Stansfield v National Australia Trustees Ltdcory and Ors v National Australia Trustees [2004] NSWSC 1107 (19 November 2004)

Last Updated: 29 November 2004

NEW SOUTH WALES SUPREME COURT

CITATION: Stansfield v National Australia Trustees LtdCory & Ors v National Australia Trustees [2004] NSWSC 1107 revised - 26/11/2004



CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 6062/02
3939/02

HEARING DATE{S): 17, 18 November 2004

JUDGMENT DATE: 19/11/2004

PARTIES:
Toni Margaret Stansfied v National Australia Trustees Ltd ( Estate of Trevor Wearne Cory)
David John Cory & 2 Ors v National Australia Trustees Ltd (Estate of Trevor Wearne Cory)

JUDGMENT OF: Master Macready

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr B. Sharpe for Stansfield
Mr J. Wilson SC for Cory & Ors
Mr P Blackburn Hard with Miss D. Robinson for defendant

SOLICITORS:
R.A Davies for Stansfield
Bradfield Anderson for Cory & Ors
Bartier Perry for defendant


CATCHWORDS:
Family Provision. Application by defacto partner and three sons of deceased. Sons provided for by a discretionary trust. Consideration of whether it was an appropriate provision. Held it was not an appropriate provision. Order for sharing of estate and legacy to partners.

ACTS CITED:


DECISION:
Paragraph 45


JUDGMENT:

- 1 -
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

FRIDAY 19 NOVEMBER 2004

6062/02 – TONI MARGARET STANSFIELD v NATIONAL AUSTRALIA TRUSTEES LIMITED – ESTATE OF TREVOR WEARNE CORY

3939/02 – DAVID JOHN CORY & ORS v NATIONAL AUSTRALIA TRUSTEES LIMITED – ESTATE OF TREVOR WEARNE CORY

JUDGMENT

1 MASTER: This is a hearing of two applications under the Family Provision Act 1992 in respect of the estate of the late Trevor Wearne Cory who died on 25 July 2001 aged seventy years. One application is made by his de facto partner at the time of his death, and the other by his three sons. I have heard both matters together with the evidence in one being evidence in the other.

2 The last will of the deceased was made on 23 July 2001 and appointed the defendant as executor. It made the following provisions:

“(a) The plaintiff Toni Margaret Stansfield receive the deceased’s personal chattels including furniture but excluding motor vehicle. She is also given the right to reside in number 20B Boronia Avenue Beecroft for a period of 12 months from the date of death, she being responsible for maintaining the property in good condition. She remains in occupation. The defendants have been payment the rents and premiums.

(b) Clause 6 of the will makes provision for Toni Stansfield to receive the value of the deceased’s MLC Masterkey allocated pension if paid into the estate. However, those moneys were not paid into the estate but were paid direct to Mrs Stansfield in February 2004 when she received the sum of $277,503.70.

(c) The deceased’s three sons, David John Cory, Andrew Ian Cory and Benjamin James Cory are given interests in the residue of the estate in the form of an interest under a discretionary trust granted on clause 8. Although the heading to this clause is described as ‘Creation of Protective Trust’, it is not a protective trust within the meaning of section 45 of the Trustee Act. Clause 13.2 of the will specifically states that headings are not to be taken into account.

(d) Each of David, Andrew and Benjamin are described as a ‘primary beneficiary’ and the defendant has the discretion to advance the whole of the net income or capital for the benefit of the ‘primary beneficiary’ for a number of purposes including ‘suitable housing arrangement’ and financial support (clause 8.1). The defendant is directed to review the primary beneficiary’s needs and circumstances at least every six months. On the death of a primary beneficiary, his children take his share, upon attaining the age of 35 years (clause 8.2). If there are no such children, then that share passes to the other primary beneficiaries. If there are no children surviving any of the primary beneficiaries the residue of the estate passes to the grandchildren of the deceased’s brother, John Cory and the grandchildren of the deceased partner Toni Stansfield (clause 10) living at the death of the last surviving person who failed to inherit (or failed to be able to become a primary beneficiary). Finally, there is a further gift over (clause 10.2) if the earlier gifts fail.”

3 The deceased also left a letter of wishes which is not binding on the defendant. He also left another document in which he gave his reasons for making the provisions for his sons in the manner he did. It was in the following form:

“I wish to record that I have established trusts in my Will for the primary benefit of each of my sons, David John Cory, Andrew Ian Cory and Benjamin James Cory, which will come into effect following my death.

I have set up my will in this manner because each of my sons suffer from problems to the extent that I am concerned that they are not able to deal with their own financial affairs.

My son David John Cory is schizophrenic, has social phobia and is alcohol dependent. He has not however touched alcohol for 12 months. He has been in hospital for his condition. His doctor Dr Kevin Vaughan at the Palmerston Centre in Hornsby District Court. He has been unable to manager money. His money has in the last 18 months been managed by me and I would issue him money from time to time and pay bills for him directly. These bills include, medical, dental and clothing bills. When he was living at home he spent all his money on alcohol. I am hoping with help that David will be able to progress and eventually gain some kind of useful and stimulating employment.

My son Andrew Ian Cory is an obsessive-compulsive and buys inappropriate items on impulse. Andrew is very easily influenced and I am concerned that he will not spend a large of money wisely. His doctor is Dr Swan at Epping.

My son Benjamin James Cory has had a gambling problem. He also binge drinks and in those circumstances has no control over his spending and spend a lot of money on poker machines. He went through $50,000-$60,000 last year on poker machines and alcohol. He is taking anti-depressants. I controlled his money for him for some periods of time through the last 12 months.”

Assets of the Deceased

4 The present assets in the estate are:

20B Boronia Avenue, Beecroft $1,250,000.00
17 Mulholl Street, Wagstaffe $ 484,000.00
1,977 IAG shares $ 11,289.00
264 Suncorp Metway shares $ 4,457.00
1,600 Telstra shares $ 7,536.00
Money on deposit $ 96,490.00
Total $1,854,862.00

Distributions

5 The trustee has made distributions as follows:
David Cory $16,000.00
Andrew Cory $ 1,000.00
Benjamin Cory $ 1,000.00
Benjamin Cory Motor vehicle (5,000.)

6 There are outstanding liabilities for commission amounting to $31,293.10 and the costs incurred in these proceedings. The costs of the three sons, the plaintiffs in one matter, come to $47,500; the plaintiff Mrs Stansfield $44,456 and the costs of the defendant $37,530. The total of all those costs are liabilities is the sum of $160,779. This leaves a net estate of $1,694,083. Obviously as the real estate is disposed of there will be selling costs involved as well.

Family History

7 The plaintiff Mrs Stansfield, was born on 9 May 1938 and she is now sixty-six years of age. The eldest of the deceased’s sons, David John Cory was born on 16 March 1970 and is now thirty-four. Andrew Cory was born on 18 August 1971, and Benjamin on 18 December 1974.

8 The plaintiff Mrs Stansfield, had previously been married and, after she separated from her husband, she purchased a unit in 1988 and that was in Parramatta near where she worked as a librarian at the Kings School.

9 The deceased was also a teacher at Kings School and he separated from his first wife, Allison Cory, in 1989. David continued his education and achieved a number of degrees. He received a Bachelor of Arts with Honours from Sydney University in 1993. In 1997 he completed his LLB at the University of New South Wales.

10 The deceased had a property settlement with his wife and that was all finalised by about 1993. Andrew had been studying nursing and in 1994 he obtained his diploma in nursing and since then has worked in the workforce as a nurse both here and overseas.

11 It was in late 1995 that Mrs Stansfield suggested to the court that she moved in to live with the deceased at his Beecroft home on a full time basis. The boys denied this assertion.

12 At the end of October 1997 Mrs Stansfield returned to her unit at Parramatta. The reason for this was that she found it impossible to cope with the conduct of David, who at that stage was suffering from alcoholism and he became quite violent at times.

13 In January 1998 the deceased found out he was suffering from what might be cancer and it was somewhat difficult to diagnose. He asked the plaintiff, Mrs Stansfield, to return to help and cope with basically his illness and also in looking after the boys. She in fact continued to work in term one and then for terms two and three she was on long service leave, and then resigned.

14 In March of that year, probably towards the end of term one, the boys suggested that Mrs Stansfield return full time to live with the deceased. There was an operation that the deceased had in April to treat his cancer of the liver and he was hospitalised for some six weeks at that stage. Clearly at this time and thereafter the plaintiff, Mrs Stansfield lived with the deceased and helped him with his illness.

15 In October 2000 Mrs Stansfield sold her home unit in Parramatta for $176,000. She cleared approximately $151,000 and put it aside because she and the deceased were considering using the funds to renovate the deceased’s property at Wagstaffe. The deceased made his last will on 23 July 2001 and he died two days later on 25 July. Probate was granted in September that year. The proceedings were both commenced in time.

16 As I mentioned earlier in relation to the will, the plaintiff, Mrs Stansfield, in February 2004 received from the MLC superannuation fund the sum of $277,503.70.

Eligibility

17 Clearly all four plaintiffs are eligible persons. There is no dispute that Mrs Stansfield was living with the deceased as his de facto partner at the date of his death and had done so for some years.

18 In applications under the Family Provision Act the High Court in Singer v. Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At p 209 it said:

“The first question, was the provision (if any) made for the application 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 Co Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inade3quate or 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.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision or proper maintenance. Take, for example, a case like Ellis v. Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

Situation of Mrs Stansfield

19 Mrs Stansfield is single, has no dependants and is retired. Assets consist of cash in various bank accounts totalling $545,096. She has shares worth $20,683, a total of $565,779. Her present income from all these investments is $574 per week and her expenses amount to $453 per week. She is still living in the deceased’s Beecroft home.

20 Although they met in 1966, a close relationship only commenced between Mrs Stansfield and deceased in 1984. Thereafter they socialised as a couple and there are many photographs in evidence indicating them with both family and friends at functions in the late 1980s and early 1990s. It was at the end of 1995 Mrs Stansfield says they started to live together at the deceased’s Beecroft home. However, she did concede that in the first year she would stay at her unit at Parramatta, which was near her work, during the week and on weekends she would be at Beecroft.

21 It was in October 1997 she left Beecroft for three months, and I have referred to the reasons for this. It seems likely given the circumstances that she was probably living on a full time basis as 1997 progressed and, as I have said, it was at the start of 1998 that she agreed to the defendant’s request that she move back in to help with his illness and with the boys. As I said, she worked in term one and it seems likely she moved back in March before the deceased’s operation in April and she continued looking after the deceased until he died.

22 It appears to me to have been a happy relationship for both of them, apart from the separation which no doubt resulted from the difficulties caused by David’s illness and problems. Mrs Stansfield has not contributed to the assets in the estate although she has worked hard in the garden which is her pleasure and recreation. She spent money on the garden improving it. She also spent some sums totalling $16,000 on items for use and some improvements to the home.

23 Her decision to move back in 1998 was not without cost to her. Her superannuation, if she stayed working till sixty-five years, would have been greater by $120,000 and she gave up the income she would have earned as a librarian. However, it was her choice to do it and she did it no doubt for good reasons which she believed in at the time and no doubt because of the love she felt for the deceased.

24 I turn to consider the situation of David Cory. David is thirty-four years of age, single and has no dependants. He lives with his mother in Byron Bay. He receives an invalid pension of $450 per fortnight. Apart from a small amount of cash he has no assets. As I said, he received a Bachelor of Arts with Honours in 1993 and he received a Bachelor of Laws in 1997 at the University of New South Wales. In 1998 he attended the College of Law. He has not worked and has some yet undefined plans to either do a Diploma of Education and subsequently teach, or an alternative do a librarian’s course and follow that calling. He has never yet held any employment of substance. This is because of the difficult life he has had over the past years and his various medical and psychological problems.

25 Although he was not schizophrenic he did have problems referred to by his father in the note his father left explaining his reasons for his will. His most recent treating psychiatrist, Dr Hayes, yesterday reported on him in these terms:

“I first saw this man in April 2004 at the request of his GP and I have seen him on 3-4 occasions since.

His psychiatric diagnosis is unclear. He has a well documented history of social anxiety, with marked withdrawal, including alcohol abuse. He has at times become more overtly suspicious and paranoid and has been admitted to hospitals in a paranoid state.

He no longer abuses alcohol. His anxiety and withdrawal has responded in part to treatment with anti-depressants and more recently lose dose anti-psychotics. Currently he is on a low dose of Solian (Amisulpride), an anti-psychotic. He is an educated and intelligent man whose overall level of functioning will fluctuate with the severity of his long term illness. He is able to cope with day to day matters without great difficulty, but would probably require guidance and supervision regarding major issues such as financial planning.

His condition has been apparent for many years and is likely to continue to be problematic for years to come.”

26 I have had helpful evidence from David’s mother and she confirms the concerns that are expressed about David’s ability to manage any large amounts of money. It is also apparent from what his mother has said that David needs to be close to members of his family as he seems to be far better in the presence of his family rather than dealing with people in the public generally. Clearly, he should not be alone and if he is not with his mother he should be close to his brothers in Sydney where he can have access to them. There is no doubt David’s problems have caused a substantial difficulty with the deceased but that is as a result of his illness and his father well understood the nature of the illness.

27 One of the things that is surprising is that there does not seem to be any evidence before me in relation to any attempt to have David taken for therapy or help from a psychologist to deal with his social anxiety. That condition is one which it is generally accepted can well be treated by a psychologist or an appropriate therapist but it probably takes quite some time to resolve.

28 I turn to the situation of Andrew Cory. Andrew is thirty-three years of age, single with no dependants and has worked as a nurse since he graduated in 1994. He has managed to save some $30,000 but has no other assets, apart from his superannuation. Although suffering from anxiety in his early years he is well over that and maintains steady employment. I accept his and his mother’s evidence that he does not buy inappropriately items on impulse. He is well able to manage his own finances.

29 I turn to the situation of Benjamin Cory. Benjamin is nearly thirty years of age, is single and also has no dependants. He has completed his apprenticeship as a printer and can earn about $540 a week clear. Although he is presently working at his mother’s boarding house for some three months, he will return to Sydney and has two offers of employment. He currently keeps his flat in Sydney and pays for that to be retained.

30 It seems clear that Benjamin did have a period of drinking and gambling and he acknowledges that. It was certainly not of the order or magnitude which was referred to by the deceased in his note. It seems to me that Benjamin has now matured and is over these problems. This is confirmed by his mother’s evidence.

31 It is necessary to see how each of the plaintiffs say they have been left without adequate and proper maintenance, education and advancement in life. I will firstly deal with the plaintiff Mrs Stansfield. She asks the Court to provide a legacy of about $500,000 so she can buy a modest three bedroom home on the Central Coast in the Bateau Bay area. She has two children and four grandchildren who are not too far from that area where she is considering moving. She wants a small house so she can continue with a matter that is important to her, her gardening. The plaintiff, Mrs Stansfield, produced to the court evidence showing a range of appropriate houses in that area of some $400,000 to $500,000. However, other evidence was tendered which suggests that similar houses can be available in the range of $275,000 to $300,000. I think it is fairly clear that in the area where she is seeking there is a wide range of accommodation available at varying prices.

32 It is, of course, important to note what the provisions were that the deceased made in his will. In a conversation deposed to by Mrs Stansfield she recounted what was discussed between her and the deceased in relation to this matter:

“Shortly before Trevor died, he said to me to the effect: ‘I am making you the beneficiary of my Superannuation Fund which is worth about $330,000.00 and when I die, you will receive these monies together with approximately $40,000 which I have invested with the National Bank. You will be able to use these moneys to buy a property to live in.’”

33 Clearly the deceased was expecting Mrs Stansfield to have some $370,00 to buy a house but ultimately the amount that was paid turned out to be only $277,000. Things have moved on from then and the question really is what is appropriate to provide for Mrs Stansfield in her situation.

34 In Marshall v. Carruthers [2002] NSWCA 47 Hodgson J had the following to say:

“63. The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respect, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.

64. The Master referred to the following statement of principle which appears in Luciano v. Rosenblum [1985] 2 NSWLR 65 at 69:

‘It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to life in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.’

65. I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here.”

35 Clearly the relationship between Mrs Stansfield and the deceased was a lengthy one. However, they were only together as a de facto couple for approximately five years. It was a happy relationship, apart from the separation for three months. They did not have any children themselves and there has only been minimal contributions to the estate by Mrs Stansfield. Accordingly, she could not expect to get the full measure referred to by Powell J in Luciano v. Rosenblum, which was referred to by Hodgson J in the judgment to which I have just referred.

36 In my view it would be appropriate for her to receive a further $150,000 so she can buy a modest house. She has a surplus of income and may be able to get a part pension which, nowadays, causes no social stigma.

37 I turn to the three sons’ claims. The claim by the three sons is to remove the discretionary trust and have access to the capital. The question of discretionary trust is dealt with in a number of cases. In Gregory v. Hudson (No 2) Young J had the following to say in respect of this matter:

“Mr Brown QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites re Brown [1972] VicRp 3; [1972] VR 36. In that case, after citing some decision from New Zealand and Canada, together with a note of Re WTN McLelland CJ in Eq (1959) noted 33 ALJ 240 Norris AJ said at 39,

‘It is true to say that in most of the cases the fact that a discretion to increase as benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and it may in an appropriate case render adequate a provision otherwise inadequate.’

He then cites Re Allen [1922] NSWLR 218. Dickey on Family Provision after Death (LBC Sydney 1992) says at p 121:

‘There is some authority for the proposition that where a person is in need for provision that the quantum of provision made for him or her from a deceased’s estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances ofthe case.’

Mr Hallen submits that I should take into account the discretionary nature of the benefits which have been provided under the discretionary trust. Mr Hallen got close to submitting that the benefits under the discretionary trust were fairly secure, but no doubt realises that this could not be so in view of the law as decided in Hartigan’s case.

I consider, with respect, that Professor Dickey’s comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of the discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan’s case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended. On the other hand, the present trustees are men of great capacity and integrity, and there is no reason to doubt at all their sincere statement that, at least for the present, they intend to carry out the deceased’s wishes. I would consider that I am entitled to take the view that for the next five years, the widow will be receiving the benefits under the discretionary trust as if they were benefits under a trust which could be enforced. However, beyond that period, the matter must be one of speculation. The trustees may change, the investments of the trustees might fail, there may be serious problems with of the other beneficiaries, or new trustees may be appointed who take a set against the widow and reduce her benefits. It seems to me that where a working man, with an estate of at least 11 million dollars, leaves the bulk of the benefits to his widow under a discretionary trust over which she has no control, he has not made proper provision for his widow. The community would expect that the widow of such a man would at least have a home in his or her own name and some capital to which she could resort whenever she felt like it.”

38 Having regard to the terms of the trust, and the facts such as the change in personnel of the trustee company, it seems to me that the first hurdle has been overcome because adequate provision has not been made for the three sons by the deceased. Relying on a totally discretionary trust really gives no certainty and, for the reasons expressed by his Honour, I agree they have been in this case left without adequate provision.

39 Andrew and Benjamin both wish to purchase properties in Sydney in the price range $450,000 to $650,000. They have made inquiries of what they can borrow on their present salaries. The amount is quite low and even Andrew will need some more funds than his present savings in order to purchase the unit and borrow moneys.

40 Reference is frequently made in this jurisdiction to comments by Young J in Shearer v. The Public Trustee, and Hawke v. The Public Trustee (unreported NSWSC 29 March 1998) where his Honour had this to say:

“The community’s attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants.

Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children and, as far as I am aware, it has never been said by any Court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own.”

41 In this case, however, one must bear in mind that the estate was somewhat larger than some of the small estates. The question of what is an appropriate provision in a large estate was dealt with by Young J in Anasson v. Phillips, on 4 March 1988 where he said:

“ ... with a very large estate ... there is a great temptation on a Court to be over-generous with other people’s money. This is especially so when the Court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community’s eyes she should have made proper provision for, that anyone can legally complain about another person’s will. Even then, the Court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.

If the estate is a large one the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they had been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland [1966] VicRp 58; (1966) VR 404, especially at page 412.”

42 David has a similar desire in case he decides to come to Sydney to further his studies and employment prospects. David’s employment must be problematic given the doctor’s prognosis so he may need further support, particularly he may need support for further medical treatment or psychological treatment to help him overcome his difficulties which may go on for many years.

43 It was the submission of the defendant that I should consider providing more for David than his other two brothers because of the uncertainties of David’s possible employment. I think this is appropriate and I think that some greater provision for David ought to be made. In my view the appropriate amount is that Andrew and Benjamin should each receive four fifteenths of the residue of the estate and David should receive seven fifteenths.

44 David clearly needs to have assistance in managing these funds. His mother and his brother Andrew have consented to be trustees of his share, and that is not opposed on David’s part. It will be necessary for a deed to be settled but in general the deed should permit the following to give far greater flexibility and certainty than the existing the discretionary trust.

45 The deed should:

(a) Provide for payment of bills for any necessary treatment by therapy, psychological counselling or medical help that David might need to overcome his social and other problems.
(b) It should provide for education expenses to be met for David if he decides to pursue any further study to enable him to obtain employment.
(c) If David requests the purchase of a suitable form of accommodation that should be provided.
(d) There should be power to change that accommodation from time to time.
(e) Obviously the balance of the income will be paid to David.

46 I would have thought that it would be appropriate for the capital, after determination of the life estate, to pass to David’s children or, in default, to his brothers and their children.

47 I will direct the parties to bring in short minutes to give effect to the appropriate orders I have made. I order the exhibits be returned. I will make the usual order for costs that the plaintiffs’ costs on a party party basis and the defendant’s costs on an indemnity basis be paid out of the estate of the deceased. There is to be no interest on the legacy for three months. I stand the matter over to 9.45 a.m. on Friday 26 November 2004 for short minutes to be brought in.

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LAST UPDATED: 26/11/2004