Knespal v Knespal

The late Freda and Frank Knespal had three children: Martin Knespal (born 1954); the defendant/cross-claimant, Garry Knespal (born 1957) and the plaintiff/cross-defendant, Helane Knespal (born 1961). Without disrespect, I shall refer to the various Knespal family members by their given names.

In 1991, Frank, Freda and Helane moved into a two-bedroom unit at Bondi. With limited interruptions, Helane has lived in the unit since then including, most recently, as Freda’s carer. The unit was sold in November 2024 by the interim administrator of Freda’s estate to discharge a mortgage which Freda had granted over the unit. The estate essentially consists of the balance of the sale proceeds of the unit of approximately $2 million, which is now held in a solicitor’s trust account

Helane commenced these proceedings for a family provision order under the Succession Act 2006 (NSW) from the estate. Many of the elements of Helane’s family provision claim are uncontroversial as between the parties. Neither Martin nor Garry has put his circumstances in issue for the purposes of determining Helane’s claim. The complicating factor in this case is the effect (if any) of the testamentary contract evidenced by a deed between Frank, Freda and Garry in relation to the unit.

The unit was purchased in Garry’s name in July 1981 for $66,500 with stamp duty costs and fees of approximately $3,500. Frank and Freda provided (putting it neutrally) $25,000 towards the cost of the unit, with the balance financed by a mortgage from the Commonwealth Bank of Australia (CBA) under which Garry was the mortgagee, and Frank and Freda were the guarantors.

Garry originally lived in the unit with Martin, but Garry later moved out and married. Frank and Freda ultimately wished to live in the unit. Under the deed, Frank, Freda and Garry agreed, among other things, that the property was “deemed” to be owned by Frank and Freda, who would be responsible for the mortgage and outgoings, and that Frank and Freda would enter into mutual wills leaving Garry “one half of the nett value of the unit at the date of the death of the survivor” of Frank and Freda, with their estates otherwise to be left equally to the three children. The deed also provided that Frank and Freda would not alter their wills without Garry’s consent.

On 14 July 1988, Frank, Freda and Garry executed the deed, and Frank and Freda made wills in accordance with the deed. Frank died in 1988. Freda died in 2022. What would otherwise be, with no disrespect intended, a relatively straightforward family provision claim, is complicated by the fact that by Freda’s final will made on 26 June 2014, Freda revoked the will that she had made in July 1988 pursuant to the deed (the 1988 will). Under the final will, Helane received a right to reside in the unit potentially for life, with the eventual proceeds of sale of the unit to be divided one half to Helane and one quarter to Martin and Garry. The residue of Freda’s estate was given to each of her children equally.

By his cross-claim, Garry seeks to enforce the deed. He claims half the nett proceeds of sale of the unit and one third of the residue of the estate. Helane has raised a number of defences to Garry’s reliance on the deed. However, whether or not the cross-claim is upheld, Helane presses her case for a family provision order to provide her with secure accommodation and a sum for contingencies. In practical terms, the outcome of the cross-claim will determine the primary entitlements to the distributable estate before any family provision order is made.

For the reasons which follow the Court has determined:

Ms M Waters of Counsel appeared for Helane. Mr P Wallis of Counsel appeared for Garry.

On 30 August 2024, Justice Lindsay made orders “without admissions of any kind from any party”, which included:

On 3 September 2024 Ms Ross-Maranik, although not formally joined as a party, filed a submitting appearance in accordance with Lindsay J’s directions.

Two practical matters arise for the consideration of the parties consequential upon his Honour’s orders and the outcome of the proceedings.

First, given that the administration of the estate has been largely undertaken and, subject to the working out of these proceedings, completed, the most efficient course may be for Ms Ross-Maranik to be appointed administrator of the estate.

Second, the parties have reserved their positions to make further submissions as to costs. During the course of argument, I put the parties on notice that I would require submissions in due course (noting paragraph 5 of Lindsay J’s orders) as to why costs should not be dealt with in these proceedings on the basis that it was vigorously contested inter partes litigation rather than an estate matter. There seems to me to be a real question as to whether the estate should bear the costs of the proceedings of either party, not least where that would mean that, indirectly, Martin (who has not been joined and who has played no role other than giving an affidavit) would be visited with the costs of the litigation out of his share of the estate.

There were three issues raised by the parties which ultimately did not require determination.

First, in her defence to the cross-claim Helane raised defences of estoppel and unjust enrichment. Neither of these formed any part of Ms Waters’ closing submissions (written or oral). I have therefore assumed that those defences were not pressed.

Second, Frank and Freda “provided” $25,000 towards the costs of the purchase of the unit. The parties devoted some attention to whether or not that $25,000 was a gift to Garry. There was very limited evidence on the question. While I would have been inclined, on that limited evidence, to conclude that the $25,000 was a gift from Frank and Freda to Garry, it is not necessary for me to make a finding and I expressly refrain from doing so. This is because neither party was able to point to why it would be legally relevant to these proceedings. Whatever the parties’ legal and equitable rights in the unit were before the entry into the deed, those rights were subsumed into and became governed by the deed. There was no dispute that whatever rights were being asserted by Garry were based only upon the deed.

Third, on the last day of the hearing I granted Helane leave to amend her defence to the cross-claim to include defences at law and, by analogy, equity under the Limitation Act 1969 (NSW) (LA). Leave was granted over Garry’s objection because Garry was unable to point to any prejudice by the amendment. The defences raised only legal issues for which I made directions that there be additional written submissions. These were provided. However, the LA defences were only potentially applicable if the Court accepted that Garry’s cause of action had arisen by what was said to be a breach of the deed by Freda proffering a new deed in 1997. For the reasons set out in [58] to [66] below, the Court rejects that submission, so no further consideration of the LA is required.

Helane was the sole witness of fact in her case. She was cross-examined.

Garry gave evidence in his case and was cross-examined. Mr Wallis also read a number of other affidavits in Garry’s case from witnesses who were not cross-examined and to whose evidence I was not referred at all. The parties accepted that it was the affidavit evidence of Helane and Garry, and their respective cross-examinations, to which the Court should have regard.

Neither party attacked the credit of the other. Ms Waters criticised Garry’s evidence on the basis of its inadequacy, incompleteness or unreliability given the passage of time. However, she did not submit that he was a witness whose evidence, such as it was, should be found to be untruthful.

Insofar as it may be necessary, the Court finds that both Helane and Garry were witnesses upon whose evidence, as far as it went, the Court could rely. Each appeared to be doing his or her best to tell the truth according to their recollection. In particular, the Court accepts Garry’s evidence of his conversations with Freda because they are consistent with the contemporaneous, written record (such as it is) and the objective course of events.

The relevant facts, which the Court finds to be as follows, were not in serious issue. The debate between the parties was confined to the legal consequences of some of those facts and the amount of additional provision (if any) that should be ordered for Helane.

In about July 1981, when Garry was 24 years old, he decided to purchase the unit with the intention of living there with his brother Martin. Freda and Frank introduced them to their bank manager, Mr Len Jarman from the CBA. It was Mr Jarman who arranged a loan from the CBA to Garry, guaranteed by Frank and Freda, for the purchase of the unit and to be secured by the mortgage.

Garry’s affidavit evidence was that “during the time when I was applying for the loan to purchase [the unit], Dad and Mum provided me with $25,000”. The evidence included the first page of a CBA application form for housing loan for Garry to buy the unit and referring to Frank and Freda as “debtors only”. The document lists Garry’s assets as including $25,000 described as “gift from parents”. Although the document is only the first page, the evidence does not permit the Court to infer who would have given Mr Jarman the instructions to describe the $25,000 as a gift. The deed, in its recitals, referred to the $25,000 as a “contribution by [Frank and Freda] towards the purchase price”. “Contribution” can encompass a gift and there was no suggestion in the deed that it was a sum that Frank and Freda expected to be repaid as a loan.

After settlement of the unit occurred, Garry and Martin moved into the unit. They lived there together for approximately two years. Garry then moved out and eventually purchased another property as he began his family. Martin continued to live in the unit with friends and other family members. Garry’s evidence was that he paid the mortgage up until about 1991. The point was reached when neither Garry nor Martin was living in the unit.

At some point in the first part of 1988, Frank and Freda told Garry that as neither he nor Martin was living in the unit, they “would like to spend some money renovating [the unit] and move in and in time pay off the mortgage”. This conversation then ensued:

Frank and Freda instructed their solicitor, Mr Bernard Levy, to draft the relevant document.

On 14 July 1988, Garry, Frank and Freda executed the deed in the presence of Mr Levy. On the same day, Frank and Freda made the mutual wills contemplated by the deed. Mr Levy showed Garry those wills.

The deed provided (emphases added):

Under their mutual wills, each of Frank and Freda appointed Garry as the sole executor and left their estates to each other. However, if one of them had died, then each will contained this provision (the version which follows is taken from the 1988 will):

In 1991, Frank, Freda and Helane moved into the unit. Garry remained on the title as the registered proprietor.

Frank died in November 1998. As a consequence of his death, Freda became the sole owner of a property which they had owned on the Gold Coast. In May 1999, Freda sold that property and applied at least some of the proceeds to discharge the mortgage on 15 June 1999.

On 6 August 1999, Mr Levy wrote to Freda (emphasis added):

It appears that the proposed deed of arrangement attached to the letter of 6 August 1999 was subsequently amended. So much appears from a further letter from Mr Levy to Freda on 6 October 1999 which included (emphasis added):

The proposed 1999 deed of arrangement in evidence appears to be the version referred to in Mr Levy’s 6 October 1999 letter set out in the preceding paragraph. That proposed 1999 deed was drafted to be between Freda, Garry, Martin and Helane and provided (emphasis added):

Notwithstanding that Mr Levy had drafted both the deed and the proposed 1999 deed, there is no evidence, nor could any party offer an explanation, as to why the proposed deed made no reference to the deed. There can be no doubt that the state of affairs set out in Recital G of the proposed 1999 deed was contrary to the deed and the 1988 will.

The draft of Freda’s proposed will which accompanied the proposed 1999 deed included:

Garry’s affidavit evidence about the proposed 1999 deed was:

Garry was cross-examined about this evidence, from which he did not resile. His evidence in cross-examination included, and the Court accepts:

The evidence does not permit a finding as to whether or not Freda showed Garry her proposed will. However, there was no dispute that neither the proposed 1999 deed nor the proposed will was ever carried into effect.

There was evidence that shortly after the documents had been prepared, Freda had a dispute with Mr Levy about his fees, but if Freda had intended to give effect to the documents there is no basis to conclude that the dispute prevented her from doing so. Based on the conversation in [39] above, the fact that she did not proceed with the new arrangements, and the fact that she did not tell Garry about the 2014 will (presumably anticipating a repeat of his earlier objection), the Court finds she did not proceed because Garry did not agree to her proposal.

On 14 December 2006, Garry transferred a 10% interest in the unit to Freda for the recorded consideration of $1. Stamp duty of $670.50 was paid on the transfer on 15 December 2006, based on a recorded dutiable amount of $41,000. There is no evidence as to why this transfer was made.

In 2007, Garry received correspondence from the Office of State Revenue to the effect that as the owner of the unit he was required to pay land tax for the years 2001 to 2007 totalling $8,000. Garry’s affidavit evidence was:

Garry filed an application for a review of the land tax assessment in the Administrative Decisions Tribunal. The settlement of those proceedings expressly involved the deed, which fact fortifies my acceptance of the conversation in the preceding paragraph referring to the deed. The settlement was recorded in a letter from the Crown Solicitor’s Office to Garry on 2 April 2007 which included:

Garry withdrew his application to the Administrative Decisions Tribunal. On 2 May 2007, he transferred the balance of his interest in the unit to Freda for nil consideration. This transfer was stamped with nominal duty of $2, presumably because it was taken to be giving effect to the deed, on which duty had been levied in accordance with the settlement set out in the preceding paragraph.

Helane commenced full time care of Freda from about 2013.

On 26 June 2014 Freda made her final will, which appointed Helane and Garry as her executors and included (emphasis added):

On the same day as she made the final will, Freda executed an enduring power of attorney and an appointment of enduring guardians in favour of Helane, Martin and Garry. However, Martin and Garry did not execute those documents until 28 June 2019. It was on that date that Garry became aware of the final will for the first time.

In 2015, the body corporate for the unit imposed substantial levies to pay for a fire order and other improvements in respect of the building of which the unit was a part. Without Garry’s prior knowledge, Freda took out a loan from CBA with the limit of $375,950 secured by a mortgage which she granted over the unit on 28 August 2015 in favour of CBA.

Freda died on 12 May 2022.

Helane commenced these proceedings for a family provision order by summons filed on 10 May 2023.

Garry filed his cross-claim on 24 August 2023 seeking relief which includes:

On 6 November 2023, CBA issued a notice of demand in relation to the loan, claiming $450,386.26.

On 27 May 2024, CBA filed a statement of claim seeking possession of the unit.

By the orders set out in [10] above, on 30 August 2024 Ms Ross-Maranik was appointed with authority to sell the unit.

On 9 November 2024, the unit was sold at auction for $2,780,000, with the sale completing on 3 February 2025.

In order to determine what is in the estate for the purposes of Helane’s family provision claim, it is necessary first to resolve the parties’ contentions about the deed.

On the assumption that the contract evidenced by the deed was still on foot when Freda made her final will in 2014, it was common ground that, by doing so, Freda breached the deed and that Garry’s cross-claim based on that breach was not time barred. However, Ms Waters submitted that the deed had been terminated in 2007 by Garry accepting what was submitted to be Freda’s repudiation of the deed in 1999.

Ms Waters’ submission was:

Mr Wallis submitted that Freda’s conduct in 1999 was no more than conduct in accordance with the deed, that being to seek consent to changing her will, or at least was not so inconsistent with it as to constitute repudiatory conduct. The Court accepts the latter submission. The former submission is not open because there is no evidence one way or the other as to whether Freda showed Garry her proposed will when she showed him the proposed 1999 deed.

Freda’s repayment of the mortgage is irrelevant to this question. Under the deed she was responsible for the mortgage, so it necessarily was within the parties’ contemplation that this included discharge of the mortgage. I accept Mr Wallis’ submission that on its proper construction clause 2 of the deed gave Frank and Freda the right to call for a transfer of the unit other than for the purposes of buying a replacement property. The circumstance of having repaid the mortgage over the unit is an obvious example of when they may have wished to do so. This construction ensures that all of the words in clause 2 have work to do.

The test as to what constitutes repudiatory conduct is whether “the conduct of one party was such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or as a fundamental obligation under it”: Koombahtoo Local Aboriginal Land Council v Sandpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 at [44]. If one party to a contract proposes a different arrangement for the consent of the other party without more, that could rarely, if ever, be repudiatory conduct. I do not accept that a reasonable person in Garry’s position would have understood Freda’s conduct as a repudiation or renunciation of her obligations under the deed, as opposed to nothing more than a request for consent to a new arrangement.

While there is no evidence of her response, the fact remains that Freda did not give effect to the proposal and, as I have set out in [42] above, the Court is satisfied that is because Garry told her did not agree. Furthermore, Mr Levy’s letters to Freda (see [34] and [35] above) were consistent with her seeking Garry’s (and the others’) agreement. The repudiation analysis would be otherwise if there was evidence that Freda had communicated to Garry her determination to proceed with arrangements inconsistent with the deed in the face of his disagreement. There is no such evidence and the proven facts are to the contrary of such a characterisation of her conduct.

Similarly, I do not accept that the transfers of the unit in 2007 from Garry to Freda terminated the deed for these reasons:

For these reasons, the Court does not accept Helane’s submission that the deed had been terminated in 2007 or at any other time before Freda made her final will.

It is axiomatic in family provision claims that in considering both the adequacy of provision and whose interests in the estate are to bear the burden of any additional provision, the Court must begin its analysis by determining what comprises the estate, who has an interest in the estate and in what proportion or as to what asset. There is no dispute between the parties that, if the deed had not been terminated as Helane contended, all of the proceeds of sale of the unit were available to be applied as additional provision for Helane.

The difference between the parties was that in undertaking that exercise, Mr Wallis submitted that his client’s interest in the estate was, in effect, what he had been promised by the deed and the 1988 will. Ms Waters submitted that the Court should assess the parties’ interests in the estate solely by reference to their rights under the final will, making any family provision order by reference to those interests, and then only give effect to any rights Garry may have under the deed and the 1988 will on what was left after any order for provision. It was submitted that this was the conclusion required upon the proper application of the High Court’s decision in Barnes v Barnes (2003) 214 CLR 169; [2003] HCA 9. For the reasons which follow, the Court does not accept Ms Waters’ submission.

A convenient starting point is to note that the parties accepted that by making the final will without Garry’s consent, Freda had breached the deed. Therefore Garry has a claim at law for damages. On the facts as found, he is entitled to such damages. However, because (as I shall explain below) the Act applies to the estate and Garry’s share in it, his measure of damages would have to be discounted to take account of the possibility (and in this case the certainty) of a family provision claim: Dalton v Ellis; Estate of Bristow (2005) 65 NSWLR 134; [2005] NSWSC 125 at [80] per Young CJ in Eq. So, for example, it is not open to Garry to be paid as a debtor in the ordinary course of administration for an amount representing his entitlement under the 1988 will simpliciter. On any view, the Court must address the family provision claim.

Next, it is important to appreciate that Garry’s rights arise in the context of Freda having made a will inconsistent with that which she had promised to make and maintain. Garry’s rights derive from the application of Dixon J’s (as his Honour then was) classic statement in Birmingham v Renfrew (1937) 57 CLR 666 at 683 (emphasis added):

It is the last sentence just quoted which is critical to the present analysis. Applying Dixon J’s approach, this means that upon Frank’s death Freda became subject to a floating obligation which crystallised on her death in a constructive trust for Garry on the terms of the trusts in his favour in the 1988 will. This description of the obligation is based upon this further aspect of Dixon J’s exposition at 689 (emphasis added):

This passage was noted by Gleeson CJ in his judgment in Barnes at [29], but not taken further because, as his Honour noted about Barnes: “We are presently concerned with the estate of the deceased; the first to die”. The case at bar concerns the estate of the second testator to die.

There is an interesting point in this case which I need not decide as to whether the rationale for the “floating” nature of the obligation identified by Dixon J in the passage quoted in [70] above applies to the facts of this case. That is because the deed and the 1988 will give Freda quite specific rights in relation to the unit, including how it may be dealt with. I do not need to explore this question because it is sufficient for present purposes to apply Dixon J’s analysis in its terms, with the result that upon Frank’s death, Freda became subject to the floating obligation which descended upon the estate at her death and crystallised into a constructive trust in favour of Garry on the terms of the 1998 will.

Barnes concerned the interpretation of the Inheritance (Family Provision) Act 1972 (SA). The question was whether the property which was the subject of mutual wills was part of the “estate of the deceased person” in s 7 of that legislation from which provision could be ordered.

The argument before me was conducted by reference to the judgment of Gleeson CJ in Barnes, the essential parts of which are (emphases added):

For the purposes of Ms Waters’ argument, the importance of Barnes is that it illustrates the importance of the Court’s attention being focused upon the proper construction of the applicable legalisation, in this case the Act. In its particulars, Barnes is of less relevance to this case for three reasons:

It is these last two points, especially the third, which distinguishes Barnes from the present case. As I have set out in [70] to [72] above, at her death Freda was not the beneficial owner of those assets to which Garry was entitled under the deed and the 1988 will. She held those assets on a constructive trust in accordance with the terms of the 1988 will which crystallised upon her death. Those assets have now devolved onto the interim administrator subject to the same equities.

In relation to the unit, that conclusion is made express by s 45 of the Probate and Administration Act 1898 (NSW), which provides that (emphasis added):

Insofar as the residue of the estate is not real property, the same conclusion would nevertheless apply.

It is then necessary to interpret the Act. Section 63 is the relevant provision:

In my respectful opinion, the entirety of the estate is available for the making of a family provision order by reason of s 63(2) of the Act. However, contrary to Ms Waters’ argument, what is available as having vested in the interim administrator (and therefore forms part of the distributable estate for the purpose of s 63(1) by virtue of s 63(2) of the Act), has vested subject to the equities in favour of Garry. Those equities are not to be postponed or ignored until after a family provision order has been made.

Finally, I note for completeness that, to the extent it may be relevant, the property held by the interim administrator upon constructive trust on the terms of the 1988 will has not been distributed. In any event, it would be treated as not having been distributed pursuant to s 63(4) because while it is held on trust for Garry by the interim administrator, it has not vested in interest because Garry’s only present right as a beneficiary is to the due administration of the estate. Furthermore, it would not in any event be available as notional estate because the constructive trust over it arises as a result of the making of a will and is therefore not a relevant property transaction (see s 75(3) of the Act).

It follows that the entire estate is available for the making of a family provision order. However, the starting point of that exercise remains to find, as the Court does, that Garry is entitled, pursuant to the trusts of the 1988 will, to that amount which is half of the proceeds of sale of the unit together with one third of the residue. I understood it to be common ground between the parties that, if this was the Court’s conclusion, they accepted that the balance of the estate was held for Martin and Helane in equal shares. If that is not the case, the Court will give the parties an opportunity to make further submissions on that point.

The parties informed the Court that if it came to the view which it has concerning Garry’s rights under the deed and the 1988 will, there was only a very limited area of dispute as to the amount of additional provision which should be ordered for Helane. There was no dispute that Helane is an eligible person and that, in the conclusion which the Court has reached, the final will (in effect modified by the trusts under the 1988 will in favour of Garry) does not make adequate provision for Helane.

Helane is 63 years old, owns no real property and is otherwise of very modest means. She has some limited income earning capacity because she is an experienced organiser of specialised group travel.

There was no dispute that Helane is entitled to proper provision for secure accommodation and an amount for contingencies. As to the latter, she has already had an interim provision order of $70,000 (see Lindsay J’s orders in [10] above) which, to her credit, she has not yet drawn upon.

The real difference between the parties was whether Helane should have a two bedroom apartment which gave her the prospect of an income stream through renting out the other room, or a one bedroom apartment. I asked Helane some questions about this during the course of her cross-examination and I gained the impression that while she also wanted the second bedroom for reasons of space and having friends to come and stay with her, the prospect that she might have to supplement her income by renting out the other room was a real one for her, even if she did not approach it with great enthusiasm.

Even on the assumption that the parties’ legal fees are paid from the estate, the evidence is that there are sufficient funds in the estate to provide Helane with a two bedroom unit in the eastern suburbs. I accept her evidence that the eastern suburbs is where she wishes to live, having lived in that area most of her life.

Helane’s siblings have not put their affairs in issue. She cared for Freda in the last years of Freda’s life and was otherwise a loving companion to her. That conclusion is not materially tempered by peripheral disputes in the evidence (which were not referred to in closing addresses and I do not propose to attempt to resolve) about concerns the other family members had about the adequacy of Helane’s care of Freda.

The Court therefore accepts that proper provision for Helane would be to enable her purchase a two bedroom unit in the eastern suburbs. This conclusion is also reached because it gives effect to Freda’s intentions for Helane under the final will. Those intentions expressly included leaving Helane a unit with a second bedroom which she could rent out and thereby earn income.

Garry tendered evidence which it was submitted demonstrated that $775,000 would be adequate for Helane to purchase a two bedroom unit in the eastern suburbs. Helane’s evidence of what she described as suitable properties included properties valued between $1,000,000 and $1,300,000 (with stamp duty in the range of $40,000 - $54,000 and legal fees of approximately $5,500).

Given the expensive nature of Sydney’s property market, not least in the eastern suburbs, Helane’s figures are more realistic. The Court finds that proper provision to purchase Helane’s accommodation in the form of a two bedroom unit in the eastern suburbs is $1,250,000 (inclusive of stamp duty and legal fees).

Helane submitted that with a life expectancy of 22 years and superannuation of only $65,000, an allowance of $225,000 for contingencies would be appropriate. It was submitted for Garry that a contingency of $100,000 would be appropriate for Helane (including the $70,000 that she has already received by way of interim distribution), noting that Helane would shortly be eligible for the aged pension (although there was no evidence as to how much that would be).

The Court finds that adequate provision for a buffer for contingencies is $150,000 (including $70,000 which she has already received). In circumstances where Helane will have the benefit of a two bedroom unit which gives her a capacity to earn income by renting out the other bedroom, I do not accept that a contingency of as much as $250,000 contended for on her behalf would be appropriate.

After Helane has received the residue of the estate to which she is entitled under the final will, she should receive additional provision to bring her total benefit from the estate (including the $70,000 which she has already received) to $1,400,000. Mr Wallis informed the Court that it was agreed between Garry and Martin that the burden of any such additional provision should be borne by Garry from his share of the estate (calculated pursuant to his rights under the 1988 will). Given that is the case, justice as between Garry and Helane requires that Garry not lose the benefit of those funds absolutely. They should return to him on Helane’s death (or earlier repayment by her). The parties should agree on a form of order in the nature of a Crisp order whereby Garry has a first ranking security for the amount of her additional provision that he bears (including accruing interest) over any property which she purchases (or any further property which she purchases with the proceeds of sale of the first property).

Garry is entitled to a declaration that his share of the estate is held on terms of the 1988 will. The parties will be given an opportunity to agree, to the extent they can, on the form of orders to give effect to these reasons and as to costs. I will make directions for written submissions and a further short hearing to resolve any outstanding matters of disagreement.