New South Wales Supreme Court CITATION : Toole v Nightingale [2003] NSWSC 981 HEARING DATE(S) : 15 October 2003 - 17 October 2003 JUDGMENT DATE : 31 October 2003 JURISDICTION: Equity JUDGMENT OF : Master Macready at 1 DECISION : See paragraph 86 CATCHWORDS : Family Provision - Application by a son and daughter in respect of an estate comprising of a country property left to two other sons - Legacies awarded - No matter of principle PARTIES : Narelle Therese Toole and Errol William Nightingale v Harley Joseph Nightingale and Gerald Bruce Nightingale FILE NUMBER(S) : SC 4055/01 COUNSEL : Mr C M Simpson - Plaintiffs Mrs L Snelling - Defendants SOLICITORS : MJ Duffy & Son Solicitors Dubbo - Plaintiffs Messenger & Messenger Solicitors Bathurst - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Master Macready Friday 31 October 2003 4055/01 Narelle Therese Toole and Errol William Nightingale v Harley Joseph Nightingale and Gerald Bruce Nightingale JUDGMENT 1 Master: This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Gerald Thomas Nightingale who died on 26 August 2000 aged 88 years. The deceased was survived by four of his five children. His wife predeceased him. The parties are the four children. The will of the deceased 2 The deceased made his last will on 26 May 2000 under which he appointed the defendants the executors. He bequeathed to the plaintiffs as tenants in common his insurance policy now amounting to $25,254.35. He bequeathed a 2 acre property worth $2,000 to his grandson Sean Pascoe and a 21 acre property worth $90,000 to his grandson Derek Nightingale. He bequeathed his car worth $5,800 to his granddaughter Nyree Clark. The residue of his estate he left to his sons the defendants. The present estate of the deceased 3 The main asset in the estate was the property "Raheen" Rockley. A substantial part of that property has recently been sold for a total of $525,000 and the balance of the property is valued at $390,000. Apart from the properties subject to the specific bequests to which I have referred above the remaining estate consisted of the following: (a) Furniture and personal effects $2,000 (b) Money in the Bank $474.39 (c) NRMA shares $4,549.52 (d) Interest in partnership Raheen Pastoral Company $7,000 Total residuary estate $929,023.91 4 There are liabilities of $6,500.90 and costs of administration have been paid. 5 The costs of the defendants for these proceedings amount to $65,000 and those of the plaintiffs amount to $62,832.05 Family history 6 The defendants' chronology helpfully sets out the family history and I will use it with some modification. 7 Charles Nightingale the father of deceased was born on 5 February 1874. The deceased Gerald Thomas Nightingale was born on 7 July 1912. Harley Nightingale the first child of deceased was born in October 1937 and he thus is now aged 66. Maris Nightingale the second child of deceased was born on September 1938 and she died on 20 February 1987. 8 The plaintiff, Errol Nightingale the third child of deceased was born on 29 January 1940 and is thus aged 63. The plaintiff, Narelle Toole (nee Nightingale) the fourth child of deceased was born on 13 May 1943 and is thus aged 60. 9 In 1945 Narelle Toole was sent to live with people named Dwyer returning to the family home from time to time until she was of school age. Gerald Bruce (known as Bruce) Nightingale the fifth child of deceased was born on 15 August 1945 and is thus aged 58. 10 On 2 October 1945 Charles Nightingale died leaving four sons, including the deceased. The deceased took in consequence of the Will of Charles Nightingale and a Deed of Settlement between he and his brothers a life interest in the 1,130 acres known as "Claremont" with the remainder to his children living at the date of his death. 11 Between 1949 and 1951 Narelle Toole returned to the family home and commenced attending a small school located near "Claremont". Some short time after the school closed and Narelle Toole was taught by correspondence. In 1950 Narelle Toole (aged 7) commenced attending boarding school at St. Joseph's Convent at Newbridge and later at St. Mary's College, Bathurst during her secondary education. Narelle Toole returned home during school holidays and assisted with work being undertaken on "Claremont" and later on "Claremont" and "Raheen" as directed by the deceased. Narelle Toole's evidence is that this was hard work with little respite and that with the possible exception of her younger brother, Bruce, was work of a kind undertaken in common with her siblings. 12 On 6 May 1955 the deceased purchased two parcels of land totalling 1,100 acres known as "Raheen" located 16 miles from "Claremont". The purchase was affected with the assistance of some money advanced by the deceased's wife (possibly 2,000 Pounds) and the balance being borrowed. Harley Nightingale says he contributed by lending the deceased monies over the next 12 years. Errol Nightingale says he and his siblings advanced monies to the deceased. 13 In 1955 Errol Nightingale left school (aged 15). He worked on "Claremont" and received some payment. Errol Nightingale says that he and all his siblings worked on the property during school holidays with Bruce's work being less and that from the time each left school all worked on the deceased's property when each did not have some work away from those properties. Errol Nightingale and each of his male siblings were paid a small wage when undertaking work on the property. Errol Nightingale says that the preponderant work undertaken from the time he left school (which coincided with the purchase of "Raheen") by he and his elder brother, Harley, was on the "Raheen" property. 14 On 17 August 1956 Errol Nightingale says he made deposits into the deceased's bank account at the Bank of NSW, Rockley, as did his brother, Harley, and his sister, Maris. Errol Nightingale says this money was used to improve the deceased's property and to purchase stock. Errol Nightingale says that the children of the deceased who then received wages (Maris, Harley and himself) also ran cattle on the deceased's property that they had purchased. 15 In 1957 Errol Nightingale says that he and Harley Nightingale purchased certain equipment for use on "Raheen" until the deceased later purchased a bulldozer in about 1962. 16 In 1958 Harley Nightingale says that clearing of the back portion of "Raheen" was commenced, the front paddock of about 200 acres being reasonably clear. It was in 1958 that Errol Nightingale commenced shearing in the Riverina undertaking shearing for approx. six months of the year until 1970. 17 In approximately 1958 Narelle Toole completed her education and returned to "Claremont". She informed the deceased that she wished to be a nurse but was told he would not permit her to work for other persons. Narelle Toole says that she thereafter worked full-time on the farm as directed both assisting with general farming and assisting her mother. This work was done with little respite and without payment other than her board and keep. Narelle Toole additionally spent periods assisting with the care of an invalid aunt in Bathurst. 18 In 1961 Bruce Nightingale then aged 16 left school and undertook a wool-classing course. 19 In February 1962 Errol Nightingale married Marie Veech and subsequently had two children, Brendan and Bridget. They lived for about 2½ years at the residence on "Raheen" with his brothers, Harley and Bruce. Maris Nightingale subsequently married but continued to reside with the deceased and her mother at "Claremont". 20 Harley Nightingale says that in 1962 his advances to his father had reached more than 6,000 Pounds. 21 In early 1963 Errol Nightingale and his brother, Harley purchased 281 acres (adjoining "Raheen") known as "The Burrow". Errol Nightingale says that from this time to 1967 "The Burrow" was used for sheep, cattle and cropping conducted by Harley, Bruce and himself. Harley Nightingale says the deceased paid his share of the purchase of "The Burrow" out of the monies that were owed him. Harley Nightingale says he continued to lend the deceased money up to and including 1967. 22 In 1964 Narelle Toole married William Toole and subsequently had five children, Charles, Melinda, Gina, Scot and Raquel. They lived at "Claremont" for a short period and then moved to "Raheen" which they shared with Harley Nightingale. 23 In late 1964 Errol Nightingale and his wife moved from "Raheen" to a rented cottage. 24 In approximately 1965 Narelle Toole and her husband moved from "Raheen" to Rockley in about 1965 after the birth of their first child. Narelle Toole says that she continued to be available to assist the deceased when requested and rendered such assistance over the succeeding years. 25 In 1966 Errol Nightingale says the deceased purchased a D4 bulldozer which he and Harley Nightingale subsequently paid him for. At this time Errol Nightingale says he ceased making deposits into the deceased's bank account. It was in 1967 that Errol Nightingale says that he and his brothers, Harley and Bruce formed the Raheen Pastoral Company partnership. 26 On 20 May 1967 Errol, Harley and Bruce Nightingale purchased 711 acres adjoining "The Burrow" and forming part of a parcel referred to by the estate as "Bucks Creek" for $52,614 or $62,614. From this time the Raheen Pastoral Company partnership used "The Burrow" and the 711 acres for its farming activities. The Raheen Pastoral Company thereafter also used this land for its farming activities and had the benefit of the use of the "Raheen" and "Claremont" properties. 27 In approximately 1968 Errol Nightingale and his wife moved to a property owned by his father-in-law located close to the 711 acres ("Bucks Creek") and resided there for some time before returning to the 711 acres ("Bucks Creek"). 28 In 1969 Errol Nightingale approached his brother, Harley, and asked for money to erect a house on the 711 acres. After some "ill feeling" Harley and Bruce Nightingale agreed to the Raheen Pastoral Company partnership contributing $12,000 towards the building of a house which was subsequently constructed for about $14,938. Errol Nightingale and his wife subsequently spent about $4,630 on renovations and furnishings during their occupation of the property. 29 In approximately 1970 Harley Nightingale married and commenced to live permanently at "Raheen". 30 On 7 February 1970 Bruce Nightingale married and subsequently had two children, Leisa and Derek. Bruce Nightingale purchased property known as "Lucerne Dale" which consisted of a house on 15 acres at O'Connell for the sum of $6,000 with money he borrowed from the deceased interest free and repaid over the next five or six years. 31 It was in 1971 that Errol Nightingale says he ceased shearing 6 months a year in the Riverina and worked full-time largely improving the 711 acres referred to as the "Bucks Creek" property. 32 In 1972 a property known as "Te Aroha" was listed for sale. Harley and Bruce Nightingale wished to purchase the property but Errol Nightingale refused to join in a purchase unless an agreement could be reached under which he received title to the house occupied by he and his wife and the house block on which it stood of 170 acres. 33 It was in 1973 Errol Nightingale says that he received $1,500 from the partnership which he says was the only income ever received other than the payment of his annual Income Tax liability. 34 In late 1974 Errol Nightingale says that following increasing dissatisfaction with the conduct of the Raheen Pastoral Company he approached his father and brothers, Harley and Bruce, and requested that he be released from the partnership. In July 1975 Errol Nightingale sought legal advice regarding the partnership. 35 On 17 November 1975 the Raheen Pastoral Company partnership was dissolved and Errol Nightingale received $40,000 from the dissolution along with one third of the sheep and cattle and an entitlement to continue to reside in the residence on the 711 acres. Errol Nightingale and his wife continued to occupy the residence on the 711 acres pursuant to the dissolution agreement, which allowed him to do so for 5 years. Errol Nightingale says that notwithstanding the dissolution of the partnership he assisted with work when requested by his brothers during the balance of his residence on the 711 acres. 36 Harley Nightingale says that he and his brother, Bruce, then operated the partnership for a couple of years until a family trust was established including the deceased which thereafter operated until 1980 whereafter a partnership between the deceased, Harley and Bruce Nightingale was conducted. 37 In 1976 Errol Nightingale and his wife purchased 931 acres of unimproved land from Errol Nightingale's father-in-law being a further portion of the "Bucks Creek" property from which the 711 acres had been purchased. Errol Nightingale and his wife operated that property thereafter. 38 In 6 November 1976 the deceased's wife died. She was then aged 64. Narelle Toole says the deceased gave her mother's jewellery and personal things to nieces. 39 On 17 June 1980 the deceased repaid Errol Nightingale the sum of $3,193.92 which he had borrowed and interest. 40 Harley Nightingale gave evidence that the family trust determined in 1980 and properties thereafter operated as a partnership between Harley, Bruce Nightingale and the deceased until the deceased's death in 2000. 41 In approximately 1981 Bruce Nightingale underwent an operation for brain tumour. 42 On 20 February 1987 Maris Pascoe (nee Nightingale) died leaving three children, Monique, Sean and Nyree. 43 In approximately 1993 Narelle Toole and her husband sold the land on which they lived at Rockley and moved to Forbes. Narelle Toole says she continued to be available to assist the deceased and did assist when asked. 44 In 1994 Harley and Bruce Nightingale purchased for $130,000 the property "Brownlows" using funds borrowed from the bank. It had an area of 101.5 ha and is still owned by them. The loan to purchase the property has recently been repaid following the sale of the 711 acre property. 45 In 1995 Errol Nightingale underwent the first of two hip replacements. His second was in 1996. 46 On 26 May 2000 the deceased made his last Will and on 26 August 2000 the deceased died he then being aged 88. On 23 May 2001 Probate of deceased's Will was granted. The summons was filed on 17 August 2001 and is thus within time. The plaintiffs' eligibility 47 As the plaintiffs' are the deceased's children they are eligible persons. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. 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 or 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 of the plaintiff, Narelle Toole 48 The plaintiff is married with children who are no longer dependent upon her. She is aged 60 years and in reasonable health apart from a heart problem and some blood problems for which she takes medication at a cost of $57.25 per month. 49 The plaintiff and her husband operate a farming property at Forbes. These assets are as follows: (a) Property " Ulundi " Forbes and water Licence $930,000 (b) Machinery $250,000 (c) Stock on hand $42,389 (d) Residue of distribution of grandfather's estate $39,500 (e) Entitlement to insurance proceeds $12,627.18 50 They have debts of some $415,254. In the year ended 30 June 2002 their operations had a net loss of $18,687 and for 2003 was a net loss of $4,546 without provision for drawings. Effectively they have been living on capital. 51 The value of the property is as at 13 September 2002 and the plaintiff does not think that there has been any increase since that date. The defendants were critical of the plaintiff's failure to update the valuation and suggested that it was a breach of the plaintiff's obligation to fairly put her financial information before the court. Valuation was a live issue in the case from the beginning and if it were that important the defendants could have applied for an adjournment at the commencement of the hearing when they realised that there was no up to date valuation. In the context of the needs advanced by the plaintiff the precise value of the property is not critical. The relationship between the plaintiff, Narelle Toole, and the deceased 52 The evidence would seem to suggest that the plaintiff was a dutiful daughter and abided with the wishes of her father. As I have recounted above at his request she did not pursue her nursing career and instead worked on the property. She also gave evidence of having come back to work on the property after she had moved away following upon her marriage. Although this did not happen on a great number of occasions it showed a good relationship between her and the deceased. 53 Even though she did move away from her father, in the latter part of her life she maintained contact with him by phone. Obviously the relationship between the plaintiff and the deceased was a good one although the plaintiff suffered disappointment in respect of some of the treatment she received from her father. Contributions to the estate of the deceased 54 The plaintiff, Narelle, gave evidence of the work that she carried out on the property when she was a child. It is perfectly plain that this family was one where the children were expected to work during their holidays and after school. 55 Strangely, in respect of the plaintiff, the evidence on her part was that in contrast to her brothers and sister she did not receive payment for the work that she did on the property. There was some evidence in respect of one occasion many years after she had left the property that she was paid for some crutching. I am prepared to accept the plaintiff's evidence that this was not the case in the years between when she left school and when she and her husband went away to live elsewhere. 56 The plaintiff gave evidence of having done work which involved the usual farming work with sheep such as assisting with stock work as well as quite hard physical work. The defendants disputed the extent of the work carried out by the plaintiff but it must be remembered at the time that she was doing this work they were working on "Raheen" and may not have seen the extent of the work that she did. I am satisfied that there was some considerable assistance towards the deceased's enterprises by the work performed by the plaintiff between 1958 and 1965. The needs advanced by the plaintiff, Narelle Toole 57 It is necessary to consider the way in which the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. In her affidavit of 8 October 2002, the plaintiff expressed a number of needs. The most basic of these was a need to improve her property because of the problem with the allocation of irrigation water. It would appear that because of restructuring of the irrigation system she is not receiving her full allocation. I am satisfied that the estimates that were given for a new bore which would solve this problem in the amount of $150,000 would be appropriate. Approximately $58,000 has already been spent towards this project following the receipt of the funds from the sale of her interest in "Claremont". Clearly the plaintiff has a need for an additional $100,000 to complete this work. There were a number of other works advanced by the plaintiff such as funds to erect a woolshed, a hayshed, to obtain new vehicles and a to lazer level another paddock. Although I am satisfied that these are reasonable needs, except perhaps for the woolshed as there is a shed available to her on her son's property next door, whether these needs can be accommodated having regard to the circumstances of all the beneficiaries is another question. The situation of the plaintiff, Errol Nightingale 58 The plaintiff is 63 years of age, married and without any dependant children. He is in good health apart from his hips that give him some trouble and has finished his previous employment as a professional shearer. He and his wife carry on business as farmers and graziers at their property "Bucks Creek", Trunkey Creek. Their assets are the following: (a) Bucks Creek $500,000 (b) Balance of distribution $70,000 (c) Furniture $5,000 (d) Stock $20,750 (e) Machinery $30,000 (f) Entitlement to insurance policy $12,627.19 59 In addition the plaintiff's wife owns a property at Bathurst worth $200,000 and a car worth $10,900. Apparently she needs the property when she works late shifts in Lithgow and Orange as a nurse. 60 The valuation of "Bucks Creek" was $450,000 in September 2002 and there was no updated valuation although Errol conceded that it would increase to $500,000 at the present time. There was evidence of an increase in the value of adjoining properties as evidenced by valuations and sales suggesting an increase of some 46% over the period up to the present. It is not appropriate to simply apply that increase to the existing valuation, as there may be features particular to a property, which mean that such an increase would not apply. Only a valuer could say whether there was an increase. Once again given the particular needs advanced accuracy in valuation is not critical to a consideration of the matter. 61 The plaintiff's half share of the income from the property was $2,355.50 for the year ended 30 June 2002. His wife works and she supplements the plaintiff's income from her wage. Unfortunately she will have to give up her job when she turns 66 next year and this makes her future uncertain. The relationship between the plaintiff, Errol, and the deceased 62 The relationship between the plaintiff and the deceased was fairly close except for a period between 1974 and 1975. At that stage Errol had decided to leave the partnership with his brothers and his father tried to prevent this happening. No doubt the deceased thought it was important that all his sons continue to work in the family business and that that should be the focus of their attention. He clearly did not want Errol to leave and he made it plain that if he did he would get nothing in the future. 63 The following comments of His Honour Mr Justice Holland in Kleinig v Neal (1981) 2 NSWLR 532 AT 540 are apposite to his fathers disappointment at this time:- "If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the parent, it may refuse the child's claim." 64 In my view the relationship was a good one apart from the difficulty over leaving the partnership which was overcome after a time. Contributions to the estate of the deceased by Errol Nightingale 65 Between 1955 and 1965 the plaintiff assisted his father in the development of "Raheen". He was paid a wage during that period but it has to be noted that this wage was often less than other employees who were outsiders. In addition he assisted by lending his father monies he received by way of wages when his father needed assistance. Ultimately, of course, those funds were repaid but the provision of them was of some assistance to the deceased. The needs advanced by the plaintiff, Errol Nightingale 66 In his affidavit of 8 October 2002 the plaintiff gave evidence of a whole variety of matters which would assist him in dealing with his property. In particular because of the size of the property it is not self-supporting and he needs to purchase some more land which apparently is available which would cost about $100,000. Having regard to their current income it is plain that more land is needed to increase their income particularly as his wife has been subsidising the farm enterprise and she will have to stop work in a year's time. For most of his life the plaintiff, Errol, was a contract shearer but because of the problems with his hips he can no longer do this work. Accordingly, it is difficult for him to obtain other employment at his age. The other matters advanced such as sheds, dozerwork, water bore and grain silos are all reasonable matters to consider in the context of improving his property and making it more profitable. However these matters have to be considered in the light of the other claims on the estate of the deceased. 67 It is necessary to consider the situation of any other persons who have a claim on the bounty of the deceased. In this case they are the two defendants and the beneficiaries who received the specific bequests of small parcels of property. Neither of those beneficiaries put on any evidence and accordingly the court can assume that they do not wish the court to take into account their financial situation or relationship with the deceased. The situation of Harley Nightingale. 68 Harley is aged 66 years, is married and has no dependant children. He apparently is in good health. He has carried on business as a grazier all his life and still does but to a limited extent as a result of the sale of the major part of the deceased's and his holdings. Harley's financial situation appears to be as follows. His assets taking into account the proposed distributions from the estate now appear to be: (a) Half interest in the remainder of " Raheen " $195,000 (b) The proceeds of sale of the " Burrow " $276,798 (c) Half of net proceeds of sale of the estate real estate $262,500 (d) Half of the net proceeds of sale of " Bucks Creek " $284,101 (e) Subaru car $32,000 (f) Superannuation $33,000 (g) Proceeds of sale of sheep $97,275 (h) Interest in Raheen stock and machinery $63,000 (i) Furniture $10,000 (j) Shares in ING $3686 (k) Loan to Raheen partnership $13,550 (l) Half interest in the property " Brownlows " $150,000 (m) Amount due from the sale of Claremont $195,000 (n) Half share in partnership stock $24,000 Total $1,639,910 69 Of this total $457,500 represents Harley's interest in the estate realty. He has a liability of $55,000 being a half share of the partnership overdraft. 70 Harley lives as he has done for most of his life on the remainder (198 acres) of the property "Raheen". His wife owns about 150 super fine sheep with an average value of $60 per head. 71 His income over recent years has fluctuated with the fortunes of his enterprise. In 1999 his taxable income was $10,367, in 2000 was $5,072 and in 2001 was estimated at $55,000. His future income will include some farm income and interest. The relationship between the deceased and Harley Nightingale 72 Harley was the oldest child and clearly was close to his father all his life. There does not seem to have been any falling out and like his other brothers he worked for wages which were somewhat less than what was paid to outside employees. Contributions to the estate of the deceased by Harley Nightingale 73 There is no doubt that there were contributions in the early days from the work that was done by Harley on his father's property. However, one thing that did occur was the merging of the deceased's interests and the boys' interest in Raheen Pastoral Company and the discretionary trust. This meant that the deceased contributed his stock and land to this partnership as did the boys in respect of stock and land which they had at that stage. It seems that over the years the overdraft increased up to $150,000 and this allowed the payment of drawings to the boys. It also allowed the payment of the interest on the property that had been purchased by the two boys, namely, "Brownlows" which they still own. 74 Over a period of some twenty years the deceased took drawings which were approximately one half the drawings made by each of the boys. This might have been an appropriate arrangement given that the deceased only had himself to support whereas the boys had families to support. Be that as it may the arrangement was to the advantage of both boys. Neither of the plaintiffs received any such advantage. The situation of Gerald Nightingale 75 Gerald is married although he separated from his wife some three years ago. He had a substantial amount of illness in recent years and for some two years was a total invalid as a result of an operation for a brain tumor. He has recovered but still has the effects of that problem. He has three operations for cancer but so far he has had no recurrence. He has tried hard to obtain employment and has not been successful in the only area where he can get employment namely as a truck driver. 76 Gerald's assets appear to be as follows:- (a) Interest in sale of Claremont $195,000 (b) Half interest in sale of Bucks Creek $284,101 (c) Half interest in the remaining portion of Raheen which had been sold $ 262,500 (d) Half interest in retained portion of Raheen $ 195,000 (e) Half interest in Brownlows $ 150,000 (f) Whole interest in Lucendale $ 200,000 (g) Proceeds of sale of sheep $ 97,275 (h) Shearing partnership, machinery, equipment $ 63,000 (i) Half interest in remaining stock $ 24,000 (j) Superannuation $ 28,937 (k) Jeep motor vehicle $ 28,000 (l) Toyota motor vehicle $ 2,000 (m) Furniture $ 8,000 Total $1,537,813 This of course includes his share of the estate realty at $457,500. 77 He also has liabilities of half the overdraft of $55,000 and a debt over his Jeep vehicle of $3,700. 78 Gerald's wife has some property which she acquired during her lifetime and this includes the property at Bateau Bay worth $350,000 and a home in Bathurst worth at least $200,000. Obviously, of course, these properties cannot be taken into account when considering the matter because of the pending property settlement between herself and Gerald. The relationship between the deceased and Gerald Nightingale 79 There is nothing to suggest that this relationship was other than like his brother, Harley, and that he had a good relationship with the deceased. Contributions to the estate of the deceased by Gerald Nightingale 80 The same comments as to Harley apply in respect of Gerald although he was much younger when Raheen was first purchased. He assisted when he could but not to the same extent. Consideration of the application 81 It is clear that Errol did not receive anything under the will of the deceased apart from the insurance proceeds because of the attitude his father had to him leaving the partnership. Errol was paid out his share in full but his father certainly believed that thereafter he was to receive nothing more. As I have tried to point out by reference to comments made by His Honour, Justice Holland, in Kleinig v Neal disappointments like these are things that a testator should put to one side. He still has a duty to provide for a child of his who is in need. Clearly Errol is in need and this is obvious from his situation which I have accounted earlier. 82 Narelle Toole is also in need. The reasons why the deceased did not leave her anything other than the insurance policy do not appear but no doubt they stem from a desire to benefit his sons. The situation of the daughter is no different to that of the son and a testator is obliged to give consideration as to what his daughter's needs are as well of those of his son. As I have indicated earlier Narelle certainly has a need for further provision. 83 Harley is probably the best off of all the children. However, he is in situation where he is approaching the end of his working life although he still wishes to maintain some farming interest and he would prefer to live on the property on which he has lived all his life. At the moment that is retained by the estate. One of the matters that Harley investigated was the cost of a annuity which would provide him with an income of $17,544 per annum. The cost of such an annuity was $600,000 but it is to be noted that this type of annuity is one which leaves him with a residual capital value equal to the purchase price at its termination. It does however indicate the need he will have in due course to have an income because his farming income will be substantially reduced as a result of the sales of the properties. 84 Gerald's situation is slightly more difficult than that of Harley's because he has the uncertainty of a property settlement that has not yet been resolved. He also has difficulty obtaining work and must look to his funds to support him during his retirement. 85 It is not possible to be precise about figures because the exact income situation of both Harley and Gerald is in a state of flux following the sale of the properties and their present endeavours to find other employment or other means of supplementing their incomes. 86 It is also clear however that some modest provision could be made for the two plaintiffs without intruding too much into the share passing to Harley and Gerald. Having regard to all these matters in my view the appropriate course is that the plaintiff, Narelle Therese Toole, should receive a legacy of $125,000 and Errol William Nightingale a legacy of $150,000. The burden of this can first fall on the two specific bequests of realty and thereafter be borne by the residuary estate. I direct the parties to bring in short minutes. ********** Last Modified: 11/03/2003 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.