"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."

1. In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, Dixon CJ said at 19:

"The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first instance."

1. The jurisdictional question of whether the applicant has been "left without adequate provision for (her) proper maintenance and support" is to be answered as at the date of death of the testator. Coates v National Trustees, Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494. The enquiry is undertaken from the perspective of a wise and just testator. Bosch v Perpetual Trustee Co [1938] AC 463 at 478 - 479. The testator is assumed to have been aware of all of the relevant circumstances, including reasonably foreseeable eventualities existing at the date of death. Litchfield v Smith [2010] VSC 466 at [26].
2. The determination of the jurisdictional question "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". Singer v Berghouse [1994] HCA 40; 181 CLR 201.
3. The provision uses the words "adequate", "proper", "maintenance" and "support".
4. It has been said that the most important word is the word "proper". In Sgro v Thompson [2017] NSWCA 326, White JA (with whom McColl JA and Payne JA agreed) said at [86]:

"The most important word ... is 'proper'. Until the court has identified what is proper maintenance, ..., it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, ... must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."

1. Whereas the word "proper" is concerned with the standard of maintenance that should be provided, the word "adequate" is concerned with the quantum. In Bosch v Perpetual Trustee Co Ltd [1938] AC 463, Lord Romer said at 476:

"The first thing to be noticed is that the powers given to the Court only arise when any of the persons mentioned is left without adequate provision for his or her proper maintenance, ... The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

1. The words "maintenance and support" permit provision over and above the bare necessities in life. In Vigolo v Bostin [2005] HCA 11, 221 CLR 191, Callinan and Heydon JJ said at [115]:

"The next of the indications is the expression, in comprehensive language, of the sorts of provision that the court may order, that is, provision by way of maintenance, support, education or advancement. 'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court."

1. As to the claims of elderly widows, Hallen J in Gargano v Coves [2018] NSWSC 985 set out a number of cases which provide guidance. Although the passage is lengthy, I set it out in full. His Honour said at [160]:

"The following principles are relevant to the competing claim of the spouse of the deceased.

(a) As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to his or her spouse, to the extent to which his or her assets permit him or her to do so, is to ensure that she or he is secure in the matrimonial home, to ensure that she or he has an income sufficient to permit her or him to live in the style to which she or he is accustomed, and to provide her or him with a fund to enable her or him to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free her or his mind from any reasonable fear of any insufficiency as she or he grows older and her or his health and strength fail (see: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24). Concern as to the capacity of the spouse to maintain herself or himself independently, and autonomously, may also bear upon the notion of what is proper provision.

However, what I have said above is not of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142] - [144]

(b) The three elements identified in (a) above are not necessarily mutually independent. The Court is not to approach the assessment of what is proper for a competing claimant by attempting precisely to replicate the way of life that the deceased and his or her spouse planned to have had he or she survived.

(c) There is binding authority which gives greater weight to the claims of a party who has entered 'a formal and binding commitment to mutual support': Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68].

In Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [24], Gleeson CJ wrote:

'The structure of marriage and the family is intended to sustain responsibility and obligation.'

However, in Bladwell v Davis [2004] NSWCA 170 at [19], Bryson JA stated:

'In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.'

'I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.'

Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109 at [80] - [82].

(d) Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where she is the mistress of her own life, and in which, for the remainder of her life, she is not beholden to beneficiaries: Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep).

(e) Ward J (as her Honour then was), in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTL 201, at [98], stated:

'Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: "Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982". His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and "regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts" (para 19)'."

1. In making the appraisal the Court is to "connect the general but value-laden language of the statute to the community standards". Vigolo v Bostin [2005] HCA 11, 221 CLR 191.
2. Where the discretion to intervene is enlivened by a finding 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 to the enquiry which resulted in the finding that the applicant had been left without adequate provision. Singer v Berghouse at 210. The extent to which a court may intervene is limited to doing only that which is necessary to satisfy the obligation of the deceased, which existed at the date of his or her death, to make adequate provision for the proper maintenance and support of the eligible applicant.

1. Most of the evidence on the salient features, to which these reasons are confined, was not the subject of dispute. There were some minor discrepancies, but these arose in areas where one or other of the witnesses could not have had firsthand knowledge of the fact asserted. Having carefully observed all of the witnesses, I was left with no reason to doubt the honesty or credibility of any of them. Accordingly, in areas of factual dispute I have preferred the evidence of the witness with direct knowledge of the fact asserted. An example is the evidence of the applicant as to her assistance to the testator with the building of the couple's home at St Helens. She has not asserted anything beyond providing minor assistance and keeping her husband company whilst he did the work. I have preferred her evidence as to the work which she did to some contradictory evidence provided by the testator's son. The applicant was in the best position to know what work she did and as I have said I have no reason to doubt her honesty or credibility. Another example is the applicant's evidence that the testator's daughter and son were gifted the land upon which they built their homes. The applicant asserts that the land parcels were transferred to the children by the testator without consideration. Both the testator's daughter and son have said that they paid their mother for the parcels of land and the evidence of the mother confirms this.
2. Regardless, the matters in factual dispute were not individually or collectively of such significance that my reasoning or conclusions would have altered, even if the few matters of factual dispute had been resolved differently.

The applicant's financial position as at the date of the testator's death

1. As already mentioned, at the time of the death of the testator, the applicant had assets having a total value of a little over $300,000. Her major asset was a house in Launceston having a value of about $260,000. The house, which was unencumbered was tenanted, producing a net weekly income to the applicant of $210. The house had been purchased in 1997 for $61,000 during the early stages of the applicant's relationship with the testator. In order to fund the purchase the applicant had taken out a loan of $31,000, but this had been repaid in full by the time of the testator's death.
2. The applicant was unemployed. She had left her part-time job working as a telephone advertisement operator for the Examiner newspaper four years earlier, in 2012. She was 65 years of age at the date of the testator's death and, having regard to her age and her previous employment, I conclude that she had no realistic prospect of materially advancing her position in life through paid employment.

The financial position of the testator's children at the date of the testator's death

1. The testator's daughter, Susan, had separated from her husband about eight months prior to the death of the testator. However, by the date of her father's death, she had commenced a relationship with a new partner. She had three children and the full-time care of one of them, being a son, then aged 13 years. She had a one-half share with her estranged husband in her home at St Helens, which the couple had built on the land at St Helens which she had purchased from her mother in 2000 for the sum of $7,000, being its approximate value at the time. The house had a value of about $140,000 and was encumbered by a mortgage securing a loan having a then debit balance of about $75,000. In addition to her share of the home, she had about $17,000 in superannuation investments. At the time of the testator's death she was in casual employment in St Helens working for about 15 to 18 hours per week at $26 per hour. Her income was topped up by a Centrelink benefit.
2. The testator's son, Martin, was married with three children aged between 13 and 21 years. The youngest child suffered from Autism Spectrum Disorder, Asperger's Syndrome, but this condition was undiagnosed at the date of the testator's death. The testator's son worked as a builder earning about $46 per hour. His wife operated a children's clothing store in St Helens. The testator's son had purchased land from his mother at St Helens in 2000 for about $6,500, being its approximate value at the time. He built a house on the land. The house was sold and the son now lives with his wife in another house at St Helens which has a value of about $280,000. This house is in the name of the son and his wife and is unencumbered. The couple also owned an investment property at St Helens worth about $170,000, encumbered by a mortgage securing the repayment of a loan of about $150,000. The son also had about $45,000 in cash and shares and about $50,000 in superannuation investments.

1. According to the affidavit of assets and liabilities filed by the respondents at the time of the grant of probate and a supplemental affidavit filed in the Probate Registry a few months later, the estate, at the time of the testator's death, consisted of:
   • The couple's home at 6 Medea Street, St Helens $170,000.00
   • Household effects contained in the couple's home $8,000.00
   • Two motor vehicles $16,000.00
   • An investment property at 9 Goodwin Street, Invermay $148,500.00
   • Six residential units at 26-28 Circassian Street, St Helens $650,000.00
   • Miscellaneous assets less liabilities $92,828.40

1. The construction of the home of the testator, which ultimately became the home of the testator and the applicant, commenced in 1997 after the relationship had commenced but before the couple were living together full-time. The testator supplied the materials and skills for the construction, but the applicant did provide some minor assistance which she describes in her affidavit as holding a string line, fetching and carrying materials and hammering in some floor boards.
2. The applicant lived at her house in Launceston until the couple married in 2006. Upon the marriage, the applicant moved into the St Helens' home where the couple lived until the time of the death of the testator. The applicant still lives in the home.
3. The applicant makes no claim that the investment property at 9 Goodwin Street, Invermay, was acquired by the testator during his relationship with her. Nor was there any claim that she contributed to the maintenance and improvement of this property.
4. The construction of the block of units at Circassian Street was commenced by the testator in 1985, long before he met the applicant. The development was completed in 1990, with some assistance having been provided to the testator by his son. The applicant does not claim to have made any contribution to the acquisition or maintenance of this asset.

The relationship between the applicant and the testator and the relationship between the testator and his two children

1. The uncontradicted evidence is that the applicant and the testator enjoyed a normal loving relationship as husband and wife. The testator paid expenses associated with the home including the payment of rates, water charges and power bills. The applicant paid for the weekly grocery shop and for some other miscellaneous expenses. The couple travelled together for holidays in Queensland and Western Australia. In 2011 they travelled to China to attend the wedding of the applicant's son. The couple were frequent visitors to Melbourne.
2. The testator's two children also enjoyed a good relationship with the testator. The daughter had lived with the testator from 1999 to 2002 and the son and his family had lived with the testator from 2002 to 2005.

The state of health of the testator's family members

1. The applicant had no significant health problems at the time of the testator's death, but has since suffered from depression requiring medication.
2. The testator's daughter had suffered from epilepsy since childhood. She has undergone brain surgery five times, the most recent being about 13 years before the testator's death. The surgery has resulted in memory problems. She also suffers from depression.
3. The testator's son has had back problems for some time. This is significant as he derives his income from physical work as a builder. His back problems prevented him from working for three or four days a year as at the time of the testator's death. More recently the back condition has worsened and so the episodes of him having to take three or four days away from work now occur about four times per year.

1. Shortly following the death of the testator the applicant applied for and obtained a DVA war widow's pension of about $450 per week, backdated to the testator's date of death. The applicant also received a DVA Gold Card entitling her to substantial health care benefits.
2. Counsel for the applicant argued that there should not be a finding that there was an automatic entitlement to the DVA pension and healthcare card with the result that the testator ought to have made provision for the applicant on the basis that the applicant might not receive such benefits. Counsel pointed to the fact that shortly prior to his death and at about the time he made his will, the testator gave to the applicant $8,000 for living expenses. He submits that this is consistent with the testator recognising that the applicant might not receive the pension.
3. I do not find the submission to be persuasive. The inter vivos gift is consistent with the testator wishing to provide for the applicant's short-term living expenses to fill any gap which might occur between his death and the applicant receiving her first pension payment.
4. The applicant's own evidence is consistent with the testator having DVA entitlements which would accrue to the benefit of the applicant upon his death. At par [38] of her affidavit the applicant said:

"Upon Derwyn's passing, I discovered that Derwyn had not notified the Department of Veteran [sic] Affairs (herein DVA) that we were married in 2006, nor had he made any arrangements to set up a pension for me through them."

1. The applicant went on to state in her affidavit that, with the help of a friend, she applied for the pension and that the application was approved in around April 2016, being within about a couple of months of the testator's death. She made no mention of any problems with the application or any discretionary or other obstacles which she had to overcome before her entitlement was approved.
2. I conclude that the pension and the healthcare entitlements existed at the date of the testator's death and that they were entitlements properly taken into account by the testator in considering what provision he would make for the applicant in his will.
3. The net result, so far as the testator was concerned, was that on his death the applicant had an unencumbered house, about $40,000 in investments and under the terms of the will she would have a right to occupy the couple's home at St Helens for so long as she wished along with the value of a one-third interest in the testator's investment property, then worth to her about $50,000. In addition the applicant had the benefit of the testator's war service in the form of the DVA pension and healthcare card.
4. Accordingly, from the perspective of the testator at the time of his death, the applicant was left in a position where she could foreseeably enjoy a comfortable, but modest, existence with some financial buffer against the vicissitudes of life provided that she continued to live in the home at St Helens.
5. Counsel for the applicant submitted that "as a woman of advancing years with no real prospect of improving her financial position, she has a legitimate and powerful moral claim to more ... provision than she was given, provision appropriate to the widow of a man whose estate was worth over a million dollars. ... At his death the applicant had been the testator's lawful wife for nearly 10 years. A close and loving relationship in which the parties lived under the same roof (in Launceston and St Helens) had inured for years before marriage."
6. The primary submission of counsel for the respondents was that, taking into account the applicant's own assets (about $300,000 including a house) and the provisions made for her in the will, namely, a right of residence at the couple's home and about $50,000, and also taking into account the DVA benefits, the jurisdictional requirement, that the applicant satisfy the Court that she has been left without adequate provision for her proper maintenance and support, has not been met.
7. Counsel for the respondents went on to submit that, in the event of a finding that the applicant has satisfied the jurisdictional threshold, the provision which ought to be made is that, instead of a capital sum, the applicant should be granted a life interest in the couple's home at St Helens.
8. Counsel referred to White v Barron [1980] HCA 14; (1980) 144 CLR 431 where Mason J (as he then was) observed at 444:

"A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy."

1. Counsel for the applicant submitted that the applicant should have a capital sum.
2. Firstly, it was said that the respondents should have put the possibility of a life interest to the applicant during the cross-examination of her to see if the applicant could offer a factual basis which might contraindicate the making of provision by way of a life interest. The possibility of provision in the nature of a life interest, however, must have been in the contemplation of the parties. Specific reference to such a provision is made in the Act. All witnesses provided affidavits prior to the hearing. In my view, the applicant had ample opportunity to present facts relating to a provision in the nature of a life interest and there was no need for counsel for the respondents to specifically raise the matter with her during cross-examination.
3. Secondly, counsel for the applicant made a submission concerning the potential difficulties which might arise with respect to the appointment of a trustee to administer a life interest and the payment of the trustee's expenses and charges. He also referred to the possibility of litigation relating to the administration of a trust. I accept that these are proper concerns, but they are concerns which can and should be dealt with in the drafting of the order should an order be made for provision in the nature of a life interest.
4. Thirdly, in favour of the award of a capital sum, as against provision in the nature of a life interest, counsel for the applicant submitted that the applicant should have control over her own destiny. Counsel said: "Modern formulation of what is proper provision recognises that widows are entitled to independence, self-respect and autonomy ...". In support of the proposition reference was made to In The Matter of the Will and Estate of Owen Charles Brown [2016] VSC 258 where Ierodiaconou AsJ said at [23] and [24]:

"A second reason that the Will does not adequately provide for the plaintiff is that the life interest does not provide her with a capacity to maintain herself independently and autonomously. The executors could, for instance, on six months' notice, sell the property if she cannot keep it in repair to their reasonable satisfaction: clauses 8.1(a)(iii), 8.5, 8.6. If the plaintiff requested the executors to sell the property, she would need to act 'in concert' with them, before they 'may' decide to purchase another property or to invest all the proceeds and pay all the income or profit to provide her with accommodation. The practical effect of such a clause is that she remains beholden to the executors.

Is a Crisp order appropriate, particularly in circumstances where the Will indicates that Mr Brown's intention was to give the residuary beneficiaries ownership of the property or the sale proceeds from it? The Court considers that outright ownership is the appropriate order. A Crisp order will not provide the plaintiff with the appropriate independence, self-respect and autonomy. Ownership will provide more flexibility and greater security. A wise and just testator in the circumstances, and bearing in mind current community attitudes, would provide the plaintiff with ownership in the property."

1. In conclusion, counsel for the applicant submitted that "the only appropriate order ... is that the entirety of that still available to be given to her absolutely". The current balance of the estate, after the distribution made prior to the filing of the application, the payment of debts and the payment of legal expenses comprises the home at St Helens and about $93,000 in cash.

The jurisdictional question of fact - Was the applicant left without adequate provision for her proper maintenance and support?

1. Upon the assumption that the applicant would wish to continue to live at the home at St Helens for the rest of her life and that she would be able to do so, the provision which the testator made for the applicant in his will is adequate for the proper maintenance and support of the applicant. She would have a secure home and a substantial asset base in addition to her pension entitlement and the DVA healthcare card.
2. However, in the event that the applicant, through circumstance or choice, would need to or wish to move from the home at St Helens, the applicant's resources would be far more limited. She would have her house in Launceston, or a substitute home to live in, a small capital fund and a pension and healthcare card. In the event that the house in Launceston became unsuitable for her needs she may not have sufficient funds to be able to purchase a suitable new home. If she could afford to purchase a new home, the cost of so doing might substantially erode her modest capital base. Selling and purchase costs would need to be considered as well as the possibility of extra money being needed for any building work which might be required for the applicant's changing needs with advancing years.
3. The testator's estate was large enough to make provision for a change in residence, whilst still leaving a significant bounty to be shared between the testator's two children. The applicant and the testator had been in a relationship for about 20 years, the last 10 of which being as a married couple. Based upon the size of the estate, the length and nature of the relationship and the lack of urgency so far as the testator's children's needs were concerned, I conclude, as a matter of fact, that the applicant was left without adequate provision for her proper maintenance and support.
4. The jurisdictional question is answered in favour of the applicant.

The discretion - What (if any) further provision should the testator have made?

1. The realisation of the fruits of the bequests to the testator's two children was not urgent and the estate was large enough to accommodate the applicant being given the flexibility and autonomy to relocate without significant impact upon her modest asset reserves. The lack of flexibility has caused me to conclude that the applicant had been left without adequate provision for her proper maintenance and support. Appropriate flexibility can be accommodated with little interference to or impingement upon the wishes of the testator as to the distribution of his estate. It follows that further provision should be made for the applicant consistently with what the Court thinks that the wise and just testator, wanting to do no less and no more than that which was necessary to leave his widow with adequate provision for her proper maintenance and support, would have included in his will.
2. The Act, s 3(2), without derogating from the general power of the Court to make such provision as is thought proper, specifically authorises the making of provision consisting of a life interest in a dwelling house belonging to the estate. Such an interest, with appropriate flexibility for the applicant to have the benefit of income from the capital should the house be sold, in substitution for the bequest of a one-third interest in the investment property, would, in my opinion, result in there being adequate provision without going beyond that which is necessary. Recent market appraisals indicate that the home at St Helens is worth between $280,000 and $300,000. A substitute provision of a life interest only would not significantly disadvantage the testator's two children as under the terms of the will the applicant could, in any event, have lived in the house for life, or at least for so long as she was able to do so. The testator's two children would in turn have the advantage of a greater share in the proceeds of the sale of the investment property. The disturbance to the wishes of the testator would be of a minor nature only.
3. Provision by way of a flexible life interest in the couple's home in substitution for the mere right of occupancy and the bequest of a one-third interest in the investment property will be ordered.

1. The Act, s 9(3), relevantly provides that provision made under the Act operates and takes effect as if it had been made by a codicil to the will.
2. The terms of the life estate in the couple's home should be drafted in the same way that a codicil would be drafted. The draft should accommodate the appointment or nomination of a trustee. Provision should be made for the applicant to make a binding election to have the house sold with the proceeds to be used in the acquisition of a substitute home. Provision should also be made to allow the proceeds to be used to fund an aged care accommodation bond with any refund of such a bond to go back to the estate upon the death of the applicant. Special provision should be made to allow the applicant to make a binding election to have the whole or any part of the proceeds of a sale invested in authorised investments with the income, less the trustee's expenses and charges, to be paid to the applicant, with the corpus of the fund preserved for the ultimate benefit of the testator's two children.
3. A clause in substitution for the one which gave to the applicant a one-third interest in the investment property will need to be drafted so that the testator's children share the whole of that benefit, or what may be left of it now that the estate has been significantly diminished by the payment of the respondents' legal costs associated with these proceedings and might be further diminished depending upon what, if any, orders as to costs might be made.
4. As required by the Act, s 9(2), the orders will need to include an order that the grant of probate be brought into court so that a certified copy of the orders can be made upon the probate of the will.
5. The parties should provide an agreed draft of the orders to be made or, failing agreement, their respective drafts. Upon request, if the parties are not in agreement as to the terms of the orders, the hearing is to resume for the purpose of settling such terms.
6. Failing agreement as to the costs of the extension of time application and the costs of the substantive application, the hearing will be resumed upon the request of either of the parties so that submissions as to costs can be made.