Re Estate Bohar; Bockos v Bohar

For determination in this judgment is an application (under Chapter 3 of the Succession Act 2006 NSW) by an adult granddaughter for a family provision order in respect of the estate or notional estate of her deceased maternal grandmother.

The plaintiff’s application was made within the time limited by section 58(2) of the Succession Act 2006.

Because the deceased’s estate has been distributed to the three beneficiaries entitled under her will (the three defendants), the plaintiff seeks an order (made by reference to sections 63(3), 63(5), 79, 87-88 and 93-94 of the Succession Act) for designation of the distributed funds as notional estate of the deceased.

The jurisdiction of the Court to make such an order is acknowledged by the defendants who nevertheless draw to the Court’s attention the provisions of section 87 which require the Court to refrain from making “a notional estate order” unless it has considered the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits involved in making or refusing to make the order, as well as other matters it may consider relevant.

In their particular factual matrix, these proceedings focus attention on the legislation (and “guideline” principles informing an exercise of the jurisdiction of the Court to make evaluative judgements under that legislation) in the determination of an application by an adult granddaughter from her maternal grandmother’s estate or notional estate.

Some, but not all, grandchildren of a deceased person are eligible to apply (under Chapter 3 of the Succession Act) for a family provision order in respect of the estate, or notional estate, of the deceased. The standing of a grandchild to apply for a family provision order is governed by section 57(1)(e) of the Act, which is in the following terms:

There is no age limit placed upon a grandchild making an application for a family provision order.

The standing of a grandchild depends upon proof that he or she was, at a particular time, “wholly or partly dependent on the deceased person”. The fact of “dependency” might be informed by whether or not the grandchild was, at some time, “a member of the household” of the deceased, but proof of membership of the deceased’s household was not enough. What is required is proof of a relationship of dependency.

In Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [52] Hallen AsJ made the following observations, which I adopt:

In Ball v Newey (1988) 13 NSWLR 489 at 491B Samuels JA (with whom Hope JA agreed) wrote:

In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346B, Hope AJA (with whom Clarke and Sheller JJA agreed) wrote:

In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223, Palmer J wrote:

In Skinner v Frappell [2008] NSWCA 296 at [85] Young CJ in Eq (with whom Campbell JA agreed) wrote:

The expression “partly dependent” in the definition of “eligible person” is a word of some elasticity; in its context, it does not necessarily mean “substantially”; rather it suggests the meaning of “more than minimally” or, perhaps, “significantly”: McKenzie v Baddeley [1991] NSWCA 197 at page 4 (lines 7-12) per Priestley JA, with whom Hope AJA agreed.

In the same case, Meagher JA (at page 6, lines 15-20) put the proposition thus: “Common sense requires that certain trivial activities should be disregarded, even if they literally come” within a statement of principles about what constitutes dependency.

In his statement of general principle, Meagher JA (at pages 5-6) drew support from a judgment of Gibbs J in Aafjes v Kearney (1976) 180 CLR 199 at 208:

In addition to a requirement that there has been a relationship of dependency, a separate but perhaps overlapping requirement for a grandchild who applies for a family provision order is that he or she must prove that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of [the plaintiff’s] application for a family provision order: Succession Act, section 59(b).

Conventionally, “factors warranting” are taken to be factors which, when added to facts which render the plaintiff an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased: Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241.

If a plaintiff grandchild satisfies the Court that there are “factors warranting” his or her application for a family provision order, he or she must then satisfy the Court that “at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of [the plaintiff] has not been made by the will of the deceased person [in a case in which the deceased has died leaving a will]”: Succession Act, section 59(1)(c).

The concepts of “adequate” and “proper” embedded in section 59(1)(c) must be understood as relative to the facts of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19. As generally understood, “adequate” is a word concerned with quantum whereas “proper” is a word directed to a standard of maintenance, education and advancement in life. Both words focus attention on the circumstances of the particular case viewed from the perspective of the deceased and contemporary community standards.

If the Court is satisfied that there are “factors warranting” (section 59(1)(b)) and that the plaintiff grandchild has been left “without adequate provision” (section 59(1)(c)), section 59(2) provides that the Court may make “such order for provision out of the estate [or, by virtue of section 63(5) of the Succession Act] the notional estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life” of the plaintiff, having regard to the facts known to the Court at the time the order is made.

Upon a consideration of section 59(1)(c) and upon an exercise of the power for which section 59(2) provides, the Court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating him or her as wise and just rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 479-479; Scales Case (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1918) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and generally consulting specific statutory criteria referred to in section 60(2) of the Succession Act so far as they may be material.

At each stage of the decision making process (when considering the existence of “factors warranting”, the “adequacy” of provision made and a grant of discretionary relief) the Court is required to have regard to prevailing community standards of what is right and appropriate at the time of the Court’s order: Andrew v Andrew (2012) 81 NSWLR 656 at [16]; Chapple v Wilcox (2014) 87 NSWLR 646 at [20]-[22] and [150].

In Chapple v Wilcox (2014) 87 NSWLR 646 at [17]-[23], [65]-[67] and [150] the Court of Appeal approved Hallen AsJ’s summary of guidelines, as indicative of current community standards, for the assessment of family provision claims made by grandchildren in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113]:

As Hallen AsJ and the Court of Appeal emphasised, these “guideline” principles cannot properly be treated as rules of law. The Court’s jurisdiction is governed by legislation, unconstrained by principles drawn from decisions on similar facts in other cases. They merely provide useful assistance in considering the legislative provisions which the Court is bound to apply, recognising that family provision cases are inherently fact-sensitive.

In approving Hallen AsJ’s “guidelines” relating to family provision claims by grandchildren, the Court of Appeal (at Chapple v Wilcox (2014) 87 NSWLR 646 at [21] and [150]) also observed that guideline principles summarised by his Honour in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], as set out hereunder, “inform the correct approach to a claim by an adult grandchild”:

In Chapple v Wilcox (2014) 87 NSWLR 646 at [14] Basten JA (with whom Gleeson JA agreed) made the following observations which may also have particular resonance in the current proceedings:

Margaret Bohar (“the deceased”) died on 27 September 2019, aged 97 years, leaving a will dated 3 December 2014 and a codicil dated 21 October 2015, probate of which was on 12 December 2019 granted to her daughter Erika (the first defendant), the executrix named in the will.

At the time of her death the deceased was the registered proprietor of her residence in Castle Street, Castle Hill (“the Castle Hill Property”). She held that property on trust for the first defendant (as to a 10% interest) and herself (as to a 90% interest) pursuant to a deed dated 22 October 2015 made between herself and the first defendant.

The deceased’s 90% interest in the Castle Hill Property was, at the time of her death, her only substantial asset, apart from a nominal credit in a bank account. She died without liabilities.

The provenance of the deed is as stated in the preamble to the deed:

No challenge has been made to the validity of the deed. The deceased’s estate has been administered to date in a manner consistent with the terms of the deed.

Evidence of the first defendant is that the sum of $104,500 referred to in the deed was selected simply to represent one tenth of the value of the Property at the time the deed was made. She says that her actual contribution to renovation of the Property was well in excess of that amount. She says she has retained receipts for $115,878 spent on the renovations, in consultation with the deceased, but, she says, she spent another $50,000 or so for which she does not presently hold receipts.

The arrangement for the first defendant to assume the role of companion and carer for the deceased coincided, more or less, with the first defendant’s retirement from paid employment and sale of her own residence at St Helen’s Park.

Following the death of the deceased, the Castle Hill Property was sold. 10% of the net proceeds of sale were paid to the first defendant in her personal capacity. The remaining 90% was retained as the estate’s principal asset. The sale was settled on 13 May 2020. The sale price was $2,183,000. After adjustments on sale, and a payment to the first defendant of her 10%, the estate received from the sale $1,935,196.72.

In substance, the deceased’s will dated 3 December 2014 provided for her estate to be divided between:

The will provided that: (a) should the first defendant predecease the deceased, her share would pass to her daughters, Simone and Michelle; and (b) should the second defendant predecease her, the second defendant’s share would pass to her children, the third defendant, Eva and the plaintiff.

The parties invite the Court to disregard the terms of the codicil. It provided, inter alia, for the first defendant to be paid 10% of the estate’s share of the net proceeds of sale of the Castle Hill Property before division of the deceased’s residuary estate between the three defendants. Having received her share of the net proceeds of sale independently of the deceased’s will, the first defendant disclaimed the gift to her made in the codicil. The terms of the codicil can be disregarded.

On 20 December 2019 the first defendant, in her capacity as executrix of the deceased, published a formal “notice of intent of distribution of estate”, calling for any claims on the estate to be made within 30 days from publication of the notice.

In May or June 2020, after payment of testamentary expenses, the solicitor for the first defendant, by way of a “final distribution” of estate funds (totalling $1,918,083.69) then held, paid to:

The first and third defendants received their distributions on or about 15 May 2020, before the plaintiff’s solicitors on 28 May 2020 advised the solicitors for the first defendant of their client’s intention to make a family provision application.

There was an administrative delay in payment of the second defendant’s distribution. By a letter dated 2 June 2020, the plaintiff’s solicitors consented to the second defendant receiving her distribution, without prejudice to the plaintiff’s family provision claim.

The plaintiff made her application for a family provision order by a summons filed on 2 June 2020 (since amended to accommodate joinder of the second and third defendants), more than three months before the time limited by section 58 of the Succession Act for any such application to be made.

The deceased was married once only, to Lajos (Louis) Bohar. They were married in Hungary in 1941. He died in 1981.

By her marriage to Louis, the deceased had two children:

Shortly after the first defendant’s birth, in 1949 the Bohar family migrated from Hungary to Australia.

The first defendant married Paul in 1968. They separated in mid-1985, reconciled in January 1987 and finally separated in 1991. Two children were born of their marriage:

The second defendant married Ernest in 1964. They separated in 1980. There are three children of their marriage:

The plaintiff was married to John Bockos between 1996-2018 or thereabouts, but she and John separated in about 2005 or 2006. Two children were born of their marriage: Franchesca and Louis.

After she separated from John, the plaintiff had a relationship with Mike between 2011-2014.

She has been in a relationship with Richard Austin since November 2017. He has a son (Kristoff) and two grandchildren living in Melbourne.

The third defendant met his wife Angeline in May 2001. They married in September 2007. They have one child, Isabel, born in October 2015.

Since a time well before the death of the deceased, there has been a rift within the Bohar family. The plaintiff long ago fell out with her brother, the third defendant. Their mother, the second defendant, took the plaintiff’s side. Within the family, there has been a perception that the plaintiff and the second defendant (on the one hand) vie with the third defendant (on the other hand). The first defendant has sided with the third defendant, as it seems did the deceased.

Family relationships appear to have deteriorated, after the death of the deceased’s husband in 1981, when the first defendant assumed an increasingly more active role in helping her mother maintain the Castle Hill Property and when, as her retirement approached in 2015, she and the deceased planned her move, with renovations, to the Castle Hill Property. Rightly or wrongly, the plaintiff and the second defendant resented the first defendant’s role as the deceased’s companion and carer, regarding her as an unsympathetic gatekeeper limiting their access to the deceased.

According to the first defendant, in late 2014 (at about the time the deceased executed her last will) she had a conversation with the deceased in terms to the following effect:

The deceased had had a good relationship with the third defendant for many years, including a period of about 2 years when he resided with her.

That the relationship between the deceased and the second defendant had struck a rough patch appears from a handwritten letter she addressed to the second defendant, in her native Hungarian, on 25 April 2015. The English translation reads as follows:

The second defendant says that she was shocked to read this letter, so out of character with her experience of her mother. She has faintly suggested, in these proceedings, that the deceased was slipping mentally at the time this letter was written. However, in the absence of any challenge to the validity of the deceased’s will, and in circumstances in which the scheme of the will is rational and the second defendant received a one quarter share of the deceased’s estate, the main significance of the letter is that it evidences a low ebb in personal relationships between mother and daughter. It is not necessary to interrogate the veracity, or otherwise, of the deceased’s complaints against her daughter.

As it happens, at about the same time as the relationship between the deceased and the second defendant fell to the depths of this letter, an incident occurred which marked a low point in the relationship between the deceased and the plaintiff. After some years of little contact, during the course of renovations to the Castle Hill Property the plaintiff entered the Property, at a time of absence of the deceased and the first defendant, and took photographs. A neighbour alerted the first defendant to the fact that somebody had gained entrance to the deceased’s house. Both the deceased and the first defendant took offence, and spoke sharply to the plaintiff about her unauthorised entry.

The family tensions evident at about this time were not always in view. Perhaps the best evidence of that is the fact that the plaintiff was named after the first defendant.

Nevertheless, by the time the deceased and the first defendant planned upon renovations of the Castle Hill Property and a joint life for the two of them at the Property, there was but a rocky relationship between the deceased, the first defendant and the third defendant (on the one hand) and the plaintiff and the second defendant (on the other hand).

In essence, the plaintiff contends that she satisfies the requirement of section 57(1)(e)(i) of the Succession Act, that she had a relationship of dependence (or, more particularly, partial dependence) on the deceased, because:

That the plaintiff spent time living at the Castle Hill Property, and lived there in the company of the deceased, can be accepted. However, in giving her evidence the plaintiff manifested uncertainty about the timing, and duration, of her residency at the Castle Hill Property, and about the reasons for her living at the Property. I do not exclude the possibility that her evidence about life with the deceased involved a degree of embellishment borne of a hazy memory and the passage of time.

As she now remembers, her first period of residence at the Castle Hill Property occurred because she could not live at the second defendant’s house, because it was impractical to live there and the garage was not ready to move into.

As the plaintiff now remembers her second period of residence at the Castle Hill Property, she lived there because the second defendant’s house was cold, winter was approaching and she needed a rest and a career change. She commenced a legal secretarial course at Parramatta, which she now remembers was paid for by the deceased. During this period, in June 1988, the deceased, the first defendant and the second defendant went to Hungary for a holiday, leaving the plaintiff to “house sit” the Castle Hill Property.

As the plaintiff now remembers the third period, she stayed at the Caste Hill Property because an ex-boyfriend was stalking her and she sought to get away from him. During this period, she says, she saved $5,300 to travel overseas.

The “something more” than a grandchild relied upon by the plaintiff in support of her contention that she had a relationship of partial dependency on the deceased is essentially her membership of the deceased’s household for the three specified periods. The deceased’s generosity in providing accommodation, food, clothing and education expenses was a function of the relationship of grandparent and grandchild. The deceased was generous in her dealings with all her grandchildren.

The context in which the plaintiff’s relationship with the deceased is to be assessed includes the following facts:

In characterising the underlying facts of the relationship between the plaintiff and the deceased, I am conscious of the breadth and flexibility of the statutory formula, “at any particular time, wholly or partly dependent on the deceased”. I am conscious also of a need to examine the substance of the relationship, not merely its form.

In my assessment, the plaintiff’s relationship with the deceased did not extend beyond that of a grandchild. The plaintiff was not at any time, even partly, “dependent on” the deceased.

A consequence of that finding is that the plaintiff cannot bring herself within the definition of an “eligible person” as defined by section 57(1)(e) of the Succession Act, and she cannot meet the precondition set out section 59(1)(a) for the making of a family provision order. On that basis alone, her summons must be dismissed.

In case I am wrong in denying to the plaintiff the character of an “eligible person”, I turn attention to whether (upon an assumption that she is an eligible person) there are “factors which warrant” the making of her application for a family provision order as required by the Succession Act, section 59(1)(b).

The plaintiff’s contention that there are “factors warranting” the making of her application for a family provision order is based upon an analysis of various wills of the deceased:

If there is any pattern in these testamentary instruments, it is that the first defendant was consistently favoured as a beneficiary (with a one half share of the proceeds of sale of the Castle Hill Property), the second defendant was the next ranking beneficiary (initially with a one half share of the Castle Hill Property but later, until the last will, with a legacy, initially of $50,000, then $150,000), and fluctuating recognition was given to grandchildren. The third defendant appears to have been a favoured grandchild.

The deceased’s pattern of naming grandchildren as beneficiaries may have reflected the vicissitudes of the first and second defendants’ experience of marriage, and perceptions of particular needs of particular grandchildren. However, the evidence does not readily lend itself to a settled conclusion about that.

What is clearer is that, when she came to preparation of her last will (dated 3 December 2014) the deceased viewed her two daughters (the first and second defendants) as the most natural objects of her testamentary recognition. Had there not been a rift within the family from which she sought to protect the third defendant, a fair inference is that her estate would have been, in essence, divided equally between her daughters, the first and second defendants. Consistently with that assessment, the first defendant was named to receive a one half share of the net proceeds of sale of the Castle Hill Property. The second defendant was given only a one quarter share because, as the deceased told the first defendant, she doubted that the third defendant would be provided for by his parents. Implicit in this reasoning is an assessment that the plaintiff can look to her mother for assistance, whereas the third defendant cannot.

In her support of the plaintiff’s case, the second defendant says that she has made provision for the third defendant in her will (the terms of which are not in evidence) because he is her son. I place no weight on this because it does not address the character of the plaintiff’s application for a family provision order and, in any event, there is no suggestion that the second defendant’s will is anything other than revocable.

The plaintiff may have had a sense of entitlement to participation in the deceased’s estate, but she appears to have expected that to happen through testamentary provision made for her mother, the second defendant. In evidence is a text message sent by her to the first defendant on 21 March 2020 (which I infer may have been the date upon which the Castle Hill Property was sold by auction). It was in the following terms:

An underlying assumption of this text is that the deceased “should have” divided her estate between her two daughters (the first and second defendants), leaving them to look after their own children. Given the rift within the Bohar family, the text might also reflect a degree of resentment on the part of the plaintiff that her brother, the third defendant, was named as a beneficiary without provision for her.

The deceased’s deliberate division of one half of her estate between the second and third defendants is consistent with the idea that her estate should be divided between her daughters’ respective sides of the family, making special provision for the third defendant from the second defendant’s notional half share because of a doubt that the second defendant would in fact confer any benefits on him.

Upon a consideration of any “factors warranting” the plaintiff’s application, the fact of the family rift cannot be overlooked. The plaintiff’s relationship with the deceased experienced a low point at the time of their confrontation about the plaintiff’s presumption, in or about 2015, that she could enter the deceased’s home and take photographs in the absence of the deceased. It appears not to have recovered from that point.

The plaintiff attributes to the first defendant blame for her not having a close relationship with the deceased after 2015. In common with the second defendant, she views the first defendant as having isolated her from the deceased’s company.

I do not exclude the possibility that the first defendant’s co-residence with the deceased was a disincentive to any ongoing involvement with the deceased on the part of the plaintiff and the second defendant. However, the fact remains that, by the time of the deceased’s death, there was an apparently unbridgeable gulf between the plaintiff and the deceased.

In my opinion, the fact that some provision had been made for the plaintiff in some of the deceased’s earlier wills provides no firm foundation for a conclusion that there were “factors warranting” for the plaintiff’s making of an application for a family provision order. The fact that the plaintiff was a grandchild (even the deceased’s first grandchild) does not, of itself, bestow upon her the status of a natural object of the deceased’s testamentary recognition. The relationship between the plaintiff and the deceased was real enough but there was not the “something more” to warrant a family provision application.

This finding (that, having regard to all the circumstances of the case, whether past or present, there are no factors which warrant the making of the plaintiff’s application) provides an independent ground upon which the plaintiff’s summons must be dismissed. The plaintiff has not satisfied the Court of the requirement for which section 59(1)(b) of the Succession Act provides.

Upon assumptions that: (a) contrary to my finding, the plaintiff is an “eligible person”; (b) contrary to my finding, there are “factors warranting” the making of her application for a family provision order; and (c) the whole of the distributed estate ($1,918,083.69) is available for designation as notional estate of the deceased, attention turns to section 59(1)(c) of the Succession Act.

The plaintiff bears the onus of satisfying the Court that, at the time when the Court is considering her application for a family provision order, “adequate provision” for her “proper maintenance, education or advancement in life” has not been made by the deceased’s will.

For several reasons, it is not necessary to dwell at length on competing responses to this question.

First, as a practical matter, findings (contrary to mine) that the plaintiff is an eligible person and that there are factors warranting the making of her application for family provision relief would implicitly involve an acceptance that the deceased was under an obligation to make testamentary provision for the plaintiff.

Secondly, the plaintiff and her current partner are patently in straitened financial circumstances, as each of the defendants acknowledges.

Thirdly, upon an assumption that the whole of the distributed estate is available for designation as notional estate, there are assets amenable to a family provision order.

Fourthly, there are reasonable grounds for a finding that the plaintiff has been left without “adequate provision” for her “proper” maintenance etc insofar as she has no secure accommodation, no secure income, poor prospects of future employment or, during the COVID-19 pandemic, the operation of a business, and no capital reserve for contingencies beyond modest superannuation; she and her partner are both unemployed pensioners living in rented accommodation, on pensions. Their combined superannuation entitlements have no greater value than about $30,000. Their basic living expenses exceed their pension entitlements. Fifthly, no provision of any kind was made for the plaintiff in the will of the deceased.

If required to make a finding by reference to section 59(1)(c) of the Succession Act, upon the assumptions I have identified, my finding would be that the plaintiff has been left without “adequate provision for [her] proper maintenance, education or advancement in life”, with the consequence that it would be necessary for the Court to engage with section 59(2) of the Act and the provisions governing a designation of property as notional estate of the deceased.

This question cannot be answered independently of a consideration of the provisions governing a designation of notional estate.

Upon an assumption that the deceased had an obligation to make testamentary provision for the plaintiff, and that the distributed estate is available for designation as notional estate, the large questions are: (a) what, if any, provision should be ordered in favour of the plaintiff? (b) to what extent, if at all, do the defendants’ reasonable expectations and the substantial justice and merits involved in the making, or refusing to make, a family provision order militate against a designation of property as notional estate? (c) what (if any) special circumstances warrant a designation of notional estate? (d) if an order for provision were to be made in favour of the plaintiff, what quantum of relief should be ordered, and which of the defendants should bear the burden of it?

Bearing in mind each of these questions (which allude particularly to sections 87 and 88 of the Succession Act), attention returns to section 59(2) of the Succession Act: what, if any, provision “ought” to be made for the plaintiff?

If called upon to make a finding responsive to this question then, in my assessment and upon the assumptions I have identified, provision “ought” to be made for the plaintiff in the form of a legacy of $60,000. That is because:

In setting out this line of reasoning, I am conscious that each of the defendants presents a case against the imposition on themselves of any burden of any family provision order made in favour of the plaintiff.

The first defendant points to her long-standing expectation, based upon the deceased’s pattern of will making, that she would be left one half of the deceased’s estate. That said, she is reasonably well off and, notwithstanding her retirement, she has made substantial gifts (in part funded by the deceased’s estate) in favour of her children. She has, in effect, acted in accordance with the deceased’s expectation that each of her daughters would look after each of their own children.

The second defendant is not so well off materially and she has substantial health concerns. Whereas the first defendant says, simply, I should not bear the burden of a family provision order made in favour of the second defendant’s daughter, the second defendant contends affirmatively that an order for provision should be made in favour of the plaintiff at the expense of the third defendant.

Although the third defendant has substantial financial concerns arising from uncertain business prospects connected with the ongoing COVID-19 pandemic, his personal circumstances are more affluent than either the plaintiff or the second defendant. He contends, however, that it would be unjust to place upon him, or him alone, the burden of any provision ordered in favour of the plaintiff because, relying upon the deceased’s testamentary provision for him, he committed himself to a building contract for renovations designed to enable his ill mother-in-law to reside with him, his wife and their young child.

Had I decided that the plaintiff was entitled to a grant of relief, I would have ordered that she be granted a legacy of $60,000 charged equally against the three defendants ($20,000 a piece) with an order for designation of property (limited to those amounts) made in recognition of the special circumstances that: (a) the plaintiff’s application for a family provision order was made within the time limited by section 58(2) of the Succession Act; (b) to the extent that the defendants may have taken advantage of the earlier distribution of estate funds to them, they did so without waiting for expiry of the time limited for the making of a family provision application; and (c) the plaintiff and her partner then lived, and continue to live, in straightened circumstances because of the COVID-19 pandemic.

In my assessment, a charge of $20,000 upon each beneficiary’s inheritance to satisfy an order for provision in favour of the plaintiff would not impact unreasonably upon their expectations, but would (upon the assumptions I have made in favour of the plaintiff, contrary to my findings) produce a just outcome.

I would decline to impose on the first defendant the greater burden involved in an apportionment of liabilities proportionate to the beneficiaries’ property interests (that is, a liability of $30,000 for the first defendant and $15,000 for each of the second and third defendants) because such an apportionment would fail to recognise the primary source of conflict within the family: the rift between the plaintiff, the second defendant and the third defendant.

I make the following orders and notation: