Fry v Lukas;Brown v Fry; Estate of Honey;Application of Fry [2011] NSWSC 1329 (20 October 2011)

Last Updated: 28 November 2011

Supreme Court New South Wales

Case Title:	Fry v Lukas;Brown v Fry; Estate of Honey;Application of Fry
Medium Neutral Citation:	[2011] NSWSC 1329
Hearing Date(s):	Tuesday, 18 October 2011Wednesday, 19 October 2011
Decision Date:	20 October 2011
Jurisdiction:	Equity Division
Before:	White J
Decision:	Refer to paras [152]-[154] of judgment.
Catchwords:	SUCCESSION - informal will - s 8, Succession Act 2006 - unattested will written out on standard will form - whether deceased intended informal document or part of informal document to operate as his will - whether deceased subsequently formed the intention that informal document should operate as his will - where deceased handed over title deeds and original transfers of property to beneficiary named in informal will - competing considerations - held that deceased did not intend informal document to operate as his will at time it was signed or subsequently - deceased died intestate SUCCESSION - family provision - what order for provision should be made - no question of principle
Legislation Cited:	Succession Act 2006 Family Provision Act 1982 Bankruptcy Act 1966 (Cth)
Cases Cited:	Strong v Bird [1874] LR 18 Eq 315 Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported, BC9101481) In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 Hatsatouris v Hatsatouris [2001] NSWCA 408 Oreski v Ikac [2008] WASCA 220 Bell v Crewes [2011] NSWSC 1159 Re Fulop (Deceased) (1987) 8 NSWLR 679
Texts Cited:	Mr Justice Powell, "Recent Developments in New South Wales in the law relating to wills" (1993) 67 ALJ 25
Category:	Principal judgment
Parties:	Christopher Edward Fry (Plaintiff/Cross-defendant 2010/370479) John Sebastian Lukas (Defendant) Glenn William Brown (Cross-claimant)
Representation
- Counsel:	A Hill with Ms M Pringle (Plaintiff) M Willmott SC with FFF Salama (Defendant)
- Solicitors:	Taylor & Scott Lawyers (Plaintiff/Cross-Defendant) Beswick Solicitors (Cross-Claimant)
File number(s):	2010/370479; 2010/258577; 2010/129911
Publication Restriction:

JUDGMENT

1. HIS HONOUR : These proceedings concern the estate of Walter Honey, who died on 29 May 2009, aged 95.

2. At the time of the hearing, the value of the estate before legal fees was approximately $1.9 million. The principal assets are a property in Campsie, valued at approximately $845,000 and a property in Concord, valued at approximately $835,000.

3. The deceased was unmarried, had no de facto spouse and no children. He had three sisters, but they all died before he did. His closest relatives are eight nephews and nieces. They are entitled to the estate on intestacy.

4. There are three proceedings. On 25 May 2010, a great nephew of the deceased, Mr Christopher Fry, commenced proceedings seeking a family provision order pursuant to s 59 of the Succession Act 2006. He was formerly dependant on the deceased and a member of the deceased's household.

5. In these reasons, where I refer to the plaintiff, I will be referring to Mr Christopher Fry. If, from time to time, I refer to him as "Christopher", I intend no disrespect.

6. The second proceeding was commenced by a nephew of the deceased, Mr Glenn Brown. He filed a summons seeking a grant of administration of the estate, on the basis that the deceased died intestate.

7. The third proceeding was commenced, again by Christopher Fry, being proceeding 370479 of 2010. He sought a declaration that a document that is dated both 1 and 13 April 1996, which was written and signed by the deceased, was intended to operate as the deceased's will. The plaintiff sought an order that letters of administration with the will annexed be granted to him. Under the alleged will, Christopher Fry would inherit the Concord property. For a time he contended that, under the document, he was entitled to the whole of the estate, but ultimately that contention was not pressed.

8. Christopher Fry commenced the family provision proceedings before he knew of the informal will. If it is found that he is entitled to the Concord property under the informal 1996 will, he does not seek a family provision order.

9. The issues in the proceeding are, first, what parts of the April 1996 document express the testamentary intentions of the deceased. Secondly, whether the deceased intended the document, or those parts, to form his will. Thirdly, if the 1996 document is not to be declared the deceased's will, what provision should be made for the plaintiff out of the estate pursuant to s 59 of the Succession Act .

10. Ultimately, there was no issue that the plaintiff is an eligible person to apply for provision under that Act. Nor was there, ultimately, any issue that there are factors that warrant the making of the application. It was also accepted by the defendant that the plaintiff was not left with adequate provision for his proper maintenance and advancement in life under the rules of intestacy.

11. A significant fact relevant to both claims is that on a number of occasions the deceased told the plaintiff that the plaintiff would always have a roof over his head and, in or about May 2002, the deceased gave the plaintiff two envelopes. He told him that the second envelope was not to be opened until he died and was then to be produced " when they read my will ". The second envelope included the certificate of title to the Concord property and photocopies of earlier certificates of title for the property. There was no memorandum of transfer executed by the deceased in favour of the plaintiff.

12. It was common ground that the handing over of the envelope that included the certificate of title to the Concord property was not an effective gift of the property to the plaintiff. The deceased had not done all that was necessary on his part to transfer the property to the plaintiff. Indeed, as he insisted the envelope not be opened until after his death, it is clear that the deceased did not intend to make an inter vivos gift of the property.

13. Both for this reason and because Christopher Fry was not appointed as the deceased's executor, he could not claim the Concord property under the rule known as the rule in Strong v Bird [1874] LR 18 Eq 315. All this was common ground, that is to say, that the Concord property passes as part of the deceased's estate. Christopher Fry's claim to it depends upon the informal instrument dated 1 and 13 April 1996.

14. Section 8 of the Succession Act , relevantly, provides:

" 8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(cf WPA 18A)

(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or

...

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. "

15. There was no dispute about the applicable law. The principles have been stated and restated in numerous cases, in particular, in the Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported, BC9101481); In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446, particularly, per Mahoney JA at 454-455; and Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]).

16. The effect of these decisions was summarised by Newnes AJA (with whom Martin CJ and McLure JA agreed) in Oreski v Ikac [2008] WASCA 220 at [52]- [55]. As Newnes AJA said (at [54]-[55]):

" [54] It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446 at 455; Equity Trustees Ltd v Levin [2004] VSC 203. As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.

[55] It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will. "

17. Section 8 permits part of a document to form a deceased person's will if it states his or her testamentary intentions and the person intended that part of the document to operate as his will. The intention that the document, or part, form the person's will may, and usually will, exist at the time the document is brought into existence. But the section may also be satisfied if the deceased subsequently forms the intention that the document, or part, have a present operation as the deceased's will. (See Bell v Crewes [2011] NSWSC 1159 at [25] citing Application of Kencalo; In the Estate of Buharoff ; and Mr Justice Powell, " Recent Developments in New South Wales in the law relating to wills " (1993) 67 ALJ 25 at [38]).

Pre-1996 testamentary documents

18. Before turning to the instrument in question, it is necessary to refer to evidence of earlier testamentary documents. Amongst the documents found in the deceased's house after his death was a bundle of papers, handwritten and on foolscap exercise book pages. They were not contained in a bound book. There was a cover sheet, on which appeared the words, apparently, in the deceased's hand, stating " To Be revised + This Copy Destroyed ". There was also a reference to " old will " and another word that is illegible. The papers included a will handwritten by the deceased and dated 20 February 1967.

19. A number of pages were guides to the deceased's executors as to the location of particular assets, a list of personal chattels with notes as to who should receive some of them and a guide as to what property the deceased thought should be sold. There was also a document dated 1 November 1974 expressed to be another will of the deceased, but it was unsigned.

20. The pages were assembled together and then torn, but not so as to become separated. Nonetheless, the tearing is substantial, but the documents can still be read.

21. The 1967 will appointed another of the deceased's nephews, Mr Albert Fry, the plaintiff's father, and Mr Owen Thomas as his executors. There were numerous detailed specific bequests of personal items and small pecuniary legacies. The residuary estate was left to " an orphan lad " to be selected by the rector of St Paul's Church, Burwood, and the superintendent of the Church of England Boys' Home, Carlingford.

22. The will was duly attested by two witnesses. The deceased wrote out in his own hand the attestation clause, presumably, taken from a precedent, that:

" Signed by the testator as and for his last will and testament in the presence of us both present at the same time who of his request in his presence of each other [sic] have hereto subscribed our names as attesting witnesses ".

23. There was a later additional clause added and dated 29 December 1967, which, apparently, was intended to operate as a codicil. This was signed by the deceased and witnessed by only one person. The deceased subsequently struck out some of the particular gifts and initialled the striking out, including the gift of residue.

24. Clearly, the gifts struck out were revoked ( Succession Act , s 11(1)(f)). I can also infer from the fact that the deceased wrote on the covering pages the words " old will " and " To Be revised + This Copy Destroyed " that he intended to revoke the will when it had been revised. Subsequently he did so by tearing the pages, even though the tearing did not separate the pieces of paper. It is not known when the deceased tore the documents.

25. The deceased also made a handwritten change to the 1967 will in red ink. He wrote the name of another nephew, Mr Kelvin Brown, as his executor in place of Mr Thomas and, also, in place of a Mr John Nethery, who, I omitted to say, had originally been named as the third executor. The substitution of Mr Kelvin Brown was not initialled, nor witnessed.

26. A number of things follow from this evidence. The first is that, at least, in February 1967, the deceased knew that a will had to be attested by two witnesses. Indeed, he had written that out in his own hand. Nonetheless, secondly, the deceased either overlooked, or ignored this requirement when in December 1967 an intended codicil was added.

27. In 1973, the deceased told Mr Kelvin Brown that he had made Kelvin Brown and Albert Fry joint executors of his will. This may indicate that the deceased thought that the handwritten, unsigned and unattested amendment to the 1967 will purportedly appointing Kelvin Brown as executor could be effective.

28. Next, it can be inferred that the deceased intended to destroy the 1967 will when it was revised and that his subsequent act of partially, but substantially, tearing the documents is consistent with his holding the belief that he had revised the will.

29. There is nothing to indicate that the deceased intended the 1974 document to form his will. It is unsigned. In any event it appears to be a preliminary draft. It initially, in rather formal fashion, made a number of specific gifts. They went nowhere near dealing with the entirety of the deceased's estate. There were some other later added clauses that do not appear to be intended to have had testamentary effect. I infer that the document as a whole was a preliminary draft. But, in any event, I would infer that it was also revoked by tearing.

30. The plaintiff deposed that in 1986 the deceased said to him, and to a friend of the deceased's, a Mr Parris, that " I'm leaving this house to Christopher and the house in Campsie to the Concord Boys Home ". According to the plaintiff, the deceased told him shortly afterwards that he was waiting for his solicitor, Mr John Lukas " to come and sign my will ". The plaintiff said that the deceased later said to him, and to a local chemist, Mr Roy Hannaford, that he wanted them to witness his will and that in their presence the deceased signed a will and they witnessed it.

31. The will the plaintiff says he witnessed was not produced. It has not been found. Mr Lukas denied any knowledge of it. The plaintiff said that the will that he witnessed was not a typewritten document, but a document prepared on a standard printed form that was completed in the deceased's handwriting. The plaintiff did not read it. It is not possible to say what gifts it contained.

32. I return later in these reasons to the question as to whether this unlocated document or any gift, which it might be inferred it contained, could be found to be the will of the deceased.

33. In 1989, Kelvin Brown had another conversation with the deceased in which he was again told that he and Albert Fry were joint executors of his will.

The 1996 informal will

34. The document said to be the deceased's will was produced by his solicitor, Mr John Lukas. He deposed that in early 1999 the deceased approached him for the purpose of making a will and gave him a pre-printed will form dated 1 April 1996 on which the deceased had written.

35. In his affidavit, Mr Lukas did not give any evidence about what the deceased said about that document or why he was giving it to Mr Lukas. In oral evidence, Mr Lukas was asked what he could recall the deceased saying about the document. In substance, he was not able to recall anything. Mr Lukas said " He gave it to me. I had a look at it. And he said, 'I want to make a will'". It was put to Mr Lukas that the deceased said something to the effect " I've done my will, but I want to put it in a formal way ". He denied that. He was asked whether, when the deceased gave him the document, the deceased said " This is my will ". He could not recall the deceased using those words. Mr Lukas said that he indicated to the deceased that the document had not been witnessed and that he had written over it. Mr Lukas said that the deceased did not say " I'm going to do a new will " nor did he say why he was leaving the document with Mr Lukas.

36. Mr Lukas dealt with the document by placing it in a folder which was marked " Waiting Will Instructions ". This was a general folder in which he kept clients' instructions for wills that had not been completed. The will was not put in a separate folder. In other words, Mr Lukas dealt with the document as uncompleted initial instructions. It is not at all surprising that Mr Lukas cannot now recall what, if anything, the deceased said about the document. But it can be inferred from the way Mr Lukas dealt with it that the deceased did not say anything to indicate that the deceased intended the document to be a presently operative will.

37. The plaintiff did not know of the existence of this document until he read an affidavit that referred to it. It is on a pre-printed law stationer's form. In bold type, the form states " This is the last Will and Testament of Me ". The deceased filled in his name and address. He filled in the place providing for the appointment of executors and specified Mr Lukas (solicitor) as his executor.

38. Against the printed words " I Give Devise and Bequeath " the deceased wrote the following in black ink:

"To my Great Nephew Christopher Fry of [x] Meela St Blacktown N.S.W. My House [x] High St Concord NSW and contents as not listed as gifts to others

N. [xx] Beaumont St. is to be offered for sale to the tenant to purchase same and then from the money received from the sale to be given as directed. Ten thousand dollars to Mrs to be divided up to 'B..... & Sachs'

Nephews & Nieces Except family

I Give Devise and Bequeath = to Wayne Fry One thousand Dollars

I Give Devise and Bequeath = to Ray Cullen = $500 Hundred Dollars

I Give Devise and Bequeath = to Peter Cullen $500 Hundred Dollars

I Give Devise and Bequeath = to Ray Parris = $500 Hundred Dollars

I Give Devise and Bequeath = to My Nephews Kelvin Brown and Glen Brown one thousand dollars each."

39. It will be observed that the second clause dealing with the Beaumont Street property (being the Campsie property) was incomplete. Subsequently, the deceased has written over part of these words in blue ink. Part of the writing in blue has also been crossed out. The additions in blue ink include a barely decipherable name in the space following the word " Mrs " which appears to be " Beryl ". The rest of the name is illegible.

40. There has also been filled in blue ink in the space between " except " and " family " a reference to a family, again whose name is barely decipherable. There are then handwritten changes to the pecuniary legacies, two additional pecuniary legacies, and then a further purported gift in blue ink to someone who is not identified to have first choice of items that might be kept as a memento of the family. The deceased has signed this page at its foot and dated 1 April 1996.

41. The second page of the will form is blank. It has the words " The Will Continued ". Nothing appears on that page except the deceased's signature to which he has added the letters " B.E.M. ". This page contains a standard attestation clause providing for the execution of the will by witnesses. At the foot of this page, there is a note headed " IMPORTANT " stating that the person making the will and the two witnesses must all be present and all three sign in the presence of each other on the same occasion.

42. The third page of the document contains directions for the completion of the will. It gives what are called a few suggested clauses that should be useful in drawing up the will. It states that the clauses should not be filled in on this page, but those which are applicable should be copied onto the will form.

43. The last of the items on that form says that if the person making the will desires to give all of his or her property to some person, " the form of the Will should be filled in up to the words, 'I give devise and bequeath' and immediately after the word 'bequeath' should be inserted the following words, 'all my property whatsoever both real and personal to ( husband, wife or person, naming and describing him or her as the case may be ) absolutely ".

44. The testator underlined the words " 'I give devise and bequeath' and immediately after the word 'bequeath' " and " all my property whatsoever both real and personal ". He did so in red ink. He then wrote in small writing, and in red ink " my G Nephew C Fry ". On the front page after the words " I Give Devise and Bequeath " the deceased did not give all his property to Christopher Fry. To the contrary, he purportedly made a specific gift.

45. Ultimately, the plaintiff did not press the contention that the underlining on the third page of the document, and the reference to the plaintiff against the words referring to a gift of all of the deceased's property, were intended to form the deceased's will. In my view, those words do not express the deceased's testamentary intentions.

46. The last page of the document has a section headed " DIRECTIONS how to make your Will ". Again on this page, it is said " Particular attention must be paid to the signing of the Will in the presence of the Witnesses as set out below ". It is also said that the testator's signature should be made or acknowledged by the testator in the presence of two or more witnesses present at the same time who should witness and sign the will in the presence of the testator.

47. There is also, on this last page, a place for summarising the document. The printed form states " This is the last Will and Testament of __________ of ___________ Dated _________ ". This is filled out by the deceased's writing his name again including the initials " B.E.M. " (referring to his British Empire Medal), by filling in his address, and by dating the document 13 April 1996.

48. Kelvin Brown deposed that at his wedding in 1996 the deceased again told him that he and Albert Fry were executors of his will. The evidence does not establish whether this was before or after 1 or 13 April 1996. Mr Brown said that that statement was repeated some years later.

49. Later Mr Glenn Brown deposed that in early 2000 he and his mother, Eileen (the deceased's sister), visited the deceased, and that Eileen Brown said words to the effect " If you go first I'll be leaving the family home to the 8 cousins and you will do the same if you were the last to go? " He deposes that the deceased said " Yes ". Eileen Brown then asked whether the deceased had finalised his will and he said " No, not yet, but I will ".

50. The reason, presumably, for Eileen Brown making the statement that she did as to who she expected the " family home " to go after her death or the deceased's death was that the deceased inherited the property from their mother who died in 1962. He inherited all of his mother's estate except for small pecuniary legacies given to his three sisters.

51. There is no other evidence of the deceased ever having the intention to leave the Concord property to the eight cousins and his actions indicated that whatever he told his sister, that was not his intention. I do not think that that statement of intention negatives the deceased's intending the 1996 document to operate as his will. Clearly, the deceased had not finalised his will in 2000 in the sense that he had not made final dispositions of his estate.

52. Then in 2002, there was a conversation between the deceased and the plaintiff to which I referred earlier in these reasons. The plaintiff had married his wife, Donna, on 6 April 2002 and the conversation took place not long after the wedding. The plaintiff deposed that:

" Uncle Wal gave me two envelopes and said, 'Here are two envelopes. You can open this one now, but the other envelope is not to be opened until I pass away and you are to produce it when they read my will'. "

53. Inside the first envelope was a cheque for $1,000. The plaintiff asked his uncle what was in the other envelope and was told " Don't open it, no matter what, you will always have a roof over your heads ". He kept the second envelope. It is curious that the plaintiff should have needed to ask the question, what was in the second envelope, because the deceased had written on the envelope " Deeds from Reserve Bank & original transfers " and wrote on the envelope the address of the Concord property.

54. The plaintiff's wife, Donna Fry, generally confirmed this conversation, except she made no reference to the deceased's saying that the envelope should be opened when his will was read. Nonetheless, I accept the plaintiff's evidence that, to the best of his recollection, those words were used. Whilst there were some errors in the plaintiff's affidavits, they were errors he readily acknowledged. In cross-examination, the plaintiff made various concessions against interest and appeared to me, notwithstanding some errors in his affidavits, to be a generally reliable witness. Having said that, one must take into account the natural frailty of memory and the difficulty anyone would have in 2010 or 2011 in remembering what exactly was said in 2002.

55. Nonetheless, this evidence may indicate that, in May 2002, the deceased believed that he had made a will. If so, it might also be inferred that the deceased believed that he had made a will that left the Concord property to the plaintiff. Hence, counsel for the plaintiff submits, that even if it were found that the deceased did not intend the 1996 document to operate as his will when it was written and signed, it should be inferred that he subsequently formed the intention that, at least, the gift in the first clause should operate as his will.

56. It is not enough for the plaintiff to prove that the deceased intended to leave the Concord property to him. He must prove that the deceased intended the 1996 informal document, as far as it gave the Concord property to him, to be his will. There are competing considerations.

57. The first is that the deceased signed the document twice and dated it. The fact of signing will often be an indication that the deceased intended what was signed to have operative effect. Secondly, that inference is somewhat strengthened in this case, in that the deceased also completed the back of the document and dated the will on 13 April 1996. This could be said to be an indication that the deceased intended the document to be his will.

58. Thirdly, there is the circumstance that the 1967 will was revoked by tearing, which is consistent with the deceased's believing that he had revised that document.

59. Fourthly, there is the fact that the deceased gave the document to his solicitor. That may have been for safekeeping.

60. Fifthly, the deceased told the plaintiff not to open the envelope containing the deeds to the Concord property until after his death, but to produce the envelope when the will was read.

61. But against these considerations there are at least the following. First, the deceased had known from writing out in his own hand the attestation clause in the 1967 will that two attesting witnesses were needed. Against this it may be said that the deceased may have either forgotten that, or ignored it. It seems that the deceased thought that he had appointed Mr Kelvin Brown as an executor at a point before 1986, which would only be the case if he thought that his mere writing on the 1967 will was effective.

62. The second consideration against the deceased's having intended the document to form his will is that the directions on the stationer's form stated clearly that the person making the will and two witnesses must all be present and all three had to sign in the presence of each other. I think it can be inferred from the underlining of part of the directions that the deceased read the document.

63. Thirdly, the deceased could not have intended the gift of the Campsie property, or of the proceeds of sale of the Campsie property, to be operative as his will because that clause was manifestly incomplete. The clause contained no provision as to what would be the position if terms of sale were not agreed with the tenant. That is not significant, as it may simply reflect the deceased's inadequacy as a draftsman. More significantly, the clause only dealt with the disposition of $10,000 from the proceeds of sale of the Campsie property. The property is now estimated to be worth about $860,000. I can take judicial notice that, in 1996, it would have been worth substantially more than $10,000. The name of the person who is to receive the $10,000 from the sale to be divided up between Beryl and Jack's nephews and nieces, was left blank when the document was first prepared. The name of the family to be excepted from that distribution was also left blank. Accordingly, at the time this document was prepared and signed, the deceased could not have intended that clause, at least, to have a present operation.

64. It would be highly unlikely that he would have intended some clauses to operate as his will, but not all, at that time. Against this it may be said that, at least, part of the deficiency of the gift concerning the proceeds of sale of the Campsie property was remedied by the insertion of writing in blue. But the writing in blue was not initialled. Indeed, the smallness of the name to be inserted against " Mrs ", in comparison with the deceased's other writing, tends against his intending the blue writing to be operative as his will and the fact that he did not name who was to have the choice of family mementoes also tends against his intending the blue writing to operate as his will. The absence of a signature against the blue writing would, in any event, be conclusive against that intention.

65. The next consideration against the deceased intending that the words which were written in 1996 in black ink and signed were to operate as his will is that he later wrote over them in blue pen. That is an unlikely thing to do if he thought the document was an important document, such as a will, as distinct from a draft.

66. Next, I do not think that it should be inferred that the deceased left the document with Mr Lukas for safekeeping, for the reasons I have given earlier. Whilst Mr Lukas could not remember what was said about that, it can be inferred that the deceased did not say anything that indicated to Mr Lukas that the document was to be a presently operative will.

67. Next, Mr Lukas saw the deceased for some years after 1999 when they met in the street. He told Mr Lukas that he was still " sorting out " what to do about the will.

68. Next, at some time after 1996, the deceased told Kelvin Brown that he and Albert Fry were his executors. This was inconsistent with his intending the 1996 document to be his will.

69. Next, in 2000, the deceased told his sister that he had not finalised his will. That is not necessarily inconsistent with the deceased's intending the document to be his will, but recognising he had still to complete his testamentary dispositions because he had only partially dealt with his estate. Nonetheless, it is more likely that the deceased would intend to deal with all of his estate at one time in a will, rather than deal with it piecemeal.

70. I think the strongest consideration in favour of the plaintiff's contention is the deceased's words and conduct in May 2002, assuming the deceased did say that the envelope was to be opened when his will was read. The problem with inferring from those words that the deceased then intended the 1996 document to be operative as his will is that it is not clear what will the deceased was there referring to. I think it, at least as likely and probably more likely, having regard to what he said to Mr Lukas and to Eileen and Glenn Brown, that the deceased then had in mind making a new will, which would leave the Concord property to the plaintiff. I think it more likely that that was the position, rather than that he was referring to the 1996 document.

71. Finally, the tearing of the 1967 will would be consistent with the deceased's having formed the view that he had revised that will. But that may have been done as a result of signing the apparent 1986 will. It is also possible that it was done in anticipation of execution of the new will.

72. Ultimately, whilst it is clear that the deceased intended that the plaintiff should enjoy the Concord property after his death, I am not persuaded that he intended that that be achieved by the 1996 document forming his will. The deceased either intended to make a will that would achieve this, but did not do so, or thought that by handing over the certificate of title and earlier certificates of title in relation to the Concord property, he was making an effective gift of the property to take effect after his death. Such a mistaken belief does not justify a finding that the gift in the 1996 document was intended to be his will.

73. For these reasons, I will refuse the relief sought by the plaintiff in proceeding 370479 of 2010.

74. Before concluding that letters of administration of the estate should be given to Mr Brown as an intestate estate, I must also be satisfied that the deceased left no other will.

75. For the reasons previously given, the 1967 will has been revoked. The 1974 instrument was not a will, but if it were, it was also revoked. There does appear to have been a 1986 will, although, I bear in mind that the plaintiff was only 18 at the time he recalls having witnessed the document. It may be, particularly at that age, that he was confused. Nonetheless, even accepting that the deceased executed a will in 1986, there is not anything that can be declared to be his testamentary instrument because its contents are not known.

76. Although the deceased told the plaintiff of his intentions about the Concord and Campsie properties, it is not known whether he gave effect to that intention. It is to be borne in mind that the will, or the intended will about which the deceased spoke to the plaintiff in 1986, was to be a document prepared by Mr Lukas. But the document that the plaintiff recalled witnessing was not such a document, rather one completed by the deceased himself from a printed form. We simply do not know what he wrote.

77. Further, the absence of the document raises the presumption that it was destroyed with the intention of being revoked. The strength of that presumption varies according to circumstances. In this case, the presumption is not rebutted. Rather, it is confirmed by the later preparation of a draft will in 1996, by the deceased's not telling Mr Lukas of a 1986 will when he saw him in 1999, or subsequently, and by his telling his sister in 2000 that he had yet to finalise his will.

78. For these reasons, I conclude that the deceased died intestate and letters of administration should be given to Mr Brown.

Claim for a family provision order

79. Section 57(1)(e) of the Succession Act provides:

" 57 Eligible persons

(cf FPA 6 (1), definition of "eligible person")

(1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person:

...

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member. "

80. It was not disputed that the plaintiff is an eligible applicant. He lived with the deceased as a member of his household from 1985, when he was 17, to 1995. For the first two years he was almost wholly dependant on the deceased, although he was in receipt of unemployment benefits. He remained partly dependant on the deceased in subsequent years.

81. Section 59(1) and (2) provide:

" 59 When family provision order may be made

(cf FPA 7-9)

(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:

(a) the person in whose favour the order is to be made is an eligible person, and

(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order. "

82. Again, it was not disputed that there are factors which warrant the making of the application. The deceased's attempt to give the Concord property to the plaintiff after his death shows that the deceased considered the plaintiff to be a " natural object of testamentary recognition " ( Re Fulop (Deceased) (1987) 8 NSWLR 679 at 681).

83. Subsections 59(1) and (2) lay down the same two-stage process for considering family provision orders, as was provided for in the former Family Provision Act 1982. In final submissions, counsel for the defendant accepted that the provision made by the intestacy rules for the proper maintenance and advancement in life of the plaintiff was not adequate. That concession was appropriate.

84. Each of paragraphs 59(1)(a), (b) and (c) is satisfied. The question then is what order for provision should be made pursuant to s 59(2).

85. Under s 60(1)(b) the Court may have regard to the matters in subs 60(2). That subsection provides:

" 60 Matters to be considered by Court

(cf FPA 7-9)

...

(2) The following matters may be considered by the Court:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,

( e) if the applicant is cohabiting with another person-the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered. "

86. The relevant matters are those in paragraphs (a), (b), (c), (d), (e), (f), (g), (i), (j) and (k). As paragraph (j) makes clear, the deceased's intention to leave the Concord property to the plaintiff is a relevant matter, but it is only one of many relevant matters to be taken into account. It would not be legitimate to say that, because the deceased wanted the plaintiff to have the Concord house, therefore, an order for provision should be made giving him that house, or its value. Nor was this contended.

87. The plaintiff was close to the deceased from childhood. He was regarded by the plaintiff as a father figure. The plaintiff said, and I accept, that he was closer to the deceased than to his parents. When the plaintiff was nine years of age, the deceased took him for a three-month trip to the United Kingdom and to Europe. Whilst a child and as a teenager, the plaintiff had close and regular contact with the deceased.

88. The plaintiff left school after Year 10 in November 1984. On his seventeenth birthday the deceased gave him a second-hand car as a present. Relations between the plaintiff and his parents deteriorated to the extent that the plaintiff left home in 1985 when he was 17. After sleeping some weeks in his car, the deceased invited him to live with the deceased at the Concord property. He was then unemployed.

89. In cross-examination, he agreed that, at this time, he received unemployment benefits. Nonetheless, he was dependant on the deceased. The deceased paid all of the household expenses, he did the washing and the cooking. The plaintiff helped with housework, washing dishes, shopping and helping around the garden. In other words, they formed a household.

90. The plaintiff paid the deceased board. He paid $100 a week when he was working. He said, at one point, that the deceased did not take money from him when he was not working, although, I understood him to say in cross-examination that he paid some amount of his unemployment benefit as board. Be that as it may, the money that he paid the deceased as board was given back to him by the deceased as he needed it, particularly, for periods when he was out of work.

91. The plaintiff had various jobs between December 1988 and October 1990. When he was only 22, he conducted his own security business. This was a failure. As a result of that failure, the plaintiff owed a debt to the Australian Taxation Office. This was paid for him by the deceased in 1997. The amount paid was $12,156.35.

92. In 1987, the plaintiff, as well as his father, Albert Fry, were identified by the deceased in his passport as to the persons to be contacted in the case of an emergency.

93. From time to time, in the period from 1985 to 1995, the plaintiff occupied other residences, but I accept that his substantial place of residence during this period was with the deceased.

94. In September 1995, the plaintiff met a Ms Lisa Love and after some months they began to live at a house in St Marys. The deceased paid the rental bond on the property. That relationship continued until 1997. The plaintiff has a son born to Ms Love. He was born in January 1998. He is now aged thirteen. The plaintiff pays child support that is deducted from his wages. He is in arrears.

95. In 1998, the plaintiff met his current wife Donna. They married, as I have said, in April 2002. The plaintiff said in his affidavit that from the time he moved out of the Concord house in September 1995 he telephoned the deceased three or four times each week and saw him at his house about three times each week to have dinner and, on weekends, had lunch with him. He admitted in cross-examination that that evidence was incorrect. Nonetheless, whilst he did not have that frequency of contact with the deceased after 1995, he continued to visit the deceased approximately twice per month and remained in regular telephone contact.

96. The continued strong relationship between the plaintiff and the deceased is evidenced from the deceased's conduct in May 2002 in handing over the certificate of title to the Concord house. At this time, the deceased was eighty-nine. Although he appears to have been in somewhat failing health, it is not suggested that he did not know what he was doing.

97. Between 1998 and 2000, the deceased made payments of over $43,000 for the plaintiff's benefit. Some of these were in payments of rent for the plaintiff. Some were payments of other bills, such as electricity or telephone bills. Some were advances of round sums of money. The plaintiff said that most of the moneys were repaid, but because they were repaid in cash from the plaintiff's wages there is no corroboration of that. The plaintiff admitted that some amounts were not repaid. His counsel submitted that of the sums advanced, or paid on his behalf, only $15,632 was not repaid. I think that underestimates the extent of the deceased's benefaction or, rather, assistance, to the plaintiff over this period. But it is impossible to say precisely how much was repaid.

98. On 13 January 2003, the deceased paid a further $6,000 to the plaintiff. He said that he did not receive this sum, but there is a notation on the cheque stub that clearly refers to its being paid to the plaintiff. I do not think the denial of the receipt of that sum adversely affects the plaintiff's credit. I simply think he was mistaken.

99. The deceased had a fall in 2005 and was admitted to hospital for a broken hip. He was then moved to a nursing home. By this time he was ninety-one and was suffering from dementia. The plaintiff deposed that he was prevented by staff at the nursing home (who he implied was acting on his father's instructions) from seeing the deceased at the nursing home. It is not possible to make any finding about that and unnecessary to do so.

100. The plaintiff did see the deceased in October 2006 with his father. The deceased asked the plaintiff how things were going and whether there were any problems. To this, the plaintiff replied, " I'm in financial difficulty and I have another child, Michael to support ". The deceased asked if he needed anything and the plaintiff said he would like a loan of $20,000.

101. Albert Fry, who had been given a power of attorney of the deceased in October 2002, advised there was enough money to cover the payment and, subsequently, Albert Fry paid $20,000 to the plaintiff's account. The plaintiff acknowledges that this sum was paid by way of loan and it is a debt owed by him to the estate.

102. The overall picture that emerges is that the deceased wanted to help the plaintiff to whom he had been a father figure and with whom he had a close relationship. He displayed a willingness repeatedly after the plaintiff left the Concord house in 1995 to give him financial assistance.

103. As well as the son born to Lisa Love, the plaintiff has four children with his wife Donna. They were born between Christmas Day in 2002 and 5 January 2008. But even before assuming the financial responsibilities that attend having four further children, the plaintiff experienced difficulties in making ends meet. The deceased was happy to step in. He did this in a most tangible way by handing over the certificate of title to the Concord property. As I have said, he assured the plaintiff that he would never want for a roof over his head. He repeated that assurance decades after it was first made.

104. It should be emphasised that the plaintiff did not alter his position in reliance on that statement. That would be a relevant fact if the plaintiff had done so, even in a claim for a family provision order. But the absence of reliance by the plaintiff to his detriment on that statement does not deprive it of significance. The plaintiff does not seek to enforce a legal or equitable claim against the deceased, but he says, rightly, that the deceased's actions show the deceased considered his relationship with the plaintiff was such that the Concord property would be a mark of a proper provision for the plaintiff's maintenance and advancement in life. Nonetheless, all of the other considerations relevant to the case have to be taken into account, including the claims of the nephews and nieces on the attested estate.

105. The plaintiff's finances are straitened. He also has serious health problems that may or may not be capable of being cured. The plaintiff and his wife have assets of only minimal value. By favour of the parents of Donna Fry, the plaintiff, Donna and their children are living in a property owned by Donna's parents in Kingswood. Up to May 2010, they paid rent for the property of $150 per week which is said to be below a market rent. Because of their financial difficulties, they have been unable to pay any rent since May 2010. I will return to their financial position.

106. Both the plaintiff and his wife have health problems. Donna Fry suffers from back pain. In August this year she underwent an operation for a partial fusion of the lower disc of her back.

107. The plaintiff has heart problems. He suffers from a condition known as Wolff-Parkinson-White Syndrome. This was described by his doctor as meaning " he has an accessory pathway of conductivity in his heart leading to potential episodic attacks of tachyarrhythmias or tachycardias ". This means that he suffers from sudden blackouts when his heart starts racing. That is, from time to time, he loses consciousness. He has not told his employer of these episodes, lest he loses his job. His employer is aware that he has a heart condition and has restricted the amount of overtime that the plaintiff can work. He works as a sales assistant.

108. The plaintiff's doctor reports that on 5 April 2011, at Nepean Hospital, there was an attempted surgical procedure to correct the condition. That was unsuccessful. He says that the plaintiff now awaits a further attempt of the procedure, this time at Westmead Hospital, where superior equipment will be used and, hopefully, there will be a better chance of success. I do not think it possible to quantify that chance.

109. His doctor reports that if the further surgery is successful then the syndrome will be resolved and the condition should not have any future detrimental effect on his quality of life. If it is unsuccessful then he remains at risk of ongoing blackouts and dizzy spells which, depending on their frequency and having regard to their random nature, could have a major detrimental effect on his quality of life; both his personal and family life and his work life.

110. As to the financial position of the plaintiff and his wife, their liabilities substantially exceed their assets. Their only assets are an old car valued at about $1,200; a trailer; an aluminium boat, which was given to them as a wedding present; and household furniture with an estimated value of $2,000. As against this, they have substantial debts.

111. The plaintiff deposed that in August 2009 he and his wife entered into a deed under Pt 9 of the Bankruptcy Act 1966 (Cth) and pursuant to this arrangement there is a payment plan with Fox Symes. Under this arrangement they are required to make regular payments to reduce the debts that were the subject of the plan to Fox Symes. The balance owing by the plaintiff under this plan is $18,896.25. The balance currently owing by his wife is $9,441.50.

112. In addition, the plaintiff is $1,783 in arrears in his payment of child support to his eldest son. He has outstanding electricity and telephone debts and preschool fees. He and his wife have borrowed what was called a GE Money Loan on which there is an outstanding balance of just over $12,200. There is an amount of just under $14,000 owing under a leasing arrangement of a motor vehicle.

113. In addition to this, Donna Fry has incurred debts to friends or persons at her work to enable her to pay household bills, including car registration and insurance and car repayments. She and the plaintiff owe $3,800 to people who have been prepared to make such advances.

114. What the plaintiff and his wife describe as their largest debt is said to be a sum of $60,000 owed to Donna's parents. This is partly for unpaid rent and partly for payments that Donna's parents have made on their behalf and to pay their debts. It is also partly for bills for purchasing food. Donna also described the debt as extending to maintenance on the house. There is no breakdown of the debt of $60,000. Given the nature of the debts, or payments which are described, it is unlikely that a precise sum of $60,000 would be owed.

115. Donna Fry gave evidence that her mother kept a book in which she recorded how much Donna and the plaintiff owed as the debts were run up. Unfortunately, Donna's mother, due to health reasons, was not able to attend for cross-examination. Her father gave evidence, but did not know of the book. Having seen Donna Fry and her father give evidence, I would not in any way discount her evidence that such a book is kept by her mother merely because it is not something known to her father.

116. Joan Webber (Donna's mother), also deposed that the plaintiff and Donna owe her and her husband approximately $60,000 for unpaid rent and moneys lent to pay for medical and hospital treatment and other expenses. Donna appeared to have a quite detailed understanding of the family finances. I did not think that she in any way attempted to gild her evidence. As I have said, I consider the plaintiff, also, to be a generally reliable witness.

117. Notwithstanding the unsatisfactory nature of the evidence that a debt of approximately $60,000 is owed, and notwithstanding the non-production of the book, I accept the evidence given by the plaintiff, Donna and Donna's parents that approximately that amount is owed.

118. Counsel for the defendant submitted that the sum described as $60,000 as a debt may not, in fact, be enforceable, and if matters could be closely examined, it may be seen that some, or all of that sum was a gift. The evidence is that the sums are not a gift. Both sides of the arrangement treat the payments made by the plaintiff's parents-in-law as giving rise to a debt, or debts. There is an arrangement between the parties for the payment of rent and there is an acknowledgment that unpaid rent creates a debt. In any event, there would be, at least, a moral obligation on the plaintiff and his wife to repay Donna's parents, who are themselves in modest financial circumstances.

119. In my view, looking at the matters as a whole, I would accept the plaintiff's evidence that he and his wife owe debts of approximately $142,000. I think these should be provided for.

120. The plaintiff and his wife have fortnightly net income currently of $1218.64 and $630.02 respectively. They also are in receipt of a family assistance payment from Centrelink of $529.26. This is an annual sum of over $60,000. Nonetheless, it has to provide for a family of six, plus provide child support for a further child.

121. It is clear from the debts that the plaintiff and his wife have incurred and the nature of those debts that they have not been able to keep their expenses below their income. The plaintiff is in a straitened financial position and in need of provision.

122. That need has to be assessed with regard also to the circumstances of those who will take on intestacy. There is no other person who is eligible to seek a family provision order whose claim also needs to be considered. The evidence of the deceased's nephews and nieces is to the effect that they also had a close relationship with the deceased. The plaintiff accepted that that was so. The deceased was generous from time to time with individual relations, although not, it appears, to the extent to which he has showed generosity to the plaintiff.

123. There are eight nephews and nieces entitled on intestacy. They are Albert Fry, Patricia Nethery, Elizabeth Moloney and Evelyn Wall, who are all children of Evelyn Fry. They are aged between 58 and 72. They each inherit one-twelfth of the estate. There are two further nieces, namely, Pamela Fletcher and Leonie Henri, aged 70 and 65 respectively, who each inherit a one-sixth share of the estate. They are the daughters of the deceased's sister, Molvenia Barton. Finally, there is Glenn Brown and Kelvin Brown, who are aged 64 and 61 respectively. They also inherit a one-sixth share of the estate. They are the children of the deceased's sister, Eileen Brown.

124. They all appear to be in modest financial circumstances. The person amongst them who appears to be financially best off is Mr Kelvin Brown, who is still working, as is his wife. They own a home in Five Dock and some cars and have combined superannuation of about $100,000 and only modest debts.

125. For the most part, however, the position of the nephews and nieces of the deceased is that they own, with their spouse, a house of modest value, that is to say, of around three or four hundred thousand dollars, and depend on the aged pension for their income, but have no liabilities. As the defendant's counsel said, their inheritance from their uncle's estate would be a " welcome relief ".

126. For example, Leonie Henri deposed to having ongoing hospital and medical expenses. An inheritance from her uncle would enable her and her husband to attend to needed repairs to their home, to replacing an old car and to having funds available to meet medical and domestic expenses.

127. The two persons who seem to be in the poorest financial circumstances are Evelyn Wall and Patricia Nethery. Whilst Evelyn Wall and her husband have a home valued at $280,000 and superannuation of $130,000, they also have debts of $176,500.

128. Patricia Nethery has sold her house to her son to raise money on which to live. They pay monthly rent of $1,000 to their son, with whom they live. They have a little under $200,000 in cash resources, but no substantial assets.

129. I think both Evelyn Wall and Patricia Nethery are in materially harder financial circumstances than the other nephews and nieces of the deceased and that the burden for an order for provision in favour of the plaintiff will operate more harshly on them than it will on their siblings and cousins.

130. In due course, I will make an order under s 66(2) of the Succession Act to adjust the burden of the family provision order.

131. Ultimately, the parties were not far apart in what they contended was an appropriate sum to be ordered by way of provision.

132. It is common ground that integers in an assessment of an appropriate provision would include a sum to enable the plaintiff to purchase a house, a sum to clear at least some of the debts, and a sum for contingencies. Counsel for the plaintiff said that the appropriate figure would be between $661,799 and $872,799. Counsel for the defendant submitted that an appropriate sum would be between $550,000 and $600,000.

133. The plaintiff and his wife both work in the Penrith area. The plaintiff has adduced evidence showing what houses are available for purchase in that area that are four or five bedrooms, that could accommodate him, his wife and their four children. The range of prices shown varied between $399,000 and $600,000. I think, having looked at what is advertised, that an appropriate integer to allow for the cost of purchase of a house is a sum of $500,000. As counsel for the defendant submitted, as this will be the plaintiff's first house purchase, he should be entitled to stamp duty exemption and it is not necessary to make a further allowance for other costs associated with the purchase. The sum of $500,000 I have used takes into account associated costs of purchase.

134. I also consider that the appropriate order for provision should extend to clearing the plaintiff's debts of $142,000.

135. The plaintiff's counsel sought an order of $20,000 to $30,000 for the purchase of furniture. As I have said, the plaintiff and his wife own some furniture, but it is estimated to have a value of only $2,000. Presumably, they are using furniture of Donna's parents in the house in which they are living and I accept that there is a need for the purchase of further furniture. I think that, having regard to the relationship of the plaintiff with the deceased, it is appropriate to allow a sum of $16,000 in that connection.

136. Finally, I agree that a sum for contingencies is required, particularly, having regard to the state of health of the plaintiff and uncertainty as to his medical prognosis. It is impossible to arrive at a figure through any process of reasoning for contingencies. Rather, the sum to be selected involves an exercise of intuitive judgment. In my view, the appropriate sum to be allowed in this regard, when regard is had to the other matters which will also be taken into account in calculating the amount of provision, is an amount of $50,000.

137. The total of those sums is $708,000 and that is the amount of provision for which the plaintiff will receive. That has been done by taking into account the amount of $20,000 as a debt due by the plaintiff to the estate. It makes no arithmetical difference whether that debt is forgiven, or whether it is not forgiven. The order for provision is in the sum of $708,000. It may be simpler, as counsel suggested, that the order for provision should entail a forgiveness of the debt and then a payment of a pecuniary legacy of $688,000. I think the parties are agreed on that.

138. Nonetheless, in calculating how the burden of the order for provision is to be borne between the beneficiaries of the estate, the figure of $708,000 is the figure to be used, not the figure of $688,000 because the order for provision includes in it the forgiveness of the $20,000 debt.

139. I turn then to the adjusting orders.

140. If the burden of that provision were borne by all of the beneficiaries in the proportion to which they are entitled to the estate, one-twelfth of the burden would be borne by Evelyn Wall, Patricia Nethery, Elizabeth Moloney and Albert Fry, and one-sixth of the burden would be borne by Pamela Fletcher, Leonie Henri, Kelvin Brown and Glenn Brown. The result of that would be that if the provision were paid by way of a legacy without interest, Evelyn Wall, Patricia Nethery, Elizabeth Moloney and Albert Fry would each bear a burden equivalent to $59,000, and the other nephews and nieces would bear the burden to the extent of $118,000.

141. However, I think that the burden on Evelyn Wall and Patricia Nethery should be reduced by half. That is to be done by increasing proportionately, not equally, the burden to be borne by the other beneficiaries. The result of that adjustment is that Evelyn Wall and Patricia Nethery will each bear 4.167 per cent of the burden of the order for provision of $708,000. Elizabeth Moloney and Albert Fry will each bear 9.167 per cent of the order for provision of $708,000, and the other nephews and nieces will each bear 18.333 per cent of the burden of the order.

142. Subject to hearing from counsel as to the precise form of the orders to be made. I would propose the following.

143. First, in proceedings 2010/370479, order that the claims for relief in paragraphs 1 to 4 in the section headed " relief claimed " in the statement of claim, be dismissed.

144. Secondly, to declare that Walter William Edward Honey, late of Concord ("the deceased") died intestate.

145. Thirdly, to order that letters of administration in solemn form of the estate of the deceased be granted to the cross-claimant, Glenn William Brown.

146. Fourthly, to order that the administration bond be dispensed with.

147. Fifthly, to order that it be remitted to the Registrar to complete the grant.

148. In proceeding number 2010/258277, the appropriate order, I think, is that the summons for administration be dismissed.

149. In proceeding 2010/129911, to order that provision be made for the plaintiff pursuant to s 59 of the Succession Act out of the estate of the late Walter William Edward Honey in the amount of $708,000, by way of:

(a) a legacy of $688,000; and

(b) an order that any debt owed by the plaintiff to the deceased be forgiven.

150. I will hear counsel on the question of costs, on what orders should be made in relation to interest on the legacy, and otherwise as to the form of orders.

[Counsel addressed.]

151. Counsel for the defendant notes that it will not be possible to make orders in the family provision proceedings until the grant has been completed. I will, therefore, stand over those proceedings until a later time so that the orders can be made after the grant has been made. The parties should relist the matter by arrangement with my associate as soon as the grant is received.

152. In proceeding number 2010/370479, I make the follow orders:

1. I order that the claims for relief in paragraphs 1 to 5 in the section headed " relief claimed " in the statement of claim be dismissed.

2. I declare that Walter William Edward Honey, late, of [x] High Street, Concord, retired officer of the Reserve Bank of Australia (deceased) died wholly intestate.

3. I order that letters of administration in solemn form of the estate of the deceased be granted to the cross-claimant Glenn William Brown.

4. I order that the administration bond be dispensed with.

5. I order that the proceeding be remitted to the Registrar to complete the grant forthwith.

6. I order that the costs of the plaintiff/cross-defendant be paid out of the estate on the ordinary basis and that such costs include the costs of the caveat lodged on 9 August 2010, case number 2010/264542.

7. I order that the costs of the defendant/cross-claimant be paid out of the estate on the indemnity basis.

153. In proceedings number 2010/258577:

1. I order that the summons for administration be dismissed.

2. I also order that the costs of the plaintiff in those proceedings, (Glenn William Brown) be paid out of the estate on the indemnity basis.

3. I also order that if the plaintiff in proceeding 2010/370479, (Mr Christopher Edward Fry) has incurred any costs in relation to proceeding number 2010/258577, then those costs also be paid out of the estate but on the ordinary basis.

154. Finally, I stand over proceeding number 2010/129911 to a date to be fixed.

155. I won't make an order for the return of the exhibits until I make the orders in the family provision proceedings.

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