New South Wales Supreme Court CITATION : Killiner v Freeman [2000] NSWSC 263 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4541/98 HEARING DATE(S) : 28 and 29 October, 4 November, 16 December 1999. JUDGMENT DATE : 5 April 2000 Tracey Leanne Killiner (P1) PARTIES : Garry William Milwood (P2) Helen Lynette Freeman (D1) Gail Edna Smith (D2) JUDGMENT OF : Master McLaughlin COUNSEL : Mr J. R. Wilson (P) Mr M. S. Willmott (D) SOLICITORS : Boulton Julian Squire (P) Eric Butler Solicitors (D) CATCHWORDS : Family Provision - Claim by two adult children - Obligation to provide as fully and frankly as possible all details of financial and material circumstances - Whether each applicant is left without adequate provision for her or his proper maintenance - Conduct disentitling - Statements by testator - Competing claims upon bounty of testator. LEGISLATION CITED : Family Provision Act 1982 Testators Family Maintenance and Guardianship of Infants Act 1916 CASES CITED : Blore v Lang (1960) 104 CLR 124 DECISION : See paragraph 79 SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN Wednesday 5 April 2000 4541/98 TRACEY LEANNE KILLINER and GARRY WILLIAM MILWOOD -v- HELEN LYNETTE FREEMAN and GAIL EDNA SMITH JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 5 November 1998 Tracey Leanne Killiner (wrongly named in that summons as Tracey Ann Killiner) and Garry William Millwood claim an order for provision for their maintenance and advancement in life out of the estate of their late father William Edward Millwood (to whom I shall refer as "the deceased"). 3 The deceased died on 6 March 1998, aged sixty-nine. He left a will dated 27 March 1995, probate whereof was on 19 June 1998 granted to Helen Lynette Freeman and Gail Edna Smith, the executors named in such will (who are the defendants to the present proceedings). 4 The deceased had been married twice, firstly to Betty Catherine Millwood. The deceased and Mrs Betty Millwood had four children, being the defendants Helen (born on 3 November 1950, who is now aged forty-nine) and Gail (born on 28 March 1952, who is now aged forty-eight) and the plaintiffs Garry (born on 26 November 1956, who is now aged forty-three) and Tracey (born on 11 May 1964, who is now aged thirty-five). The fact that Tracey was adopted does not affect her status as a child of the deceased. 5 Mrs Betty Millwood died on 28 November 1992. Subsequently, on 12 March 1994 the deceased married Elizabeth (formerly Mrs Wilson). The fact of that marriage, less than sixteen months after the death of their mother, appears to have contributed to a deterioration in the relationship between each of the plaintiffs and their father. However, the deceased and Mrs Elizabeth Millwood separated on 10 March 1995 and were divorced in 1996.The deceased thereafter, in June 1995, commenced a relationship with another lady, Mrs Nola Williams. 6 By his will the deceased gave a legacy of $10,000 to his former wife, Elizabeth Millwood, and gave the residue of his estate equally between his daughters Helen and Gail. 7 The assets of the estate consisted of shares and other investments having a total value of a little under $200,000, together with two pieces of real property, one situate at and known as 423 Scenic Drive, Doyalson (to which a value of $350,000 was ascribed) and the other at Lot 9, Pacific Highway, Doyalson, to which a value of $120,000 was ascribed). There were various other assets which were not disclosed in the inventory of property and whose existence emerged only in the cross-examination of the first defendant. Those assets included a Toyota utility motor vehicle, a tractor, a boat and motor, a large trailer, a covered trailer, a ride-on lawn mower and a caravan with annexe. 8 The will contained the following statements which are relevant to the present proceedings, 5. I HAVE not left any of my estate to my son GARY MILLWOOD because of the following reasons: - (a) That over the past ten to fifteen years I have given my said son over Two Hundred Thousand Dollars ($200,000.00). He has spent this money on gambling and drugs. In addition, he has physically assaulted me and has been abusive and offensive towards me over many years. He has also taken, without my consent, substantial personal property from my house property at Doyalson. 6. I HAVE also not left any of my estate to my adopted daughter TRACEY LEANE [ sic ] KILNER [ sic ] because of the following reasons: - (a) That she stole large sums of money from me when she was employed as a secretary in my business known as "Central Coast Rubber". I never had her charged for larceny. In addition, she never repaid any of the money. She has also been abusive towards me. I have also financially assisted her over many years. 7. I STATE that I have never given financial support to my other daughters HELEN LYNETTE FREEMAN and GAIL EDNA SMITH and it is my intention that the bulk of my estate with the exception of the pecuniary legacy to my wife shall go to my said daughters HELEN LYNETTE FREEMAN and GAIL EDNA SMITH . 9 It should also here be recorded that there was admitted into evidence a document headed, "To Whom It May Concern". That document (which is annexure A to the affidavit of Elizabeth Wilson sworn 4 June 1999) was typed by Elizabeth Wilson on 17 March 1994 at the dictation of the deceased, to whom she was at that time married. There was also admitted into evidence a further document (annexure B to that affidavit), being a letter addressed to a Mr Searle, a solicitor at that time acting for the deceased, which was typed by Elizabeth Wilson on 27 November 1994, mainly from words dictated to her by the deceased, to whom she was at that time still married. 10 The foregoing document of 17 March 1994, although not signed by the deceased, is in the form a statement by the deceased, and is thus admissible pursuant to section 32 of the Family Provision Act. 11 The document of 27 November 1994 does not purport to be other than a letter from the then wife of the deceased to the solicitor of the deceased, although the author of that letter states therein that she has been asked by the deceased to communicate to the solicitor the content of that letter. 12 The first plaintiff (to whom I shall refer as "Tracey"), who had previously been married for a short period, commenced cohabitation with her present husband, Todd Killiner, in 1988. They have three children, aged from twelve years to eight years. Since September 1996 Tracey, her husband and their children have resided at Wanneroo in Western Australia. That is a small town located outside Perth. Tracey is not in employment; her husband works as a truck driver. 13 It cannot be emphasised too strongly that an applicant for an order for provision under the Family Provision Act has an obligation to place before the Court as fully and as frankly as possible all information concerning the financial and material circumstances of that applicant (including, where the applicant is married, the financial and material circumstances of the applicant's spouse). This in the instant case Tracey has signally failed to do. 14 Although on the first day of the hearing, 28 October 1999, an affidavit of Tracey sworn on that date, purporting to give updated information concerning her financial circumstances, was filed, that affidavit did not disclose the fact that for the preceding ten months Tracey's husband had been working at a second job for which he received $100 a week. Further, neither in regard to that second job, nor in regard to the primary employment of Tracey's husband (for which he was asserted to receive a net income of about $36,000), was any documentary material presented to the Court, although, according to Tracey, such documentary material was in existence. 15 Neither did that affidavit disclose that from February 1999 Tracey had been receiving an amount of $500 a fortnight by way of family allowance supplement, additional to the $520 a fortnight family allowance referred to in that affidavit. 16 By the conclusion of the second day of hearing (I would here interpolate that the matter had been fixed for hearing upon the basis of the estimate given by the legal representatives of the parties that it would conclude in one day), it was also apparent that the information given to the Court by Tracey concerning income received by her by way of carer's allowances for foster children placed in her care through the Family Children's Services in Western Australia was neither accurate nor complete. That was despite agreement between the parties concerning allowances for foster children and family supplements which showed Tracey's fortnightly income as totalling either $1,180.50 or $1,214. Accordingly, at the conclusion of the second day of hearing I made various orders and directions for the purpose of advancing the orderly progress of the hearing. Those orders and directions included the following, I order that on or before Friday, 19 November 1999 the first plaintiff, Tracey Leanne Killiner, serve an affidavit setting forth full details of her financial and material circumstances, including (but not limited to) her present income from all sources. 17 Although I was of the opinion (and recorded that opinion in my foregoing orders and directions) that the evidence should properly have concluded no later than 3:19pm on 29 October 1999, and that the responsibility for further evidence being required after that time rested with the first plaintiff, it was necessary, in consequence of the failure of the first plaintiff to place before the Court full and complete evidence concerning her financial and material circumstances, that the matter be adjourned to Thursday, 16 December 1999 (that being the third day of hearing). 18 In purported compliance with my foregoing orders and directions, there was filed a further affidavit of Tracey Leanne Killiner, sworn 9 December 1999. 19 When the hearing resumed on Thursday, 16 December 1999 Tracey was cross-examined upon her affidavit of 9 December. It emerged from that cross-examination that even the affidavit of 9 December did not comply with my order of 29 October 1999 that Tracey serve an affidavit setting forth full details of her financial and material circumstances, including (but not limited to) her present income from all sources. 20 In her affidavit of 9 December Tracey set forth, in paragraph 9, what she described as "fortnightly benefits from Centrelink", being family allowance, child disability and parenting payment partnered payments (totalling $525.77). However, under cross-examination on 16 December it emerged that she was receiving an amount of $227.60 a fortnight for each of two foster children in her care (that is, a total of $455.20 a fortnight), and that those amounts were additional to the amounts set forth in her affidavit of 9 December 1999. Upon those figures, therefore, Tracey alone has a fortnightly income of $980. That is significantly more than the $837 revealed in her affidavit of 28 October 1999 or the $525.77 revealed in her affidavit of 9 December 1999 (but less than the total of $1,020 which emerged from her cross-examination on 28 October 1999 or the totals of either $1,180.50 or $1,214 which had been agreed upon between Counsel on 29 October 1999). 21 This somewhat casual approach by Tracey to complying not only with her obligation to place before the Court as fully and as frankly as possible all information concerning her financial and material circumstances, but also with the express terms of my order of 29 October 1999, does not engender any great confidence in the reliability to be placed upon her evidence. 22 It should be here recorded that a very large quantity of evidentiary material in this case, and especially evidence in chief of each of the plaintiffs, was directed to various incidents concerning the relationship between each of the plaintiffs and the deceased. It would have been a far more helpful and productive use of resources if the plaintiffs (especially Tracey) had directed as much attention to informing the Court of their financial and material circumstances as they did to asserting and denying various incidents of family history, the value and assistance of which to the Court can be at most peripheral. 23 In this regard it is appropriate to quote the following salutory admonition of Windeyer J in Blore v Lang (1960) 104 CLR 124 at 137, concerning the statutory predecessor of the Family Provision Act, being the Testator's Family Maintenance and Guardianship of Infants Act 1916, The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case. 24 I have already referred to the unsatisfactory state of the evidence concerning the financial and material circumstances of Tracey. However, the following is a summary of what the evidence ultimately appeared to reveal concerning those circumstances. 25 Tracey and her husband Todd Killiner and their three children (as well as the two foster children who presently reside with them) live in a house property situate at and known as 19 Quarkum Street, Wanneroo. That house property is owned by Tracey's husband and has an estimated present value of $130,000. Todd Killiner also owns a Nissan Patrol motor vehicle, having an estimated value of $20,000. The house property is subject to a mortgage upon which an amount of $87,000 is presently outstanding and which is being repaid by instalments. Todd Killiner also has a liability of $18,000 in respect to a personal loan in an amount of $20,000, for the purchase of the Nissan motor vehicle. 26 Tracey has revealed as her only asset a CBA Key Card account, having a credit balance of $1. She originally asserted a credit card debt in an amount of $5,448 (affidavit of 28 October 1999). However, that debt appears to have been replaced by an indebtedness to AGC in an amount of about $5,400 which she is paying off by instalments, although at the commencement of the hearing those payments were in arrears. 27 Tracey and her husband own household effects and personal effects, to which they ascribe an approximate value of $20,000. 28 I have already referred to Tracey's income which appears to be in a total amount of $980.97 a fortnight. I have also referred to the assertion by Tracey that her husband receives a gross salary of about $700 a week from Buttercup Bakeries, and that, in addition, he receives a further $100 a week from his other employment, driving for a company known as Tramco Transport. That is, he has a total income of $800 a week. It follows, therefore, that Tracey and her husband have a combined total gross income of $1,290 a week (being in an amount of $67,105 a year). 29 In her affidavit of 9 December 1999 Tracey disclosed for the first time that for a period of about three years she and her husband had been separated, and that they had reconciled in February 1999. During the period of that separation Tracey and her children resided with her husband's mother (who lived in Perth). Throughout the period from 22 February 1996 to 18 February 1999 Tracey was in receipt of a sole parent's pension from Centrelink. 30 In her affidavit of 6 July 1999 Tracey expressed a desire for a new house property, which she said, from enquiries made by her, would in the area where she presently resides cost about $130,000 - $150,000. She said that such a house would comprise four bedrooms and two bathrooms, thus enabling her two youngest daughters to have a bedroom each. (In passing, I would observe that that evidence does not refer to the accommodation required for the foster children.) In addition, Tracey stated that the family had only one motor car and that it very much needed a second motor vehicle. She also expressed a desire to visit her brother, the second plaintiff, on a holiday. 31 The second plaintiff (to whom I shall refer as "Garry"), was born on 26 November 1956 and is forty-three years of age. He has suffered from a number of serious health problems, and, in consequence has not worked since the mid-1980s. He had previously, from the time he left school, worked with his father. His only income is a disability support pension in an amount of $439 a fortnight. Since December 1995 Garry has resided in rented accommodation at Toukley (consisting of a very small and incommodious one bedroom fibro unit), for which he pays $85 a week. He lives alone. His only assets consist of a minimal amount in a bank account with the Colonial State Bank, together with household furnishings and personal effects. He does not own a motor vehicle. He has a liability to Centrelink in an amount of $300, which he is repaying at the rate of $38 a fortnight; and a liability to Visacard in an amount of $2,342, which he is repaying at the rate of $50 a month. 32 The medical problems from which Garry suffers include a loss of bowel function (resulting from a colostomy in 1984); diabetes, for which he takes insulin four times a day. Apparently he suffered from dyslexia as a child, and he still has difficulty in reading. In addition, according to Garry, he suffers from what he described as "bad nerves", and from depression and anxiety. His treating specialist physician, Dr D. W. Bliss, expressed the opinion that Garry would "never be able to work again". 33 Garry was married for a short time in the mid-1980s and a son was born of that union. However, he has not seen that son since about 1985. 34 Before marrying Garry purchased land at San Remo on the Central Coast of New South Wales, for about $28,000, that purchase being financed by a personal loan from Westpac (although Garry's evidence was far from clear as to whether that amount was for the purchase of the land alone or also included the cost of the dwelling house which was subsequently constructed thereon). The amount outstanding on that loan was repaid from the payment which Garry received from his father for his interest in the tyre business conducted by the deceased. After the death of his mother in November 1992 Garry sold the San Remo property for $75,000, receiving a net amount of about $70,000. From the proceeds of that sale Garry said that he repaid his father $10,000 (or possibly $12,000) which the deceased had lent to him for the construction of the home on that land (although the deceased in one of his written statements asserted the amount of that loan to have been $25,000). 35 Each of the plaintiffs as a child of the deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, each plaintiff has the standing to bring the present proceedings. It should also be recognised that each of the defendants, as a child of the deceased, is also an eligible person within the same paragraph of that definition. Apart from the plaintiffs and the defendants, the only other eligible person in relation to the deceased is Mrs Elizabeth Millwood, the former wife of the deceased, who is an eligible person within paragraph (c) of that definition. She makes no claim upon the estate of the deceased 36 I have already referred to the very considerable quantity of evidence which was directed to the nature of the respective relationships between each plaintiff and the deceased. 37 It was asserted on the part of the defendants that each plaintiff (in the phrase which formerly had considerable currency in proceedings under the statutory predecessor of the Family Provision Act, being the Testator's Family Maintenance and Guardianship of Infants Act 1916) had been "guilty of conduct disentitling". In this regard the defendants relied upon the statements made by the deceased in his will. 38 Tracey did not deny that she had stolen money from the family business, by improperly drawing cheques which she then cashed. However, she asserted that that happened on only three or four occasions, and that only a total amount of about $800 was involved. She agreed that she had not repaid that amount. She asserted that her father had forgiven her and allowed her to remain in employment in the family business until, about two years later, she left of her own volition. Further that an affectionate relationship between herself and the deceased had been re-established, which obtained until her father's death. 39 I did not consider the evidence of Tracey concerning the details of the misappropriation by her to have been particularly reliable. It must be appreciated that the only direct evidence before the Court concerning this event was the statement of the deceased in his will and the sworn evidence of Tracey. By the very nature of the circumstances which have brought this matter to the attention of the Court, only the version given by Tracey can be tested. The deceased did not identify the amount which he asserted that Tracey had stolen (although Helen, under cross-examination, said that her father had told her that the total amount stolen by Tracey was $10,000, in $500 lots). The practical situation is that, in those circumstances, it is possible for Tracey to admit taking a relatively small amount, and it is extremely difficult for her version to be successfully challenged. 40 Tracey was also cross-examined as to credit, concerning an incident in 1996 in which she misappropriated money raised by her by way of a raffle for a charitable purpose, as a result of which she was charged with stealing. She pleaded guilty, was convicted and placed on a good behaviour bond. 41 Tracey's sister Gail had given evidence of the disappearance of the amount of $2,500 belonging to their mother and of a conversation in which Tracey, according to Gail, had admitted taking that money. Tracey denied the theft and said that she did not recall the conversation. 42 Tracey agreed that she had received financial assistance from her father, although she appeared to dispute the significance of such assistance. She also agreed that from 1993 until just before his death in March 1998 she had no communication with her father, and that she made no attempt to contact him. 43 The statement of the deceased in his will is, of course, an explanation of the reason why the deceased made the testamentary disposition in the manner in which he did. It is a relevant factor which must be considered by the Court, but it is in no way determinative of the claim of Tracey. (In this regard, I consider it also relevant that the deceased made a will on 26 October 1992, in which he named all four of his children as residuary beneficiaries. Both the terms of that will, and also the attitude of the deceased towards his grandchildren, suggest that the statements of the deceased should not be accepted in their entirety without question.) 44 I have already referred to the unsatisfactory nature of the evidence of Tracey concerning her present financial and material circumstances. The various items which she wishes to acquire, essentially a new residence and a second motor vehicle, are in my view in the nature of a wish list. I am not satisfied that Tracey has established that she has been left without adequate provision for her proper maintenance. 45 That conclusion is of itself sufficient to dispose of the claim by Tracey. 46 Despite Garry's denials in that regard, I am satisfied that there is considerable substance in the statement made in the will of the deceased concerning Garry. Even if the amount of money given by the deceased to Garry was not $200,000, it was certainly a substantial and significant amount. The conduct of Garry concerning the requirement that his parents make a payment to him for an interest in the tyre business (to which he had made no capital contribution) --- whether that payment was $50,000 as asserted by the deceased or $28,000 as conceded by Garry --- hardly reflects any credit upon Garry. It was not disputed that whatever amount Garry did, in fact, receive from his father he had largely dissipated on gambling and drugs. 47 Neither did there appear to be any real dispute by Garry concerning the incident in May 1994 where he threatened to kill his father, or concerning a later incident at the Pacific Highway premises when he threatened to shoot his father, although the genuineness of those threats might be questioned. Further, after a physical confrontation between them in October 1994 the deceased took proceedings against Garry in the Local Court at Camden. On 16 December 1994 that Court made an apprehended violence order against Garry and ordered him to vacate the premises at Lot 9 Pacific Highway, Doyalson (in which he had been living, rent-free, for at least the preceding year). The making of that order was consented to by Garry. However, I am not satisfied that the statement in the will of the deceased that Garry had taken substantial personal property from the Doyalson house was accurate. 48 Garry is living in humble circumstances and has a very frugal lifestyle. He is occupying rented accommodation. He lives alone. He has no assets. He suffers from serious physical and medical disabilities. He will never be able to resume remunerative employment. His only income is the disability support pension. 49 I am satisfied that Garry has established that he has been left without adequate provision for his proper maintenance. It follows, therefore, that the discretion contained in section 7 of the Act in the case is enlivened, in the case of Garry. Nevertheless, it is for Garry to establish, in the context of his financial and material circumstances and the size of the estate, as well as in the context of the competing claims upon the testamentary bounty of the deceased (a matter to which I shall shortly return), the nature of any order for provision to which he asserts an entitlement. 50 The relationship between Garry and his father was relied upon to establish that Garry had been guilty of conduct disentitling him from the benefit of any order for provision an entitlement to which he might otherwise have established. 51 Garry presented as a pathetic creature, who, despite the financial benefits which he has received from his father and despite the various incidents of unfilial conduct of which he was clearly guilty, appeared, both medically and emotionally, to be one of life's losers. It is for just such a person that the exercise of the discretion of the Court should be available. 52 It should be emphasised that an order for provision is not made as a reward for good conduct; neither is such an order (if otherwise justified) withheld as a punishment for bad conduct. 53 It seems to me that, subject to the matter of the competing claims of the defendants, Garry should receive out of the estate of the deceased a legacy in a sum sufficient to enable him to have some security of accommodation, together with some small fund which will enable him to maintain an independent lifestyle, of a nature somewhat enhanced beyond that which he presently maintains. 54 In approaching the claim of each plaintiff it is necessary for the Court to consider any competing claims upon the testamentary bounty of the deceased. In the instant case the only persons having such competing claims are the two defendants, being the other two children of the deceased. They were the chosen objects of the testamentary beneficence of their father, who gave to them equally the entirety of his estate (apart from the legacy of $10,000 to his former wife). 55 It cannot be emphasised too strongly that it is not for the defendants to prove anything. The financial and material circumstances of the defendants cannot in any way enhance the claim of either plaintiff, although those circumstances may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which either of the plaintiffs might otherwise have established. 56 In the instant case I have already concluded that Tracey has not established an entitlement to an order for provision, but that Garry has established an entitlement to such an order. 57 That entitlement of Garry must, however, be considered in the light of the circumstances of his two sisters Helen and Gail. Helen (who is presently aged forty-nine) is a married lady with three children, all adults. Her youngest daughter resides with Helen and her husband, and is financially dependent upon them. Helen had a close and loving relationship with her father, visiting and exchanging Christmas and birthday presents, speaking regularly by telephone. The only financial assistance which Helen received from her father was a loan of $3,000 in 1996, which she repaid by instalments over a period of seven months. 58 Helen is not in employment. Her husband is a sales engineer who receives a net income of $40,300 a year. The assets owned by Helen jointly with her husband consist of a house property at 8 Beaumont Avenue, Camden, to which of $247,000 is ascribed, together with the contents of that house and personal property, to which a value of $8,500 is ascribed. 59 Helen and her husband owe an amount of $120,000 by way of mortgage to Macarthur Credit Union and personal loans which they have received from that entity, a further mortgage of $44,600 to Macarthur Credit Union, being security for a loan to their youngest daughter, an overdraft with the State Bank in an amount of $2,000, a BankCard indebtedness of $2,738, and a Visa account of $1,036. Helen also owes her daughter $4,378, which was lent in October 1999, to assist with Helen's medical expenses. 60 Helen has undergone serious surgery to her spine, including a triple laminectomy, and decompression of the spinal cord. Those surgical procedures have resulted from a cervical myelopathy from which Helen has suffered since 1996. 61 On account of considerable pain from her neck Helen states that she will never be able to work again. Her husband is her principal carer, but in addition Helen receives assistance from Homecare for three hours each week. 62 Helen and her husband recently sold their motor vehicle, and in 1998 they borrowed an additional $25,000 on their mortgage, to assist generally with their financial situation, but in particular to help pay medical expenses. 63 In addition, Helen's husband also suffers from a medical problem to his back, although his is not as serious as that from which Helen suffers. 64 It is also relevant in my view that, when the deceased and his first wife were in financial need as a result of transferring the registration of the tyre business back into their own names and making a substantial payment to Garry in 1984, Helen at their request lent to her parents an amount of $5,000, which was fully repaid to her within 18 months. 65 Gail (who is presently forty-eight years of age) is married to Joseph Harold Smith. They have three children aged between twenty-four years and twelve years. 66 Gail also had a close and loving relationship with her father, always exchanged Christmas and birthday presents with him, and spoke to him regularly on the telephone. From the time when she left home Gail did not receive any financial assistance from either of her parents. 67 Gail and her husband jointly own a house property at 544 Mulgoa Road, Regentville, to which they ascribe a value of $545,000; a 1989 Ford Laser motor vehicle, to which they ascribe a value of $4,000; a rental property at 48A Bijar Drive, Glenmore Park, to which they ascribe a value of $145,000; a further rental property known as 49B Bijar Drive, Glenmore Park, to which they ascribe a value of $145,000; personal property and furnishings ($10,000); and a truck ($1,000). 68 Gail and her husband jointly owe the Advance Bank an amount of $195,000, secured by way of mortgage. They have credit card liabilities totalling $2,000. Gail was until June 1999 employed by Sunbeam Foods at Epping as a sales representative, receiving a net annual income of $6,760. She gave up that employment because of a medical problem with her right shoulder, which limited her ability to perform the heavy lifting required in that employment. Gail receives income from rent in a gross amount of $9,880 a year. 69 Gail's husband is employed by Berri Foods at Blacktown as a sales representative, and receives a gross annual income of $39,000. In addition, he and Gail receive net income from a cleaning business which he conducts (although in the form of a partnership between them), in a total amount of $20,000 a year. He also receives gross rental income of $9,880 a year. Each of Gail and her husband has a superannuation entitlement. 70 It will be apparent from the foregoing details of the financial and material circumstances of each of the chosen objects of the testamentary beneficence of the deceased, that Helen and her husband are in considerable financial need, as a result of the very serious medical condition from which Helen suffers, and the serious medical condition from which her husband suffers. Further, that whilst Gail and her husband own three pieces of real estate (their house property having a substantial value) the gross income for the two of them exceeds the gross income of Tracey and her husband by only about $11,000. Further, two of their three children are entirely dependant upon them (being aged sixteen years and thirteen years). 71 Gail, in addition to the shoulder problem which caused her to give up her employment, suffers from what she described as a heart murmur, and also from a "factor five mutation defect", which is stated to cause a blood clotting disorder. In addition, her daughter Catherine (now aged twenty-four) and her son Mark (now aged sixteen) each suffers from the same factor five mutation defect; and Mark in addition suffers from asthma, for which he requires daily medication. 72 The blood clotting disorder caused by the defect from which Gail and her two elder children suffer is stated to cause concern when they undergo surgical procedures or travel by aeroplane. 73 The financial and material circumstances of at least Helen, being one of the chosen objects of the testamentary beneficence of the deceased, are such that, even if (contrary to the conclusion which I have already expressed) Tracey had otherwise established an entitlement to an order for provision, any such order would have been substantially reduced, if not totally extinguished, by those circumstances. 74 Under the terms of the will of the deceased each of Helen and Gail would receive about $330,000. However, it must be appreciated that the value of the residue of the estate will, in consequence of the institution of the present proceedings be depleted by the amount of the costs of at least the defendants, in an amount of at least $25,000 (that figure being estimated upon the basis that the hearing would occupy only one day), and, in the event that either or both of the plaintiffs be successful, by a further amount, which, for both plaintiffs, is about $35,000. In consequence, therefore, the amount of residue available for distribution between the defendants, even if no order for provision is made in favour of either of the plaintiffs, will be no more than about $630,000; that is, each defendant would receive about $315,000. 75 There has not been placed before the Court any admissible evidence concerning the cost of acquisition by Garry of appropriate accommodation. That fact, however, should not preclude the Court from making an order in favour of Garry. The absence of any such evidence, however, makes it difficult to calculate an amount to which Garry should be entitled. 76 I have reached the conclusion that Garry has established an entitlement to a legacy in an amount of $80,000. That legacy can then be used by him either to acquire some form of modest residence or to be invested so as to produce an amount which, when added to his disability pension, will enable him to upgrade the rented accommodation in which he is residing, and to effect some enhancement to his lifestyle. 77 The practical consequence of a legacy for Garry in an amount of $80,000, together with a costs order in his favour, would be that the benefit which each of the defendants will receive out of the estate of the deceased will be reduced by an amount of $40,000 and by a further amount in respect of his costs. That is, each of the defendants will receive no more than $250,000, rather than about $300,000. I have already referred to the significant competing claim of at least Helen upon the testamentary beneficence of the deceased. Nevertheless, I have reached the conclusion that that competing claim is not such as would have the effect of reducing, let alone extinguishing, an order for provision in the amount which I have indicated, to which I am satisfied that Garry has otherwise established an entitlement. 78 I have not heard any submissions as to costs. My present view is that Garry should be entitled to have his costs out of the estate, as also should the defendants. Tracey certainly should not be entitled to her costs out of the estate, but should pay the costs of the defendants in respect of her claim. It appears to me that the hearing was devoted almost equally to the claims of each of the plaintiffs. In those circumstances, therefore, I consider that Tracey should pay one half of the costs of the defendants on the party and party basis. 79 Accordingly, unless any party within seven days of the date hereof arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders: 1. I order that the claim of the plaintiff Tracey Leanne Killiner be dismissed. 2. I order that the plaintiff Garry William Millwood receive out of the estate of the late William Millwood ("the deceased") a legacy in the sum of $80,000, such legacy not to bear interest if paid on or before 5 May 2000. 3. I order that the costs of the plaintiff Garry William Millwood on the party and party basis be paid out of the estate of the deceased. 4. I order that the plaintiff Tracey Leanne Killiner pay one half of the costs of the defendants on the party and party basis. 5. I order that the difference between the amount of the foregoing costs recovered by the defendants from the plaintiff Tracey Leanne Killiner and the costs of the defendants on the indemnity basis be paid out of or retained from the estate of the deceased. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.