Cowap v Cowap

The plaintiff, Nicholas Cowap (referred to throughout these proceedings as "Nick"), sues out of time for provision from the estate of his late adoptive father (the "deceased"). Without disrespect, I will refer to the various family members by their given names.

The deceased left his estate to the defendant, Nick's mother ("Barbara"). Barbara is 90 years old. Nick, now 64 years old, is the child of Barbara's first marriage, which ended with the death of her husband in a plane accident. Nick has five adult half-siblings, being the children of the marriage between Barbara and the deceased.

The deceased died on 11 December 2015, having enjoyed a happy marriage of 57 years with Barbara. By his will made on 10 August 2012 (the "Will") he left his entire estate to her. However, excluding a few hundred dollars, the deceased's assets (including the family home and property where they had lived since 1987) were held with Barbara as joint tenants, so that they did not fall into his estate and she succeeded to them by survivorship.

At the date of the deceased's death, Nick was in good health after a career which included being a ski instructor and a businessman. These proceedings have their origin in the sad fact that Nick suffered serious heart attacks on 26 May and 1 June 2016, only six months after the deceased had died. After several weeks in a coma and many months in hospital, Nick has been left with numerous significant disabilities which mean that he cannot look after himself and, among other things, must use a wheelchair because it is difficult for him to walk any distance unaided.

Nick has no assets. His only income is his disability pension and the benefits to which he is entitled under the NDIS scheme. He is currently cared for by his former de facto partner, Tatjana, with whom he has one child, Isabella. Isabella is now a 20 year old university student.

Nick filed his summons on 15 December 2017, just over one year out of time. To bring his application Nick must, therefore, show "sufficient cause" for the Court to otherwise order, pursuant to s 58(2) of the Succession Act 2006 NSW (the “Act").

Several critical matters were uncontroversial. Nick is an eligible person under the Act. Other than Barbara, no eligible person has put their circumstances in issue. Importantly, it was also common ground that, if the Court was to order any provision for Nick, it would have to designate notional estate from the assets which the deceased had held with Barbara as joint tenant. These were:

Nick seeks provision of $600,000 to enable him to build a modular kit home ($270,000), land ($250,000), a car ($20,000) and an amount for contingencies ($60,000). Barbara opposes Nick's application.

Reduced to essentials, these proceedings engage two familiar considerations of moral duty in family provision matters which must not be elevated to inflexible rules and are subject to the particular circumstances of each case: Steinmetz v Shannon [2019] NSWCA 114 at [37] per White JA; [98] – [109] per Brereton JA; and [151] per Simpson AJA. On the one hand there is the obligation of a husband, particularly after a long and happy marriage, to make adequate provision for his widow: Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70. On the other hand, there is the moral duty of a parent of an adult child who has fallen on hard times (especially where they are not of the child's own making) to make, where possible, some provision for that child: Taylor v Farrugia [2009] NSWSC 801 at [57]-[58]; Camernik v Reholc [2012] NSWSC 1537 at [159].

The proceedings have been conducted on the basis that an order for provision of the amount sought by Nick will require the Property to be sold. Whether, in fact, that becomes necessary is not a matter for the Court. However, I have approached the exercise of the Court’s discretion accordingly. Barbara, for understandable reasons to which the Court gives the greatest of respect, does not want to leave the Property and at the moment is undoubtedly able to live there with minimal assistance. On the other hand, Nick's needs are real and pressing.

The Court is satisfied that Nick is entitled to the provision which he seeks. In summary, he has demonstrated:

The Court's reasons for this overall conclusion may be summarised as:

Ms J Treherne of Counsel appeared for Nick. Ms M Pringle of Counsel appeared with Ms A Djukanovic of Counsel for Barbara. The Court is grateful for their detailed written and oral submissions which have enabled the matter to be disposed of by ex tempore reasons. The circumstances of this case, including Nick's need for assistance and Barbara's age, warrant the provision of reasons immediately upon the conclusion of the hearing.

Nick is now 64 years of age. There was no dispute that he suffers from the following health disabilities as a result of his two heart attacks:

He lives in accommodation rented by Tatjana and owns no real property. Isabella also lives with Nick and Tatjana. Nick gave evidence (which was not challenged) that his only bank account currently has $53 in it. He owes an amount of $95,000 to his brother Simon and Simon’s wife, but there is no suggestion that the amount is presently being demanded for payment. Nick receives a disability pension of $754.70 per fortnight. He is also entitled to NDIS funding which covers a number of medical and related expenses and provides him with a small cash payment in respect of transport. He covers his living expenses with the benefit of Tatjana's income (as to which see paragraphs [22] to [23] below).

He is potentially the beneficiary (after some minor payments to grandchildren) of one-sixth of Barbara's estate under her current will.

Before leaving Nick's circumstances it is necessary that I say something about his evidence given in the proceedings as to his need for provision. In his affidavit affirmed on 25 July 2019 he said:

He also gave this evidence in answer to some questions I asked him (T47:47 – T49:5):

I accept Ms Treherne's submission that the evidence to which I have just referred is not to be understood as a limitation on the amount which she submitted Nick should receive by way of provision. In fairness to Nick, when asked the question as to what he wanted, he replied that he did not really know and that he would need to talk to his lawyers. That answer, as Ms Treherne submitted, is consistent with the unchallenged evidence as to his cognitive disabilities, including short-term memory issues.

I took Nick's position ultimately to be that he really did not want to have to be suing his mother at all and did not wish to bring about a situation that his mother might have to leave the Property but, nevertheless, he felt that he had no alternative. I have approached the matter on the basis that Ms Treherne submitted consistently that the amount of provision which was appropriate to be made for Nick in all the circumstances was $600,000.

In support of her submission there was evidence, which was not contradicted or challenged, as to the costs of the items which he submitted should make up his provision (see paragraph [8] above). In all the circumstances, an amount of $60,000 for contingencies also seems to me to be appropriate.

Tatjana receives a carer’s pension of $739.70 per fortnight in respect of Nick. Ms Pringle made criticism in final submissions of the adequacy of Tatjana’s disclosure of her financial circumstances. It is true that some material only came during the course of the hearing. Nevertheless, the evidence does enable her circumstances to be determined, along with those of Nick.

In addition to her carer’s pension, the evidence discloses that she undertakes cleaning work which (averaged over the last three months) brings in approximately $265 per week and that she makes jewellery which (averaged over the last three months) yields approximately $100 per week. In relation to the jewellery there was also evidence that the cost of goods to manufacture the jewellery was $243.45 over a three month period, and that she also incurred costs of $70 per month in relation to fees for internet and related costs in running her jewellery business.

Tatjana owns no real property. In addition to the income to which I have just referred, she also has a bank account containing her own savings which has a current balance of $49,349.82. That account primarily comprises compensation she received of approximately $30,000 for a slip and fall accident in a supermarket, $6,000 she received for compensation in an injury at work, a gift of approximately €3,000 from her mother, and two tax refunds.

Insofar as the conduct of her and Nick’s financial affairs is concerned, she operates a separate bank account, statements for which were in evidence, which contains Nick’s pension and other payments and the carer’s pension which she receives (“Nick’s account”). She gave evidence, and this is borne out by entries in the statements for Nick’s account and her own savings account, that from time to time she supplements Nick’s account as required to meet their living expenses by transferring funds from her savings account. As at 9 August 2019 the evidence is that the balance in Nick’s account was $180.00, and an examination of that account over a period of time supports the conclusion, which I draw, that Nick and Tatjana are just able to cover their living expenses and nothing more.

To their credit, counsel contacted the case on the basis that, with one minor exception, none of the dispositive facts in this case were seriously in dispute. The one minor exception was whether or not Tatjana was more than just a carer now for Nick and that she was, as Ms Pringle submitted, still Nick’s de facto partner. There was no dispute that Tatjana cared for and, to the small extent to which I have just referred, provided additional financial support to Nick and that they were cohabiting within the meaning of s 60(2)(e) of the Act.

For the disposition of these proceedings it does not matter whether Tatjana is in fact still Nick’s de facto partner. But, should it be necessary for some purpose to have made a finding on that question, I accept the evidence of Nick, Tatjana and Isabella that the relationship between Tatjana and Nick is now that of carer and recipient of care, and does not have the incidents of being a couple. As Tatjana said in her evidence - and I accept - simply caring for someone and cooking meals and the like does not make them a couple.

I accept that not long before Nick’s heart attacks their relationship as de facto partners, which had commenced in 1997, had come to an end, but that they were continuing to cohabit because of their mutual love for Isabella and their desire to continue to be involved in her life as her parents. The event of Nick’s heart attacks took over or superseded what might otherwise have been consequences that would have flowed from the end of their de facto relationship.

It reflects very well on Tatjana that she has stayed on as Nick’s carer. It was apparent from her evidence that she has done so for reasons which reflect her desire to continue to be there for their daughter and to support Nick in Isabella’s interest, and because, perhaps above all else, she could see no acceptable alternative for Nick if she did not stay to care for him.

There was evidence that at the time of Nick’s proposed discharge from hospital, thought was given to possibilities for Nick’s future which included the possibility of nursing home care if no one else would look after him. It is no criticism of his half siblings and his mother that they had indicated that whilst they were prepared to provide some degree of financial support (in fact they had contributed about $10,000 to his ongoing needs during his illness) there were limits to what they would do. On 18 January 2017, Simon sent this email to Tatjana, copied to other family members:

For the purposes of this application, the Court concludes that Tatjana is Nick’s carer and that she is remaining in that position because alternatives such as a nursing home for Nick are deeply unpalatable to her.

In reaching this conclusion, I have not overlooked the evidence relied upon by Ms Pringle which consisted of various notes and letters written by medical professionals during the time of Nick’s extensive hospitalisation after his heart attacks. There are a number of references in that correspondence to Tatjana as Nick’s wife or partner or de facto, but none of those documents are actually Nick’s or Tatjana’s documents. I accept Nick and Tatjana’s evidence that they never described Tatjana as Nick’s wife but that, for simplicity’s sake, they would from time to time acquiesce in Tatjana being described as Nick’s de facto or partner. Tatjana readily acknowledged that on hospital documents she was listed as Nick’s next of kin.

Those entries are not in and of themselves conclusive of any particular status in the nature of partner or spouse. I accept that in the exigent circumstances in which they found themselves dealing with medical and related professionals, those people would often apply a description that was administratively simple rather than try to understand the ins and outs of the particular relationship. Human relationships are not always susceptible to precise descriptions.

In any event, the Court must look at the question as at the date of the hearing. While I have taken into account the material to which Ms Pringle referred, I am well satisfied that Nick’s, Tatjana’s and Isabella’s evidence demonstrates on the balance of probabilities that while Nick and Tatjana were once de facto partners, they are no longer such.

Isabella is a 20 year old university student. She makes pocket money coaching basketball but is in no position to make financial contributions to assist her father. It was not seriously contested that she is anything other than a dependent in the household in which she lives with Nick and Tatjana, who still support her as their daughter.

Barbara is 90 years old. There was no specific evidence directed towards her health. There was evidence that she has been assessed by ACAT as eligible to receive some relatively minor domestic assistance. Listening to her give her evidence I quickly formed the impression that she is a formidable and resolute woman. She is determined, understandably, to stay on the Property. I will say something more about the Property in a moment, but I record with some admiration (given the Property is in the Canberra district) that she had only recently installed air-conditioning to heat and cool the house on the Property, because before then she had not really felt the cold.

Barbara’s assets (excluding the question of notional estate) currently comprise:

Her affidavit evidence recorded fortnightly income of $2,364.04 and fortnightly expenditure $1,502.22, leaving a fortnightly surplus of $861.82. Barbara said that she and the deceased had always lived frugally and that she continued to do so.

Barbara has three sources of regular income. First, she has an Australian pension of currently $520 per fortnight (compared to $478 as deposed in her affidavit evidence). Second, she enjoys a widow’s pension from the United Kingdom Government consequent upon the deceased’s colonial service in Africa. That pension is paid in pounds and hence fluctuates with the exchange rate. The latest evidence is that it yields $900 per fortnight (compared to $740 per fortnight in her affidavit). She also receives fortnightly income from the share portfolio of approximately $543. Given the higher figures than those to which she has deposed, and allowing for currency fluctuations, the Court concludes Barbara’s fortnightly surplus is approximately $1,000 per fortnight.

The Property is approximately 56 hectares and is about half an hour’s drive north of Canberra. It comprises a four bedroom 1960s weatherboard country house. It is not sewered and uses a septic tank, and water is provided from a tank. There is what Barbara described as an “unreliable” landline which provides telephone and internet. The house is in a “blackspot” for mobile telephone reception. The uncontradicted evidence was that if Barbara required an ambulance, it would take at least 20 minutes to come if it were able to be called. The Property is between 30 and 60 minutes by road (and depending, of course, on traffic) from different parts of Canberra, where two of Barbara’s adult daughters live.

A matter to which the Court has given anxious consideration is both the clear intention of the deceased that Barbara should enjoy the rest of her years living in the Property (on which they had lived since 1987 and on which they had jointly built what was described as a beautiful garden and other amenities) and also Barbara’s own strongly expressed desire to remain on the Property. She gave the following evidence in the witness box when shown, by way of example, houses in the Canberra suburb of Bonner of a type into which it was suggested she could move (T148:8-14):

I have given close attention and as much weight as I consider to be appropriate in all the circumstances to Barbara’s evidence that she does not want to leave the Property.

The evidence is that Nick’s party/party legal costs up to and including the hearing are $58,173 payable to two firms of solicitors on a no-win no-fee basis. There is no uplift for success. Barbara’s costs on the indemnity basis are $88,750.

Section 58 of the Act provides:

These proceedings were commenced by Nick just over a year out of time. However, as Ms Pringle entirely properly conceded, there had been no prejudice to her client by the delay and there was no suggestion in the evidence that either Nick or Tatjana knew that there was a time limitation involved in bringing proceedings under the Act. While Barbara opposed the granting of an extension of time for the commencement of the proceedings, Ms Pringle acknowledged that Nick’s medical and other circumstances during the period that time was running and thereafter could be considered by the Court as sufficient cause to order otherwise for the purposes of s 58. That acknowledgment was entirely prescient.

During the period that the one year limitation period expired Nick was still in hospital, being discharged in March 2017. Thereafter he was recovering but still suffering (on the unchallenged evidence) from cognitive and other deficits that made it difficult for him to make decisions or give instructions. The evidence also demonstrates that for some months after his discharge, Nick was in discussion with his family about whether some arrangements could be reached in relation to his care and accommodation.

I accept the evidence that Tatjana made contact with two firms of solicitors. One firm would not accept instructions from her because she did not hold a power of attorney for Nick. The other firm told her that the size of the estate was below the value for which that firm was prepared to act on a no-win no-fee basis. There was certainly no evidence that either of those firms were told any details about the estate or that either of them alerted Tatjana that time was running.

In my respectful opinion, this is a clear case where sufficient cause has been shown for why the proceedings have been commenced out of time and the Court will otherwise order to regularise the position.

The legal principles in relation to this question are well settled. I respectfully adopt what was said by Hallen J in Jodell v Woods [2017] NSWSC 143:

I also respectfully adopt what was said by Ward CJ in Eq in Grant v Roberts, Smith v Smith, Roberts v Smith, Curtis v Smith [2019] NSWSC 843:

In undertaking the evaluative exercise to determine whether adequate provision was made for Nick by the Will, the starting point is that no provision was made for Nick. Recalling that this question must be answered as at the date of hearing, I accept Ms Treherne’s submission that this is a clear case where adequate provision has not been made. So much is apparent, as a starting point, from Nick’s health and financial circumstances as I have recorded them in paragraphs [14] and [15] above.

Nevertheless, I have not overlooked that the assessment at this stage of the enquiry is not simply confined to a financial one. The deceased’s estate (taking into account notional estate, as the parties agree one must for the purposes of this case) was of a size that some degree of provision could have been made for Nick, which would still have left adequate provision for Barbara. Barbara herself acknowledged that if the deceased had lived to have seen the disabilities which have been visited on Nick, he would have wanted to have done something for Nick while also still looking after Barbara.

So much was also demonstrated by the fact that during the deceased’s life he and Barbara did provide financial assistance from time to time to Nick. The deceased was a meticulous record keeper, including preparing a document entitled “Nick and money matters”. This recorded loans to Nick as at May 2013 (excluding interest) of $13,793.75 together with the notation “I am not expecting you to pay anything. Just to let you know the position. Dad.”. However, given Nick’s current circumstances including that his health issues all arose after the deceased’s death, this is not a case where the provision of financial assistance to Nick by the deceased during the latter’s lifetime counts against the conclusion that adequate provision has not been made for Nick in the Will.

I will briefly make some observations by reference to the considerations in s 60(2) of the Act:

[Paragraph (a)]. There was no dispute that Nick and his father enjoyed a close, happy relationship. The evidence permits the Court to conclude that the entire family including all the siblings enjoyed good relationships with both the deceased and Barbara.

[Paragraph (b)]. As I have already observed, this is a case where a parent, where able, would be taken to have some obligation to support an adult child who has fallen into difficulties, particularly with not of that child’s making. No other eligible person has put their affairs in issue. Barbara is the only other person whose situation the Court has to take into account.

[Paragraph (c)]. Taking into account the possible notional estate, I am satisfied for reasons which I will set out further below that the estate is of a sufficient size to make adequate provision for Nick while also leaving proper provision for Barbara.

[Paragraph (d).] I have set out Nick’s (and to the extent relevant Tatjana’s) financial circumstances in paragraphs [14], [15] and [22] to [25] above. It is not disputed that he will never work again. It is clear enough that he needs secure accommodation which is suitable to his needs as a disabled person. He is able to drive and the evidence discloses that it was a matter of some pride to Nick when he was told he would be allowed to drive again. The provision of a suitable car as a matter of independence and personal dignity seems to me to be appropriate. He will need funds to buy such a car. There was no dispute about the likely cost of a suitable kit home and a property in an area in the country where Nick wanted to live.

[Paragraph (e)]. I have taken into account Tatjana's financial circumstances as they are set out above. Her finances are totally devoted to maintaining herself, Nick and Isabella.

[Paragraph (f)]. I have set out Nick's various disabilities in paragraph [14] above. They are the principal reason why this application has been brought and demonstrate a serious and permanent need.

[Paragraph (g)]. Nick is 64.

[Paragraph (h)]. It was common ground that Nick had made no contribution to the acquisition of the assets which are the subject of these proceedings. There was an acknowledgement that Nick, like all family members when they visited the Property, would do some work on the Property.

To that extent it might be said that he has made a contribution, when he was able, to the conservation and improvement of the Property. However, I accept that, in and of itself, is unlikely to have been significant in the long term. It was, as Barbara said, no more and no less than what dutiful children would do on visiting her at the Property. However, because of Nick's current financial and medical circumstances, this is not a case where the fact that he has not contributed to the acquisition of the assets the subject of the proceedings should count against him.

[Paragraph (i)]. I have taken account of the evidence that there was financial assistance provided from time to time to Nick by the deceased (see paragraph [53] above).

[Paragraph (j)]. The testamentary intentions of the deceased were not in controversy. It is clear that, if she survived him, the deceased wanted Barbara to receive all of their joint assets and to continue to occupy the Property.

[Paragraph (k)]. There is no other person liable to support Nick. Tatjana is there to be his carer. However, I accept Ms Treherne’s submission that, in the long term, there is no guarantee she will continue to undertake that role.

[Paragraph (l)]. There is no adverse issue concerning Nick's conduct or that of any other person.

Subject to the issues surrounding the designation of notional estate, that brings me to an explanation of the appropriate amount of provision. That requires the Court to consider the value and composition of the estate available and the competing claims upon it. In this case that means balancing Barbara's and Nick's respective moral claims to the testamentary bounty of the deceased.

Based on the unchallenged amounts set out in paragraph [8] above, I accept that the amount of $600,000 to provide Nick with the resources to acquire a home and transport and to have a fund for contingencies is the appropriate provision which the Court ought to make for his maintenance and, such as it might be, advancement in life. When weighing their competing claims, I am fortified in that outcome because the evidence supports the fact that Barbara, if such an amount is provided to Nick, will still have adequate funds (even if the Property must be sold) both to continue to receive income not significantly different to that which she currently receives and to acquire a suitable home.

Insofar as the question of income is concerned, the order which the Court proposes to make will not deprive her of either of the pensions to which I have referred in paragraph [39] above. I propose to designate half of those shares which were jointly held by Barbara and the deceased as notional estate. The value of those shares is approximately $100,000. Looked at as a matter of proportion, they provide approximately a quarter of the fortnightly income of $543 which Barbara receives from the share portfolio ($135). Designating them as notional estate for the benefit of Nick will therefore reduce Barbara’s surplus fortnightly income (see paragraph [39] above) to $865. In other words, the diminution in her income by the designation of those shares is still less than her surplus of income over expenditure.

In relation to accommodation, I propose to designate so much of the half interest that was held as a joint tenant by the deceased in the Property as will make up the further provision of $600,000 (so approximately $500,000). If this necessitates the sale of the Property then, on the evidence before me, Barbara will still be left with approximately $700,000 (being $1.35 million less the $500,000, less her and Nick’s legal fees of $146,923 (see paragraph [43] above).

There was evidence that a three bedroom house in the suburb of Bonner in Canberra could be bought for $490,000. I accept Barbara's evidence that particular house was of a kind and in an area that she would not wish to live (see paragraph [41] above), but I infer from the evidence about the house in Bonner that an amount of $700,000 will be sufficient to purchase a house for Barbara in the Canberra area suitable for her needs.

I take into account Barbara's entirely understandable wish to have somewhere that is perhaps not enclosed completely by suburbia and which has a garden. I accept that it will be different, both in size and quality, from the Property which she loves. Nevertheless, the evidence permits me to conclude that such a new property would be available to her if she has $700,000 to spend, especially if on the outskirts of Canberra (and hence unlikely to be more expensive than a similar property in the suburbs), which might provide more of a country feel.

In reaching this conclusion, I accept Ms Treherne's submission that it is inevitable that at some point Barbara will have to leave the Property. It is unnecessary to speculate, and that is all it would be, what the reasons for that might be and when that might occur, but such a departure is inevitable. In my respectful opinion, and giving full weight to Barbara's desire to remain in the Property, in circumstances where she will eventually have to leave whereas the Property can be made immediately available to assist Nick, it is the latter purpose that should be preferred. When that is combined with the considerations I have set out in paragraph [70] above to the effect that Barbara’s income would be minimally altered if the Property must be sold, in my respectful view all of that supports the conclusion that the appropriate exercise of the Court’s discretion is to make provision in the figure of $600,000 proposed on behalf of Nick.

There was no dispute that Barbara's succession to the jointly held assets constituted a relevant property transaction for the purposes of the Act. The argument focused on whether the other prerequisites and protections in relation to the making of notional estate orders had been satisfied.

In relation to s 78(1) of the Act, the order which I propose to make is to be made for the purposes of a family provision order under Part 3.2 of the Act.

For the purposes of s 80 of the Act, there was no dispute that the estate had been affected by a relevant property transaction.

For the purposes of s 83 of the Act, I am satisfied that the relevant property transaction (being Barbara's acquisition by survivorship of the assets jointly held with the deceased) relevantly disadvantaged Nick because they would otherwise have been available for the purposes of a family provision order.

Section 87 of the Act provides:

As I have already said, I have given anxious consideration to the importance of not interfering with Barbara's reasonable expectations in relation to the Property. I have set out my reasons why this is a case where, even if great weight is given to her expectations and desires, they do not outweigh Nick's need for assistance. The reasoning I have set out in paragraphs [54] to [74] above addresses the substantial justice and merits involved in this case. I am satisfied that the order can be made in a way which will adequately provide for both Nick and Barbara. Refusing the order will mean that Nick is left without resources of his own to assure his future.

For the purposes of s 88 of the Act, there was no dispute that this was an estate that would otherwise be insufficient for the making of a family provision order should the Court decide to make one.

For the purposes of s 89 of the Act, I have taken into account the value and nature of the property that is available. There was no dispute between the parties that it could only comprise the shares, the Property and the cash at bank which I have listed in paragraph [37] above. I propose to designate only so much of the shares and the Property as will allow the provision of $600,000 to be made. That will be a matter for the form of orders to be brought in to give effect to these reasons.

Finally, it is necessary to consider s 90 of the Act: This provides:

The parties accepted that the central issue in this aspect of the proceedings was whether Nick had demonstrated special circumstances for the purposes of s 90(2)(b). In Underwood v Gaudron [2014] NSWSC 1055 Hallen J summarised the principles in relation to special circumstances (and this statement was not the subject of the subsequent appeal in that case):

Ms Pringle submitted that most applications which had successfully demonstrated special circumstances had turned on factors which included the claimant's contributions to the acquisition of the estate assets. However, in the exercise of the Court's discretion, the strength of Nick’s case for provision means this is not a case where the fact that Nick has not contributed to those assets should disentitle him from satisfying the requirement of special circumstances. Nor does it matter that he has, from time to time, already received financial assistance both from the deceased during the deceased's lifetime and from other family members.

Ms Pringle submitted that the circumstances of this case were not, within the meaning of the authorities, "sufficiently special" to displace what clearly were (as the Court accepts) the deceased's testamentary intentions and Barbara's deeply held wish not to leave the Property.

Accepting, as the Court does, that the test of special circumstances is a higher hurdle than that for an extension of time, I accept Ms Treherne's submission that Nick's circumstances in this case constitute special circumstances for the purposes of the Act. As Ms Pringle realistically recognised, this was a case where the hurdle in relation to an extension of time was likely to be relatively easily overcome.

When Nick's health and financial circumstances are taken into account, which in and of themselves gave him a strong case for provision from the estate, and the fact that the events which have given rise to his current circumstances took place after the deceased's death, the Court is satisfied that all of these together constitute special circumstances which justify the making of an order designating notional estate. If an analogy with previous cases of special circumstances is required, it is with a plaintiff suffering incapacity.

I will give the parties an opportunity to bring in short minutes of order to give effect to these reasons and, if able to be agreed, as to costs.