Beech v Squire

By summons filed on 21 April 2016, the plaintiffs, Claire Beech and Paul Squire, apply for provision out of the estate and notional estate of their late father, Richard Squire. Claire and Paul are adult children of the first marriage of the deceased (“Richard”) who died on 29 or 30 April 2015, aged 64. Without disrespect, I shall refer to the parties and others who feature in this judgment by their given names. Furthermore, although for convenience I frequently refer to the plaintiffs together in these reasons, I have considered each of their claims separately, open to the possibility that only one or the other of them might succeed.

Richard made his last will on 21 March 2007 (the “Will”). Under the Will, Richard left the whole of his estate to his second wife Corrine Squire (“Corrine”) and appointed her executor. Corinne is the defendant. No provision was made under the Will for any of Richard’s children or grandchildren unless Corinne did not survive Richard by 30 days. Probate was granted to Corinne on 26 May 2016. As at 13 October 2017, the estate is insolvent by approximately $48,079.

Richard and Corinne jointly owned a unit in Baulkham Hills (the “Property”). The Property had been sold, but the transaction was not completed when Richard unexpectedly died. Furthermore, Corinne and Richard had separated in the weeks before his death. Richard’s share of the proceeds of the Property passed to Corinne by survivorship. That share is $249,779 (the “Amount”) and it was common ground that this was the only asset in respect of which a notional estate order could be made.

There are no other eligible beneficiaries in the estate. Catherine (Claire and Paul’s sister who lives in London with her husband) has been notified of the proceedings. On 11 July 2016, she filed an affidavit in which she set out her circumstances and was joined as a plaintiff on 5 August 2016. She withdrew her claim in late August 2016 and is no longer a party to the proceedings.

Mr A G Martin of Counsel appeared for Claire and Paul. Mr P R Glissan of Counsel appeared for Corrine.

Weighing up the size of the estate (even assuming a notional estate order were to be made) and the respective circumstances of Claire, Paul and Corrine, the Court is not satisfied that the Will did not make adequate provision for Claire and Paul. Therefore, no additional provision will be ordered for either Claire or Paul and consequently no notional estate order can be made. The benefit of the Amount will remain with Corinne.

Richard was born in the Brecon Beacons, Wales on 10 November 1950.

He served for a period in the United Kingdom military service. He also had a career in information technology and was last employed as a software test manager. Richard was a motor vehicle enthusiast and owned two Subaru cars, one of which he had in storage in London.

Richard had three children with his first wife Colleen: Claire, Paul and Catherine.

In 1994, Richard and Colleen divorced. They remained friendly.

In about 1995 or 1996, Claire says that Richard told her that he wanted his ashes to be returned to the Brecon Beacons.

In 1998, Corinne married Stephen Tropiano. She and Stephen owned and operated restaurant businesses for about 15 years initially in Newcastle and later Kurrajong Heights. They had two children.

For a period from about 2000 to 2004, Richard lived in Seattle, USA. Claire assisted in managing Richard’s property while he was overseas.

During the early 2000s, Corinne and Stephen divorced. They sold their two jointly held properties in Kurrajong Heights (including the restaurant business) and from the divorce settlement Corinne received approximately $140,000. Corinne lived alone and raised their two children but continued to be friendly with Stephen.

In 2004, Corrine purchased another property in Kurrajong Heights for about $232,000 subject to a mortgage of about $100,000 (the “Kurrajong Heights property”).

In about August 2004, Richard and Corinne met through an internet dating website. Richard had been in other relationships since his divorce from Colleen. At that time, Corinne was residing at the Kurrajong Heights property.

In October 2005, Richard and Corinne were married. Richard also befriended Stephen.

In December 2005, Corinne and her two children moved into Richard’s residence where Claire and Paul were also residing. At various points before and after they were married, Corinne assisted Richard with his personal debts and contributed to household expenses. Corinne generally handled the couple’s joint finances.

On 21 March 2007, Richard made the Will, leaving the entire estate to Corinne.

In about 2007 or 2008, Richard purchased the Property. Corinne did not contribute to the purchase price. However, the couple were deriving rent from the Kurrajong Heights property.

Claire married Danial Beech on 19 April 2008. They have three children: Carter (born 2011), Eleanor (born 2012), and Emmett (born 2014).

From early 2014 until about December 2014, Paul was living with Richard and Corinne and Sebastian (Corinne’s son with Stephen) in the Property. Corinne’s daughter Gabrielle had previously moved out.

In about April 2014, Corinne gave Gabrielle $120,000 to buy an apartment. Corinne’s evidence was that the only documentation noting this arrangement were documents Corinne was made to sign by the bank confirming the status of the money as a gift, but these documents were not in evidence. Corinne gave evidence that she does not expect that amount to be repaid.

In about September 2014, Corinne received about $210,000 from the sale of the Kurrajong Heights property.

During October 2014, Richard quit his employment.

In early 2015, Richard proposed moving to Bathurst to Corinne. She refused.

Shortly thereafter, Richard and Corinne separated (see paragraph [36] below). They took some steps to effect the separation including dividing their jointly held assets.

On 20 March 2015, Richard and Corinne sold the Property for $960,000 with settlement taking place on 7 May 2015, a few weeks after Richard died. The Amount, being Richard’s share of the net proceeds of sale ($249,779) is held on trust pending the resolution of this dispute.

On or around 10 April 2015, Richard moved into Claire and Danial’s home in Limekilns. Richard drove to Limekilns in his 2003 Subaru. This car has been the subject of Local Court proceedings. The parties agree, and the Court finds, that at all times, the 2003 Subaru was an asset of the estate. It has an agreed value of $5000. Pursuant to an undertaking in the Local Court proceedings, the 2003 Subaru has been restored to the estate. On 20 August 2017 it was towed from Limekilns to Sydney where it was serviced and re-registered at the estate’s expense.

Richard’s belonging were moved to Limekilns on 23 April 2015. Claire and Danial’s family business paid for this expense.

On about 27 or 28 April, Richard came to Sydney to sign the transfer for the Property. He stayed with Corinne at Stephen’s residence. Rod Storie, the defendant’s solicitor, attended the residence to organise the signing of the transfer of the Property.

Richard died unexpectedly on 29 or 30 April 2015.

Richard’s funeral was held at a crematorium in Bathurst. Claire paid for the funeral in the sum of $7,227. It is agreed that this is an estate liability for which Claire will be reimbursed in full.

On or around 21 December 2015 (pursuant to the alleged request by Richard to Claire in 1995 or 1996), Claire transported Richard’s ashes to the Brecon Beacons. She did this at her own expense at a cost of $11,712. The parties remain in dispute in the Local Court proceedings referred to in paragraph [29] above as to whether the estate is liable to Claire for that expense. Given the estate is insolvent, it seems pointless for that dispute to continue, but that is a matter for the parties. One of the results of a short hearing before me in October 2017 is that the parties were content to leave the resolution of that dispute to the Local Court provided that I noted, as I do, the potential liability of the estate to Claire for the claim.

Since Richard’s death, Corinne was living for a period with her daughter in Lane Cove paying monthly rent of about $1000. As at October 2017, she was residing in rented accommodation on Dangar Island and working as a receptionist.

An area of much contention between the parties was whether, shortly before his death, Richard and Corrine had separated with a view to dissolving their marriage. The plaintiffs submitted that Richard and Corrine had separated and that the Court should take their separation into consideration in determining the adequacy of provision under the Will. The defendant’s position was that, even if they had separated, this did not alter Corinne’s eligibility under the Act or her moral claim upon Richard and that Richard’s testamentary intention as expressed in the Will should not be disrupted.

It was not disputed that for about two weeks before his death, Richard had been living with Claire and her family in Limekilns.

Both Claire and Paul gave evidence that Richard and Corinne had separated, that Richard believed the separation to be permanent with no chance of reconciliation, and that it was Richard’s intention to alter his will to exclude Corinne and to leave his estate equally to his children.

For the reasons which follow I find that Richard and Corinne had permanently separated in the two or three weeks before Richard’s death.

In her affidavit of 19 April 2016, Claire deposed that “After my father’s separation from Corinne, he decided to come and live with us as he needed a home.” The tax invoice from the labour hire company who Claire states moved Richard’s belongings to Limekilns on 23 April 2015 was annexed to her affidavit.

There were several transcribed text messages in her affidavit evidence which had been extracted from Richard’s mobile phone and which documented text message conversations between him and Corinne. While no screenshots were provided of the messages in context, it was not suggested that the Court could not rely on the transcriptions.

These included:

Claire also gave evidence of conversations she had with Richard regarding Corinne:

Further transcribed text messages, read:

On 19 April 2015 Claire sent an email to Richard headed “to do” in which she provides a list of administrative items for Richard to attend to in what appears to be the separation process:

The email indicates that Claire believed Richard and Corinne to be separated or in the process of separating.

Claire also recalled conversations she had with Richard where he said: “I can assist you financially with the business in return for letting me live with you. With the separation from Corinne I am no longer in a position to purchase my own home without a mortgage.”

In his affidavit of 13 April 2016, Paul gave the following evidence:

He later deposed:

In her affidavit of 8 June 2016, Corinne firmly denied any separation and deposed:

This explanation was not maintained under cross-examination and I do not accept her affidavit evidence on this point. The following exchange occurred during Corrine’s cross-examination :

In cross-examination, Corrine agreed that in the weeks before Richard died she had “engaged in a fairly deliberate and accurate splitting up of all of the jointly held assets”. One of the transcribed text messages in Claire’s affidavit of 19 April 2017 indicates and confirms the steps Corinne was taking:

She stated that “It was just a - a threat just to get my way” and that she “had no intention of - of getting a divorce or separation.” She said:

The systematic division of their jointly held assets and possessions again points to the conclusion that they had separated. It also demonstrates to me that the separation was viewed by both Corinne and Richard to be permanent.

I do not accept Corinne’s evidence that her conduct was an attempt to compel Richard to look after himself and that she did not intend for the separation to be permanent. This evidence was not in any of her affidavits and it is inconsistent with, for example, the contemporaneous messages to which I have referred.

In concluding that Richard and Corinne had separated, I have not overlooked the evidence of Mr Rod Storie, the solicitor handling the sale of the Property. In his affidavit of 8 November 2016, he deposes that he was not informed by either Richard or Corinne that they had separated or intended to separate, that the proceeds of sale were to be handled in a particular way or that they were intending on starting family law proceedings to effect a separation. Mr Glissan argued that the failure to provide this information to Mr Storie indicated that Richard did not intend to alter the intentions under the Will or to sever the joint tenancy in the Property. I accept the evidence of Mr Storie as true and correct. However, while there is some force in Mr Glissan’s submissions, I do not consider Richard and Corinne’s silence to be conclusive evidence against the fact of separation. This is particularly so given that the separation had only taken placed in the preceding fortnight or so.

Finally, I take into account that Mr Glissan did not cross-examine either Claire or Paul on the topic of separation and conceded during the course of submissions that, subjectively, it appeared that Richard thought the separation with Corrine was final.

The Will provides:

As at 13 October 2017, the estate has assets of about $45,268 (being 600 ordinary shares in NIB Holdings Ltd valued at about $3,636; cash in bank accounts of $35; UK Ministry of Defence entitlement of $36,597; and the Subaru valued at $5000) and liabilities of about $93,347 (being funeral expenses, estate administration costs, other costs related to the vehicle, the defendant’s legal costs in these proceedings of $58,059, and the Local Court proceeding costs to date of $13,289).

Accordingly, the estate is insolvent by approximately $48,079.

The only possible notional estate is the Amount, being Richard’s his one-half share of the net proceeds of sale of the Property. This has been put in a controlled monies account.

Richard had superannuation to about $169,060 of which Corinne was the nominated death beneficiary. Corinne also placed this money in the controlled monies account. However, during the course of proceedings the plaintiffs conceded that they would not be pursuing the superannuation in their claim.

As at 3 May 2017, the defendant’s legal costs of $30,833.44 have been paid out of the estate. The defendants’ costs up to the conclusion of submissions were then estimated to be $60,221 on the indemnity basis. The total legal costs as at 13 October 2017, incurred by the defendant in these proceedings are about $58,059 (part paid) — and includes the $8,999 to be paid by the plaintiffs for thrown away hearing on 14 November 2016. The costs incurred in the Local Court proceedings are about $13,289 as at 15 August 2017.

As at 5 May 2017, the plaintiffs had incurred costs of $38,837 on the ordinary basis. The plaintiffs’ costs up to the conclusion of submissions are estimated to be $59,887 on the ordinary basis.

It was agreed that the estate will bear the burden of the funeral expenses ($7,227) and remunerate Claire in full.

As I have already observed, the estate’s liability for the costs of repatriation of Richard’s ashes to Wales remains in dispute.

Claire is now 38 years old and is married to Danial. They have three children: Carter (born 2011), Eleanor (born 2012), and Emmett (born 2014), whom Claire cares for full-time. Claire and Danial live on a property at Limekilns near Bathurst. There is a mortgage over the property but the evidence (such as it is – see my comments in paragraph [107] below) suggests this secures a facility used for their businesses.

She is not currently in paid employment. Prior to marrying Danial and the birth of her children, Claire worked for a document processing company as a junior business development manager earning about $65,000 per annum. She has superannuation of $40,000.

At the time of swearing her first affidavit in 2016, Claire and Danial had liabilities of about $108,000 (being a mortgage with ANZ bank and credit card debt). Their total assets were listed as about $437,174 including a substantial loan to Beech Plumbing Pty Limited of about $286,874. They also own a vacant block of residential land in Bathurst valued at about $150,000. It appears Claire and Danial have an excess of assets over liabilities.

Claire and Danial own and run a commercial construction plumbing business through a corporate trustee, Beech Plumbing Pty Ltd (“Beech Plumbing”). The business is primarily run by Danial. It has five other employees and five vehicles. Claire assists occasionally. The business also operates a farm on Limekilns. Claire gave evidence that the annual business turnover was about $802,000 with expenses of about $758,000 ($17,000 of that is listed as farm expenses). Net profit before tax is therefore about $44,000.

Claire is a shareholder of Beech Plumbing and receives income from dividends/distribution. She also receives social security payment / parenting allowance — the value of these payments was not in evidence. For the 2014/15 financial year, Claire’s income was assessed at about $20,000 for taxation purposes.

The evidence was that the family’s monthly expenditure was $1,900. However, this did not include items such as fuel and services, which I can only infer were paid for by the businesses. Nowhere did Claire say that their expenditure exceeded their income or that they could not meet their ordinary living expenses.

Paul was 35 years old at the time of hearing. He works as a customer sales representative for a printing company. He has a gross monthly income of about $5,400 (about $64,800 annually). He lives in a rented three-bedroom house in Quakers Hill with his fiancée and de facto partner of about two years, Rachael. He and Rachael have lived there for two and a half to three years and pay weekly rent of $520. They commute an hour to work every day.

Paul gives evidence that Rachael has a gross monthly income of about $4,500 (about $54,000 annually) and has debts to about $30,000 (in the form of credit cards and car loan). In his affidavit of 13 April 2016, his assets are listed as a superannuation account of about $43,687; a 1998 Mazda MX5 valued at about $6750; and a motorbike valued at about $2000.

He states their combined monthly funds after expenses is $1,000. They have cumulative savings of about $300. Between his affidavit of 13 April 2016 and 12 April 2017, Paul’s own savings have only increased by $50.

Paul’s liabilities include a five-year term loan of $25,000 drawn in about October 2016 to assist with his legal expenses (recalling that proceedings are on foot in both the Local and Supreme Courts). He makes monthly repayments of about $600 on the loan and at the date of the hearing had reduced the loan to about $22,600. Paul had credit card debt of $2000 at the time of hearing.

Paul would like a sum of $85,000 from the estate. He states that he would use $10,000 of that money to pay for a modest wedding in Bathurst with about 50 people. He would use the remainder to enter the property market in Sydney. Paul states that he has never been in a position to own his own home. He believed that he and Rachael would need between $45,000 and $70,000 to make a deposit on a home.

Paul gave evidence that Richard had indicated that he would assist Paul with financing a home deposit and a wedding.

Paul also gave evidence that Richard had been assisting with Paul’s accommodation and the cost of living generally for several months before he died. Paul said that he moved out of Richard’s household in December 2014.

At the time of hearing, Corrine was 57 years old. She has two children from her first marriage: Sebastian and Gabrielle.

Corrine has worked for the past four or five years and continues to work as a permanent receptionist at a large, vehicle servicing and parts business. Her net weekly income is about $714 as at 1 April 2017. She lists her assets as about $661,000 as at 1 April 2017 (this figure includes the Amount). Her liabilities are about $53,332.

She and her first husband were previously self-employed in the restaurant business for about 15 years. She worked in the Navy for about five years and has also worked on a casual basis in school canteens (from about 2006) and as a receptionist.

Corrine has been living with her daughter, Gabrielle, in Gabrielle’s apartment in Lane Cove since about May 2015 paying monthly rent of about $1000.

In her updating affidavit of 17 October 2017, Corinne was living at Dangar Island paying $200 in rent per week and excluding utilities. She said that this would increase to $250 per week from 25 October 2017.

Corrine would like to purchase and live in a one-bedroom unit in the Baulkham Hills area which is convenient to her work and children (Sebastian now lives in Dundas and is employed as a panel beater in Castle Hill). She provided evidence of one-bedroom units ranging between $500,000 and $600,000.

Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies in s 57 who are “eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person.” Section 58(2) requires an application for a family provision order to be “made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.”

Division 2 of Part 3.2 of the Act deals with determination of application for family provision orders. For the purposes of these proceedings, the relevant provisions are:

In West v Mann [2013] NSWSC 1852 at [9] to [11], I explain the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.

By reference to the language of the Act the questions and issues which the Court must take into account are:

Claire and Paul are Richard’s children and are eligible persons under s 57 of the Act. The summons was filed less than 12 months after Richard’s death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [89] above are all answered “yes”.

The Provision referred to in the question posed in sub-paragraph [89(5)] above is nil for each of Claire and Paul.

It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [89(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for Claire and Paul is not adequate for their respective proper maintenance, education or advancement in life. If that question is answered “yes” for one or both of them, then the Court’s discretion to make a family provision order in favour of that person is enlivened.

In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry:

The dictum in Verzar that the inquiry as to whether “proper” provision has been made requires “regard to all the circumstances of the case” has been emphasised again in the relatively recent decision of the Court of Appeal in Sgro v Thompson [2017] NSWCA 326 (“Sgro”), which also drew attention to the importance of the testator’s intentions as manifested in his or her will.

The leading judgment in Sgro is that of White JA, with whom McColl and Payne JJA agreed. However, it is convenient to begin with Payne JA’s short concurring judgment, in which his Honour said:

White JA said:

In addition to the passages from Verzar and Sgro quoted in the preceding paragraphs, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children:

Applying the principles just set out, the Court is not satisfied that the Provision is not adequate for either Claire’s or Paul’s proper maintenance, education or advancement in life. The question posed in sub-paragraph [89(6)] above is answered “No” in relation to each of them. The reasons for this conclusion are set out in the following paragraphs.

Having regard to the authorities I have referred to above, I approach this part of the Court’s task as being to undertake a multi-faceted evaluative approach. The Court is required to look at all of the circumstances and not confine itself to the question of whether the provision is adequate by reference to Claire and Paul’s respective financial needs

In undertaking this task, it is convenient that I first address the weight which I consider should be given to Richard’s testamentary intentions as they appear from the Will. At the date of the Will there is no suggestion that his expectation was other than that he was and would remain married to Corinne. Against that background he left the whole of his estate to her. If she did not survive him, then he left his estate to his three children in equal shares. It might be said that scheme is consistent with the evidence of Claire and Paul, which I accept and have taken into account, that Richard spoke of his intention to benefit his children equally. However, in this case I do not give the scheme of the Will any particular weight because it says nothing about the present situation of recent separation.

The parties devoted much argument to the issue of the separation and to whether or not authorities such as Luciano v Rosenblum (1985) 2 NSWLR 65 apply (“Luciano”). These were referred to as cases which stood for the proposition that “paramountcy” should be given to a widow to ensure she had a home, income and something against vicissitudes. Ultimately, I understood Mr Martin’s submission to be that once the Court had come to a view on the state of the relationship between Richard and Corinne, the Court should take that into account. I accept that submission.

Some of the argument on this point assumed a binary character. On the one hand, it was said Corinne was, at Richard’s death, still his lawful wife and, as such, cases such as Luciano applied to negative any claim by the plaintiffs. The contrary position seemed to be that, Richard and Corinne having separated, the Court could substantially, if not completely, ignore Corinne’s position in favour of the plaintiffs. Insofar as such ideas informed the argument, I reject them. Two points need to be made.

First, the Court is here concerned with the answer to the statutory question of satisfaction of the matters referred to in s 59(1)(c) of the Act. This is not an exercise in speculating on what kind of will Richard would have made immediately before his death in the circumstances then applying, what kind of settlement he might have reached with Corinne (voluntarily or in the Family Court of Australia) or postulating a notional intestacy.

Second, s 57(1)(d) of the Act expressly makes a former wife an “eligible person” to make a claim under the Act. The extent of a former wife’s “moral claim” or the community’s expectation of what provision should have been made for a former wife will necessarily be fact specific. However, some matters will always be relevant, such as (without purporting to be exhaustive) the length of the marriage; whether or not she received a divorce (or similar) settlement and what it was; how long it has been since the marriage ended; and, the former wife’s financial and personal circumstances at the time of the hearing.

I shall deal with Corinne’s circumstances further below. For present purposes it is sufficient for me to observe that the Court has found that Richard and Corinne were newly separated at the time of Richard’s death and that there had not been any opportunity for the question of any financial settlement between them to be discussed, let alone resolved.

Turning to the estate, I consider it a very important factor that the estate is small. As I have noted, it was common ground that the estate is insolvent unless a notional estate order were to be made. It was also agreed that the value of the only asset available for designation as notional estate (being Richard’s half of the proceeds of sale of the Property) was $249,779 (the Amount) and that, assuming each plaintiff was successful there would be an order for their costs of about $60,000. The defendants’ costs on an indemnity basis are approximately $60,000 (including nearly $9,000 to be paid by the plaintiffs to Corinne pursuant to an order made by Hallen J for the costs thrown away by reason of the adjournment of an earlier hearing date). This means that only approximately $129,000 would be available by way of extra provision, being not even enough to fund the $85,000 sought by each plaintiff.

Claire’s sought provision of $85,000. The matters I have taken into account in relation to her are (incorporating by reference the more detailed evidence set out in paragraphs [67] – [72] above) :

Paul also sought provision of $85,000. The matters I have taken into account in relation to him are (incorporating by reference the more detailed evidence set out in paragraphs [73] – [79] above):

The other person whose situation must be considered is Corinne’s and what is, in the circumstances of this case, in effect, her claim to the Amount. Before doing so, I record that I thought she was an unsatisfactory witness who appeared to prefer the expedient interests of her cause over truthfulness. I have reached this conclusion by reference to my observations of her in the witness box, coupled with her vacillation over whether sums she had advanced to her children were loans or gifts and what I found to be her incredible evidence that she was not really separated from Richard and that it was all a ruse on her part to encourage him to improve his behaviour (see paragraphs [50] to [57] above). As I have already noted, none of this evidence appeared in her affidavits; it all emerged in the witness box. However, as it happens, none of the matters which I ultimately find to be relevant turn on disputed questions of fact where her credit would be decisive.

The matters I have taken into account are (incorporating by reference the more detailed evidence set out in paragraphs [80] – [85] above):

As I have said above, the real question for determination in this case is the strength of the relative claims to the Amount. Insofar as Corinne’s position is concerned, given the small size of the estate (in reality the Amount) means that even if the Court dismisses Claire’s and Paul’s claims so that Corinne keeps the Amount, by reference to the evidence set out in paragraphs [80] to [85] above, she will still not be left with sufficient to purchase a home and have something left over for vicissitudes (assuming the Court were of the view that was the appropriate outcome). Her situation will only be more acute if one or both of the plaintiffs’ claims is upheld.

Weighing all of the matters set out in paragraphs [67] to [85] above against each other, I am satisfied that Claire’s interest in the Amount by survivorship should not be disturbed by designating it as notional estate for the purposes of further provision being made for Claire and Paul. Putting it another way, in the circumstances of such a small estate, Corinne’s claim outweighs those of Claire and Paul. In reaching this conclusion, I am not applying Luciano or any similar authorities. Rather, in my view this is the correct conclusion having regard to the facts of this particular case.

My conclusion is best understood by comparing Corinne’s respective positions between whether the notional estate order is or is not made.

If the order is not made, Corinne will have a sum of money close to the purchase price of a unit which the Court accepts it is reasonable for her to aspire to own. She will have her own income to meet her daily needs, but nothing for vicissitudes. However, she will at least own her own home, perhaps subject to a small mortgage which I infer she could pay off during what is left of her working life.

If the order is made for either or both of the plaintiffs, Corinne will not have enough to purchase a unit without taking out a mortgage of around $200,000. Assuming she could get such a mortgage, it is clearly going to be a real burden to pay off (assuming again she could) such a mortgage during her working life. She will certainly have nothing for vicissitudes.

In my view, the question is which position for Corinne to be left in is the one which better accords with Richard’s moral duty or the community’s expectations when compared with the plaintiffs’ circumstances and their respective claims as I have set them out above? In my view it is the former position.

It follows that, in my opinion, the nil provision for Claire and Paul in the Will does not mean that adequate provision for their proper maintenance, education or advancement in life has not been made. That is because any provision for them would have defeated what is Corinne’s superior claim to Richard’s testamentary bounty, including were the estate to be enlarged by the making of the proposed notional estate order. The question posed in paragraph [89(6)] above is therefore answered “No”. The Court’s jurisdiction to make orders for additional provision for Claire and Paul (and therefore to make a notional estate order — see s 78 of the Act) is not enlivened. The answer to the questions and issues posed in paragraphs [89(7)] to [89(11)] above is “does not arise”.

Even if the view I have taken of the jurisdictional question is in error, the same process of reasoning would have led me to the conclusion that, in the exercise of the Court’s discretion, no order for additional provision should be made for either Claire or Paul. I would have answered the question posed in paragraph [89(8)] above “nil” in relation to each of the plaintiffs.

The Summons will be dismissed. I will hear the parties as to costs.