Coote v Coote

1. [1]

   Mrs Adelaide Rosemary Coote was born on 4 December 1918. She died on 15 June 2018 at the age of 99 years.

2. [2]

   Mrs Coote's last will was dated 28 November 2013. Mrs Coote left two sons. The elder, Brian Thomas Coote was 75 years of age at the time of her death. Her younger son, Neil William Coote, was then 73.

3. [3]

   Without meaning any disrespect, I will refer to the two sons by their first names. It will also be convenient to refer to the other witnesses by their first names, after I introduce them.

4. [4]

   By her last will, Mrs Coote made Brian her executor. Probate of the will was granted to Brian by this Court on 11 March 2019.

5. [5]

   These proceedings have arisen out of the terms of Mrs Coote's last will, by which she gave a legacy of $25,000 to Neil and gave the balance of her estate to Brian.

6. [6]

   At the 31 July 2019 date of Brian's executor's affidavit, the value of the likely distributable estate of Mrs Coote was $508,770.98 before meeting the costs of these proceedings.

7. [7]

   Neil is the plaintiff in these proceedings, by which he seeks an order for further family provision in his favour under s 59 of the Succession Act 2006 (NSW) (the Act) for the proper maintenance, support, education and advancement in his life as the Court thinks fit.

8. [8]

   Mrs Coote's second last will was made on 17 December 2001, when she was aged 83. She divided her estate equally between Brian and Neil. Mrs Coote changed her mind in terms of her final will when she was almost 95 years of age.

9. [9]

   The primary basis of Neil's claim for further family provision is that, by reason of injury and illness, he has been unemployed since 1992, and for the whole of the period since then he has been required to live on a disability pension. Neil has significant additional ailments that will be considered more fully below. Neil has no superannuation or fund to preserve him against the vicissitudes of life. Neil will require significant medical treatments in the future. He has a precarious arrangement for his accommodation into the future by reason of his living under the same roof as his former wife, Robyn Leslie House, in a dwelling in Western Australia owned by Robyn. This arrangement is at will, although Robyn has stated that it is her intention to allow Neil to reside indefinitely under the same roof as she resides, albeit in a separate part of the house. The longevity of that arrangement is inherently uncertain, as Robyn acts as Neil's carer, for which she receives a carer's pension as her sole income. The arrangement can only continue as long as it is manageable in accordance with the health of both parties.

10. [10]

    Neil has quantified his needs as requiring a fund of some $197,000, including an amount of $45,000 to allow for contingencies.

11. [11]

    Brian's response is that Neil's claim should be dismissed. That is primarily on the basis that Neil and Robyn are in either a de facto relationship or a relationship of financial interdependence such that Robyn's financial position is relevant to assessing the financial position of Neil. Brian submits that Neil has an onus of persuading the Court that adequate provision has not been made and so was required to lead evidence as to his and Robyn's financial and material circumstances. Brian submits that there has not been a full and frank disclosure of Robyn's financial circumstances.

12. [12]

    In addition, Brian submits that there was a level of estrangement between Neil and Mrs Coote, limited contact between Neil and Mrs Coote and no contribution made by Neil to Mrs Coote's welfare and circumstances.

13. [13]

    If the Court is satisfied that adequate provision was not made in Mrs Coote's last will for Neil’s maintenance, in addition to the $25,000 legacy provided for him in the will, there ought, according to Brian, to be only a moderate order for an additional sum to provide a fund to meet contingencies in the range of $40,000-$50,000.

14. [14]

    When determining whether to made an order for further family provision, and if so, the terms of that order, the Court has to consider the diminution of the estate by legal costs, including the diminution caused by payment of the successful plaintiff's costs: see for example Chan v Chan [2016] NSWCA 222 at [54] per Basten JA (Simpson and Payne JJA agreeing).

15. [15]

    I understand the position of the parties to be as follows. On the assumption that Neil's legal costs are paid out of the estate on the ordinary basis and Brian's legal costs are also paid but on the indemnity basis, and allowing for additional costs incurred because the hearing took longer than the two days that were allowed, the net distributable estate will be between $200,424.68 to $210,428.68, if the distribution of the legacy of $25,000 to Neil is added back in. [1]

16. [16]

    Assuming the parties' calculation of the aggregate legal costs is correct, then almost 60% of Mrs Coote's distributable estate will be expended in the legal costs of these proceedings. That fact makes it difficult for the Court to achieve a satisfactory outcome to these proceedings.

Relevant legal principles

1. [17]

   As a child of the deceased, Neil is an "eligible person" to make the present application. [2]

2. [18]

   In order to exercise its power to make an order for further provision out of Mrs Coote's estate, the Court must first be satisfied that adequate provision for the proper maintenance, education and advancement in life of Neil was not made by Mrs Coote in her final will. [3]

3. [19]

   The Act does not prescribe specific circumstances that do, or do not, constitute adequate provision for the proper maintenance, education and advancement in life of the plaintiff. It is necessary for the Court to evaluate the provision actually made in the deceased's will against the requirement for maintenance, education and advancement in life of the plaintiff that is established by the evidence. The enquiry must be based on the circumstances that exist at the time of the determination and not at the time when the deceased made his or her will. The question is not just whether the provision made in the will is "adequate" but whether it is also "proper".

4. [20]

   The nature and content of what is adequate provision for the proper maintenance, education and advancement in life of the plaintiff is susceptible to change over time as community attitudes change. The test has sometimes been expressed in terms of what is considered to be right and proper according to the moral duty of the deceased, or alternatively contemporary accepted community standards: see for example Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [109] per Brereton JA and [44] per White JA where the former test was preferred, and Squire v Squire [2019] NSWCA 90 at [10], where the latter approach was applied without comment. As Brereton JA said in Steinmetz v Shannon at [109] “…However, I doubt that the difference matters much; what the community expects a testator to do by way of provision for claimants on his or her bounty, and what the testator is morally obliged to do in that respect, are probably the same thing”.

5. [21]

   In Henry v Hancock [2016] NSWSC 71, Brereton J (as his Honour then was) said (footnotes omitted):

6. [22]

   Hallen J has set out in a number of cases a summary of general principles (which are guidelines, and may assist with consistency, but are not rules of law) applicable to claims by adult children. For example, in Anderson v Hill [2017] NSWSC 1149 at [135]-[136], Hallen J said:

7. [23]

   In the present case, the observations made by Hallen J at [135(c)] are of particular significance. The evidence shows that Neil has fallen on hard times and has been unable to accumulate superannuation or make other provision for his retirement. He has a real need for a buffer against contingencies. The elaboration of those considerations in [135(f)] is also material in this case.

8. [24]

   Section 60(2) of the Act identifies 15 specific matters to which the Court may have regard in addition to "any other matters the Court considers relevant…" when considering whether to make a family provision order, and the nature of any such order.

9. [25]

   Section 60(2) of the Act provides:

10. [26]

    The list of factors is permissive and it will not always be necessary or appropriate for detailed evidence to be provided to the Court in relation to all of the factors. Judgment should be exercised by the parties and their legal advisors concerning the materiality of each of the factors and the likely benefits of exploring them in the evidence weighed against the costs of the exercise. I will return to this issue below.

11. [27]

    The Court should give proper respect to the testamentary intentions expressed by the testator. The Court should not interfere with the deceased's testamentary dispositions just because the judge would have made a different disposition. As Macfarlan JA (with whom McCallum JA agreed) said in Strang v Steiner [2019] NSWCA 143 at [72], [73]:

12. [28]

    It is appropriate to observe at this point that, while there is no evidence that Mrs Coote's testamentary capacity was inhibited in her 94th year, when she made her last will, save for the terms of the will, there is no evidence that Mrs Coote actually made an assessment of what maintenance or advancement in life was proper for Neil having regard to all of the circumstances. In particular, there is no evidence that she had any regard to the realities of Neil's poor health and many disabilities and his parlous financial position.

13. [29]

    One of the factors that the Court may take into account is the plaintiff's "financial resources". As Hallen J said in Armitage v Fraser [2020] NSWSC 979:

14. [30]

    A plaintiff claiming a family provision order has an obligation to fully and frankly put forward his or her financial circumstances. As was said by Meagher JA (Gleeson and Leeming JJA agreeing) in Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154:

15. [31]

    The consequence of a plaintiff not putting forward evidence that satisfactorily explains his or her true financial position is not that the plaintiff is punished by denial of an order for further family provision that the facts would otherwise justify. The consequence is that the Court may not be able to be satisfied with sufficient certainty that the plaintiff's financial position is such that inadequate provision has been made, or what additional provision ought to be made.

16. [32]

    Where the plaintiff is in a relationship with some other person who has financial resources that may be applied for the benefit of the plaintiff, the obligation of the plaintiff to put forward evidence that establishes the true financial position of the plaintiff may extend to requiring the plaintiff to provide evidence of the financial circumstances of the other party to the relationship, to enable the Court to judge the likelihood that the plaintiff will benefit from the application of the other party's financial resources: see for example, Smith v Moore [2020] NSWSC 1446 at [131] and [153]-[155]. That was a case where Williams J decided that it was not possible for the Court to reach the state of positive satisfaction required by s 59(1)(c) of the Act that adequate provision had not been made in the deceased's will for the plaintiff's proper maintenance, education and advancement in life.

Background

1. [33]

   It will be appropriate to set out briefly the following background to Neil's claim for a family provision order. [4] I will limit my statement of relevant events to those that I consider to be most material. This is a case where the evidence explored all manner of events that occurred in the history of the Coote family.

2. [34]

   In early 1960, Brian moved out of home in order to work as a metallurgist at BHP and study part-time for a science degree at the University of Newcastle.

3. [35]

   In late 1960, Mrs Coote, her husband and Neil moved to the home in Charlestown in the Newcastle area that became Mrs Coote's final home. Subsequently, Brian moved back home.

4. [36]

   On 24 November 1966, Brian married his first wife, but they separated in 1967, and Brian moved back into the Charlestown home for a few months.

5. [37]

   Neil married his first wife and the mother of his two daughters on 3 June 1967. Neil's first daughter, Michelle, was born on 27 November 1968 and his second daughter, Nicole, was born on 7 November 1970.

6. [38]

   In early 1968, Brian graduated from university and was transferred to BHP's head office in Melbourne. He continued to undertake a second degree at Macquarie University. In December 1969, Brian was transferred to the Port Kembla Steelworks.

7. [39]

   Brian married his second, and present, wife in October 1970.

8. [40]

   Brian and his wife moved from Wollongong to Figtree in 1972. Their first daughter, Danielle, was born on 15 December 1973, and their second daughter, Jocette, was born on 13 October 1975.

9. [41]

   In early 1974, Neil separated from his first wife. The couple were divorced in about 1976.

10. [42]

    Neil and Robyn met on a cruise in June 1979. Their son, Nathan, was born on 7 August 1980. They married in 1981 and moved to Western Australia in 1983 so that Neil could pursue an employment opportunity.

11. [43]

    Lionel, the father of Neil and Brian, died on 29 January 1990.

12. [44]

    In 1991, Neil sustained a prolapse of his L4/5 disc when he fell as a result of attempting to restrain a falling gas bottle. He retired permanently from work as a result of his back injury.

13. [45]

    On 28 March 1992, Neil and Robyn entered into a property settlement and deed which was registered in the Family Court of Australia on 2 October 1992. The deed recorded that the couple separated on 28 March 1992, although Robyn's evidence was that she recalled that the separation occurred in about 1991. Under the property settlement agreement, Robyn received the couple's residence and Neil received the company that conducted his business as well as the family trust. Neil and Robyn continued to reside in the former matrimonial home.

14. [46]

    Neil was declared bankrupt on his own application on 16 February 1993, but an order annulling the bankruptcy was made on 23 May 1994.

15. [47]

    Neil commenced receiving a disability pension in 1995 and has continued to receive that pension ever since.

16. [48]

    Also in 1995, Neil and Robyn returned to New South Wales after Neil suffered financial difficulties.

17. [49]

    Neil and Robyn were divorced on 7 April 1998. Neil continued to reside in the same house as Robyn.

18. [50]

    Mrs Coote made her second last will on 17 December 2001. She appointed Neil and Brian as her executors and divided her estate equally between them.

19. [51]

    Brian retired on 31 December 2006 aged 64.

20. [52]

    In 2013, Robyn sold her home in New South Wales and returned to Western Australia to be near her son, Nathan. She bought her present home in Perth. Neil followed Robyn to Perth as he did not have accommodation in New South Wales or anyone to care for him. Since moving to Perth, Neil has lived in Robyn's home. I note that the parties’ Chronology records Robyn as having returned to Western Australia in 2014. That is the year given in Neil's evidence [5] . Robyn stated [6] that she returned to Western Australia in 2013. I prefer the evidence of Robyn on matters such as dates. The issue is significant, as it will be important whether Mrs Coote made her last will before or after Neil moved back to Western Australia from the Newcastle area.

21. [53]

    Mrs Coote made her last will on 28 November 2013, making Brian her sole executor and giving him the whole of her estate, save for a legacy of $25,000 to Neil.

22. [54]

    Mrs Coote suffered a stroke on 4 July 2015. After discharge from hospital on 31 August 2015, Mrs Coote began to live at Brian's home.

23. [55]

    In early 2016, Mrs Coote began respite care at an aged care facility and was placed into full-time care at the facility in about July 2016. She remained there until her death.

24. [56]

    As stated above, Mrs Coote died on 15 June 2018 at the age of 99 years.

25. [57]

    I have omitted from this brief chronological background the entries concerning Neil's and Brian's various injuries and medical circumstances, as they will be dealt with separately. I also omitted the entries concerning the assistance provided by one or other brother to Mrs Coote and their father.

Neil’s health and the relationship between Neil and Robyn

1. [58]

   The most significant forensic issue in this matter has been whether Neil and Robyn have been cohabitating in a de facto marriage relationship and whether Neil has the benefit of Robyn's financial resources and has failed to comply with his obligation to disclose those resources.

2. [59]

   Neil's long-term disablement and his general health are matters that are intricately related to this issue.

3. [60]

   Neil filed his summons to commence these proceedings on 31 May 2019, supported by an affidavit of the same date that dealt with the legal issues relevant to the making of a family provision claim.

4. [61]

   Neil gave the following evidence concerning his health and medical condition (omitting parts of the affidavit that were rejected on formal grounds):

5. [62]

   Neil annexed to his affidavit a health summary sheet prepared by his general medical practitioner, Dr Winnie Lo, which broadly supported the evidence given by Neil.

6. [63]

   Brian made no challenge to the evidence given by Neil concerning his disabilities and general medical condition. Objection was made to lay assertions made by Neil concerning his prognosis and likely future treatment needs, on the basis that the assertions were not supported by expert medical evidence. However, the evidence justifies a finding that Neil is likely to have a significant need in the future for medical treatment, without requiring Neil to have incurred the substantial additional costs of obtaining expert medical evidence from all of the specialists relevant to the procedures required by his various disabilities.

7. [64]

   In his affidavit, Nathan gave evidence [7] about the effect of the injuries suffered by Neil in 1992 in the following terms:

8. [65]

   This evidence was not challenged by Brian in Nathan's cross examination.

9. [66]

   In his 28 May 2019 affidavit, Neil made the following disclosure and claims concerning his relationship over the years with Robyn:

10. [67]

    There is an issue in these proceedings as to the accuracy of the statement made by Neil that his and Robyn's finances are separate. I will deal with this issue in detail below.

11. [68]

    It will be pertinent to comment on the significance of the appeal made by Neil to the Administrative Appeals Tribunal (the AAT). As Brian challenged the evidence given by Neil and Robyn that they have not lived in a de facto marriage relationship since they separated, the evidence given by Neil concerning the decision of the senior member of the AAT that Neil sought to tender was rejected, on the ground that the decision of the AAT was not admissible to prove the nature of the relationship between Neil and Robyn. [8]

12. [69]

    The AAT made an order on 10 December 1999 in terms: "Therefore Ms House should be paid carer pension at the single rate and Mr Coote should be paid disability support pension at the single rate at all relevant times". [9] Although the decision of the AAT was not admissible to prove the nature of the relationship between Neil and Robyn, it was admissible to prove the actual decision as a fact.

13. [70]

    I am satisfied on the evidence that both Neil and Robyn approached the present proceedings on the basis that, if the Commonwealth of Australia was prepared to pay them pensions on the basis of an acceptance that they were single and not in a de facto relationship, then it was proper for them to assume the validity of that position.

14. [71]

    For the reasons that I will elaborate below, I also find as a fact that the relationship between Neil and Robyn has always been since their separation of the nature as they have described it.

15. [72]

    Robyn affirmed her affidavit on 29 October 2019. She did so after Brian served his substantive affidavit made on 14 September 2019. The only evidence that Brian gave concerning Neil's relationship with Robyn was: [10] "Neil never mentioned "carer" to me, or that he and his wife had divorced decades earlier…" The making of Robyn's affidavit for use in Neil's case was not a result of some exposure of the relationship as part of Brian's defence.

16. [73]

    In relation to her relationship with Neil, Robyn gave the following evidence:

17. [74]

    Robyn annexed to her 31 August 2020 affidavit a copy of what was then her last will and testament made on 17 November 2015. That will appointed Nathan as her sole executor and, by clause 3, gave all of her household furniture and chattels to Neil if he survived her for 28 days, plus, by clause 4, a right to enjoy the her home in Western Australia for life on certain conditions concerning the maintenance of the property.

18. [75]

    This affidavit was served between the first two days of the hearing and its resumption on 25 September 2020. It appears that Robyn had second thoughts, as she was cross-examined about whether her 17 November 2015 will remained in effect. [11] Robyn announced that she had made a new will leaving "everything to Nathan and his family and that’s it". Robyn responded to a suggestion that she had changed her will only after she had been cross-examined to show she was in a de facto relationship with Neil by saying: "I am definitely not in a de facto relationship".

19. [76]

    The new will, if it exists, was not tendered. Neil did not make a submission that his entitlement to a family provision order was enhanced by reason of Robyn having changed her will.

20. [77]

    I find, having observed Robyn giving her evidence, and from the tone of many of her answers, that she resented having been required to become involved in Neil's proceedings, and that she took offence at not being believed on her evidence that she was not in a de facto married relationship with Neil. If it is true that Robyn changed her will, that is an act – which could be described as an act of defiance – in proving to herself that she was free to do what she wanted with her own property.

21. [78]

    Robyn was cross-examined about steps that she apparently took to obtain a new real estate appraisal for her home in the period that intervened between the two parts of the hearing. [12] The suggestion was that Robyn had prevailed upon the real estate agent's staff, in his absence on that day, to obtain an appraisal that was artificially low. The evidence established that the real estate agent in question retrospectively withdrew the appraisal and accused Robyn of having obtained the appraisal "through misleading and pressured circumstances". [13] The new appraisal was not tendered in Neil's case.

22. [79]

    The evidence is not sufficient to justify the Court in making a specific finding concerning Robyn's conduct on this issue. It is fair to say, however, that it was impulsive and apparently unilateral conduct on Robyn's part that casts some doubt on her creditworthiness.

23. [80]

    However, as the home in which Neil and Robyn live is Robyn's property, the precise value of the home will not be of great significance to the determination of Neil's family provision application. Brian did not attempt to make a case that Neil was likely in the future to gain any personal benefit from the value of the house; such as by Robyn selling it in order to apply part of the proceeds of sale to meet Neil's needs. Neil's case has always been that he has the benefit of accommodation in Robyn's home, albeit in separate living quarters, and although the arrangement is at Robyn's will, she is likely to permit the continuation of the status quo as long as Neil's and her health permit it.

24. [81]

    Robyn did not in any real way hide the fact that she was partisan in Neil's case. Her conduct in respect of the new appraisal was probably improvident, but, having witnessed her give her evidence, it is most likely to have been a reaction to having been drawn into the case and a result of whatever private views she may have had about Brian resisting as strongly as he has Neil's attempt to gain a greater share in Mrs Coote's estate than the $25,000 legacy that she gave him.

25. [82]

    Nathan also gave evidence concerning the nature of the relationship between his parents. [14] He said:

26. [83]

    Nathan was not challenged on this evidence in cross-examination. Although the cross-examination of Nathan was short, he appeared to me to be a straightforward and credible witness. As an only son, I would think that Nathan is the surest judge of the true nature of the emotional and practical relationship between his parents.

27. [84]

    Neil has been entirely estranged from his two daughters, Michelle and Nicole since his divorce from their mother. Both daughters gave evidence in Brian's case. They gave evidence of events at Mrs Coote's funeral, which was attended by Neil and Robyn. Both said [15] that on at least one occasion at the funeral they noticed Robyn hugging and kissing Neil. They also said [16] that that they overheard Neil introducing Robyn as his wife. Each daughter said [17] that they were unaware that Neil and Robyn were divorced until they read Neil's 28 May 2019 affidavit.

28. [85]

    Neil denied in cross-examination that he was openly kissed by Robyn at Mrs Coote's funeral. [18]

29. [86]

    I do not consider that this evidence is of great significance in judging Neil and Robyn's claims to have been separated in the circumstances that they disclosed in their affidavits. It is consistent with the couple having maintained for certain purposes an outward appearance of the continuation of their marriage. As for the evidence that Robyn hugged and kissed Neil, it would be difficult for the Court to make a sound judgment as to the significance of such a fleeting event occurring during the course of Neil's mother's funeral. I accept that it is quite possible that Robyn felt a need to comfort Neil during the event.

Financial relationship between Neil and Robyn

1. [87]

   Brian’s claims that Neil and Robyn were in a de facto married relationship and consequently that Neil had failed to adequately disclose the availability to him of Robyn’s financial resources depended upon a close cross examination and analysis of Neil's and Robyn's bank statements.

2. [88]

   Brian tendered the statements for a number of bank accounts held by Neil and Robyn for periods from dates in 2015 or 2016. [19]

3. [89]

   Each of Neil and Robyn had an account with P&N Bank into which were paid their separate Centrelink payments, being Neil's disability pension and Robyn's carer's pension.

4. [90]

   The credit balance in Neil's account was generally less than $2,500 and, save for a number of exceptional transactions, Robyn's credit balance mostly was in a range between $2,000 and $3,000.

5. [91]

   Nathan gave evidence that he was a pilot employed by Virgin Australia until November 2018. [20] He was retrenched due to budget cuts. Since that time he has been unable to attain paid employment. He was unemployed at the date of his affidavit and had been so for almost two years. His savings were almost depleted. Nathan has a wife and two children.

6. [92]

   The P&N Bank statements for Neil's account for the period starting 13 December 2018 up to 24 October 2019 (the end of the period covered by the statements) shows that Neil reduced the number of his weekly transfers to his other bank accounts and started to make equivalent transfers to an account held by Robyn and described mostly as "HBA – Garden City" or similar. The transfers were made in pairs described as "For Alex" or “For Ainsleigh". They are the names of Neil's grandchildren. According to my calculation, there were 22 payments of $250 (total $5,500) and 16 payments of $100 (total $1,600).

7. [93]

   On 15 May 2019, there was a credit to Neil's P&N Bank account of $9,480.11, which raised the balance from $305.46 to $9,785.57. The explanation of the credit was: "Direct Credit IAG AUSTRALIA LI – TRAVEL CLAIM". The credit appears to have been for a claim under a travel insurance policy.

8. [94]

   On 16 and 21 May 2019, Neil appears to have paid out an amount equivalent to the insurance payment by transferring to Robyn's HBA account the sum of $4,740 for each of Alex and Ainsleigh.

9. [95]

   Neil was cross-examined about the regular payments that were made out of his P&N Bank account apparently for the benefit of Alex and Ainsleigh. [21] Neil unconvincingly claimed not to be able to remember what the payments were for.

10. [96]

    Robyn's P&N Bank statements show fortnightly payments of board and lodging from Neil of $250 from 16 May 2019.

11. [97]

    It appears from Robyn's P&N Bank statements that she made regular payments out of that account to Telstra, Water Corporation of Western Australia, to Synergy and to the city of Melville. I infer from these entries that Robyn was solely responsible for paying for her telephone and the service costs for the property. There are no similar entries in Neil's bank statements.

12. [98]

    Neil and Robyn also maintained accounts with UBank. They each had two such accounts. One of Neil's accounts generally had a credit balance of less than $1,000. As to the other, Neil made regular weekly transfers from his P&N Bank account in amounts between $50 and $200. The greatest credit balance was $15,669.01.

13. [99]

    One of Robyn's UBank accounts was usually about $500 in credit.

14. [100]

    Robyn also made regular weekly payments in sums of about $100 into this account from her P&N Bank account. The highest credit balance was $24,022.07.

15. [101]

    Neil and Robyn also each had two Rabobank accounts. Neil mostly made weekly deposits from his P&N Bank account of $50 or $100 into one Rabobank account and $30 into the other. The first of these accounts shows a credit of $13,000 on 5 June 2019 from the maturation of a term deposit.

16. [102]

    Neil transferred $8,500 and $4,500 from one of his Rabobank accounts into his P&N Bank account on 12 and 14 June 2019, leaving a balance of $2,666.13 in the account. On 14 and 15 June 2019, Neil transferred $8,500 and $4,500 out of his P&N Bank account to the "Nathan Coote Trust".

17. [103]

    Robyn explained in her cross-examination that she and Neil had tried to put some money aside in trust for their two grandchildren, one of whom is autistic. [22]

18. [104]

    When the balance in Neil's second Rabobank account was $733.15 on 1 October 2018, he transferred $700 into the first Rabobank account.

19. [105]

    Robyn conducted her two Rabobank accounts in a similar fashion as did Neil. She mostly transferred $150 per week into one of the accounts out of her P&N Bank account and $30 into the other. The closing balance on the first of the accounts as shown by the available statements was $23,979.89. On 3 October 2018, when the balance in her second Rabobank account was $4,180.70, she transferred $4,100 into her first Rabobank account.

20. [106]

    Neil and Robyn also maintained a single RAMS account each. Neil mostly paid $100 per week into this account from his P&N Bank account.

21. [107]

    Robyn mostly paid $100 or $150 into this account from her P&N Bank account.

22. [108]

    By 5 December 2018, Neil's RAMS account had a credit balance of $16,346.64. On that date he made a transfer of $16,250, described as "Board & Lodging".

23. [109]

    On the same date, $16,250 was credited to Robyn's RAMS account. Robyn paid $16,000 out of her RAMS account on 5 February 2019 and $3,150 out on 6 February 2019. Robyn's RAMS statements describe the $16,000 debit as "TRANSFER – To Trust" and the $3,150 as a transfer with the street address of Robyn's home.

24. [110]

    It appears that Neil saved up an amount to pay his $250 per week board and lodging until December 2018, when he paid a lump sum. Neil and Robyn both gave evidence [23] that Neil was able to save the money because Robyn agreed to allow him to accumulate the money necessary to buy a new car. Neil ultimately gave up, because he realised that he could not save the money quickly enough. He then made a back payment of board and lodging. It should be noted that this payment was made before Neil filed his summons to commence these proceedings on 31 May 2019. As noted above, from 16 May 2019, Neil paid Robyn $250 per week out of his P&N Bank account.

25. [111]

    Counsel for Brian cross-examined Neil and Robyn for the purpose of getting them to admit that their finances were "intricately connected". [24]

26. [112]

    It does appear from the bank statements that Neil and Robyn conducted the same type and number of bank accounts, apparently opened at approximately the same times, and they conducted them in the same way. That is, they banked the income constituted by their pensions into their P&N Bank accounts and then, in comparable ways, though in slightly different amounts, they transferred small sums to build up small amounts of credit in their other accounts.

27. [113]

    More significantly, the statements for the P&N Bank accounts showed that Neil and Robyn had a single MasterCard account that they used for their day-to-day purposes (and also, as it happened, the payment of the filing fee by Neil on his summons in these proceedings) and their practice was simply to divide the amount that they paid at the end of each payment period equally between them, without attempting to dissect items that were used by both from items that were used by the one or the other of them.

28. [114]

    Robyn explained this practice in cross-examination by saying: "Yes, because it was convenient that way rather than try to split it up". [25] She said that her credit card was secondary to Neil's and that it was used mostly to pay joint expenses. Robyn explained that she and Neil were residing under the same roof and consequently incurred joint expenses, even though she said: "Finances are separate". [26]

29. [115]

    Neil gave a similar explanation for the practice of splitting MasterCard repayments equally. [27]

30. [116]

    While it is true that there are a number of transactions recorded in the MasterCard statements that appear clearly to be personal expenses of either Neil and Robyn, if every single line item in the statements is read, as I read them, they are almost all mundane transactions such as are entered into by every household to acquire goods and services to fulfil common needs.

31. [117]

    Although Neil and Robyn shared expenses equally in this way, the evidence shows that they paid their income into separate bank accounts and dealt with the money in those accounts separately, albeit in a similar way to each other. The arrangement whereby they shared joint expenses is somewhat reminiscent of the arrangements in times past in share houses that many young people find necessary, where the rent is paid equally and all must contribute equally to the kitty.

32. [118]

    The evidence therefore establishes that for many years Neil and Robyn have followed a practice of sharing expenses that are mostly joint expenses, in circumstances where they could not be bothered engaging in an intricate accounting process. It may be thought that such an approach was wise, because it would assist in avoiding the potentially catastrophic effect on the tenuous relationship between the two of consistently having arguments about how to properly divide up individual expenses.

33. [119]

    The most significant conclusion to be drawn from a minute examination of the bank statements of Neil and Robyn tendered by Brian is that the statements prove that both Neil and Robyn live on their pensions and have almost no funds available as a buffer against vicissitudes.

34. [120]

    In his submissions, Brian urged strongly on the Court that it should find that Neil had breached his obligation to the Court to fully disclose the financial resources of Robyn who was his de facto partner from the time of their supposed separation. In my view, on the whole of the evidence, Brian and Robyn did not in any substantial way cohabit as a de facto married couple. The relationship was in substance as explained by Neil and Robyn.

35. [121]

    It is true that Neil did not initially disclose in any significant way Robyn’s financial resources, or how they paid for their joint expenses and conducted their bank and credit card accounts. Brian decided to make a case that Neil and Robyn were in a long-term de facto relationship, and pursued an attempt to prove that in some way Neil had been supported by Robyn financially, and could look forward to the continuation of that arrangement. He failed. I am satisfied that Neil and Robyn genuinely have considered their relationship to be one of convenience, and on Neil’s part, one of necessity. They have cooperated in order to maintain their family relationship with their only son, Nathan, and their grandchildren. Robyn, in particular, fiercely, and I am satisfied genuinely, resisted the claim that she was in a de facto relationship with Neil. It would not go too far to say that she was scornful of the suggestion.

36. [122]

    I am satisfied that Neil did not volunteer evidence of Robyn’s financial circumstances for two reasons. First, he genuinely believed that he was being cared for by Robyn on sufferance, and that emotionally Robyn considered herself to be a single woman. Secondly, as was made plain by Brian’s attempt to prove that, in some way, the finances of Neil and Robyn were intermingled in a manner that would damage Neil’s claim for a family provision order, Robyn is dependent upon her pension as much as is Neil on his. They both appear to have lived frugally and carefully, but Robyn needs her own income for her own maintenance. Sharing accommodation and expenses no doubt provides financial benefits to both parties. Those benefits are relatively meagre and depend upon the prudent expenditure of the two pensions.

Credibility of evidence given by Neil and Robyn

1. [123]

   It will be appropriate to make the following observations concerning the credibility of the evidence given by Neil and Robyn.

2. [124]

   Neil was not a satisfactory witness. He clearly appeared to be cranky in his response to cross-examination and muttered comments under his breath. It was necessary for me to counsel him to desist on one occasion.

3. [125]

   In Neil's 28 May 2019 affidavit he disclosed [28] assets valued at $10,090, being a motor vehicle valued at $4,700, household furniture and electrical goods of $5,000, and about $390 in a P&N Bank account.

4. [126]

   In an affidavit sworn on 4 July 2020, Neil acknowledged that he had money in the P&N Bank ($647), Rabobank ($34.04), RAMS ($1,093) and UBank ($1,280)

5. [127]

   Neil also acknowledged owning 3,234 shares in Medibank Private with a value of $9,000. Neil claimed [29] that he believed he had transferred ownership of these shares to his grandchildren, but it had come to his attention that he was still the beneficial owner of the shares.

6. [128]

   When it was put to him in cross-examination that he only corrected his evidence about his bank accounts when it had become apparent through the subpoena of records that Brian had become aware of those bank accounts, Neil answered: "I would assume so, correct, yes". [30]

7. [129]

   Neil also stated in his 28 May 2019 affidavit that he had not made any gifts of amounts $1,000 or more in the last three years. [31] It was pointed out to Neil that, in fact, on 1 May 2017, Neil had made a payment out of his U Bank account of $5,019.15 described as: "Funds Transfer to Ainsleigh Paige For MYX". [32] Further payments were made to Ainsleigh Paige of $4,217.55 on 19 September 2017 and $5,119.95 on 20 December 2018 and $3,119.95 on 24 December 2018. Neil conceded that the payments were gifts to Ainsleigh. [33]

8. [130]

   On a number of occasions Neil responded to questions that he could have been expected to be able to answer by saying something to the effect that he did not have a clue, or that he could not remember the detail of transactions. [34]

9. [131]

   Neil's focus in cross-examination seemed to wax and wane; for periods he gave lucid and coherent answers to questions, but on other occasions his responses did not appear to be rational. The best example of this is probably the attempt by counsel for Brian to get Neil to admit certain consequences of the back injury that caused him to medically retire in 1992. The following cross-examination occurred: [35]

10. [132]

    If the success of Neil's case depended upon his evidence being accepted to prove particular, detailed contentious facts, then it would be difficult to accept Neil's evidence in the absence of objective corroboration.

11. [133]

    However, Neil's application is for an order for further provision under the Act.

12. [134]

    Neil's case started by giving evidence to the effect that, by reason of his disabilities, he is prescribed significant doses of painkilling medication which has a serious effect on his ability to remember times and events and care for himself adequately. [36] Robyn gave evidence to the same effect. [37]

13. [135]

    The manner in which Neil gave his evidence, to my observation, was in broad terms consistent with him having some medical impediments to having a clear and accurate recollection of events. His ability to be able to respond immediately and rationally to questions varied during the course of his cross-examination. Some of his answers were not credible, and the deficiencies were not consistent with intentional dissimulation by a clever witness.

14. [136]

    The Court must at least be careful in how it uses the evidence of a witness whose claim is based in part on a disability that is acknowledged to impair his competence and recollection. The Court in such a case should hesitate to start with the assumption that the claimant should be able to give his evidence competently and then conclude that the witness is not truthful because the evidence given is incompetent.

15. [137]

    The Court cannot ignore the unsatisfactory nature of much of the evidence given by Neil, but it is still able to deal with his application on the basis of the substantial matters relevant to his claim that are substantiated by the objective and unchallenged evidence.

16. [138]

    It appeared clear to me from the way that Robyn gave her evidence that she resented having been drawn into Neil's case and in a practical sense been forced to give evidence on his behalf.

17. [139]

    Robyn also clearly resented being challenged as to the truthfulness of her evidence concerning her relationship with Neil, and the suggestion that in reality she was lying and that she and Neil had always lived as a de facto married couple notwithstanding their protestations to the contrary. Robyn clearly took offence to the attack on her truthfulness, notwithstanding, it should be said, that counsel conducted the cross-examination in a polite and respectful way.

18. [140]

    Robyn's response to the cross-examination coloured the tone in which she gave her evidence, but it did not cause me to disbelieve her in respect of her evidence on the important issues.

19. [141]

    I accept the evidence of Neil and Robyn that they maintained their finances independently save to the extent that, for the sake of the maintenance of their mutually convenient relationship, they split MasterCard payments equally in order to avoid argument and recrimination.

20. [142]

    I accept their evidence that they lived separately under the one roof and that they did not have a relationship, following their separation, with the indicia of a de facto marriage.

21. [143]

    Neil and Robyn have been able to maintain over the years a relationship of convenience and practical interdependence given their limited incomes, their need for accommodation, and their desire to maintain their relationship with Nathan and their grandchildren.

22. [144]

    It is only human that, considering the length of the relationship, they have had a number of holidays together. Some of those holidays were examined in detail during the hearing, but I do not consider that it is necessary – or realistic – to make minute findings of fact concerning how Neil and Robyn conducted themselves during their holidays.

23. [145]

    Neil and Robyn did not hide the special nature of their relationship, or the fact that it was Robyn's intention to continue to provide the care and accommodation to Neil, that she has provided for many decades, into the future, as long as she is able to do so.

24. [146]

    There is no proper basis for insinuating that the relationship between Neil and Robyn is materially different to that which they have always disclosed in their evidence.

25. [147]

    The most significant consideration, in my view, is the need to put all of this evidence in a proper perspective. There is no basis to make a finding that Neil and Robyn have enjoyed any significant income, other than their respective pensions, since about 1995. That is borne out by the bank statements that are in evidence. There is no evidence that would justify a suggestion that, contrary to the evidence they have given, either Neil or Robyn have been in some gainful employment or that they have any entitlement to the receipt of income or assets that they have not disclosed.

26. [148]

    It is a matter of common knowledge that persons who are dependent for decades on Centrelink pensions do not become rich, unless they win the lottery.

27. [149]

    The principle that an applicant for family provision has the duty to satisfy the Court as to the financial resources of other persons who may share those resources with the applicant is an important one. But it is likely only to have significance when, on the evidence as a whole, the possibility is open that there may be significant, undisclosed resources that are properly material to the determination of the applicant's true financial position.

28. [150]

    In the present case, Robyn owns the house in which both she and Neil live separately, but in circumstances of the full extent of the cooperation that the evidence has disclosed. They have both been pensioners for about 25 years.

29. [151]

    There is no basis for the submission that the Court should decline to find that adequate provision for the proper maintenance of Neil was not made in Mrs Coote's will, because of some default in the provision of evidence by Neil that leaves open the possibility that the financial resources available to him are significantly greater than what he has acknowledged.

The family history and its relevance to the application

1. [152]

   As appears to be common in family provision applications, the parties' evidence covers the broad history of the Coote family.

2. [153]

   Measured against the fact that the chronology provided to the Court commenced with the birth of Mrs Coote on 4 December 1918, and noting that there is a relatively continuous record of supposedly relevant events from December 1956, the affidavits of the witnesses that have been read are relatively brief. This is especially so in light of the apparent expectation of the parties that the Court will make positive findings of fact concerning the truth of contrary assertions based upon a judicial process of believing one set of witnesses rather than the other, and consequently accepting what will often be no more than subjective distillations of recollections formulated decades after the relevant events.

3. [154]

   The well-known decision of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319, delivered in a more commercial context, demonstrates how difficult it is for parties to prove facts dependent upon recollection and oral conversations where there is no objective corroboration long after the event. His Honour said:

4. [155]

   The observation of Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94] that “the court must feel an actual persuasion” of the occurrence or existence of relevant facts demonstrates how unrealistic it may be for parties to expect that the Court will be able to solemnly make specific findings of contested fact about events distributed randomly through the decades of a particular family's history.

5. [156]

   It will often not be feasible for the Court to do more than make broad judgments about the probable occurrence of events and the existence of relationships that are material to the proper determination of the issues raised by a family provision application.

6. [157]

   In this case, Neil conceded readily in cross-examination that, when he spoke to Mrs Coote, he was sometimes very critical of her and that he would often complain about her conduct. [38]

7. [158]

   Neil began his evidence by saying: [39]

8. [159]

   In so far as he could realistically do it, Brian disagreed with this evidence [40] and asserted from his perspective that he and Neil were treated equally. Brian also cast doubt on the likelihood that his father apologised to Neil on the father's death bed by giving evidence of the father's circumstances in the last few weeks of his life. [41]

9. [160]

   Against this, Nathan was not challenged on the evidence that he gave [42] that, when Neil returned to Western Australia after Nathan's grandfather's funeral, Neil told Nathan that his grandfather had said to Neil: "I'm sorry for the way Mum and I treated you for all these years, please forgive me."

10. [161]

    I will accept that Neil had a genuine perception that his parents preferred Brian. The issue is in practical terms now an entirely subjective one as it is quite impossible for the Court to resolve the issue in a positive way as if there were adequate objective evidence available to do so.

11. [162]

    I accept that the evidence establishes that Brian was a good and dutiful son, who always maintained a positive and loving relationship with Mrs Coote, and that she reciprocated.

12. [163]

    Brian gave evidence, which I accept, that he devoted a relatively considerable time to provide physical assistance to his parents in relation to the maintenance of their properties, particularly having regard to the fact that, for most of the time Brian, resided a considerable distance away from his parents’ home. [43] It is not necessary to describe this work in detail. It would have contributed to the maintenance of the value of Mrs Coote's home, which was her primary asset.

13. [164]

    It is a fair conclusion that Neil did not provide the same level of help to his parents as Brian did. I accept that, while Neil was living in New South Wales between 1995 and 2013 or 2014, he occasionally assisted Mrs Coote by taking her to play cards with friends, and also from time to time mowed her lawn and did other work around the house. The evidence does not permit any precise findings concerning the nature and frequency of the assistance and the pastoral care that Neil provided to Mrs Coote.

14. [165]

    In cross-examination, [44] Neil conceded, somewhat begrudgingly, that his evidence concerning the work that he did on the upkeep of Mrs Coote's home was an exaggeration.

15. [166]

    This concession was in part obtained by a demonstration that Neil was so disabled by his back injury – having to spend much of his days in bed on a stretching machine – that his level of disability was inconsistent with him doing the work that he had claimed to do.

16. [167]

    Against this, there was no real challenge to Nathan's evidence [45] to the following effect:

17. [168]

    This evidence tends to show that, while it is probable that there was a disparity in the assistance to Mrs Coote given by her sons that favours Brian, Neil attempted to overcome his physical disability to some extent by providing assistance to Mrs Coote through the efforts of his son.

18. [169]

    A strange aspect of the evidence in this matter is that Neil and Robyn created an informal, running record of contact between Neil and Mrs Coote, apparently in response to Mrs Coote's complaints that Neil ignored her. [46] The notes made by Neil and Robyn [47] would provide a dubious record even if they were admissible to prove the fact of the communications between Neil and Mrs Coote. It appears that some of the records were made by Robyn when she claims she overheard telephone conversations between Neil and Mrs Coote. It is likely that some of the records were written up after the event. The notes purport to record contacts for the years 1998 to 2018, although by 2012, the notations are brief and descriptive.

19. [170]

    The notes present as a strange record and do not appear to be inherently reliable. I would not place significant weight upon them, even if they had been admitted into evidence without restriction. In particular, aspects of the notes appear to constitute reconstructions made after the event.

20. [171]

    The evidence as to the broad sweep of the history of the Coote family must be assessed in the light of the fact that on 17 December 2001, at the age of 83, Mrs Coote made a will in which she treated both of her sons equally. Whatever disappointment, if any, Mrs Coote may have had about her relationship with Neil up until that time did not affect her decision to treat Neil and Brian equally.

21. [172]

    Furthermore, whatever happened after that date, Mrs Coote was not moved to change her will to reduce Neil's inheritance to a mere legacy of $25,000 until 28 November 2013, when she was almost 95 years of age.

22. [173]

    The evidence does not demonstrate with any real clarity why Mrs Coote so dramatically changed her testamentary intentions. Nor does it show whether Mrs Coote had in mind when she prepared her final will the disparity in financial circumstances between her two sons, and the disadvantages from which Neil suffered because of his many disabilities.

23. [174]

    The evidence included a number of letters that Mrs Coote wrote to Brian concerning her attitude to Neil. In particular, Mrs Coote wrote a letter to Brian on 30 May 2011 that included: [48]

24. [175]

    Further, on 10 June 2012, Mrs Coote wrote to Brian saying: [49]

25. [176]

    While the sentiments expressed in these letters are material, it is a matter for speculation whether the matters discussed were instrumental in causing Mrs Coote to change her testamentary intentions so dramatically against Neil.

26. [177]

    In cross-examination, Neil denied that he took any painting from Mrs Coote without permission. [50]

27. [178]

    It would be problematic for the Court to make any determination as to the truth of what happened concerning the painting on the basis of the evidence that is available.

28. [179]

    It is possible that Neil's return to Western Australia, if that happened in 2013, was a trigger for Mrs Coote's displeasure towards him, although, as I observed above, there is uncertainty in the evidence about the year when Neil left New South Wales.

29. [180]

    I need only record that Brian's financial circumstances are sound and he has significant assets and an adequate source of income. [51] Brian's submissions included: "It is accepted that [Brian and his wife] are comfortably well off, although they are to a degree income poor". In the circumstances, there is no warrant for the Court to disclose the detail of Brian's assets and income.

Consideration

1. [181]

   Given the value of the assets that remain in Mrs Coote's estate, after allowing for the payment of legal costs, the resolution of this matter will not depend in any precise way on a comparison between the respective financial positions of Neil and Brian. In any event, the exercise of the Court's jurisdiction to make a family provision order does not in any way involve an exercise in comparing the financial circumstances of the beneficiaries and redistributing the estate in accordance with the Court's view as to what is a fair outcome.

2. [182]

   The estimated future financial needs of Neil are set out in his written case outline [52] as follows:

3. [183]

   I am satisfied that Neil has demonstrated, as required by s 59(1)(c) of the Act, that adequate provision for his proper maintenance, education and advancement in life was not made by Mrs Coote in her final will.

4. [184]

   In that respect, I consider a legacy of $25,000 out of an estate that had an initial value of about $500,000 was plainly inadequate, given Neil's demonstrated, long-term, multiple, and serious physical disabilities and the consequences of those disabilities for Neil's present financial position. That includes Neil's dependence upon his pension and the continuing forbearance of Robyn, and how he personally has no fund sufficient to alleviate the physical consequences of his disabilities and to provide adequately for him in the future.

5. [185]

   I consider that Neil's application satisfies the situation described by Hallen J in Anderson v Hill at par 135(c) and (f), where his Honour refers to the situation of an adult child who falls on hard times and where an adult child lacks reserves to meet demands, particularly of ill health, and where such a child lacks a fund to provide against the ordinary vicissitudes of life.

6. [186]

   I find that, while Neil has an expectation of receiving continuing accommodation and assistance from Robyn, albeit at her sufferance, the income of each of Neil and Robyn from their pensions is needed to service each of their needs.

7. [187]

   I have not ignored the evidence that each of Neil and Robyn have been able, particularly since the time when Nathan lost his employment, to divert part of their income for the benefit of Nathan and their grandchildren. That establishes that the pension incomes of Neil and Robyn are adequate to meet their daily needs and to provide a small surplus on a continuing basis.

8. [188]

   It also demonstrates that Neil has chosen to apply a significant part of his small surplus in providing for his family rather than preserving a fund to meet the future vicissitudes in life that he may encounter.

9. [189]

   Neil cannot expect Mrs Coote's estate to make good a fund that would have remained available to Neil that he has chosen to apply for the benefit of others, even though it may be thought admirable for Neil to have done so given the loss of employment of Nathan: see Anderson v Hill at 135(d).

10. [190]

    While the costs attributed by Neil to his future physical and financial needs may not be unreasonable in a general sense, they are somewhat arbitrary. I accept the submissions made by Brian [53] that there is insufficient assets in the estate to provide a fund for Neil for accommodation in addition to the other needs claimed by Neil that have been listed above.

11. [191]

    The reality is that the scope for the determination by the Court of the family provision that will be adequate and proper for Neil in the circumstances is substantially circumscribed by the value of the estate that will remain after the usual costs orders are made.

12. [192]

    The circumstances do not warrant the making of a family provision order in favour of Neil that would give him substantially all of the remaining assets in the estate.

13. [193]

    While I consider that Neil has demonstrated that he has physical and financial needs that justify the making of a family provision order under which he will get substantially more than the $25,000 legacy left to him under Mrs Coote's final will, it would not be appropriate for the Court to overturn the testamentary preference of Mrs Coote that would be necessary before the Court could make the family provision order sought by Neil.

14. [194]

    Constrained by the circumstances, the best that the Court can do is to make a family provision order that will provide Neil with an additional fund that should assist him in the future depending upon the contingencies that may arise.

15. [195]

    I will make an order that Neil receive a legacy of $100,000 in total (i.e. inclusive of the $25,000 of the legacy that he has already been paid).

16. [196]

    A legacy in that amount would have constituted about 20% of Mrs Coote's estate, had it been able to be made without the diminution of the estate that has now been caused by the parties' legal costs.

17. [197]

    I will also make the usual orders that Neil's costs be paid out of the estate on the ordinary basis and that Brian's costs, as executor, be paid on the indemnity basis.

18. [198]

    The orders of the Court therefore are:

    1. (1)

       Having found that the plaintiff is an eligible person, that the proceedings were commenced within time, and that the provision made to him pursuant to the operation of the rules of intestacy is inadequate for his proper maintenance or advancement in life, order that he receive, by way of provision, out of the estate of the deceased, a lump sum of $100,000 in total.

    2. (2)

       Order that no interest is to be paid on the lump sum, if it is paid within 28 days of the date of this judgment, otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.

    3. (3)

       Order that the plaintiff’s costs, calculated on the ordinary basis, of the proceedings, be paid out of the estate of the deceased.

    4. (4)

       Order that the defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.