New South Wales Supreme Court CITATION : Chan v Tsui [2005] NSWSC 82 HEARING DATE(S) : 09/02/2005 JUDGMENT DATE : 11 February 2005 JURISDICTION : Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 75 CATCHWORDS : Family Provision. Application by children of deceased. Real estate passed to eldest son in accordance with Chinese custom. Orders for provision made in favour of plaintiff. PARTIES : Lily Chan, Janet Tsui, Megan Tsui, Fiona Tsui by her tutor the Protedtive Commissioner of NSW v Raymond Tsui (Estate of the late Tong Sew Tsui) FILE NUMBER(S) : SC 3812 of 2003 Mr M. Meek for first three plaintiffs COUNSEL : Mr L. Ellision for fourth plaintiff Mr G. McNally & Miss L Chan for defendant Lee & Lyons for first three plaintiffs SOLICITORS : E.H. Tebbutt & Sons for fourth plaintiff Mallesons Stephen Jaques for defendant LOWER COURT JURISDICTION : - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY FRIDAY 11 FEBRUARY 2005 3812/03 – LILY CHAN & ORS v RAYMOND TSUI – ESTATE OF TONG SEW TSUI JUDGMENT 1 MASTER: This is a Family Provision Act claim in respect of the estate of the late Tong Sew Tsui, who died on 12 September 2002, aged seventy-four years. She was survived by, inter alia, her step-son the defendant and her four daughters who are the plaintiffs in the proceedings. WILL 2 She made her last will on 6 November 1978. In the events which have happened the estate was left equally between her four daughters, her step-son Raymond and another child of her husband's first marriage. ESTATE 3 The estate has been reduced to cash and after expenses of administration will amount to $89,000. From this will have to be deducted any costs order in the matter. 4 The defendant's costs so far are $67,114. 5 The fourth plaintiff, Fiona, has been separately represented because she suffers from a disability and her interests are in competition with the other plaintiffs, her sisters. 6 The first to the third plaintiffs' costs are $32,500 and the fourth plaintiff's, $19,000 to $20,000. 7 Even if only the fourth plaintiff succeeds, there will be no estate and the claims can only be satisfied by resorting to notional estate. In this case the notional estate consists of a block of six strata units at Penshurst in which the deceased and her daughters lived. The block is valued at between $1.98 million and $2.04 million. 8 The units were originally purchased by the deceased's husband in November 1975 for $155,000 and registered in the name of the deceased, her husband and her step-son Raymond as joint tenants. Following the various deaths the property has now passed to Raymond. Apparently Raymond, who made no financial contribution (except for working in the business), was placed on the title because it is Chinese custom that the property should pass to the eldest son. FAMILY HISTORY 9 The deceased's husband was born on 8 July 1916 and he married for the first time in 1948. 10 One of his sons of that marriage, who was the defendant Raymond, was born on 1 August 1950. 11 His first wife died in 1954 and he was married to the deceased in 1957. They had four children by that marriage, Lily born 2 October 1958; Janet born 3 November 1962; Megan born 7 March 1966, and Fiona born 6 June 1973. 12 At that time, in the early 1970s, the family was residing in New Guinea and worked as merchants. 13 Raymond married in 1977 and was at that stage still in New Guinea. 14 It was in November 1975 that the Penshurst property was purchased for $155,000 and registered as I mentioned. 15 In 1978 Fiona was diagnosed with Down's Syndrome. 16 The last will of the deceased was 6 November 1978. 17 In 1984 Lily, who by this stage had married Mark, and their children started living in the Penshurst units as well. 18 The deceased's husband died on 16 November 1984. 19 In 1985, Lily and Mark purchased a property at 36 Swan Street, Strathfield, which was rented at the time. 20 Unit 4 was occupied by Megan and Janet from November 1989 to 28 June 1996. 21 By 1992 the last tenants had vacated the Penshurst units. The property has not been let since and has been used basically as a family home for the various members of the family, apart from the defendant. 22 The deceased died on 12 September 2002 and probate was granted on her will in December 2002. 23 After the commencement of the proceedings a management order was made by the Guardianship Tribunal in respect of Fiona and after that orders were made for her separate representation. 24 The first report of the psychologist concerning the position of Fiona was made on 1 December 2003 and in January 2004, for the first time Fiona ventured outside the units. Apparently her mother had kept her hidden for some years since 1991. 25 In March 2004 Lily and Mark contracted with builders for the demolition of the Strathfield house and the construction of a new house on the property. They plan to live there when it is completed within the next few months, together with Janet and Megan. Janet has contributed $110,000 to the purchase and Megan $50,000. They have a caveatable interest in the property and it is agreed that their loan should be repaid within three months if they wish to live in what is, in effect, a family home. 26 There was a further psychologist's report of Michelle Chapman on 30 June 2004 regarding Fiona and I will come back to that in due course. 27 All the plaintiffs 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 other 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 LILY CHAN 28 Lily is aged forty-six, married to Mark and they have four children aged between ten and nineteen. Lily is employed as an executive assistant at the Office of the Protective Commissioner. Mark has casual employment as a storeman and packer. 29 Their income and assets are as follows: (a) Lily's taxable income for the period ended 30 June 2004 was $45,278. (b) Mark earns $800 per week gross. (c) They own the Strathfield property, which has not been valued but it is certainly in excess of $600,000. (d) They have cash resources as at 31 December 2004 of $56,438.20. (e) Lily has superannuation with Rest Superannuation having a present value of $112,602. (f) Mark has a one-third interest in a property at Enfield which is held with his mother and younger sister who live there and presumably will continue to do so. (g) They have a joint time share in a Fiji resort of $22,000. (h) They have liabilities to her sisters of $160,000. They have still to pay $77,377 plus some other unqualified costs to complete the property – driveways have to be made, fences erected and things of that nature. 30 In this case it is clear all the children had a good relationship with the deceased. The three sisters looked after the deceased and they also helped their mother with the care of Fiona. Lily did the cooking and they all helped with shopping. It truly was an extended family arrangement. The whole block of units has been treated as a family home. 31 Lily, from 1992 until the death of the deceased, has paid rates on three units and all the water rates. Raymond seems to have paid them since the date of death. THE SITUATION IN LIFE OF JANET TSUI 32 Janet is aged forty-two and is single. She is employed on contract with the Office of the Protective Commissioner as a project manager and in the role of a computer technical consultant. She had cash resources as at 31 December 2004 of $203,000. Her contract of employment will terminate in about a month's time and she does not know whether it will be extended. She has previously, for instance, from the end of 2002 to September 2003, been unemployed. 33 Details of her income and assets are as follows: (a) Janet had a taxable income for the period ended 30 June 2004 of approximately $175,000. However, her taxable income for the prior year (2003) was $23,455. Clearly her income fluctuates. (b) She had cash resources as at 31 December 2004 of $203,000. (c) She has superannuation with EDS (Australia) worth $199,416.35 as at 30 June 2003. (d) She jointly owns with Megan a time share in a Fiji club resort worth $9,000. (e) She also has a half share with Megan in a property at Ipswich which is a block of land worth $60,000. It was given to them by the deceased in 1995. Her half share is worth $30,000. (f) She is owed $110,000 by Lily in relation to the arrangement with the house. (g) She has some shares of minor value. 34 Janet has made a number of substantial contributions to the estate. She paid land tax assessments between 1995 and 2002 in the sum of $43,030.14. She has paid all the rates for units 2, 3 and 5 since at least 1991. She has paid some fencing costs in 1998 and 1999. She has paid all the electricity for the whole property since 1991 and she has also contributed to the upkeep on the property – gardening, lawn mowing and general repairs. 35 It is illustrative of the way the family lived that the deceased got Janet to contribute by saying that one day one of the units would be hers to live in. THE SITUATION IN LIFE OF MEGAN TSUI 36 Megan is aged thirty-eight and is single. She works as a library network and support services co-ordinator at Burwood Libraries. 37 Her assets and income are as follows: (a) Megan had a taxable income for the period ended 30 June 2004 of $55,806. (b) She had cash resources as at 30 December 2004 of $61,595. (c) Her superannuation amounted to $76,693.50 at 30 June 2004. (d) She jointly owns with Janet a time share in a Fiji club resort and she has a half share of the Ipswich property. These are, respectively, worth $9000 and $30,000. (e) She has some shares. (f) She is owed $50,000 by Lily. 38 She had a good relationship with the deceased and has joined in the family in the way I have described. 39 She, like her sister Janet, has not left out marriage and if the appropriate prospect arises they would wish to be married. At that stage they would seriously consider living away from the family home which has now been established. 40 Before dealing with Fiona I will first consider the circumstances of the others having a claim on the bounty of the deceased. These are the defendant and the step-child Fay. The latter has put on no evidence and the Court can assume she does not wish any evidence she can advance to be taken into account. Apparently she was adopted out by the husband of the deceased and his first wife at a very young age. THE SITUATION IN LIFE OF RAYMOND TSUI 41 Raymond, who is aged fifty-four years, is married and has two children. Jason, their eldest child, holds a professional qualification and is financially independent. Jacqueline is a post-graduate student at Sydney University and resides with Raymond and his wife. 42 Raymond works as a cash handler at Chubb and his wife Janet is employed as a customer service officer with the Commonwealth Bank. They live in an unencumbered home at St Ives worth at least $875,000. They have savings of some $19,000, two cars, home contents and a minor amount of superannuation totalling $26,500. They have a line of credit from the Commonwealth Bank which they have used to the extent of $48,414 and debts to others, including Janet and Megan, in the sum of $39,000. Their joint incomes amount to $4704 per month and their expenses at the moment are $4,798 per month. 43 Raymond had a good relationship with the deceased, whom he treated as his mother and who treated him as her son. He did not contribute financially to the purchase. He did, however, work in his father's Papua New Guinea business before he purchased it when his father left Papua New Guinea in 1974. 44 The outgoings he has paid on the units since the date of death amount to $32,143.69. He has also paid estate debts of $3,234 out of his own pocket. 45 He hopes that the receipt of the block of units will provide for their retirement and plans to borrow to pay out any legacies awarded, do it up and let the block, if possible. THE SITUATION IN LIFE OF FIONA TSUI 46 Fiona is single, aged thirty years, with no dependants. The expert evidence shows that she has a life expectancy of about twenty-five years. She suffers from Down's Syndrome and has a hearing loss in both ears. The Protective Commission has been appointed her guardian. He holds $141,463 in trust for her and she receives a disability pension in the amount of $432.37 per fortnight. 47 There are two reports of psychologists dealing with Fiona's position. The first was on 1 December 2003. In that report the psychologist summarised Fiona's situation in these words: "Ms Fiona Tsui is a 30-year-old woman who has Down's Syndrome. She is severely intellectual impaired and her level of functioning is extremely low. She has been allowed to basically 'stay in her room' for the last 8-10 years and any social and self care skills that she may have possessed in the past have been allowed to atrophy. She lives in a two bedroom unit by herself and has only minimal periods of supervision. Her sisters (and their families) live in the same block of units although most of the day they are at work, etc ... and unable to provide monitoring or supervision. Up until September 2002, her mother provided ongoing supervision. Ms Fiona Tsui is a relatively young woman, with a severe disability, who has been left to languish in an unacceptable and unsafe environment. She is socially isolative and is left unsupervised for long periods of time. Her current accommodation and quality of life is unsatisfactory. It is thought that much work needs to be done for Fiona to realise her potential and improve her quality of life." 48 Ms Morrow estimated her future needs as follows: "Accommodation: Ms Tsui needs either to be placed in supervised accommodation, the most appropriate would be a group home with other residents of similar age and situation, or she needs to be supervised in her own home. Accommodation costs will depend on what option is 'chosen'. If Fiona can be placed in a group home managed by the Department of Aging and Disability accommodation costs will consist primarily of her fortnightly rent (approximately $500 per fortnight). Fiona could also be placed in a non-government group home such as those managed by organisations such as the Royal Ryde Rehabilitation Centre, House With No Steps, Civic Residential, etc ... If placed in those homes accommodation costs would need to be negotiated, and could be more expensive. There may also, with the non-government agencies, be an initial accommodation payment. Alternatively, if Fiona is not placed in group home and/or supervised accommodation, she needs to be supervised in the home. This would be very expensive, although the costs would depend on whether the care was 'live-in' and/or whether a family member could/would sleep in the unit at night (thus not requiring overnight supervision). Day Care Program: In the long term it is reasonable to believe that Fiona should/would attend a day program, and one would imagine for five days a week. Costs/fees associated with attendance at a day program vary, again depending on whether the service is government/non-government or privately owned/managed. Comfort/Spending Allowance: Approximately $200 per month. Clothing Allowance: $500 per quarter. Holidays: Escorted holidays, alternative years (3,000-5,000). Furniture: If Fiona is to move to a group home funds will need to be set aside for bedroom furniture, room furnishings etc ... (est. cost, $3,000-4,000) with extra funding required for maintenance/replacement over the years. Refurbishment of Unit: If Fiona is to stay in her current home a number of adjustments will need to be made to make the unit safe and functional. Firstly, the bathroom requires work – it is suggested that the shower doors are removed an and adjustable shower head is put in place. Smoke detectors need to be placed in the unit and in common hallways etc ... The kitchen needs to be functional again, and perhaps security fixtures on doors and windows. Behavioural Intervention: Fiona is functioning below expectations for someone with Down's Syndrome. It is almost inconceivable that she has been allowed to be left in her room for such a long period of time. There is great scope for re-integration back into the community and an intensive behavioural management program with a skilled therapist needs to be put in place. A psychologist, experienced working with people with disabilities, and behaviour change should be employed to work with Fiona over the short term for 're-skilling' purposes. A private psychologist, working intensively with Fiona over the next few months should be able to address the self-care and social deficits (approximate cost $14-20,000). Medical Care: Consideration should be given to Fiona having private medical insurance including dental care, physiotherapy etc. Funeral Expenses." 49 Fiona has been placed on the waiting list for a group home and hopefully it will become available. These matters take time in order to match residents. Fortunately, availability does not depend upon financial circumstances, such as receipt of the pension, and depends more upon the disability and availability. 50 There have been investigations into the costs which would be involved if Fiona went into a group home. The details of these were given by Amanda Nately, an estate manager in the Office of the Protective Commissioner, as follows: "CAPITAL EXPENSES Furniture and Furnishings $ 6,000.00 Psychological fees recommended for short term. $20,000.00 $26,000.00 ANNUAL EXPENSES Group Home fee for accommodation, meals and utilities at $430.00 per fortnight $11,200.00 Comfort allowance at $200.00 per month $ 2,400.00 Holidays with companion $ 4,000.00 Clothing, shoes and toiletries allowance at $500.00 per quarter $ 2,000.00 Medical Fund contribution. $ 1,500.00 Basic Day Program fees plus extra activities and sundries at $100.00 per week. $ 5,200.00 Medications and Pharmacy items. $ 1,500.00 Cost of carer, training of social skills and companionship for say 3 hours per days, 3 days per week at $45.00 per hour = $405.00 per week. $21,000.00 $48,800.00 per annum One other additional expense would be the fees payable to the Protective Office which are currently at the rate of $1,600.00 per annum, but will increase as Fiona's assets increase." 51 The only debate in respect of these matters is the last matter, namely, the cost of a one-on-one carer to provide companionship for three hours per day, three days per week at $45 per hour. The quantum of the charge is not in issue but the need and extent has been an issue of debate. It is to appreciated that this is quite separate from Home Care which is provided in a group home environment. 52 I have already set out Ms Morrow's recommendation above which relates to a private psychologist doing some intensive work for a few months at a cost of $14,000 to $20,000 which amount is built into the above figures. 53 There was a further report of Ms Chapman on 30 June 2004 which noted a marked improvement following the intervention of the Disability Services Australia support team. That Service provides community access and activities two to three times each week with one-to-one staff support. The summary noted that Fiona continued to need one-to-one support, both at home and in the community. 54 There are no recommendations about the level of support for the future but there was attached what was described as a "behaviour intervention and support plan." That noted the partial success of the community access, which it noted required one-to-one or two-to-one support. The sole object of the plan was to ensure that Fiona would possibly engage in community access several days a week with either support staff or family. It is important to note that it is anticipated that the family will be involved in the ongoing care of Fiona. 55 The report thus does not support the level of support calculated by Ms Nately and leaves the matter quite open. Ms Nately does not have the expertise to make a judgment of how long it will be necessary to provide this support. Given the family's involvement to date and their continued interest in Fiona, it would not be unreasonable to expect them to take part in the program. 56 I think it is fair to assume that because of her disabilities Fiona will always need company when she accesses the community and plainly such access is in her interests. If there is an improvement as a result of the intensive effort of a psychologist, it may be that it will be the family who can easily fulfil that role. In order to take into account all these variables, what I propose to allow is one half of the amount claimed in respect of the community access on the basis that it is likely that the family will be involved. This makes the annual amount $38,300 and for twenty-four years amounts to a lump sum of $660,601. The other annual expenses bring this up to $686,601. She has $141,463 leaving a shortfall of $545,138. 57 These figures include the cost of accommodation which equates with the pension to which Fiona is entitled and presently receives. At present such a pension will decrease once her assets exceed approximately $100,000 and will cease when her assets reach $422,500. 58 It was submitted by the defendant that where someone such as Fiona has been in receipt of a pension for all her adult life that the testatrix is entitled to take that into account in deciding what is adequate provision. Presumably it is suggested that I should take into account the fact that later in her life as her assets decrease Fiona will become entitled to an increasing pension, which would reduce her needs. 59 I discussed treatment of pensions in Mitchell v Osborne 17 November 1994 in the context of a war pension where I said the following: "On the need for maintenance it was suggested that I should disregard his pension entitlement. In Parker v The Public Trustee unreported 31 May 1988 his Honour Young J had the following to say: 'In my view the attitude that the court takes in this area of the law is this problem under the authorities appears to be as follows: (1) The object of the Act is to compel persons to make provision for their dependants and not throw the maintenance of dependents upon the public purse. See e.g., Liberman v. Morris (1944) 69 CLR 62. (2) It is no answer to a claim that a deceased failed to make proper provision for his dependant and that dependant is entitled to a pension under the Society Security Act: Re Hunter (1940) Gazette L.R. (NZ) 100, at p 101. (3) When making provision a wise and just testator usually makes his will without regard to any means-tested pension that a beneficiary may be able to receive: Shah v. Perpetual Trustee Co. (1981) 7 Fam. L.R. 97, at p 100 and Dickie v. Dickie, an unreported decision of Master Gressier handed down on 21 February 1986, at p 9. (4) A wise and just testator, however, when formulating his bequests does take into account the income that the various beneficiaries would be receiving under superannuation or other pensions: Re Lawford (1954) NZLR 1142, at p 1145. (5) A testator has no duty to organize his affairs so that his beneficiaries receive the maximum benefit from his estate so long as he makes adequate provision for them. (6) It would be contrary to the policy of the Act for the Court to so make an order that there was thrown on to the public purse the support of a dependant to the advantage of a "wealthy" beneficiary. See, e.g. in the Family Law area, Re F.(1982) 8 Fam L.R. 29. (7) Where the estate is small and especially where there are a series of claimants on the testator's bounty it may well be proper for the testator when making his will and the Court when framing its order to preserve a pension entitlement. See again the analogous cases in the Family Law area, Re Brady (1978) F.L.C. 903 and Re Kauriers (1986) 11 FamL.R. 42.' One is forced to observe that the situation today in the 1990s is substantially removed from the type of situation that applied in 1944 when the High Court in Lieberman v Morris made the comments about throwing the cost of maintenance of dependants upon the public purse. In the last twenty years for example in Australia we have seen unemployment at a level that was not experienced for many years before that period. In fact it is something that has not been experienced in the period since the last great depression in 1929. The receipt of social services payments given the higher levels of unemployment is not seen as a stigma or regarded in the same way as it was regarded in 1944 or perhaps even in 1981 when Shah v Perpetual Trustee was decided. Perhaps the time has come (and perhaps it is not for me to do it) to consider whether this characterisation of the purpose of the Family Provision is still appropriate." 60 As I indicated in Studdert v Wildlash, unreported 5 October 1995, an examination of the cases referred by Young CJ in Eq does not reveal a detailed recent consideration of the matters of principle involved. Indeed in Lieberman v Morris the matter, while referred to by Latham CJ, was not part of the ratio of his decision or that of that of the court. The Family Provision Act became law at a time when there was substantial provision by Commonwealth legislation for unemployment, aged and invalid pensions. This puts a different perspective on the Act and cases such as Shah v Perpetual Trustee Co and Dickie v Dickie which were all cases under the Testators Family Maintenance and Guardianship of Infants Act 1916. This led me to conclude in Studdert v Wildlash that, given the comments I have made above in respect of unemployment, it is in this day and age appropriate to take into account a pension entitlement. 61 I have since had drawn to my attention the useful comments of Hedigan J in King v White (1992) 2 VR 417 at 424 where he said: "There would, I think, be strong public policy reasons against permitting the moral obligation of testators to make adequate provision for the proper maintenance and support of those with claims on their bounty to be deflected by resort to the expectation of the continued payment from the public purse to survivors of sums in satisfaction of the testator's duties. Moreover, there could be no legitimate expectation that the payment of social service or old age entitlements would continue at any particular level on the same conditions, or be appropriately linked to rising costs. Further, the provision of such benefits are subject to political vagaries. It is a fact well known in the community that the receipt of the old age pension is now assets and means tested. Indeed, in this very case, this issue has been partly addressed in relation to the possible provision of an additional source of income for the widow. I am fortified in these views by the comments of Rath J in Shah v Perpetual Trustee Co (1981) 7 FamLR 97. In that case, his Honour expressed the view that he did not think the consideration of the pension entitlement of the plaintiff and their continuance in the future could assist in the formulation of proper provision for the plaintiff. Further, his Honour stated, in the circumstances of the case: 'I think that a wise and just testator would make provision for his widow out of his estate without regard to a means tested pension. The position could be different in the case where the competing claims on the testator would cause strains on his capacity to provide. That is not this case.'" 62 As an example of the latter proposition see Warland v Reece [2000] NSWCA 380. 63 Since my earlier decisions in King v Foster (Court of Appeal unreported 7 December 1995) Sheller JA referred with approval to the discussion by Bryson J in Whitmont v Lloyd (unreported 31 July 1995) on the subject. At page 14 his Honour had the following to say: "The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for protection of private interests and serves public policy: see Dillon v Public Trustee of New Zealand [1941] AC at 303, 304 and observations, not uniform in their import in judgments in Lieberman v Morris (1944) 69 CLR 69. In my opinion, the availability of Age Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant to throw burdens off public funds and on to private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth in an estate it should be directed away from the less fortunate and successful of the eligible persons so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interest of the public in public funds, which can receive incidental protection from the workings of this legislation. Where wealth is available it should be used to meet needs for maintenance, education and advancement of eligible persons. The significance of social benefits is related to the available resources. In my understanding this expresses the view on which this Court administers the legislation. See my observations in Wentworth v Wentworth (14 June 1991, unreported at 132) which appears not to have attracted criticism in the Court of Appeal (3 March 1992): 'The testator should not have disposed of all the family wealth in ways of his own choosing and left the family's economic casualty to relative penury or dependence on social agencies.' See too Parker v Public Trustee (Young J, 31 May 1988) and Thom v Public Trustee (Master McLaughlin, 2 April 1992), both noted in Leslie's Equity and Commercial Practice F30: 1010." 64 His Honour's comments are most apposite when considering the matter. 65 In this matter there is wealth in the notional estate which should be taken into account for these purposes. This is not a case where the competing claims upon the testator's bounty cannot be met out of the available estate and notional estate. In these circumstances I think the appropriate legacy for Fiona is $545,000. 66 I turn to consider the claims advanced by the first three plaintiffs. Their claims are put forward as for some advancement in life rather than maintenance. They all have housing adequate for their present needs. The assessment of whether they have been left without adequate and proper provision for their advancement in life has to take into account the size of the potential notional estate. 67 They each sought a legacy of between $65,000 and $75,000. In the case of Lily, although she has some savings she does not have sufficient to find the minimum amount due to build a home, which is well in excess of $77,000. She owes her sisters $160,000 and is in the midst of bringing up a young family. Clearly in the context of this estate she has been left with inadequate provision. 68 Janet and Megan are single and at the moment are happy to live with their sister. It may be their later circumstances may be such that they may need to move out on their own or with a partner. Janet, being older, has more savings than Megan and Janet has also made substantial contributions to the property. In my view of the circumstances of this case they should have some provision by way of legacy and I would propose that Lily be given a legacy of $100,000, Janet $75,000 and Megan $65,000. 69 The relevant prescribed transaction which is alleged under s 23(b)(iii) of the Act is the failure of the deceased to sever the joint tenancy. By the combined effect of s 22(1)(a)(i), 4(b) and (5) there will be a prescribed transaction if the deceased omits to sever the joint tenancy immediately before death and full valuable consideration in money or money's worth is not given for the omission of the deceased to do that act (s 22(1)(b).) 70 In Wade v Harding (1987) 11 NSWLR 551 Young J, as he then was, concluded on the facts of that case "what was forgone in not severing the joint tenancy was received by continuing to be a joint tenant." This conclusion appears to be because he formed the view that immediately before death the deceased had an equal chance with the joint tenant of benefiting from the jus accrescendi. 71 In Cameron v Hills (unreported 26 October 1989) Needham J described that approach in these terms: "With great respect to his Honour, I find it difficult to see how a joint tenant, about to die immediately, can be said to have an equal chance of surviving the other joint tenant. The Court must look at the position the moment before death. Whatever may have been the facts in that case justifying the conclusion, there are no such facts in this case. Immediately before the death of this deceased there was no rational prospect of his surviving the defendant. Accordingly, in my opinion, no valuable consideration in money or money's worth was given for the omission of the deceased to sever the joint tenancy." 72 Provided that a deceased has suffered some injury, had a medical problem or set in train some sequence of events as a result of which death ensues then, like his Honour Needham J, I would normally conclude that there was no rational prospect of the deceased surviving his co-tenant. In the present case the deceased was elderly and died following a rupture of a cerebral artery. In these circumstances I would conclude that no valuable consideration was given and thus there is a prescribed transaction. 73 Section 27 of the Family Provision Act is in the following terms: "(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property; (b) the substantial justice and merits involved in making or refusing to make the order; and (c) any other matter which it considers relevant in the circumstances. (2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to: (a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person; (b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration; (c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given to the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be; (d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and (e) any other matter which it considers relevant in the circumstances." 74 The Chinese customs to which I have referred and pursuant to which the defendant acquired the house, give no grounds in the context of the law of Australia for any reasonable expectation on Raymond's part that he should have the family home. Particularly is this so where the family are going their own way and he gives no undertaking to provide for his sisters in the future. 75 Accordingly, there are no reasonable expectations which have to be taken into account. In my view the substantial justice and merits require the making of an order. The orders I make are as follows: 1. I designate as notional estate the six strata units at 63-65 Ocean Street, Penshurst, New South Wales or so much of them as are necessary to meet the following orders. 2. I order the payment of the following legacies out of the estate and notional estate: (a) Lily Chan $100,000. (b) Janet Tsui $75,000. (c) Megan Tsui $65,000. (d) Fiona Tsui $545,000. (3) Interest is to run on the legacies at the rate provided for under the Wills Probation and Administration Act and from the expiration of three months as and from today's date. (4) Costs of the plaintiffs, including their separate representation, are to be paid on a party and party basis and the defendant's on the indemnity basis and may be retained or paid out of the estate or the notional estate. (5) I order that the exhibits be returned. ELLISON: It might help us as part of any order that we be given a time by which we have to vacate, or such other period as maybe agreed. Before those orders are entered, could we have seven days, that the matter be put in for mention, namely, next Friday, to prepare some orders which would include some prima facie application for my client to get out? If that could be done and then we could show it to the authorities. MASTER: I will adjourn the matter to 10 a.m., Friday 18 February 2005. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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