Van Ooyen v O'Driscoll

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1867/01 FRANCES HELEN VAN OOYEN -V- JUDITH ANN O'DRISCOLL JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 21 March 2001 Frances Helen Van Ooyen, the Plaintiff, claims an order for provision for her maintenance and advancement in life out the estate and/or notional estate of her late mother Vera Irene Christopherson (to whom I shall refer as "the Deceased"). 3 The Deceased, who was a widow at the time of her death, died on 18 November 2000, aged ninety-one (having been born on 22 May 1909). The Deceased left a will dated 16 August 2000, probate whereof was on 24 January 2001 granted to Judith Ann O'Driscoll, the executor named therein (who is the Defendant to the present proceedings). 4 The Deceased was survived by her two children, being the Plaintiff and the Defendant. By her will the Deceased, having given certain specified chattels to each of her children, gave the residue of her estate to be divided as to 25 percent to the Plaintiff and 75 percent to the Defendant. The assets of the Deceased consisted essentially of moneys in bank accounts and in a term deposit account, shares and a refund in respect of hostel accommodation in which the Deceased was residing at the time of her death. The inventory of property disclosed the total value of the assets in an amount of almost $430,000. At the commencement of the hearing it was noted that it was agreed between the parties that the present net value of the estate was $428,000. 5 It will be appreciated that the value of the estate available for distribution will be somewhat less than that agreed amount, since the costs of the present proceedings must be taken into account. The costs of the Plaintiff are estimated to be in an amount of about $23,500, whilst those of the Defendant are estimated to be in an amount of about $32,600. In consequence, therefore, and depending upon the orders ultimately made herein, the distributable estate of the Deceased may be in an amount of only about $372,000. 6 As has already been recorded, the Plaintiff and the Defendant are the only children of the Deceased. The Plaintiff was born on 17 September 1948, and is presently aged fifty-three. The Defendant was born on 25 August 1943 and is presently aged fifty-eight. Each of those children is in employment and is currently self-supporting. 7 The Plaintiff resided with her parents until about 1965, when she left home and commenced work in various retail occupations. She married in about 1969. The Plaintiff has two children, a daughter Marika (who is now aged twenty-six) and a son Derek (who is now aged twenty-three). Each of those children is in employment and is currently self-supporting. 8 The Plaintiff separated from her husband in 1993 and was subsequently divorced in July 1997. In consequence of a property settlement the Plaintiff received about $220,600. 9 The Deceased's husband (who was the father of the Plaintiff and the Defendant) died on 12 May 1983. The Deceased continued thereafter to reside on her own in what had formerly been her matrimonial home at 20 Wingate Avenue, Eastwood. 10 In December 1998 the Deceased suffered a broken hip. In consequence, she was not able to return home, and eventually entered into residence at a retirement establishment, Shalom Gardens Hostel at Marsfield, in January 1999. Her house property was sold in March 1999, the proceeds from that sale being received by the Deceased's solicitors, Hunt and Hunt. 11 In April and May of 1999 various requests for money were made by the Plaintiff both to her mother and to her mother's solicitors. It was the desire of the Plaintiff that she should receive from the Deceased a significant part of the proceeds of sale of the Deceased's house property. The Plaintiff was requesting that her mother advance to her the sum of $125,000 as an interest free loan, an advance to which the Plaintiff considered herself entitled because of an alleged promise made to her in this regard. Those requests were made both in person and by letter. The correspondence became somewhat acrimonious. As a result of a visit by the Plaintiff to the Deceased on 23 May 1999 the Plaintiff for a period of almost a year and a half had no contact with the Deceased. Her children had no contact with their grandmother throughout that period. However, contact between the Plaintiff and her mother was re-established in October 2000, three months before the death of the Deceased. 12 From 1995 the Defendant held her mother's power of attorney, and looked after her cheque account and her financial and medical affairs. 13 On 7 June 1994 the Plaintiff had written a letter to the Defendant in which the Plaintiff expressed criticism of the Defendant's conduct and attitude towards their mother, especially regarding the administration of the Deceased's financial affairs. In consequence, there was no further contact between the Plaintiff and the Defendant for several years until early 1997. 14 During 1997-1998 the Plaintiff received assistance from the Defendant concerning her divorce and property settlement. Indeed, the filing fee for the Plaintiff's divorce proceedings was paid with the proceeds of a cheque written by the Defendant at the instructions of the Deceased upon the Deceased's bank account. 15 One week before she made her will on 16 August 2000 the Deceased on 9 August 2000 signed a letter in the following terms, I, VERA IRENE CHRISOPHERSON, have decided to change my Will. I had previously left everything to be equally divided between my two daughters Judith and Helen. I am now leaving one quarter of my Estate to Helen and three quarters of my Estate to Judith.

My daughter Judith has been looking after my financial, lifestyle and medical affairs for some years in a very competent way. She and her husband Reg come and see me and Judith looks after everything for me and attends to anything that pops up.

Helen is very erratic. She has not been in touch with me for a long time and her children have not had anything to do with me for a long time. When I first moved into Shalom Gardens Helen did come and see me but she came because she wanted money. She screamed every time she came and it was very distressing and in the end Shalom Gardens did not want her to come. Since then I have had no contact with her whatsoever.

I have recently been very ill and Judith and Reg were there for me but I never heard from Helen.

I am extremely upset and saddened by Helen's behaviour and I feel very strongly about showing my appreciation to Judith for all she has done by leaving her a larger share of my Estate.

Dated: 9th August 2000 16 Shortly after making her will on 16 August 2000 the Deceased expressed to the Defendant a desire to make to her a gift of $60,000, that being the amount held by the Deceased in a cash management account. In conformity with that desire on the part of her mother the Defendant in late September 2000 withdrew $55,000 from the cash management account. She did not withdraw the remaining $5,000, since that would have resulted in the account being closed. 17 The foregoing gift of $55,000 to the Plaintiff is identified as a prescribed transaction in the affidavit of the Defendant of 13 June 2000, being the affidavit of the executor setting forth the various matters required by Part 77, Rule 59 of the Supreme Court Rules. 18 The Plaintiff is currently residing in rented accommodation, being a home unit at 2/38 Elizabeth Street, Artarmon, for which she pays rent of $310 a week. She lives there alone, although her son Derek had been residing with her at the time of the commencement of the present proceedings. He moved out in about September 2001. During the twelve months whilst he was in residence Derek paid to his mother $100 a week as a contribution towards his board and the outgoings in respect of the residence. 19 The Plaintiff conducts a stall at the Glebe Markets. At that stall she sells purses and handbags which she fabricates. According to her affidavit evidence the gross weekly income which she receives from the stall is about $80 a month, and her expenses (which include stall rent of $200 a month and materials of $50 a month). According to the Plaintiff that business sometimes breaks even, but more usually runs at a loss. Nevertheless, she still continues to conduct that business because she regards her participation as a stall holder each week as constituting more of a social occasion than a business activity. In addition, the Plaintiff obtains occasional income as a film extra in television programmes and advertising. For the last financial year that activity returned her about $300. 20 In the last three financial years the Plaintiff's taxable income has been $18,742, $9,830 and $6,129 respectively. 21 It has already been recorded that as a result of her divorce proceedings the Plaintiff in about 1998 received an amount of about $220,600. That amount was invested with Navigator Personal Investment Services and MLC Master Key Unit Trust. The current balance in the Navigator account at the time of hearing was $82,839 and in the MLC account was $26,882. From the Navigator account she receives income of $800 a month and from the MLC account she receives income of $600 a month. Those payments represent partly accrued interest and partly capital. 22 According to the Plaintiff, her expenses, which she estimates to total $2,668 a month, are greater than her income, and in consequence it is necessary for her to resort to drawings of capital in order to meet the shortfall. However, in paragraph 39 of her principal affidavit, being that of 4 April 2001, the Plaintiff said, "My present lifestyle enables me to live on the income from my divorce settlement". 23 In recent times the Plaintiff has lent to her two children a total of about $15,000. Those loans were $8,000 for Marika (for an overseas trip and for paying a bond on her flat and assisting with the purchase of furniture); and $7,000 for Derek (for a holiday and for paying a bond on his flat and assisting with the purchase of furniture). Those loans are long term and are interest free. 24 Apart from the amounts held by the Plaintiff in the Navigator account and the Master Key account (totalling $109,700), the Plaintiff's assets consist of furniture and personal effects (to which she attributes the value of $2,500), a 1986 Subaru Leone motor vehicle (to which she attributes a value of $2,000), stock for her business ($500), together with a one fourth interest in the estate of the Deceased. That interest of the Plaintiff in the estate will be one quarter of at least $372,000, and will thus be in amount of about $94,000. That calculation, however, assumes that the Plaintiff will be successful in the present proceedings and that her costs will be paid out of the estate. 25 If, however, the Plaintiff is unsuccessful in the present proceedings, then the net value of the estate ($428,000) will be reduced by, at most, only the costs of the Defendant ($23,500), and the distributable estate will thus be in an amount of about $404,500. That would result in the Plaintiff receiving about $101,000 from the estate. However, in that event, the Plaintiff would have the additional liability of her own legal costs of the present proceedings ($32,600), and it is also possible that the Plaintiff would be required to pay the costs of the Defendant. In the latter event, however, the Plaintiff herself would again receive a benefit, since the estate would not be depleted by the full payment of the Defendant's costs ($23,500), and thus the Plaintiff would receive out of the estate of the Deceased one quarter of $428,000, that is, $107,000. 26 It will be appreciated, therefore, that if the Plaintiff is successful in the present proceedings she will receive from the estate under the terms of the will about $94,000, together with whatever additional amount might be awarded to her by the Court. If, however, she is totally unsuccessful in the present proceedings, she will receive from the estate $107,000, but will have a liability to pay her own costs and possibly also those of the Defendant. If she were required to pay the entirety of the foregoing costs (totalling about $56,000), she would receive from the estate a net amount of only about $51,000. 27 Apart from the costs of the present proceedings the Plaintiff has no liabilities. 28 According to the Plaintiff's evidence, for some time before the commencement of the proceedings she earned extra money by performing house cleaning activities, providing a nanny service and performing retail selling. She says that she is now unable to clean because she has pain in her joints resulting from osteoarthritis, and is unable to bend down, operate a vacuum cleaner, or move furniture about. For the same reasons, she says she cannot lift and care for young children. Further, she says that she cannot sell goods at shops because she is unable to stand for the periods required. 29 During the course of the hearing the Plaintiff was cross-examined concerning the cleaning work which she had performed for private clients. She said that for that work she had been paid in cash, but in very small amounts, and that those amounts had not been disclosed in her income tax returns (in consequence, so she said, of having discussed this topic with her accountant). The Plaintiff further denied that she was presently performing cleaning work, saying that she ceased that work about five years ago on account of her health. That denial was inconsistent with the admission made by the Plaintiff during the course of her cross-examination that on 11 December 2001 she had written a letter in which she said that was "cleaning three mansions for four years". I considered that the Plaintiff was somewhat evasive in her responses to questions concerning whether or not she was presently performing cleaning work for renumeration. Her evidence left me with the strong suspicion that, despite her denials, she continues to perform such work. 30 The Plaintiff did not at the outset of the hearing have available her current bank passbook (although the production of that book was required by subpoena). However, a copy of that book was subsequently admitted into evidence as Exhibit B. The Plaintiff stated that she had destroyed all her previous bank books. In consequence, there was only scanty documentary material (being her St George Bank passbook for the period 22 October 2001 to 27 February 2002) available in support of the Plaintiff's asserted earnings from any activities which she presently performs (such as conducting the stall at the Glebe Markets, and working as a film and television extra). 31 Since the financial and material circumstances of the Defendant are also of relevance to the Plaintiff's claim, it is appropriate that those circumstances should here be set forth. 32 The Defendant is a senior trust officer employed by National Australia Trustees (which is a part of National Australia Bank). Her salary in that position is presently $55,950. She is presently fifty-eight years of age. 33 The Defendant and her husband, Reginald Coote, have been married since 24 December 1988. They have no children. They reside in rented accommodation at Leichhardt, for which they pay $1,647 a month. 34 The Defendant currently has the following assets: · 77 NAB shares · 500 Telstra shares · NAB Cash Management Trust Account (current balance about $835) · NAB Cheque Account (current balance about $300) · ING Account (current balance about $60,343) · Superannuation entitlements with AMP and NAB (totalling about $70,639). 35 The Defendant's husband Reginald Coote (who was born on 27 September 1930, and is presently aged seventy-one) has the following assets: · Falcon motor vehicle, 12 years old (worth about $4,000) · Furniture (worth about $3,000) · Mineral collection (of small, if any, commercial value) · Wine collection (small value) 36 Mr Coote was formerly in receipt of a part pension. That part pension was, however, terminated in September 2001, when the Defendant's own basic salary increased and the combined income of the defendant and her husband rose beyond the permissible threshold. Mr Coote now has a Commonwealth Senior's Card, in lieu of his former part pension, which entitles him only to pharmacy concession. He has no income. He has suffered major health problems since 5 October 2001 when he underwent a quadruple bypass. 37 In her affidavit of 28 February 2001 the Defendant stated that she will have no security of employment after she attains the age of sixty, since her employer, the bank, has a policy of restructuring positions and offering to employees contract work only. However, in her oral evidence the Defendant stated that she considered that the chances were that she would be able to continue to work after she attains the age of sixty, since she is in a very highly specialised position and she looks after clients who are of considerable value to her employer. She said that, nevertheless, she considered that the bank would place pressure on her to be employed on a contract basis, and that the period of any such contract would probably be for no more than two years. 38 It is in the context of the foregoing factual circumstances that the Court must approach the present claim of the Plaintiff. 39 I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties. Those written outlines will be retained in the Court file. 40 The Plaintiff, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. 41 It will be appreciated that the Defendant also, as a child of the Deceased, is an eligible person within the same paragraph of the definition. The Plaintiff and the Defendant are the only eligible persons in relation to the Deceased. 42 The statement by the Deceased set forth in her letter dated 9 August 2000 concerning her reasons for changing her will and for making the testamentary dispositions which are set forth in the will of 16 August 2000 are receivable as evidence, pursuant to section 32 of the Family Provision Act. It must be appreciated that section 7 of that statute (enabling the Court to order that provision be made for the maintenance, education and advancement in life of an eligible person) are to be treated as a legislative qualification upon the freedom of testation which is the right of every citizen of this State. 43 A very considerable quantity of evidence was given, both by affidavit and orally, concerning various incidents during the lifetime of the Deceased, and, in particular, concerning the relationship between the Plaintiff and the Deceased, and the occasions of various visits by the Plaintiff to the Deceased in the Shalom Gardens Hostel, and the period of estrangement between the Plaintiff and the Deceased. That evidence was relied upon by the Defendant as establishing what formerly, in cases of this nature, was referred to as conduct disentitling. In this regard it is appropriate to set forth the salutary admonition contained in the judgment of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124. His Honour said (concerning the statutory predecessor to the Family Provision Act), at 137, The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case. 44 It should be emphasised that an order for provision under the Family Provision Act is not made as a reward for good conduct; neither is it withheld as a punishment for perceived bad conduct on the part of the applicant. 45 Further, it should be appreciated that the Plaintiff must establish her own claim upon its own merits. It does not enhance the claim of the Plaintiff for her to attempt to establish that, if the positions of herself and the Defendant had been reversed, the Defendant would not have succeeded in obtaining an order for provision giving to the Defendant three quarters of the estate of the Deceased. In this regard, moreover, it must also be appreciated that the fact that the Plaintiff considers that the Deceased would have acted more fairly if she had divided the estate equally between her two children does not in any way establish an entitlement in the Plaintiff to have an order made giving to her one half of the estate of the Deceased. 46 It should here be recorded that the relief which the Plaintiff seeks is an order that, instead of receiving one quarter of the estate of the Deceased, she receive one half of the estate. In this regard, the Plaintiff placed reliance upon the fact that in her earlier will of 6 June 1983 the Deceased (after the gift of the same chattels given by her will of 16 August 2000 to her daughters, and another gift of chattels to another beneficiary) left her estate equally between the Plaintiff and the Defendant. 47 Similarly, on 21 December 1999 (that being during the period whilst there was an estrangement between the Plaintiff and the Deceased) the Deceased made a fresh will in which (after the gift of chattels) she left her estate equally between her two daughters. 48 The Plaintiff also pointed to the fact that the will of 16 August 2000 was made at a time whilst the estrangement between the Plaintiff and the Deceased still obtained (that estrangement coming to an end only in October 2000). 49 It is also here relevant to observe that (as I have already recorded) the Plaintiff in paragraph 39 of her primary affidavit said that her present lifestyle enabled her to live on the income from her divorce settlement. Further, in paragraph 37 of the same affidavit the Plaintiff said that she intended to retire at about the age of sixty or earlier, and that at that stage she intended to move to the country and buy a small property and invest the balance of whatever moneys she had, to enable her to live simply but comfortably in her retirement. 50 If the only remunerative activity which the Plaintiff is presently pursuing is that of being a stallholder at the Glebe Markets, then since that activity is presently of little, if any, financial benefit to her, it would seem that if she now fulfilled the intention expressed in paragraph 39 of her affidavit, she would be enabled to acquire such a country residence, and would no longer have her income from her investments (and part of the capital of those investments) eroded by the payment of rent in an amount which presently totals in excess of $16,000 a year. 51 The Plaintiff must establish, if she can, that she has been left without adequate provision for her proper maintenance and advancement in life. That is the first stage in the two-stage process recognised by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208f per Mason CJ, Deane and McHugh JJ. 52 At 209 their Honours said, The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Company Limited [1938] AC 463 at 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. 53 In the instant case it will be appreciated that, had the value of the estate not been eroded by the costs associated with the proceedings instituted by her, the Plaintiff would receive one fourth of $428,000 - that is, $107,000. 54 Accordingly, the Court must first arrive at a conclusion as to whether, in all the circumstances, and having regard to the various matters referred to in the foregoing passage from the judgment in Singer v Berghouse, provision for the Plaintiff in an amount of $107,000 was the proper level of maintenance appropriate for her. 55 It must be emphasised that it is incumbent upon an applicant for an order for provision to place before the Court as fully and as frankly as possible all information concerning the financial and material circumstances of the applicant. 56 In the instant case I consider that the Plaintiff was evasive concerning various aspects of her financial circumstances. I have already observed that she had little documentary material in respect to moneys passing through her bank account. The Plaintiff was able to offer little information concerning the diminution of the total amount of about $220,600 which she received by way of her divorce settlement and the total amounts originally invested by her in the Navigator account and the MLC account, the difference in those amounts being asserted by the Defendant to be in the vicinity of $40,000. 57 According to the Plaintiff's affidavit of 4 April 2001, she held at that time invested in the Navigator account and the MLC account a total amount of $180,000 (representing the proceeds of her divorce settlement of $220,600). Nevertheless, in her affidavit of 22 February 2002, filed only a few days before the commencement of the hearing, the Plaintiff's balance in the Navigator account was $82,839 and in the MLC account was $26,882, totalling about $109,700. Even making allowance for the erosion in consequence of the shortfall between the Plaintiff's income and the Plaintiff's outgoings, and for the advances to her daughter and son, there still remains unexplained the fate of about $30,000 (or possibly a larger amount, if the advances to the children were made before the date of the Plaintiff's first affidavit). 58 Further (as I have already stated), despite her denials in this regard, I maintain a very strong suspicion that the Plaintiff has, in fact, to recent times been continuing to perform house keeping and domestic work for remuneration. Further, I have a strong suspicion that the Plaintiff, if she chose to do so, would be able to engage in full-time (or at least regular) remunerative employment. 59 I have already recorded that in relatively recent times the Plaintiff has made gifts totalling about $15,000 to her daughter and her son. It is not for the Court to express any criticism of the manner in which the Plaintiff disposes of her assets. Indeed, financial assistance by a mother to her children is normally regarded as being worthy of commendation. Nevertheless, where, as here, an applicant approaches the Court seeking an order for provision and, in so doing, asserts financial impecuniosity as a ground for the making of such an order, it is of considerable relevance to a finding concerning that financial impecuniosity for the Court to be aware that the Plaintiff has considered herself financially able to make these advances to her children. (Although they were described as loans, from a practical point of view there is little likelihood that they will be repaid in the near, or even the distant, future.) 60 Similarly, it is not for the Court to criticise the conduct of the Plaintiff in continuing to conduct her stall at the Glebe Markets, even though that activity is of no financial benefit to her and may well, upon the figures which she provided, be of financial disadvantage to her. Nevertheless, again, where the Plaintiff is asserting financial impecuniosity, it is relevant to her present claim that she is conducting a business enterprise which is of no benefit, and may possibly be of detriment, to her financial situation. 61 I recognise that, upon the material and figures placed before the Court, the Plaintiff's outgoings exceed her income, and that it is necessary for her to meet that shortfall from her capital. Nevertheless, that appears to be a situation which is, at least in part, of the Plaintiff's own making. I have already recorded my considerable suspicions that the Plaintiff has been far from frank in disclosing to the Court her financial circumstances (especially in respect to whether she is receiving remuneration for undisclosed work of a domestic nature). 62 Further, I am not persuaded that the Plaintiff, if she chose to do so, would be precluded from obtaining remunerative employment. The only relevant medical evidence appears to have been a letter produced by the Plaintiff on subpoena (and shown to her during cross-examination, but not tendered in evidence) from a Dr Norris, who in December 2001 appears to have advised the Plaintiff to discontinue her cleaning work. That evidence supports the suggestion that the Plaintiff was in fact performing cleaning work as recently as two months before the hearing, but certainly does not suggest that the Plaintiff is, on account of her health, precluded from other employment. Moreover, although there can be no criticism of the Plaintiff for doing so, the advances which she has made to her adult children are inconsistent with her present assertion of financial impecuniosity. 63 I am not persuaded that the Plaintiff has established that, by the testamentary provision made for her of one fourth of the estate of the Deceased, she has been left without adequate provision for her proper maintenance in life. 64 Nevertheless, even if (contrary to my foregoing conclusion) I were to be satisfied that the Plaintiff has established that she has been left without adequate provision, the claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only such competing claim is that of the Defendant, who, it must be recognised, is the chosen object of the major testamentary beneficence of the Deceased. Moreover, the Court has the benefit of a statement by the Deceased herself setting forth the reasons why the Deceased made provision in the terms in which she did. The explanation set forth in that statement is eminently reasonable. Further, the evidence totally supports the factual matters set forth in that statement. It is quite apparent from the evidence that the relationship between the Defendant and the Deceased was a close and loving one and was consistently harmonious, whereas, in the words used by the Deceased herself, the attitude of the Plaintiff towards her mother was "very erratic". 65 The financial and material circumstances of the Defendant are hardly better than those of the Plaintiff. The Defendant, like the Plaintiff, lives in rented accommodation. The amount of her investments is less than that of the Plaintiff, although the Defendant has superannuation entitlements. The only significant area in which the Defendant is in a more advantageous position to that of the Plaintiff is that the Defendant is presently in employment and is in receipt of a reasonable salary. It must, nevertheless, be recognised, firstly, that in fifteen months' time, when the Defendant attains the age of sixty, she will have no guarantee of continuing employment. Further, the Defendant is the only breadwinner in her household, and must maintain from her income not only herself, but also her elderly husband who is in poor health. Further, it must also be recognised that, so long as the Defendant remains in employment, it is necessary for her to reside in reasonable proximity to her employment, and thus to continue to pay rent. At the present time that rent totals almost $19,800 a year, an amount somewhat greater than the rent which the Plaintiff is currently paying. 66 Where it necessary for me to do so, I would conclude that the competing claim of the Defendant upon the testamentary bounty of the Deceased (a claim recognised by the Deceased herself in the terms of her will and by the letter of 9 August 2000) is such that, in the exercise of the Court's discretion, I would decline to make an order for provision in favour of the Plaintiff. 67 In those circumstances, therefore, the claim of the Plaintiff will be dismissed. 68 I have not heard any submissions concerning costs. Accordingly, unless within seven days from the date hereof either party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders:

(2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

(3). I order that the Defendant be entitled to retain from the estate of the late Vera Irene Christopherson ("the Deceased") the difference between such costs as she may recover from the Plaintiff pursuant to order (2) hereof and the costs of the Defendant on the indemnity basis.

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