New South Wales Supreme Court CITATION : Lia Coral Casper -v- Sarojini Casper and Ors [2007] NSWSC 796 HEARING DATE(S) : 6 March 2007 JUDGMENT DATE : 23 July 2007 JUDGMENT OF : Associate Justice McLaughlin DECISION : 1. I order that, in addition to the benefits given to her by the will of the late Kurt Casper ("the Deceased"), the Plaintiff receive a legacy of $85,500, such legacy not to bear interest if paid on or before 23 September 2007, and if not so paid to bear interest at the rates prescribed for unpaid legacies under the Wills, Probate and Administration Act 1898, and that such legacy to be payable out of the residue of the estate of the Deceased; 2. I order that, in the event that the residue of the estate be not sufficient to meet payment of the aforesaid legacy, liberty to apply be reserved; 3. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the estate of the Deceased; 4. The exhibits may be returned. CATCHWORDS : Succession. Family Provision. Claim by adult foster daughter. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Competing claims of other beneficiaries. Whether any order for provision should be payable out of residue or out of some other part of estate. LEGISLATION CITED : Family Provision Act 1982 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 at 208 Vigolo v Bostin (2005) 221 CLR 191 Lia Coral Casper (Plaintiff) PARTIES : Sarojini Casper (First Defendant) Dennis John Casper (Second Defendant) Bernard Eric Casper (Third Defendant) FILE NUMBER(S) : SC 2150 of 2005 COUNSEL : Mr M. Wilmot SC (Plaintiff) Mr R. Horsley (Defendants) SOLICITORS : Paul Stubbs Law Office (Plaintiff) W K Cahill & Associates (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE McLAUGHLIN Monday, 23 July 2007 2150 of 2005 LIA CORAL CASPER –v- SAROJINI CASPER and ORS JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 30 March 2005 Lia Coral Casper claims an order for provision for her maintenance, education and advancement in life out of the estate of the late Kurt Casper (to whom I shall refer as "the Deceased"). 3 The Deceased died on 4 October 2003, aged 93. He left a will dated 2 June 1998 and a codicil thereto dated 30 March 2000 probate whereof was on 13 February 2004 granted to Sarojini Casper, Dennis John Casper and Bernard Eric Casper, the executors named in such will (who are the Defendants to the present proceedings). 4 The Deceased, who had been married twice, was survived by his second wife Mrs Sarojini Casper (who is the First Defendant herein) and by the two children born of his first marriage, Dennis John Casper and Bernard Eric Casper (who are the Second and Third Defendants herein). 5 The Plaintiff, who has been described as the foster daughter of the Deceased, was born on 17 June 1966. She is now aged 41. When the Plaintiff, who was of Aboriginal parentage, was aged about two she was placed in the care of the Deceased and his first wife, Mrs Inga Casper, as a ward of the Child Welfare Department on 23 July 1968. She was brought up by them as their daughter, and, indeed, regarded them as her parents. 6 Until the death of Mrs Inga Casper in 1984 the Plaintiff remained in the care of the Deceased and his first wife, then, after the death of Mrs Inga Casper, the Plaintiff remained in the care of the Deceased alone. It had been the Plaintiff's belief (an incorrect belief, as it emerged) that she had been adopted by the Deceased and his first wife. 7 The inventory of property discloses the following assets of the Deceased: One half share as tenant in common of a house property situate at and known as 59 Ewart Street, Dulwich Hill, that share having an estimated value of $550,000 One half share as tenant in common of a house property situate at and known as 65 Fairmount Street, Lakemba, that share having an estimated value of $650,000 Cash in hand $200 Jewellery and specific chattels $2,775 Moneys on deposit and in bank accounts, and travellers cheques $170,814 Shares $6,725 2001 Toyota Camry motor vehicle, estimated $22,000 Estimated tax refund $6,425 Interest in partnership $125,000 Total $1,542,941 8 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will be entitled to an order for her costs out of the estate, whilst the Defendants, irrespective of the outcome of the proceedings, will be entitled to an order that their costs be paid out of the estate. It is estimated on behalf of the Plaintiff that her costs will total about $48,000, whilst it is estimated on behalf of the Defendants that their costs will total nearly $45,000. That is, the totality of the costs will amount to about $93,000. Accordingly, it is appropriate to proceed upon the basis that the value of the distributable estate is about $1,451,000. It should be observed, however, that the values of the Lakemba properties and the Dulwich Hill property have increased since the date of the inventory of property, and that estimations of the current values of those properties are respectively $1,420,000 and $1,190,000. In consequence, the interest of the estate in those properties is, respectively, $710,000 and $595,000. That is, the value of the estate has probably increased by about $105,000 since the date of the inventory of property. If these new valuations be accepted, then the value of the distributable estate has increased from $1,451,000 to $1,556,000. 9 By his will (as varied by the codicil) the Deceased gave to his wife any motor vehicle owned by him, the proceeds or benefit of any life insurance or superannuation, any moneys in bank accounts. The will then provided for certain relatively small legacies (totalling $17,000). By clause 6 of his will the Deceased gave certain specific chattels to his wife, to each of his sons and to the Plaintiff, that lastmentioned gift being in the following terms, (d) To my foster Daughter LIA CASPER three small sweet bowls, two silver cups, gold bracelet, remodelled engagement ring and other rings, coin set in necklace, watch and silver bracelet. 10 By clause 7 the Deceased directed that his interest in the properties at 59 Ewart Street Dulwich Hill and 65 Fairmount Street, Lakemba, be sold and the net proceeds of sale be divided into nine equal portions, to be paid as follows: two such portions to his wife; two such portions to be divided equally between the children of his stepson Mano V Pillay, in equal shares as tenants in common; one such portion to his stepson Anish V Pillay; and, (d) As to four (4) of such portions for such children born to my foster Daughter LIA CASPER upon such children attaining the age of Thirty (30) years in equal shares as tenants in common and if one only then to such child absolutely. 11 The Deceased by clause 8 disposed of any interest he might have in a property known as unit 2, 136 Wycombe Road, Neutral Bay by the proceeds of sale thereof being divided equally among his wife, the grandchildren of his wife, the children of Dennis, the children of Bernard, and the children of the Plaintiff. Although the Second Defendant under cross-examination agreed that the Deceased's interest in the Neutral Bay property was to be divided into five discrete parts, one for the widow, one for her children, one for Bernard's children, one for Dennis's children, and one for the Plaintiff's children, my reading of clause 8 is not to that effect. 12 The relevant practical difference between the two constructions of clause 8 is that upon the former construction each of the Plaintiff's children would receive one thirteenth of the Defendant's interest in that property, whilst upon the latter construction each of the Plaintiff's children would receive one fourth of one fifth – that is, one twentieth – of the Deceased's interest therein. The Neutral Bay property was sold in January 2007 for a net amount of $330,000, of which the interest of the Deceased, being five twelfths thereof (in an amount of $137,500), was paid into the estate account. Thus, upon the former construction, each of the Plaintiff's children would receive from that source an amount of about $15,280, whilst, upon the latter construction, each of the Plaintiff's children would receive from that source about $6,800. 13 The residue of the estate was given to the Deceased's wife. 14 Throughout her childhood and formative years, the Plaintiff was treated as if she were a child of the Deceased. She was provided with an excellent education at the Queenwood School at Mosman (to which she had won a scholarship awarded to girls of Aboriginal descent), and subsequently at the Mackellar Girls High School. She received extra-curricular lessons. On at least three occasions she travelled overseas with the Deceased. The Plaintiff continued to reside in the family home of the Deceased at 14 Wyong Road, Mosman until she attained the age of eighteen in 1984. She had never known either of her natural parents (Brian and Patricia Evans), and regarded the Deceased and his first wife as her parents, addressing them as "Dad" and "Mum". The Plaintiff was encouraged by the Deceased and Mrs Inga Casper to be aware of and to respect her Aboriginal origins. Mrs Inga Casper died in October 1978, when the Plaintiff was aged 12. 15 It would appear that by her will (probate whereof was granted to the Deceased, Bernard and Dennis on 17 April 1979, exhibit F) Mrs Inga Casper established a trust fund in which the Plaintiff had an interest as to 10 percent of the income thereof until she attained the age of 21 years. The evidence did not disclose whether the Plaintiff in fact received that benefit from the estate of Mrs Inga Casper. 16 On 23 March 1981 in Fiji the Deceased married his second wife, Sarojini, who at that time was a widow with two young sons, Anash and Mano. Thereafter she and her two sons came to Australia, where they resided with the Deceased and the Plaintiff at the Mosman residence. 17 When the Plaintiff was aged in her teens she became interested in researching into her racial roots and family origins. In September 1984, shortly before she was due to sit for the Higher School Certificate, the Plaintiff travelled to Kempsey and stayed with her biological brother for several months. She did not return to the family home at Mosman after that visit. Until that time she had been totally dependent upon the Deceased and (until her death six years earlier) Mrs Inga Casper, both emotionally and financially. 18 After her return to Sydney from Kempsey the Plaintiff (and her then boyfriend) resided in a flat owned by the Deceased at Dulwich Hill, where she remained for four years. She maintained contact with the Deceased, seeing him regularly throughout that period. 19 During that period of four years, the Plaintiff entered into a relationship with one Harry Vale. Together then removed from Dulwich Hill to Kempsey, where the following children were born to them, Jasmine Booka Thelma Vale (born 12 July 1989) Harry Jai Lindsay Vale (born 8 May 1990) Susan Norma Ann Vale (born 6 May 1991) Corallee Jade Vale (born 22 January 1992, who died aged one) Kurstin Steviellee Sandy Vale (born 15 August 1994) 20 According to the Plaintiff, her de facto relationship with Mr Vale came to an end in about 1989, shortly after the birth of their first child, Jasmine. However, the Plaintiff said that she was desirous of all her children having the same father, and that, for this reason, she had subsequent sexual encounters with Mr Vale, which resulted in the birth of her other four children. 21 After returning permanently to Kempsey in about 1989 the Plaintiff and the Deceased continued to communicate regularly by telephone each week, and also by letter once or twice a month. 22 At the time of the birth of the Plaintiff's daughter Susan in 1991 the Deceased and Mrs Saronjini Casper came to visit her in Kempsey. The Plaintiff also visited the Deceased and Sarojini at their residence at Glenhaven in 1997, taking three of her children with her, and staying for about a week. 23 In his later years, the Deceased on occasion sent gifts of money to the Plaintiff. The Plaintiff said that on two occasions she requested financial assistance from him and on each of those occasions he sent to her $300. 24 The Plaintiff presently resides in a house which she rents from the Department of Housing at 77 North Street, Kempsey, and in which she has lived for the past 11 years. Her only assets consist of household furniture (to which she ascribes a value of $450) and a minimal sum in her bank account. She has a liability by way of a credit union personal loan in an amount of $500. It was necessary for the Plaintiff to obtain that loan in February 2007, in order to fund personal and household necessities for herself and her children. 25 The Plaintiff's only income consists of a parenting pension from Centrelink, presently in an amount of $730 a fortnight. The Plaintiff provided details of her current outgoings and expenses, totalling $20,420 a year (that is, about $393 a week). The Plaintiff finds it difficult to meet her outgoings and expenses from her current income. 26 It is the desire of the Plaintiff to remain living in Kempsey with her children and her extended family. She wishes to receive from the estate of the Deceased a sum sufficient to enable her to purchase a residence of her own. It was her understanding that, as she had never previously owned property, she would be eligible for a first home owner's grant, which would exempt her from paying stamp duty in relation to the purchase of a residence. 27 The Plaintiff gave evidence of her need for certain household items and furnishings, including electrical appliances (such as refrigerator, washing machine, dryer, microwave, and the like), as well as such items as a cordless telephone, a mobile telephone, a digital camera, a computer and printer, two televisions, a DVD/video player, a video camera, a hi-fi system and a home theatre system, and also some items of furnishings, such as a lounge suite, massage cushion, barbecue and outdoor setting. The Plaintiff provided estimations of the cost of such items. 28 The Plaintiff requires certain dental work to be performed, and provided an estimation from her dentist regarding the cost of that work, (being $620 for fillings and extractions; and either $750 or $1,300 for a denture; as well as the cost of examination and written report, $90). She expressed a need for new clothing and footwear, to the value of $2,000. 29 The Plaintiff suffers from a number of health problems, including diabetes (for which she takes medication), arthritis and osteoporosis. In addition, she has, apparently in recent times, developed cysts upon her breasts. She is unaware of the prognosis in regard to that condition. 30 The Plaintiff and her children have no motor vehicle and rely on public transport, which in the Kempsey area she said was both expensive and inconvenient. She expressed a desire to acquire a Honda Accord motor vehicle, or a similar motor vehicle, at a cost of $41,000. The Plaintiff expressed a desire to purchase various items of silver jewellery to the value of $1,500. 31 The claim of the Plaintiff must be approached in the context of those persons who are the objects of the testamentary beneficence of the Deceased or who might otherwise have competing claims upon his bounty. Those persons are the widow, Mrs Sarojini Casper (the First Defendant), her son Mano's two children, her son Anish, her grandchildren, the Deceased's grandchildren, and the Plaintiff's children, all of whom are significant objects of the testamentary beneficence of the Deceased; as well as the two sons of the Deceased, Bernard Eric Casper (the Third Defendant) and Dennis John Casper (the Second Defendant). Neither of the Deceased's sons have made any claim for additional provision out of the estate. 32 I shall, for convenience, and without intending any disrespect, refer to each of the Defendants by her or his given name. 33 At the time when the Deceased married his second wife Sarojini, in 1981, she was a widow, with two young sons, Anash and Mano. 34 The Plaintiff's former de facto spouse, Harry Vale, was a violent man, of whom the Deceased did not approve, and whom the Deceased knew to have been in serious trouble with the law. It was Bernard's evidence that during the early years of the Plaintiff's relationship with Mr Vale, she and her children lived with him in a compound where he was serving a prison sentence for a violent crime, being, to the best of Bernard's recollection, manslaughter. The Plaintiff herself agreed that Mr Vale was violent, and said that that was the reason why she ceased to reside with him. He was a drunk. He broke the Plaintiff's, jaw, and the Plaintiff had him charged, and he went to jail. He has been in prison intermittently over the past few years, having been most recently released in January of this year. The Plaintiff said that Mr Vale now has a new girlfriend, with whom he has been associated for the past four years. The Plaintiff herself is not in any relationship. She has had an apprehended violence order in force against Mr Vale since 1994. The Plaintiff did not agree with Bernard's evidence that she had been hospitalised as a result of domestic beatings on a number of occasions. 35 Bernard gave evidence of regular gifts of money made by the Deceased to the Plaintiff and her children at the Plaintiff's request. According to Bernard, in the period between 1994 and 1997, he, upon the instructions of the Deceased, made payments to the Plaintiff of amounts exceeding, in total, $15,000. However, the Plaintiff did not agree with the frequency or the amounts of those gifts. 36 Evidence was placed before the Court concerning the financial and material circumstances of Sarojini, the widow of the Deceased. She was born on 26 September 1947 in Fiji, where she resided with her family and her two sons, until 1981. 37 Sarojini met the Deceased in consequence of an advertisement which he had placed in the Sydney Morning Herald, seeking domestic assistance. They subsequently began to correspond, and ultimately Sarojini visited Sydney, and the Deceased visited her in Fiji. On the occasion of the Deceased's second visit to Fiji they were married on 23 March 1981. The Deceased assisted Sarojini in arranging for the necessary visas for herself and her sons to come to Australia. 38 Sarojini and the Deceased conjointly purchased a sports shop in 1982. Three years later, in 1985, they removed from Mosman to Dural, and they subsequently purchased a motel at Toukley in 1987. The Deceased conducted the office and the finances of the business, whilst Sarojini took care of the domestic duties. They operated that motel for eleven years, until it was sold in 1998, and they then removed to a house at Glenhaven, where they resided until the death of the Deceased in 2003. The house property at Glenhaven has continued to be the residence of Sarojini to the present time. The Deceased and Sarojini as joint tenants held a one half interest in that property, the Deceased's interest therein passing by survivorship to Sarojini. The other one half interest in the Glenhaven property was held by the Deceased as trustee for Bernard and Dennis, pursuant to the provisions of the will of Mrs Inga Casper. As I understand it, Sarojini is secure in her occupation of the Glenhaven property. 39 Sarojini gave evidence of various and frequent requests for money made by the Plaintiff to the Deceased, and of the concern frequently expressed by the Deceased for the Plaintiff's welfare, and his worry that her de facto spouse, Harry Vale (of whom the Deceased did not approve), rather than the Plaintiff herself, would receive the financial benefit from those monetary gifts. 40 Sarojini gave evidence concerning her health. She suffers from hypertension, with chronic renal failure and a lupus-like syndrome. She takes regular medication for her health problems. A report from her consultant nephrologist, Dr Susan Lawrence, said that she requires regular medical supervision, and that she will be on medication for the rest of her life. 41 Sarojini said that because of her medical condition and of her age she found it difficult to work. However, she commenced part-time employment in May 2004. 42 Sarojini gave evidence concerning her income and expenditure. Her annual income consists of: German pension, totalling $9,600 Rental on St Helen's Park properties $12,757 Wages from part-time employment $16,910 Total $39,267 43 She provided details of her outgoings and expenditures, in a total amount of $21,509. 44 Sarojini's assets (and the estimated values ascribed thereto) are: Half share of house property situate at and known as 84 Glenhaven Road, Glenhaven $350,000 19 Winteroo Crescent, St Helen's Park $250,000 25 Winteroo Crescent, St Helen's Park $250,000 400 Telstra Shares $1,660 Contents of 84 Glenhaven Road, Glenhaven $7,000 Total $858,660 45 Sarojini's liabilities consist of Commonwealth Bank pool repayments, $16,000; and Mastercard repayments $9,000; totalling $25,000. 46 Sarojini's son Anish Pillay, together with his wife and their young son, reside with her at the Glenhaven property. Anish Pillay works as a bricklayer's labourer. They pay to Sarojini for their own household expenses, but do not pay to her any rent. Anish looks after the garden and attends to the home maintenance on the property. Sarojini's other son, Mano Pillay is aged 39. He is married with two sons. Mano is employed as a technician by Telstra. He and his family reside in Queensland in a house property which is subject to a mortgage. His wife is employed as a civil servant. 47 Bernard was born on 17 August 1941, and is presently aged 65. Dennis was born on 4 April 1944, and is presently aged 63. They are the only children of the Deceased, born of his first marriage, to Mrs Inga Casper. Bernard and Dennis were aged in their twenties at the time when the Plaintiff was placed in the care of their parents as a ward of the State. She was aged a little over two years at that time. The formalities concerning that placement are set forth in a letter dated 22 July 1968 from the Director of the Child Welfare Department to Mrs Inga Casper, confirming the placement of the Plaintiff (at that stage known as Coral Ann Evans) in Mrs Casper's care as a ward of the Department. Those arrangements included the payment to Mrs Casper of an allowance of $4 a week from 27 June 1968 towards the maintenance of the Plaintiff. 48 Bernard, who left the family home in July 1969 to marry, has four children, all of whom are adults. He provided evidence concerning the circumstances of each of those children. 49 Dennis John Casper, the Second Defendant, has two children, Mark, who is aged 36, and Penelope MacKillop who is aged 33. Mark is married with two children, aged 9 and 7. He is a director of the family business which Dennis conducts. Mark and his wife own their residence, which is subject to a mortgage. 50 Dennis's daughter Penelope McKillop is married, with two young children. Her husband is employed as an electronic installer. They reside in their own home, which also is subject to a mortgage. 51 No evidence was placed before the Court concerning the financial and material circumstances of either Bernard or Dennis. However, some evidence, of the nature already outlined by me, was given concerning the financial and material circumstances of the respective children of Dennis and Bernard. 52 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. 53 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 54 The Plaintiff submits that she is an eligible person within paragraph (d) of the definition of that phrase contained in section 6 (1) of the Family Provision Act, in that she was partly dependent upon the Deceased and that she was a member of the same household as the Deceased. The Defendants acknowledge the status of the Plaintiff as an eligible person. 55 The Plaintiff, being an eligible person within paragraph (d) of the foregoing definition must, pursuant to section 9 (1) of the Act, establish that there are factors which warrant the making of the present application. The factors relied upon are, first, that the Plaintiff was for all practical purposes treated as if she were a daughter of the Deceased. She resided as a member of the Deceased's family from the age of two until the age of eighteen. Subsequently, she exhibited a close relationship with the Deceased and maintained regular and frequent contact with him. Further, the Plaintiff received recognition in the Deceased's will, where she is referred to as "my foster Daughter" and where her children are referred to as the Deceased's "grandchildren." There is no doubt that the Deceased regarded the Plaintiff as a daughter, and had a close and loving relationship with her, even though it is apparent that the Deceased did not approve of her domestic arrangements and was not happy with the constant demands she made upon him for financial assistance. I am satisfied that the foregoing matters constitute factors warranting the making of the present application. 56 Quite clearly, the Deceased was desirous of ensuring, to the extent that he was able so to do, that the Plaintiff's former de facto partner, Mr Vale, would not gain control of any financial benefit which the Plaintiff might receive from the Deceased either during his lifetime or under the provisions of his will. 57 It is apparent that for that reason the Deceased left directly to the Plaintiff only a number of chattels of a relatively modest value. However, the Deceased made more significant provision for the Plaintiff's children, who will together share four ninths of the net proceeds of sale of the Deceased's interest in the properties at Dulwich Hill and Lakemba. Accepting, for present purposes, the conservative value of $1,200,000 as representing the Deceased's interest in those properties, the four children of the Plaintiff will share four ninths of that sum. That is, they will share about $533,000. Thus each of the Plaintiff's four children will receive about $133,000. In addition, they will share (with Sarojini, her grandchildren and the Deceased's grandchildren) the interest of the Deceased in the Neutral Bay property. The value of that interest being $137,500, each of the Plaintiff's children will receive from that source about $15,300 or about $6,900 (depending upon which construction of clause 8 of the will is adopted). Thus, each child of the Plaintiff will under the terms of the Deceased's will receive at least about $140,000. 58 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 –210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for her proper maintenance. 59 As I have already recorded, the Defendants did not dispute that provision of some kind should be made for the Plaintiff out of the estate of the Deceased, at least to the extent of enabling her to acquire a motor vehicle, some additional furniture and furnishings for her residence, to attend to the necessary dental work, and enable her to acquire clothing and jewellery. 60 The Plaintiff has expressed a desire that she should receive from the estate of the Deceased an amount of money sufficient to enable her to purchase a residence and to purchase furniture and furnishings. 61 It will be appreciated that the Plaintiff is secure in her present accommodation, in a house in which she has been residing for the past 11 years. That house is located in an area where she wishes to continue to reside. Two of her children, still at school, reside with her and she has frequent visits, for varying lengths of time, from her two elder children, who reside nearby with their paternal grandparents. 62 The desire of the Plaintiff to acquire a residence of her own, in which she can feel independent, is a commendable one. The Plaintiff presented evidence of the availability of suitable residences in Kempsey priced between $200,000 and $300,000. 63 Nevertheless, I am not persuaded that an adult daughter (for I consider that the Plaintiff should be so regarded), who is secure in her present accommodation, and who resides in a house located in an area where she is happy to continue living, should, at the expense of the estate, receive a sum of several hundred thousand dollars to enable her to purchase a residence in that same location. It was the concern of the Deceased (a concern which emerges from the policy of his testamentary dispositions – giving considerable benefits to the children of the Plaintiff, and also to his own grandchildren and to the grandchildren of his widow) that the Plaintiff's former de facto partner and father of her children, Mr Vale, should not be enabled somehow to obtain any benefit from or exercise any control over any of the assets of the estate. I consider that to have been a legitimate, and a very responsible, concern on the part of the Deceased. 64 The Plaintiff has not expressed any dissatisfaction with the nature of the accommodation in her present residence. The evidence concerning that accommodation is somewhat skimpy, revealing only that the house contains four bedchambers. There are three permanent residents in the house at present. Were the Plaintiff to receive from the estate provision sufficient to enable her to purchase a house property, she would then be free to dispose of that house property. In her present accommodation she has continuing security, and cannot be influenced by anyone to dispose of her accommodation. 65 In my conclusion, the Plaintiff has not established an entitlement to receive from the estate of the Deceased provision which would enable her to purchase, for between $200,000 and $300,000, a house property in the Kempsey area. 66 The situation is different, however, concerning the furniture and furnishings in the house property. I consider that it would be reasonable (indeed, the Defendant does not dispute this) that the Plaintiff should be enabled to acquire new furniture and furnishings. The Plaintiff provided a list of the various items which she wished to acquire, with estimations of the cost thereof (set forth in annexure in E to her affidavit of 1 March 2007), totalling $15,612. However, I query whether the acquisition of a number of those items, such as a video camera, digital camera and a home theatre should properly be regarded as needs of the Plaintiff. A fund of $10,000 would in my view be a reasonable amount for the purchase of furniture and furnishings and other items which the Plaintiff requires. 67 In a geographical location such as Kempsey, it is reasonable that the Plaintiff should have a motor vehicle for the transportation of herself and her children. The Plaintiff provided evidence of the cost of a Honda Accord motor car, being $41,000. It was submitted on behalf of the Defendant that that was an excessive amount, and that it was appropriate that the Plaintiff acquire a vehicle less expensive than a Honda Accord. I consider that an amount of $30,000 would be adequate for the purchase of an appropriate motor vehicle. 68 The Plaintiff should be enabled to have performed necessary dental work, at a cost of about $2000; and to replenish her wardrobe, to the extent of $2000; and to acquire some items of silver jewellery, at a cost of $1500. 69 In addition, especially having regard to the Plaintiff's current state of health, I consider that she should have a fund to meet future contingencies and to enhance her present modest lifestyle. The Defendants, however, oppose the award of any capital sum to the Plaintiff, submitting that such a sum is likely to be dissipated. In this regard the Defendants assert that the Plaintiff was improvident in dealing with whatever financial benefits she received during the Deceased's lifetime. 70 The Defendants submit that, in the event that the Court determines that the Plaintiff is entitled to receive such a fund, then it is appropriate that such fund be held in the form of a trust for the benefit of the Plaintiff. I consider, however, that such a trust would deprive the Plaintiff of that degree of independence in the control of her life and her finances to which I regard her to be entitled. I am of the view that whatever amount be awarded to the Plaintiff should be awarded to her without any limitations or restrictions as to her use thereof. She, like any other adult, should be entitled to deal as she chooses with her own assets. The Plaintiff should not be deprived by the Court of the right to conduct her own life in such manner as chooses. To meet future contingencies and to enhance her present modest lifestyle, an amount of $40,000 would in my consideration be appropriate. 71 It follows, therefore, that I am of the view that the Plaintiff has established an entitlement to receive from the estate of the Deceased a legacy in the sum of $85,500. 72 The next matter to be considered by the Court is the source of any additional provision for the Plaintiff. It has been submitted on behalf of the Defendants that the appropriate source is the benefits given to the Plaintiff's own children. The Plaintiff's children, are, under the terms of the will, entitled to receive those benefits upon attaining the age of 30. The Plaintiff's eldest child is aged 18 and her youngest child is aged 13. The will contains a power of advancement. I would be most reluctant to make an order in favour of the Plaintiff which should be borne exclusively by the interests of her own four children, three of whom are presently infants. 73 Unless otherwise specified, a legacy is payable out of residue. Accordingly, unless the Court makes a specific order that the proposed legacy in favour of the Plaintiff be payable from some other source, then it will be payable out of residue, and to that extent will reduce the interest received by the First Defendant under the terms of the will. 74 The evidence was far from clear regarding the present monetary value of the residue of the estate. 75 The Neutral Bay property was sold in January 2007, but there has as yet been made by the executors no apportionment between what might be described as the capital fund of the interest of the Deceased in that property and the income earned (by way of rents) from that property before its sale. Similarly, there has been income received, by way of rents, from the Dulwich Hill and the Lakemba properties. However, again, there has been no precise information provided to the Court concerning the amounts of such income. Presumably, the foregoing income earned upon the interests of the Deceased in the Neutral Bay, Dulwich Hill and Lakemba properties would fall into residue. 76 In these circumstances, therefore, it is not possible for the Court to know with any precision whether the residue of the estate is sufficient to meet, first, the costs of the present proceedings, in a total amount of about $93,000, and, second, the proposed legacy of $85,500 to the Plaintiff. 77 If the residue is not sufficient to meet the foregoing costs and the proposed legacy, it will be necessary for the executors to embark upon the exercise of apportioning any shortfall among the various other testamentary benefits given under the will, in accordance with the relevant principles relating to the administration of assets in an estate. It will be appreciated that an order for provision has effect as if it were made by way of a codicil to the will of the Deceased (Family Provision Act, section 14 (1)). 78 Nevertheless, in the light of my foregoing view that the proposed legacy to the Plaintiff should not have the effect of significantly reducing the interests of her own four children, three being infants, I consider that the appropriate order is that the legacy to the Plaintiff be payable out of residue, and that liberty to apply in this regard be reserved. 79 I make the following orders, 1. I order that, in addition to the benefits given to her by the will of the late Kurt Casper ("the Deceased"), the Plaintiff receive a legacy of $85,500, such legacy not to bear interest if paid on or before 23 September 2007, and if not so paid to bear interest at the rates prescribed for unpaid legacies under the Wills, Probate and Administration Act 1898, and that such legacy to be payable out of the residue of the estate of the Deceased. 2. I order that, in the event that the residue of the estate be not sufficient to meet payment of the aforesaid legacy, liberty to apply be reserved. 3. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the estate of the Deceased. 4. The exhibits may be returned. ********** 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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