other two, but she was about 10 years younger and so had a longer working life ahead to build assets and resources. The care, support and affection given by the two daughters taking under the will in the last few years of the life of the testatrix was greater than that given by the applicant. The deteriorated relationship of the applicant with the testatrix and the reason for the deterioration are relevant, but not to the exclusion of other considerations. Keep v Bourke (2012) NSWCA 64 at par[37]. As I have previously found, the estate of the testatrix in substance represented the combined assets and resources of herself and her husband acquired during the course of a marriage lasting 56 years. Although modest in size, the estate was sufficiently large to accommodate the applicant, even though the other two daughters have strong claims.

31 In the last few years of the life of the testatrix, the applicant kept in touch with her, but the testatrix did not initiate contact with the applicant. There is no evidence of the applicant doing anything directly or indirectly of substance to support the testatrix during her ill-health. This, however, can only be partially attributed to the deteriorated relationship. The applicant lived interstate and the testatrix had the support and assistance of her other two daughters, particularly her middle daughter who lived close by. The applicant might have put aside her grievances and offered affection and support rather than hostility and accusations in her letter to the testatrix shortly after the death of her husband and the applicant might have done more to repair the relationship with the testatrix and provide support during her ill-health and final years.

32 There has been considerable debate in the cases about the use of the expressions "moral duty", applicable to a testator, and "moral claim" applicable to an applicant or beneficiary. As was observed by Underwood CJ, in Hope v Tasmanian Perpetual Trustees Ltd [2006] TASSC 13 at par[18], little turns on the matter. What is important is that if such terms are used they are not used as a substitute for the language of the statute in a way to take the relevant considerations beyond matters within the scope and purpose of the statute. Regardless of the use of such terms, part of the appraisal process requires the court to "connect the general but value-laden language of the statute to the community standards", per Gleeson CJ in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at par[25].

33 Counsel for the respondents relied on the cases concerning claims by adult children and, in particular, the often cited decision of Fullager J in Re Sinnott [1948] VicLawRp 48; [1948] VLR 279. His Honour said at 280:

"No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is primâ facie dependent on the testator and primâ facie has a claim to be maintained and supported. But an adult son is, I think, primâ facie able to 'maintain and support' himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act."

34 However, his Honour went on to make a distinction in the case of an adult daughter. He said at 281:

"I think that the case of an adult daughter, even in these days when it is quite normal for a single adult woman to be self-supporting, is not to be viewed in quite the same light as that of an adult son. ... Unless she is equipped for a profession or a skilled occupation, late middle age and old age are perhaps more likely to find her in a situation in which a little capital or even a very small assured income would make a world of difference to her comfort and happiness. ... No two cases will be exactly alike. In each the immediate and probable need and the extent of the moral claim must be carefully weighed. I would add that, in my opinion, the extent of the moral claim may be affected by conduct which falls far short of 'disentitling' an applicant within the meaning of section 144."

35 A recent example of a claim by an adult daughter in comfortable financial circumstances is Doddridge v Badenach [2011] TASSC 34. There the applicant was the sole child of the testator. The testator and the applicant's mother had separated when the applicant was about three years of age. Beside one chance meeting, the applicant and the testator had not communicated with each other since the separation. At the date of death of the testator, the applicant was single. She owned a house having a value of about $600,000, which was unencumbered but in need of considerable maintenance. She had about $500,000 in superannuation investments. She was about forty years of age and earning about $40,000 per year, after tax. Although she had a number of health problems, she hoped to continue working for another 15 years. The estate had a value of about $600,000. The sole beneficiary, being the stepson of the testator, had a strong competing claim. Evans J found that the applicant had been left without adequate provision for her proper maintenance and support and made provision for her in the sum of $200,000, which his Honour said would have been greater had it not been for the strength of the competing claim of the named beneficiary.

36 True it is, that adult children will have greater difficulty than a spouse or dependant child in establishing that they have been left without adequate provision for their proper maintenance and support. However, each case will turn on its own facts, having regard to the considerations set out in Singer v Berghouse (supra).

37 Having regard to the applicant's financial position at the date of death; the fact that she and her husband were nearing retirement age; the foreseeable possibility of ill-health or unemployment intervening to reduce the chance of a comfortable retirement; the size and nature of the estate; the extra affection, care and support given by the other two daughters during the last few years of the life of the testatrix and the financial positions of the other two daughters, I conclude that, notwithstanding the fact that the relationship of the applicant with the testatrix had deteriorated and that the applicant's conduct contributed to the deterioration, that she has been left without adequate provision for her proper maintenance and support. Accordingly, the discretion to intervene arises.

38 The extent to which a court may interfere is limited to that which is needed to satisfy the obligation of the testatrix to the applicant taking into account the considerations which led to the conclusion that the applicant had been left without adequate provision for her proper maintenance and support. Account must also be taken of the value of the estate as it stands at the time of the order rather than the value at the date of death.

39 The wise and just testatrix would have taken into account the possibility of the applicant or her husband suffering ill-health or losing employment. Intervening events have reinforced the importance of the testatrix taking into account the vicissitudes of life. The applicant has ceased employment because of ill-health and is now the recipient of a disability pension. The applicant's husband, since the death of the testatrix, lost his employment. He was unemployed for about fifteen months. In July this year he obtained full-time employment at $25 per hour under a contract having a duration of six months.

40 The Act, s7(a) mandates that the court shall have regard to the net value only of the estate ascertained by deducting from the gross value all debts, testamentary and funeral expenses, and all other lawful liabilities to which the estate is subject. An affidavit sworn by a solicitor in the legal firm assisting with the administration of the estate shows that the estate has been converted into cash, and that as at 20 September 2012 the cash balance was $276,102.31. No interim distributions to the beneficiaries have been made. The difference between the current net value of the estate and the value stated in the affidavit of assets and liabilities lodged at the time of the grant of probate is due in part to the following matters. The house was sold for $40,000 less than the value given at the time of the grant of probate. The trustees have reimbursed out of estate funds the air fares of several grandchildren who attended the funeral of the testatrix, despite there being no authority in the will to do so. The amounts total approximately $3,500. The expenses to 20 September 2012 of the trustees responding to the present application have been taken from estate funds. The total is approximately $22,000. The accounts, however, are sufficient to enable a determination to be made on the application with any necessary adjustments being dealt with at the time orders are formulated to give effect to my findings.

41 The applicant and the other two daughters have agreed that any provision which might be made under the Act should come from the residuary estate leaving the bequests to the applicant's two children intact. The other two daughters have agreed that any provision made should come from their shares equally. The applicant has agreed that any provision for her should be reduced by $25,000 being the total of the specific bequests to her children.

42 Having regard to the value of the estate and the matters which were considered in the assessment of the question whether the applicant had been left without adequate provision for her proper maintenance and support I conclude that a provision of 20% of the net estate reflects what a just and wise testatrix wishing to fulfil her obligations to the applicant, but no more, and making due allowance for the other two daughters who provided more care and attention to the testatrix in the last few years of her life, should have bequeathed to the applicant. In accordance with the agreements referred to in the preceding paragraph, the provision will be reduced by $25,000 to take account of the bequests to the applicant's two children and the balance provision will come out of the shares of the other two daughters in equal portions.

43 I will hear counsel as to the appropriate form of orders necessary to give effect to my finding and the agreements of the parties.