Wayne Laurence Savage v Rebecca Ferguson

The estate 12As stated in paragraph [4] above, the assets of the estate are valued at $583,458.43, of which $580,000 is the Tahmoor property. The estate has current and future liabilities (the latter including certain necessary repairs and improvements to the Tahmoor property) of $181,599.18. This figure includes the increased provision for Marilyn and her agreed costs of the proceedings (see paragraph [5] above). 13Three further liabilities need to be taken into account. The remaining parties have agreed Wayne's costs of the proceedings (on the ordinary basis and assuming he will be entitled to them out of the estate) at $40,630 and the estate's costs (on the indemnity basis) at $52,500. Finally, the parties accepted that the Tahmoor property would have to be sold. There is evidence that commission on the sale would be charged at 2.2% (GST inc) and, taking into account conveyancing costs and incidentals, I allow $15,000 costs in connection with the sale (assuming a sale price of $580,000). 14Deducting all of the liabilities identified in the preceding two paragraphs, I find the estate has a net distributable value of $293,000.

Wayne 15Wayne was born in 1954. At the time of the hearing he was 59 years old. 16Wayne and Marilyn were born to Mrs Savage and her late husband John. In 2009 a horse killed John. Growing up, Wayne lived with Marilyn and their parents in a house built by John at 20 XXXX Street, Seven Hills until he moved out in 1979. Mrs Savage took care of raising Wayne and Marilyn whilst John worked as a tradesman. Wayne enjoyed a happy childhood in which his parents were involved in his extracurricular activities including football, basketball, hockey and cub scouts. 17Wayne left school in 1971 and obtained various trade qualifications, primarily as a fitter and turner. He worked as such or as a forklift driver and storeman until 2003. He was unemployed or self-employed and has been on sickness benefits since 2010. 18Wayne was married in 1979 and divorced his former wife in 1983. He lived with Marilyn in her home at 8B XXXX Road, Buxton from March 2011 until August 2012 (see further paragraph [33] below) when he moved into a house he bought at 325 XXXX Road, Wyee (the "Wyee property"). Wayne purchased the Wyee property with the proceeds of litigation he brought against Neil and Rebecca to recover the advance he made to them referred to in paragraph [31] below. Wayne is single, has no dependents and lives alone on the Wyee property except for a friend with matrimonial difficulties who stays with him a few nights per week. This friend does not pay rent or other expenses to Wayne. 19Wayne's only income is from a Centrelink disability pension of $827.10 per fortnight. His fortnightly outgoings are $519.00. 20Wayne has several assets. He owns the Wyee property valued at $450,000, Suncorp Superannuation worth $357,622.87, vintage and other vehicles valued at $66,000, $9,987 in cash and shares worth $1,400. These assets total just over $900,000. Wayne has no liabilities. 21Wayne does not enjoy good physical or mental health. In 2010 Wayne was seriously assaulted in Blacktown. Later that year he suffered an injury to his toe which, exacerbated by his diabetes, became gangrenous and required surgery. He suffers from depression, anxiety, stress, kidney disease, diabetes, memory loss and sleep apnoea. Wayne takes several different medications to treat these problems including antibiotics for his toe. He will never work in paid employment again. While it is clear his physical disabilities will worsen with age, the evidence does not permit a finding as to how quickly or to what extent this will occur. 22Wayne's relationship with Mrs Savage is set out in paragraphs [29] to [36] below.

Other interested persons 23Evidence was adduced of the circumstances of the other persons who are interested in the estate. As Marilyn's claim has been resolved, it is now only Rebecca's circumstances which need to be considered in determining Wayne's claim.

Rebecca 24Rebecca was born in 1977. She was 36 years old at the time of the hearing. 25Rebecca left school in 1992, having completed Year 10. She worked for the State Rail Fire Emergency Service as a fire fighter until the end of 2005, when she became seriously psychologically unwell as a result of events in her workplace. The uncontradicted evidence of the psychiatrist who has been treating her since January 2006 is that she suffers from major depression and chronic post traumatic stress disorder. Since 2006 she has been totally incapacitated for work and is unlikely ever to work again. Even just leaving her home can become a major ordeal for her. At best, her malady can be managed but not cured. In the witness box Rebecca presented as a very mentally and emotionally fragile person. 26Rebecca married Neil Ferguson in 2000. Rebecca's psychiatric condition appears to have placed an intolerable burden on their relationship and they separated in March 2013. They continue to live separately on the same property at Wilton (the "Wilton property"). 27Rebecca's only source of income is a Centrelink disability support pension of $900.00 per fortnight. In cross-examination, Rebecca disclosed that she received a Centrelink carer's pension for care she provided to Mrs Savage. This amounted to $15,000. Rebecca said that she used the money to pay for fuel to drive her grandmother to doctors and specialists' appointments, however she was unable to account for the exact purposes this money was used. Rebecca has three material assets, being a one half share of the Wilton property which has an estimated total value of $750,000, a car valued at $4,000 and some horses of no apparent value. Rebecca's only liability is a mortgage with Neil to the National Australia Bank for $432,844.66 in relation to the Wilton property. 28Rebecca's relationship with Mrs Savage is considered in paragraphs [36] to [39] below. She received several financial benefits from Mrs Savage during the latter's lifetime including two loans for $23,000 and $21,000 respectively, a gift of $153,000 (which was a contribution to the construction costs of the Wilton property) and a gift of Mrs Savage's antique furniture and personal effects. Attempts to attack Rebecca's credit and the accuracy of her financial disclosure were inconclusive and I do not draw any adverse inference about these matters.

Mrs Savage's relationship with Wayne and Rebecca 29While Wayne was growing up, he and Mrs Savage enjoyed a close relationship. This continued into his adult years, during which he helped to maintain and make improvements to her and John's assets. In her earlier wills Mrs Savage included Wayne as a major beneficiary of her estate in the event of John predeceasing her. In January 2010, after John's death, Mrs Savage made a further will which left Wayne, amongst other things, the Tahmoor property and divided the residue of her estate equally between Wayne and Marilyn. That same will left two motor vehicles to Rebecca and forgave the debts which Rebecca owed Mrs Savage. In some signed notes explaining her testamentary choices in that will, Mrs Savage recorded that she had a very close relationship with both Wayne and Rebecca. 30In 2010 and 2011 events occurred which fractured the relationship between Wayne and Mrs Savage. In early 2010 Wayne was living on his own in his former matrimonial home at Kings Langley (the "Kings Langley property"). Around this time he was assaulted at Blacktown and was badly injured. He decided to sell the Kings Langley property so that he could move closer to his family and, if necessary, help Mrs Savage. While he was recovering from the assault, Mrs Savage, with Rebecca and Neil, put a proposal to Wayne that he should loan the proceeds of sale from the Kings Langley property to Rebecca and Neil so that they could make improvements to the Wilton property. If he did that, then Mrs Savage said she would permit Wayne to live at the Tahmoor property, which she would leave to him in her will. 31Although attended with some controversial circumstances which it is unnecessary for me to relate, Mrs Savage's proposal was put into action. Wayne advanced the proceeds of sale from the Kings Langley property to Rebecca and Neil. In July 2010 he moved into the Tahmoor property with Mrs Savage. 32Shortly thereafter Mrs Savage informed Wayne that she intended to leave the Tahmoor property to move in with Rebecca and Neil at the Wilton property. Mrs Savage began to undertake what Wayne and Marilyn (with whom Mrs Savage was on very bad terms over what Mrs Savage considered to be Marilyn's bad treatment of Rebecca) perceived to be improvident financial transactions in favour of Neil and Rebecca. That concern culminated in January 2011 when Wayne and Marilyn filed an application in the Guardianship Tribunal (the "Tribunal") to have a guardian appointed for Mrs Savage and for the Public Trustee to be appointed as her financial manager. In their application they stated that Mrs Savage was "of advanced age and had had two strokes". Wayne and Marilyn also queried whether she had dementia, an intellectual disability and a brain injury. They said they had launched the proceedings because they were concerned that Rebecca and Neil were financially exploiting Mrs Savage by selling her possessions (vintage cars and antiques) and taking over Mrs Savage's inheritance from her late mother. 33Wayne's own evidence makes it clear that Mrs Savage became enraged with Wayne and Marilyn upon becoming aware of their application in March 2011. To avoid further argument Wayne left the Tahmoor property and moved in with Marilyn. Shortly after the Tribunal hearing Mrs Savage phoned Wayne at Marilyn's house and said words to the effect "You're evicted. You are a bastard son and a coward. You've got seven days to move your stuff out" and then hung up. 34The Tribunal hearing was held on 23 March 2011. During the proceedings the guardianship application was withdrawn but the application for the appointment of a financial manager was pressed. The Tribunal rejected the application, concluding that there was no evidence that Mrs Savage had any disability which impaired her ability to manage her own financial affairs and that her plans to move to the Wilton property were longstanding and well considered decisions. 35After the hearing had finished Mrs Savage said to Wayne "You're both out of the will" (referring to him and Marilyn). Wayne had no further contact with Mrs Savage. When he heard in early 2012 that she had been hospitalised, he attempted to contact Mrs Savage but, through no fault of his own, was not permitted to speak to her. He was telephoned by his uncle with the news that Mrs Savage had died. 36Within a few weeks of the Tribunal hearing, Mrs Savage made a new will, informing her solicitor that she (Mrs Savage) felt she could only now trust Rebecca. Mrs Savage made a further will on 25 November 2011 (being the will which has been admitted to probate). There was uncontradicted evidence from her solicitor that at the time of making this last will, she said that she did not wish to leave anything to her son or daughter but that, after receiving certain advice concerning the Act, she agreed to leave $5,000 to each of them. 37The close relationship between Mrs Savage and Rebecca did not suffer the vicissitudes that destroyed Mrs Savage's relationship with her son. It is clear from the evidence referred to in the preceding paragraph that Mrs Savage's outrage over the application to the Tribunal only strengthened what had always been a very close relationship with Rebecca. The Tribunal accepted that Mrs Savage considered Rebecca to be like a daughter. There was ample evidence before me to support that conclusion. 38Because of difficulties with her mother (Marilyn), Rebecca moved in to live with Mrs Savage and John when Rebecca was about 10 or 11 years old. She resided with them continuously until she married in 2000, other than for a period of six months when she travelled to Western Australia at the age of 18. Even after marrying Neil in 2000, the newlyweds lived with Mrs Savage and John for a year or so. In a letter dated 20 July 2008 explaining their then testamentary decisions, Mrs Savage and John stated: "The treatment of our grand-daughter, Rebecca Ferguson, by her mother (our daughter) Marilyn Smith, is appalling. Marilyn has treated Rebecca with the utmost contempt and hatred from the day she was born. My wife Shirley and I, have raised Rebecca for most of her life ...". 39There is no doubt that Rebecca provided care and support to Mrs Savage, particularly after Mrs Savage moved into the Wilton property. As noted in paragraph [27] above, Rebecca received a carer's pension in respect of Mrs Savage.

Uncontroversial matters 40Because Wayne is Mrs Savage's son, he is clearly an eligible person under s 57 of the Act. The Summons was filed less than 12 months after Mrs Savage's death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [10] above are all answered "yes". 41The Provision referred to in the question posed in sub-paragraph [10(5)] above is $5,000.

Has adequate provision been made for Wayne? 42It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [10(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for Wayne is not adequate for his proper maintenance, education or advancement in life. If that question is answered "yes", then the Court's discretion to make a family provision order in favour of Wayne is enlivened. 43In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry: 39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty. 44In addition to the passage from Verzar quoted in the preceding paragraph [33] above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children. While these are obviously relevant to Wayne's claim, Mrs Savage's treatment of Rebecca as a daughter makes those same considerations applicable when assessing Rebecca's competing claim on Mrs Savage's testamentary bounty: 154. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 156. As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 157. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 158 The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 159. In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149. 45Applying the principles just set out, the Court is satisfied that the Provision is not adequate for Wayne's proper maintenance, education or advancement in life. The question posed in sub-paragraph [10(6)] above is answered "yes". The reasons for this conclusion are: (1)Wayne and Marilyn's application to the Tribunal was motivated by a plausible concern and, notwithstanding Mrs Savage's strong adverse reaction, does not constitute conduct that, when weighed against a life long close relationship until then, the community would consider disentitled Wayne from expecting more than a nominal provision in Mrs Savage's will. As Sackville AJA (Beazley and Basten AJA agreeing) said in Foley v Ellis [2008] NSWCA 288 at [102], "Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of the court room may give a different impression than when the events are set in the context of the raw emotions experienced at the time. The "wise and just" testator or testatrix (Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 per Lord Romer) must be taken to understand this." (2)This is not a case where in any sense Wayne was an adult child dependent on Mrs Savage. However, it is an example of a case where there are assets available from which the community would expect a parent to provide their adult child with some buffer against contingencies, especially given Wayne's poor health and incapacity to earn an income.

What provision ought to be made for Wayne? 46It follows from the finding made in the preceding paragraph that the Court's discretion to make a family provision order in favour of Wayne under s 59(1) of the Act is enlivened. I answer the question set out in subparagraph [10(8)] above as to what provision ought to be made for Wayne as $50,000. There are four basic reasons for this conclusion, which I will develop in what follows: (1)The conclusion in paragraph [45] above is that this is a case where more than a nominal provision should have been made for Wayne as a buffer for contingencies. This supports a figure materially greater than the existing $5,000 provision made for Wayne in Mrs Savage's will. (2)Wayne's positive asset position. This weighs against a more substantial provision than might otherwise have been given to an adult child in parlous financial circumstances. (3)While Wayne's health problems will undoubtedly take their toll as the years pass, the evidence does not permit this consideration to be translated into clearly identifiable or sustainable specific needs. This conclusion is a limiting factor on the amount which might otherwise be provided for Wayne. (4)Whatever Wayne's needs may be, they are substantially outweighed by Rebecca's needs and claim on the estate. Rebecca is and will almost certainly continue to be in a significantly worse financial position than Wayne and, given their comparative ages, will require support for many more years than he will. 47In determining what provision ought to be made for the proper maintenance and advancement in life of David, I have taken into account all of the facts set out in paragraphs [12] to [39] above. I have particularly considered the following matters (using some parts of s 60(2) of the Act as a convenient check list): (1)[ss 60(2)(a), (h), (m) and (n)] Both Wayne and Rebecca enjoyed a close relationship with Mrs Savage, each of them caring for her and making contributions to her wellbeing and welfare, be it physical, emotional or otherwise. Wayne was Mrs Savage's son and Rebecca a grand-daughter elevated to the status of daughter. As I have concluded in paragraph [45] above, Wayne's participation in the Tribunal application is not a matter which reflects adversely on Wayne's character or conduct for the purposes of determining an adequate provision for him. (2)[s 60(2)(b)] Mrs Savage owed some obligation to both Wayne and Rebecca. Her obligation to Wayne arises from the circumstances referred to in paragraph [45] above. Her obligation in relation to Rebecca arises from Rebecca occupying, in effect, the position of her daughter and Rebecca's poor financial position and serious mental health issues. (3)[s 60(2)(c)] As set out in paragraph [14] above, the net distributable value of the estate is $293,000. There are sufficient funds to make an appropriate additional provision for Wayne while respecting what I consider to be the substantially greater claim of Rebecca. (4)[s 60(2)(d)] Wayne has a relatively strong asset position for a single man without dependants. Contrary to his asserted belief, it was established in cross-examination that he could have access to his superannuation now rather than when he turns 65. He chooses not to do so and, understandably, would prefer not to use his superannuation until later in life. Nevertheless it is there available to him. Rebecca's position offers a sharp contrast. Her only asset is her interest in the Wilton property. After allowing for the mortgage to the National Australia Bank Rebecca's interest in that property is worth approximately $158,000. I consider Wayne and Rebecca's respective needs in paragraphs [48] to [56] below. (5)[s 60(2)(f)] Wayne has physical and mental problems. The combination of his diabetes and ongoing issues with his foot will undoubtedly diminish his mobility over time, although how quickly and to what extent is not known. Rebecca suffers from a major, debilitating psychiatric illness. (6)[s 60(2)(g)] Wayne was 59 years old at the date of the hearing. He will never again engage in paid employment. (7)[s 60(2)(i)] Rebecca was the beneficiary of the provisions referred to in paragraph [28] above during Mrs Savage's lifetime. Given the relative circumstances of Wayne and Rebecca to which I have already referred and the fact that Mrs Savage's contribution to the costs of the Wilton property may have had an element of self interest about it, those provisions do not alter what the Court considers to be Wayne and Rebecca's respective claims upon the estate. (8)[s 60(2)(j)] There is clear evidence both from Mrs Savage's will itself and the matters which I have recorded in paragraph [36] above as to Mrs Savage's testamentary intentions. She was determined that Wayne should receive no more than a nominal provision and that virtually all of her estate should go to Rebecca. For the reasons set out in paragraph [45] above, I discount Mrs Savage's evident intention to exclude Wayne. However, even when that is done, Mrs Savage's determination to make Rebecca her principal beneficiary has a clear rational basis, founded in their close mother-daughter relationship, Rebecca's serious psychiatric problems and her precarious financial position. This consideration is a powerful factor in favour of a result which, while making provision for Wayne, leaves Rebecca as the major beneficiary.

Needs 48Wayne's needs must be considered in the light of Rebecca's competing claim upon the estate. I have set out their respective asset positions in sub-paragraph [47(4)] above. I am satisfied on the balance of probabilities that Rebecca and Neil's present estrangement will end in a formal divorce or, at least, physical separation requiring the sale of the Wilton property. Rebecca will almost certainly never work again and, quite apart from the consideration referred to in paragraph [47(8)] above, should be left with sufficient funds to purchase permanent accommodation and a sum for contingencies over her lifetime. 49It was submitted for Wayne that his need for provision included: (1)A sum for contingencies - $50,000; (2)A new four wheel drive motor vehicle to provide for comfortable access to the Wyee property -$35,000-$60,000; (3)Modifications to the Wyee property to accommodate the need for future wheelchair access to the house - $60,000; (4)The purchase and installation of water tanks for the Wyee property - $10,000; (5)A scooter for the disabled - $3,000- $3,500; and (6)A lift lounge chair - $895. 50I will deal with each of these in turn. 51Based on the conclusion set out in paragraph [42(2)] above, I accept that a provision for contingencies of $50,000 is appropriate. 52Wayne explained that access to and around the Wyee property involved roads and tracks that were either unsealed or covered only with road base. He is currently driving a friend's vehicle. His evidence was that he had also seen a potentially suitable second hand four wheel drive vehicle for $10,000, but he did not like that vehicle because it was petrol when he thought that really people should now be using gas powered cars. There are three reasons why I decline to make provision for a four wheel drive vehicle: (1)There is evidence that a suitable vehicle could be purchased for $10,000. That amount is within Wayne's means. Even if it is a "need", it is one he could satisfy if he wished by recourse to his current resources. (2)Wayne's interest in social ecology and sustainable living means that he has chosen to live at the Wyee property. The requirement for a four wheel drive is a function of that choice. In the circumstances of this case, the community would not expect Mrs Savage's bounty to extend to items which are peculiarly a function of where Wayne has chosen to live. (3)While the result might be otherwise in a much larger estate or absent significant competing claims, Rebecca's claim to the estate is to be preferred on this point. 53There are a number of impediments to Wayne's claim for a provision to allow for modification to the Wyee property to accommodate the need for future wheelchair access. During the course of submissions I asked Mr Van der Vlag what evidence there really was before the Court of the likelihood of Wayne needing a wheelchair in the future. His entirely proper and accurate answer was "Apart from the direct observation of Mr Savage today, and the evidence about ongoing diabetes and ongoing issues, there is some evidence, perhaps not the most persuasive". Wayne's own affidavit evidence on this point was "If I need to use a wheelchair to move around I will also have to make changes to my house ... so that it will be ready for wheelchair access" (emphasis added). The evidence does not allow me to conclude on the balance of probabilities (or at all) that wheelchair access will be required. Furthermore, the $60,000 quotation tendered on behalf of Wayne for the work to be done goes well beyond what might be required for wheelchair access to include what appears to be a significant renovation to entertainment and other areas. It is not possible to identify how much of the quotation is properly referable to wheelchair access. This aspect of the claim is not made out. 54In one of his affidavits Wayne stated "I will also need to purchase and have fitted an additional two water tanks, as there is no town water connected to my property". This claim fails for at least two reasons: (1)There was ultimately no evidence in support of the submission that such tanks would cost $10,000. (2)More importantly, Wayne gave evidence that there was a 20,000 gallon tank on the Wyee property, as well as two smaller ones. In the face of that evidence, Wayne's bare assertion that he will need to purchase the two additional water tanks does not amount to sufficient evidence to support the conclusion of a need for those tanks for which a provision should be made. 55Wayne also deposed "If my ability to move gets worse I will also need to buy a scooter to help me get around" (emphasis added). There was evidence that such a scooter costs between $2,895 and $3,495. There is insufficient evidence to justify a conclusion on the balance of probabilities (or at all) that Wayne will in fact require a scooter in the future. In any event, the cost of such a scooter is within his means and is not something for which the Court would make provision in the light of Rebecca's more compelling claim on the estate. 56Finally, Wayne deposed that "I may also need to buy a new lift lounge chair which would cost about $895" (emphasis added). This aspect of his claim is again speculative and within his apparent means. So understood, it is not an item for which the Court, in the exercise of its discretion, would order provision from the estate.

Conclusion and orders 57Rebecca did not advance any additional reason as to why, if the Court came to the view that additional provision should be made for Wayne, the discretion to do so should not be exercised. The question posed in paragraph [10(9)] above is therefore answered "yes". 58For these reasons, the Provision for Wayne should be $50,000. There is already a provision of $5,000 for him in Mrs Savage's will. It follows that there should be an order for additional provision out of Mrs Savage's estate in favour of Wayne for $45,000. I will give the parties an opportunity to bring in short minutes of order reflecting these reasons and, if not able to be agreed, to make submissions as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2014