New South Wales Supreme Court CITATION : Fagerlund v Orford [2004] NSWSC 268 revised - 6/04/2004 HEARING DATE(S) : 30 & 31 March 2004 JUDGMENT DATE : 6 April 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraphs 70 and 71 CATCHWORDS : Family Provision. Application by two stepchildren in respect of an intestate estate which passed to the deceased's siblings and their children. Discussion of whether it was appropriate for a child to expect to receive the deceased's house. Orders for legacies for the children. PARTIES : Wayne Ronald Fagerlund & Anor v Thelma Grace Orford (Estate of William Arthur Brook) Wayne Ronald Fagerlund & Anor v Thelma Grace Orford (Estate of Nola Brook) FILE NUMBER(S) : SC 2585/02; 6038/02 COUNSEL : JA Darvall for plaintiffs Mrs Bartush-Peek for defendant SOLICITORS : Marriott & Oliver for plaintiffs Turnbull Hill Lawyers for defendant - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Master Macready Tuesday 6 April 2004 2585/02 Wayne Ronald Fagerlund & Lynn Nola Milloy v Thelma Grace Orford (Estate of William Arthur Brook) 6038/02 Wayne Ronald Fagerlund & Lynn Nola Milloy v Thelma Grace Orford (Estate of Nola Brook) JUDGMENT 1 Master: This is the hearing of two applications under the Family Provision Act 1982 (NSW) (the Act) which have been ordered to be heard together with the evidence in each to be evidence in the other. The parties are the same but each matter concerns a different estate. 2 In the matter No 6038/02 the estate is that of the late Nola Brook who died on 30 September 1986. In manner No 2585/02 the estate is that of the late William Arthur Brook who died on 7 June 2001. The deceased had been married in 1973 and at the date of death of Nola Brook they owned as tenants in common a property at 3 Silver Spur Close Shoalhaven Heads. 3 The two plaintiffs are the children of Nola Brook. The deceased had no children of their own and the defendant, who is a sister of William Arthur Brook has obtained a grant of letters of administration in both estates. Neither deceased left a will. 4 By the time of his death, the half interest of Nola Brook in the property was never transferred to William Arthur Brook. At the date of death of Nola Brook the half interest, valued at $80,000.00 passed on intestacy to William Arthur Brook and his estate is now entitled to the whole of the property. 5 It was suggested that the plaintiffs would have a strong case in the claim against the estate of Nola brook as the two plaintiffs are of course eligible persons as children in the estate but are only category 6(d) eligible persons in the estate of William Arthur Brook. The problem with the claim against the estate of Nola Brook is that it is out of time by some 16 years. 6 As the application is out of time it is necessary for the court to consider section 16 of the Act that allows an application to be made notwithstanding it is out of time. There are a number of cases, which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) [1947] VLR 212 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 7 In several cases His Honour Young J (as he then was) dealt with the principles governing application to extend time under the Act. In Massie v Laundy (Unreported, NSWSC, 7 February 1986) Young J indicated that when looking at 'sufficient cause" under s 16(3) of the Act the factors which one looks at include the following:- (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 8 Apparently Young J also accepts the view expressed by his Honour Needham J in Fancett v Ware (Unreported, NSWSC, 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (Unreported, NSWSC, 31 March 1988) when considering the matter at the substantive hearing Powell J leant to the view that a plaintiff seeking an extension of time under the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) must demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. This view was not accepted by his Honour Hodgson J in Basto v Basto (Unreported, NSWSC, 8 September 1989). 9 In De Winter v Johnstone (Unreported, NSWCA, 23 August 1995), His Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. At page 23 he said: "In such a case, so it seems to me, no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 10 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 11 The case of De Winter v Johnstone is also useful in that dealing with an appeal from Master McLaughlin, Sheller J commented on the meaning of "unconscionable". At page 11 he quoted the Master as follows: "Unconscionable conduct in this context, of course, relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period." 12 His Honour then observed: "With all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is here directed towards a deliberate holding off designed to lull the beneficiaries into a false sense of security. There is nothing to suggest anything of that sort in the present case." 13 In the present case the plaintiffs did not lead evidence as to why they did not make a claim on their mothers estate after her death and within the time limit specified by the statute. There could be many reasons why they would not make a claim not least of which would be that they would not wish to dispossess their stepfather from the house. For them now to seek to extend time will work to the substantial prejudice of those who take on intestacy under William Arthur Brook's estate. In these circumstances it seems to me (for each of the aforementioned reasons) that is quite inappropriate to extend time and accordingly I decline to extend time in matter No 6038/02. 14 In these circumstances the plaintiff's claims can be dealt with in proceedings 2585/02 in respect of the estate of the late William Arthur Brook. 15 As there was an intestacy in the estate of William Arthur Brook, those taking on intestacy include: · Thelma Grace Alford a sister of the deceased as to one-third of the estate, · David Lloyd Brook a brother of the deceased as to one-third of the estate, · Richard Walter Brook, William Edward Brook, Rhonda Gay Radcliffe and Katherine Glenda McKinley being the children of the deceased brother Alonzo as to a 1/12 share each. The assets in the estate 16 The estate of the late William Arthur Brook now comprises the following: 3 Silver Spur Close Shoalhaven $350,000.00 Cash $61,473.00 17 The costs of administration have been paid as have some of the defendant's costs. There are liabilities in the estate as follows: Capital gains tax $31,457.00 Accountancy fees $ 528.00 Further legal costs of the defendant $18,235.00 Total $50,220.00 18 The plaintiffs' costs are estimated at $33,000.00 and if an order is made in either of the plaintiffs' favour, the house will have to be sold to meet these costs. 19 There is a cross-claim by the defendant in matter No 2585/02 seeking judgment for possession of the estate property and mesne profits. A judge of the court has referred the whole of proceedings to a master for hearing. Family history 20 In 1970 the deceased William Arthur Brook and his brother David Lloyd Brook purchased land at 3 Silver Spur Close, Shoalhaven Heads. Sometime thereafter they commenced the construction of a Weekender on the property. 21 In 1964 or 1965 the plaintiffs' natural parents separated and for a time the plaintiffs were moved into a children's home. At this stage they were aged eight and six years respectively. It was in early 1971 that the deceased William Arthur Brook and the deceased Nola Brook began living together in a de facto relationship. According to the plaintiffs, they then commenced to live with them at Wiley Park before moving to Fivedock. 22 In 1972 Wayne completed his schooling and took a year to obtain employment. On 14 April 1973 the deceased married. In 1979 they moved to a house at 24 Cheviot place Airds. The children were living with them at this stage. 23 In 1981 the first plaintiff moved to New Zealand. In March 1982 the second plaintiff married her present husband and they resided with the deceased at Airds and continued to live there until 1985 when they moved to the property in which they now live. 24 In 1984 David Lloyd Brook transferred his interest in the property at 3 Silver Spur Close Shoalhaven to Nola Brook in consideration of the sum of $20,000.00. On 30 September 1986 Nola Brook died aged 51 years. 25 In early 1986 the first plaintiff, his first wife Mary and their three children returned to Australia and resided with the deceased for a period of two to three months at Airds. The first plaintiff then purchased a house at Bradbury, not far from the home of the deceased at Airds. 26 In about 1987 William Arthur Brook moved to reside permanently at the property 3 Silver Spur Close Shoalhaven Heads. At some stage the first plaintiff also moved to Shoalhaven Heads. He married for the second time in December 1997. On being married he moved to a house nearby. In May 2000, the first plaintiff separated from his partner, moved back to his father's home and has remained there up to the time of these proceedings 27 The deceased William Arthur Brook died on 7 June 2001 and in due course these proceedings (No. 2585/02) were commenced within time. The cross claim was filed on 29 September 2003. The eligibility of the plaintiffs 28 The plaintiffs will only be eligible to make a claim if at some time they were part of the household of the deceased and at sometime dependent upon the deceased. There is no contest in this case as to whether the plaintiffs were members of the deceased household. Clearly they resided with him for many years when they were teenagers and also for many years once they had achieved adulthood and indeed married. It also does not seem to be in doubt that the plaintiffs were dependent upon the deceased particularly during their teenage years. It is clear from the evidence of both plaintiffs that they treated the deceased as though he were their natural father and he treated them as if they were his own children. I am satisfied that they are eligible persons. 29 It is however it is necessary under s 9 (1) of the Act that the Court first determine whether there are factors which warrant the making of the application. The Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other: otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 30 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. After setting out and approving the statement, at page 252 Priestley JA, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." 31 These principles have been applied at first instance for many years. In recent times further attention has been paid to this matter in the decision given by Sheller JA, Sheppard AJA and Fitzgerald AJA in the case of Brown v Faggoter (Unreported, NSWCA, 13 November 1998). It was Fitzgerald AJA, in giving the main judgment that seemed to suggest that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. Given that there may be some flux in the state of the law, I will consider the matter on both bases. 32 It is plain, given the facts to which I have referred, that the deceased treated both plaintiffs as his own children and accordingly in my view on the traditional test factors warranting have been made out. In case a different view is taken then I proceed to consider whether the applications have prospects of success. 33 In Singer v Berghouse (No.2) (1994) 181 CLR 201 the High Court set out the two-stage approach that a Court must take in dealing with applications under the Act. At page 209 it said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc. were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." The situation in life of the first plaintiff - Wayne Ronald Fagerlund. 34 The first plaintiff is 46 years of age and is now single. He has two children living with him - his son Rhys who is 13 years of age and his son Michael who is 24 years of age. Obviously Rhys is still dependent upon the first plaintiff. The first plaintiff is a roof plumber and on his own account has been in business for many years. Last year his taxable income amounted to $64,000.00 after deducting all expenses for his business. 35 The first plaintiff does not own a home and he drives a leased vehicle. He has debts to AGC Harvey Norman and the Australian Taxation Office totalling $17,000.00. He has not been able to accumulate any wealth during his life, no doubt in part because of his two failed marriages and his failed de facto relationship. 36 There does not seem to be any challenge to the fact that the first plaintiff was in contact with his stepfather throughout his life and had a good relationship with his stepfather. It is also very clear that the first plaintiff has had the benefit of accommodation provided by his father on many occasions when his personal situation deteriorated as result of his marriage difficulties. 37 The first plaintiff has also had the benefit of the occupation of the estate house since the date of his stepfather's death. There is evidence before me as to the rental value of the house at about $175.00 per week at the moment and in 2001 at $140.00. The first plaintiff has paid no rental. Indeed the first plaintiff had an arrangement to pay his sister rental of $80.00 per week. This arrangement was arrived at as result of statements made by the deceased to both plaintiffs to the effect that they believed they were to receive his estate equally. 38 Although there has been a cross-claim filed seeking to recover this benefit. It is probably more appropriate to take the rental amount into consideration of any amount or which ought to be provided to the first plaintiff. It is to be noted that the first request for some accounting is probably when the cross-claim was filed on 29 September 2003. The situation of the second plaintiff - Lynn Milloy 39 The second plaintiff is married and aged 45 years. She has three children aged 19, 17 and 10 years of age. Her eldest child pays board of $20.00 per week. Lynn works with the Health-Insurance Commissioner and earns approximately $320.00 per week. Her husband, who is employed, earns $600.00 per week net. The family income is $950 per week which covers their expenses. 40 The second plaintiff and her husband own their home at Bristol Ave, Raby that is estimated to have a value of between $350,000.00 and $380,000.00. They have a car, but no other significant savings. They have a mortgage on their home of $91,000.00 and the second plaintiff has credit card debts and personal loans amounting to $10,500.00. 41 The second plaintiff also had a good relationship with the deceased and for a short time when she first married, she was provided with accommodation by the deceased. 42 In the circumstances, it is also necessary to consider the situation of other persons having a claim on the bounty of the deceased. In this case, the relevant people are those who take on intestacy in respect of the deceased's estate. The situation of Thelma Grace Orford. 43 Thelma is aged 75 years. She receives a War Widow's pension amounting to $601.07 per fortnight, which does not cover her expenses. She resides in a three-bedroom townhouse provided by the Department of Housing that is also occupied by her son Mark, his wife and their four children. They receive various disability pensions and no doubt contribute to the rent of the townhouse and the expenses for the family. 44 Thelma has recently been diagnosed as having a heart condition and she suffers from loss of hearing. Accordingly she has to consult a general practitioner on a frequent basis. She has no assets of any substance. 45 There is not a large amount of evidence of any contact between Thelma and the deceased. Indeed, the plaintiffs did not know the contact details for the deceased's brothers and sisters. This is indicative of the little contact the deceased had with Thelma in his later years. The situation of David Lloyd Brook 46 David is a brother of the deceased and is aged 73 years. He receives an aged pension of $180.00 per week and his assets comprise only of household furniture. He resides in a unit provided by the Department of Housing, which he shares with his wife who also receives an aged pension. They meet their expenses from these pensions. 47 Mr David Lloyd Brook has not been employed since 1980 due to the fact that he is a paraplegic. 48 Although David and the deceased built a Weekender together, over recent years there does not seem to have been a large amount contact between them. The situation of Katherine Glenda McKinley. 49 Katherine is 50 years of age and owns a property in Victoria worth approximately $300,000.00. She has a car worth $7,500.00 and has a half interest in a property in New South Wales estimated at $350,000.00. Her half share of the mortgage over the New South Wales property is $97,000.00 and she has a mortgage of $147,000.00 over her property in Victoria. She has other liabilities amounting to $18,000.00. 50 She works as a full-time nurse earning a salary of $850.00 per week that covers her expenses. She has two children one of whom she supports by providing a house for him to live in. 51 She gave no evidence as to her relationship with the deceased. The situation of Rhonda Gay Radcliffe 52 Rhonda is aged 45 years and jointly owns a two-bedroom cottage at Corindi Beach worth $85,000. She owns land worth $60,000.00, a car worth $9,000.00 and other personal effects. She has a mortgage over the property at Corindi Beach for $68,000.00 and owes several thousand dollars for rates. She has a modest income from which she meets her expenses. 53 She is furthering her qualifications by a part-time university course and her partner Peter is engaged in part-time work. They have three children one of whom resides with and is supported by them as he is still studying. 54 She gave no evidence of any relationship between her and the deceased. The plaintiffs' claim for provision 55 It is necessary to see how the plaintiffs say that they have been left without adequate and proper provision for their maintenance, education and advancement in life. 56 The second plaintiff expressed her need as being one to reduce her debts and mortgage in order to improve her situation in life. 57 The first plaintiff expressed the way in which he would like to receive support at paragraph 4 of his affidavit of 30 March 2004 in the following terms: "Should I receive a share in this estate I intend purchasing a home in Shoalhaven Heads or Bomaderry which is located approximately 10 mins drive away. I would like the home to be of the same standard as the home in which I presently reside. Property prices in Bomaderry are approximately the same as property prices at Shoalhaven Heads for this type of property. I have been in contact with a mortgage broker who has indicated to me that based on the monthly rental of $350 deposed to in my earlier affidavit, I could afford to service a loan of $45,000. It would be my preference to continue living in the home in which I now reside. Any home that I purchase would be used as the place of residence for myself and my children." 58 There are a number of things to be said about the first plaintiff's request. It was accompanied by a submission that what should happen in the estate is that the first plaintiff should receive the property subject to him paying the estate the sum of $45,000.00 so that the estate could then pay that amount to the second plaintiff. The submission went on to say that the first plaintiff would indemnify the estate against the capital gains tax liability and that there would therefore be sufficient cash in the estate to meet the outstanding expenses. It is entirely inappropriate in my view for the executors not to be able to discharge any liability for capital gains tax in respect of the transfer of the property. They should not have to rely upon an indemnity by the first plaintiff who is a person without assets. 59 It also seems to me that the submission ignored the plaintiff's liability for costs, which have already been incurred. The other matter of some substance is that it is not normal for a child to be provided with an unencumbered home by their parent. Further, the submission puts to one side any consideration of the situation of the defendant and those entitled to take on intestacy under the deceased's estate. 60 In Shearer v Public Trustee; Hawke v Public Trustee, (Unreported, NSWSC, 23 March 1998), Young J (as he then was) said: "The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligation to provide for persons who have some dependants. Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own." 61 Obviously there are instances where because of the child's disability or other special circumstances a home should be provided for him or her. In the present case the plaintiff, Wayne, is in full-time employment and is likely to be so for sometime into the future. His earnings are satisfactory and most likely would enable him to borrow more than is indicated in his affidavit given his most recent earning capacity. An estimate of his borrowing capability in his affidavit is only based on a saving in his present rental rather than on a proper analysis of his financial capacity. 62 In respect of the position of those who take on intestacy, it should be noted that there was evidence of a number of statements by the deceased to his friends that he intended to leave his estate to his stepchildren. This is a reasonably strong indication of how the deceased regarded his obligations. It also indicates that the deceased did not intend his children to have to pay rent for the property. He did not give any indication of how his estate would be shared but left that matter to be "fought out " between his two children. Some of those taking on intestacy have not placed before the court any evidence at all. Accordingly, the court can assume that they do not wish the court, when deciding the matter, to take into account either their financial circumstances or the relationship which they may or may not have had with the deceased. Some of them have given evidence of their financial situation but no evidence as to their relationship with the deceased. The same comment applies to that situation. 63 The defendant and the deceased's surviving brother are of course in a very weak financial situation. They have virtually no assets and survive on the pension. In the event that some funds are available, they are clearly in need. In ordinary circumstances the claims of stepchildren in the situation of the plaintiffs would have priority over claims of a deceased's brother and sister. 64 At the time of the conclusion of the hearing it seemed that if any order was made in favour of the stepchildren (which clearly should happen) then the costs involved would lead to a sale of the house. In these circumstances it was probably appropriate to only consider some contribution to the first plaintiff to enable him to acquire a house or otherwise provide accommodation for himself and his children in the future. The second plaintiff should certainly be provided with a sufficient sum to discharge her liabilities. 65 However, since the completion of the matter there have been further submissions on the plaintiffs' behalf in which it is indicated: "(a) That the second plaintiff would defer for a period the payment by the first plaintiff to her of $45,000 legacy in her favour, so as to permit her brother to obtain a financing of the property proposed jointly with his son, but on condition that such liability be secured over the real property. (b) That the plaintiffs do not seek an order for costs to the extent that they will make their own arrangements with their solicitors for payment of their costs. However, if the court is minded to order a sale of the property then they will seek an order for costs. 66 The clear intent of this proposal is to allow the Capital Gains Tax liability to be paid out of the cash remaining in the estate. However, it is at the expense of his solicitor and sister whose entitlements are merely postponed on a somewhat unsatisfactory basis. 67 The second plaintiff, Lynn, is in a far stronger financial situation than her brother as she already has a home. She has a family to support and it is important that she have some reasonable benefit from the estate of the deceased to allow her to provide for her family. In considering the claim of the first plaintiff, Wayne, one consideration that must be taken into account is that on numerous occasions during his life he has had the benefit of accommodation provided by his father although he has made some payments by way of board for part of that time. 68 Bearing in mind the whole of the evidence and the matters to which I have referred I do not think it appropriate according to community standards that the first plaintiff should be provided with a home. He can have a reasonable contribution to a home which he will no doubt be able to purchase either now or in the near future. 69 In these circumstances it is appropriate that there should be a legacy in favour of the first plaintiff of $175,000.00 and a legacy in favour of the second plaintiff of $100,000.00. Orders 70 In matter No 2585 of 2002 I order that: 1. The first plaintiff, Wayne Ronald Fagerlund, receive a legacy out of the estate of the deceased in the sum of $175,000.00. 2. The second plaintiff, Lynn Nola Milloy, receive a legacy out of the estate of the deceased in the sum of $100,000.00. 3. The plaintiffs' costs on a party and party basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. 4. The first plaintiff, Wayne Ronald Fagerlund, to give possession of the deceased's property to the administrator on one month's notice to enable the administrator to sell the same. 5. The legacies referred to in orders 1 and 2 above to carry interest at the rate provided for in the Wills Probate and Administration Act from a date four months after the date of these orders. 6. Liberty to apply. 71 In matter No 6038 of 2002 I dismiss the proceedings and order the plaintiffs to pay the defendant's costs of the proceedings on a party and party basis. ********** Last Modified: 04/08/2004 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.