Crossland, Re; Re Crossland [1994] QSC 34

-·~· ...... --//-::: ~ ~. ~~ _-.~ )~~- State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J Application No 705 of 1993 '·,;::viSEO CW:ES L::~UE:D Sta1a R3port;ng Bures.u IN THE MATTER OF THE WILL OF BENJAMIN CROSSLAND LATE OF CLIFTON BEACH IN THE STATE OF QUEENSLAND, COMPANY DIRECTOR, DECEASED IN THE MATTER OF AN APPLICATION BY ALICE MARGARET CROSSLAND BRISBANE .. DATE 07/03/94 ORDER -- 1 of 26 -- 070394 HIS HONOUR: In delivering the abovenamed judgment an error was detected therein to the effect that because of a device adopted to ensure that Canlodge Pty Ltd paid its debt in full in the sum of $118,705, the result of that device was to make specific legacies and bequests exceed the amount of the 10 residue of the estate. This was unintended. The intention was only that Drew and Kaye receive a legacy of $100,000 which was, in effect, to restore them to the position which would have obtained if the legacy of $1 00, 000 to the 21 widow had not come, in effect, from the residue of the estate. The device adopted to ensure Canlodge' s payment of the debt was to grant a bequest of that asset to Ian and to balancE that by allowing a similar amount to each of Drew and Kaye. The same result can be achieved by a different device which has the result intended without the unintended consequences. The order that was made is vacated and in lieu thereof it is '-~\ ordered as follows: Upon the undertaking of the said Ian Charles Crossland that he will provide for the widow of the testator as specifically indicated in the terms of the settlement referred to above, it is ordered as follows: 1. Paragraph 4(a) of the will will be amended by prefacing thereto the following words: "upon the payment to my estate by Canlodge Pty Ltd of its debt of $118,705 and only then". 2 ORDER 50 60 -- 2 of 26 -- 070394 2. Paragraph 4 of the will is amended by adding thereto the following subparagraphs: "(c) I bequeath to my wife, the said Alice Margaret Crossland, the sum of One Hundred Thousand Dollars ($100,000) free of all death duties and 10 deductions whatsoever. (d) I bequeath to each of them my son Drew Benjamin Crossland and my daughter Kaye Patricia Crossland the sum of One Hundred Thousand Dollars ($100,000) free of all death duties and ~ deductions whatsoever." The amendments to paragraphs 5 and 7 of the will as shown in paragraph 3 of the above order and the order for costs remain. 30 I further order that in any case there be no abatement of the legacy of the widow, Alice Margaret Crossland. The further costs if any arising from this morning's attendance are to be paid on a solicitor and client basis out 40 of the estate. HIS HONOUR: In respect of the matter of the removal of Alice so Margaret Crossland as executrix I order as per draft. 60 3 ORDER -- 3 of 26 -- State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copit•s thl•reof must not be made or sold without the written authority of the Director, Stale Reporting Bureau.) ·> SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J Application No 705 of 1993 REVISED COPIES ISSUED State Reporting Bureau Date If I 3 I 1'f IN THE MATTER OF THE WILL OF BENJAMIN CROSSLAND and IN THE MATTER OF AN APPLICATION BY ALICE MARGARET CROSSLAND BRISBANE .. DATE 03/03/94 JUDGMENT 1 ..fill Floor, Tile Lm Courts, Gcor~c Strl'cl, /Jrisbanl', (). ..f()()() 'ldl'plwnl': (07) 227 -1360. 1-:H·simi/e: (07) 227 5532 -- 4 of 26 -- 030394 ck (Derrington J) HIS HONOUR: Upon the undertaking by Ian Charles Crossland that the Will provide for the widow of the testator as specifically indicated in the terms of the settlement referred to, it is ordered as follows: (1) Paragraph 4a of the Will is amended by adding thereto 10 the words, "and the debt due to me by Canon Lodge Pty Ltd." (2) Paragraph 4 of the Will is amended by adding thereto the following sub-paragraphs: "(c) I bequeath to my wife, the said Alice Margaret Crossland, the sum of One Hundred Thousand Dollars ($100,000) free of all death duties and deductions whatsoever; (d) I bequeath to each of them, my son Drew Benjamin Crossland and my daughter Kaye Patricia Crossland, the sum of Two Hundred and Eighteen Thousand Seven Hundred and Five Dollars ($218,705)free of all death duties and deductions whatsoever." (3) Paragraphs 5 and 7 of the Will are deleted and the following shall be substituted in lieu of paragraph 5: "(Sa) I direct my executor to permit my wife, the said Alice Margaret Crossland, to reside in my unit at 1/1 McPherson Place, Edgehill, Cairns, until a home unit is provided for her pursuant to an agreement made between her and my said children to pay her the whole of the nett income in the rest and residue of my estate both real and JUDGMENT 2 20 30 40 50 60 -- 5 of 26 -- -~· 030394 ck (Derrington J) personal unto and until payment to her of the aforesaid legacy; (Sb) subject to all other provisions of this my Will, I devise and bequeath the rest and residue of my estate unto and to the use of my trustees upon trust for my said children, Drew Benjamin Crossland, Kaye Patricia Crossland ran Charles Crossland, equally between them." The costs of the said Drew Benjamin Crossland, Kaye Patricia Crossland, ran Charles Crossland and the executors and trustees represented in the application are to be taxed on a solicitor and client basis and paid out of the estate. JUDGMENT 3 10 20 30 40 50 60 -- 6 of 26 -- State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J os No 705 of 1993 IN THE MATTER OF THE WILL OF BENJAMIN CROSSLAND LATE OF CLIFTON BEACH IN THE STATE OF QUEENSLAND, COMPANY DIRECTOR, DECEASED and IN THE MATTER OF AN APPLICATION BY ALICE MARGARET CROSS LAND BRISBANE .. DATE 07/02/94 ORDER 1 4th Floor, The Law Courts, Geor!le Street. Brisbane. 0. 4000 T~!lPnhnnP! lfJ7l 227 4.'~1i/J. J:nrci-·il~>· tll7l ??7t;t;~? -- 7 of 26 -- 070294 SC (Derrington J) HIS HONOUR: An appropriate order will be made in these terms: "Agreed List of widow's entitlements: (1) Ian Charles Crossland shall, at his cost and from his share of the estate, purchase a home unit in Cairns up to a capital value of $150,000, free of all costs and charges relating to the purchase, such unit to be suitable for the requirements of the said Alice Margaret Crossland and approved by her and it shall grant to the said Alice Margaret Crossland a life interest in the said home unit, such interest to be registered upon the title of the said home unit; (2) !an Charles Crossland shall pay all Body Corporate levies, rates, insurances, bar service levies and land tax charges in respect of the said home unit; (3) as security for payment of the charges and out-goings referred to in paragraph 2, Ian Charles Crossland shall, 10 20 30 from his share of the estate, deposit with Messrs Williams 40 Graham and Carman, solicitors, the sum of $10,000, such sum to be held by them on an interest bearing deposit while ever the said Alice Margaret Crossland shall enjoy her life interest and shall remain the property of Ian Charles Crossland; the interest on the said deposit shall so be capitalised and reinvested with the same; (4) Ian Charles Crossland shall, at his cost and from his share of the estate, purchase new furniture for the said ORDER 2 60 -- 8 of 26 -- 070294 SC (Derrington J) home unit up to a value of $10,000, such furniture to be suitable for use by the said Alice Margaret Crossland and approved by her, such furniture shall remain the property of the said Ian Charles Crossland; (5) There shall be paid from the estate to the said Alice Margaret Crossland the sum of $100,000, such sum to include all claims by her against the estate, including the costs of these proceedings." ORDER 3 10 20 30 40 50 60 -- 9 of 26 -- I ,_ IN THE SUPREME COURT OF QUEENSLAND HELD AT BRISBANE Catchwords: Counsel: Solicitors: Hearing dates: Application No. 705 of 1993 IN THE MATTER of the Will of BENJAMIN CROSSLAND late of Clifton Beach in the State of Queensland, Company Director, deceased -and- IN THE MATTER of an Application by ALICE MARGARET CROSSLAND REASONS FOR JUDGMENT - DERRINGTON J. Delivered the 3rd day of March, 1994 Family provision - large estate - adult son and daughter. Each receiving in excess of $150,000.00 under will. Whether sufficient. Mr Fleming Q.C. for A. Crossland, for first applicant Mr Favell for D. Crossland, for second applicant Mr Matthews forK. Crossland, for third applicant Mr Martin for R. Crossland, for fourth applicant Mr Gotterson Q.C. with him Mr Mullins for I. Crossland, for respondent Varro Clarke & Co, for first applicant Baker Johnson, for second applicant Gregg & Kubler, for third applicant MacDonnels, for fourth applicant Williams Graham and Carman, for respondent 7th and 8th February 1994 -- 10 of 26 -- ( IN THE SUPREME COURT OF QUEENSLAND HELD AT BRISBANE Application No. 705 of 1993 IN THE MATTER of the Will of BEN JAMIN CROSSLAND late of Clifton Beach in the State of Queensland, Company Director, deceased -and- IN THE MATTER of an Application by ALICE MARGARET CROSSLAND JUDGMENT - DERRINGTON I. Delivered the 3rd day of March, 1994 This is an application by the widow, a son (Drew) and the daughter (Kaye) of the above-named testator for further provision out of his estate, the net value of which after provision for administrative expenses and the costs of the estate in answering this litigation is about $1.22 million. It is said that there will be further commission and expenses arising out of the disposal of some of the assets, and, if an order for costs of the applications and of the response of the major beneficiary are ordered to be paid out of the estate then its value will be reduced by a further $75,000 approximately. Under the testator's will, his son, Ian, was forgiven a debt of $230,000, was given the option of buying a home unit owned by the estate at a price $100,000 less than its value, and was bequeathed a motor-car which he has sold for $82,500. He -- 11 of 26 -- 2 was also bequeathed the testator's ·shares in a company the shareholding of which they shared equally; and the testator's shareholding was valued at $108,110. The company was Mambruil Pty Ltd in which Ian also took by survivorship the testator's interest in a jointly-owned share. The value of that interest was $27,027.00. He also received the testator's shares in another company, Canlodge Pty Ltd, the shares in which they held between them, but these were worthless, and indeed the company owed the estate $118,705, which is one of the assets of the estate falling into its residue under the will. Of that residue, the testator's widow, who had married him about four years before his death, was given a life interest in the income, and the remainder went to the three children of the testator equally. Soon after the commencement of the hearing, the widow's claim was commendably settled between the parties on the following terms: "(1) Ian Charles Crossland shall, at his cost and from his share of the estate, purchase a home unit in Cairns up to a capital value of $150,000, free of all costs and charges relating to the purchase, such unit to be suitable for the requirements of the said Alice Margaret Crossland and approved by her and it shall grant to the said Alice Margaret Crossland a life interest in the said home unit, such· interest to be registered upon the title of the said home unit; (2) Ian Charles Crossland shall pay all Body Corporate levies, rates, insurances, bar service levies and land tax charges in respect of the said home unit; (3) as security for payment of the charges and outgoings referred to in paragraph 2, Ian Charles Crossland shall, from his share of the estate, deposit with Messrs Williams Graham and Carman, solicitors, the sum of $10,000, such sum to be held by them on an interest bearing deposit while ever the said Alice Margaret Crossland shall enjoy her life interest and shall remain the property of Ian Charles Crossland; the interest on the said deposit shall be capitalised and reinvested with the same; . ------·-----.. ·-----. --- c~~ () (; (J --------·----·· -- 12 of 26 -- 3 (4) Ian Charles Crossland shall, at his cost and from his share of the estate, purchase new furniture for the said home unit up to a value of $10,000, such furniture to be suitable for use by the said Alice Margaret Crossland and approved by her, such furniture shall remain the property of the said Ian Charles Crossland; (5) There shall be paid from the estate to the said Alice Margaret Crossland the sum of $100,000, such sum to include all claims by her against the estate, including the costs of these proceedings." It will be seen that Ian has taken upon himself the obligation of providing the home unit for the widow and of paying for its upkeep, maintenance and all expenses. He is also to be responsible for the provision of $10,000 worth of furniture for her use and for the payment of $10,000 cash into a trust as security for .such continuing payments as aforesaid. The only outstanding feature in respect of this settlement, and one which does not affect the widow, is that it will be necessary to decide which part of the estate should bear the payment of the $100,000 cash to her. Despite this substantial contribution by lan, and although their respective ','-- / shares will now be accelerated from a remainder after the life estate to one that is vested immediately, Drew and Kaye argue that Ian's share should bear this payment as well. In addition they seek the rearrangement of the division of the residue so that they should each receive a much larger share of the rest and residue than Ian in order to compensate for the specific benefits which he enjoys. In opposition to this Ian argues that the obligation of payment of the sum should be met by the rest and residue of the estate which should then be divided equally between the three in accordance with the will, subject of course to its acceleration after the removal of the widow's life interest. -- 13 of 26 -- 4 All three children have received benefits from the testator during his lifetime. Drew, who is the eldest and who was born on 23 March 1948 was the only one of the children to be given a private school education and to be sent to university. Afterwards, when he worked in the family business, he received substantial benefits in the way of interest-free loans to purchase freehold property and shares in the family companies without any substantial contribution by himself; and on the sale of these he received capital gains totalling at least $170,000.00. If the payment of $100,000 to the widow comes from the residue of the estate, then Drew's one-third interest therein will provide him with a sum in excess of $150,000 after the estate pays the cost of this litigation and other costs arJ.d commissions. Though some of these might well be avoided it is convenient to proceed on the assumption that he will receive the amount indicated. His income is currently $1,500 per week as a consultant manager temporarily in charge of a business at Tweed Heads where he is provided with accommodation when he is absent from Brisbane. This latter feature is of no practical benefit to him except to relieve him of any accommodation expense associated with the location of his work. He is also provided with a car, which has led him to sell his ( ) own car and to apply the proceeds towards repayment of his mortgage. This action is not entirely consistent with the impression which he gives of the insecurity of his present position. This difficulty arises again in respect of his wife's earning capacity. In part- time optometrical work she earned $10,000 per annum for working one night per week and Saturday mornings. At a late stage of the hearing it was revealed that she had resigned her work because his absence in respect of his present job has required -- 14 of 26 -- 5 her to provide transport for their school-age sons in respect of Saturday sports. He says that despite their financial difficulties and the insecurity of his position she has abandoned her employment for this reason only notwithstanding that, he says, she would have difficulty finding other employment if his work were terminated. His evidence on this was unconvincing, consistently with his evidence in general. He appeared plainly to be "selling" his case without full regard for the desirability of an accurate and fair picture. He was unemployed for about a year early in the recent recession, which again is not entirely consistent with the high quality of managerial talent which he claims to. have contributed to the business of the testator in past years. Apart from that he has been in employment with a variety of businesses for relatively short periods of time and for different salaries which varied considerably. Some of these would suggest that he is a talented manager, even though allowance must be made for their inflation by reason of their casual and temporary nature. Others were much more limited. If account be taken of the benefits which he received through the testator and the contribution made by his wife's earnings, his accumulated assets reflect no special management of his own affairs, though in fairness allowance must be made for his outlays in sending his sons to an expensive private school. His assets and liabilities are claimed to be as follows: -- 15 of 26 -- "ASSETS Family Home Motor vehicle Shares Furniture and personal effects LIABILITIES Mortgage on family house Mortgage payments (Interest Only) 6 . $330,000.00 $ 18,000.00 $ 28,000.00 $ 40,000.00 $416,000.00 $148,000.00 $ 16,280.00 $164,280.00 11 He says that the value of his family home is established by two offers of $320,000 which he has received and refused during an effort to sell it over the last six months.· Notwithstanding that the market is depressed for homes of this quality, he says that he is obliged to sell it because of financial difficulty, particularly in the payment of heavy continuing school fees for his two sons. He expresses considerable regret in selling what he describes as his "dream home" and it certainly seems to be much more luxurious than his estimate of value would suggest. It is difficult to understand why he is obliged to sell for, considering his present income and his interest in the estate, there is no real need to sell this house on the present market with the attendant costs of commission, moving, and other expenses. He has not sold it in fact, and, with the accelerated benefit which he is now to derive from the estate, there should be no reason whatever for him to proceed with this. He claims that his expenses consist of the school fees of $10,000 per annum, household expenses of $20,000, work expenses of $200 per month and mortgage repayments of interest only at $16,280 per annum. Of course, if he were to use his bequest from the estate to repay his mortgage, his repayments of interest of $16,280 () -- 16 of 26 -- 7 per annum would also disappear and this would more than cover the school fees of his children which cause him such concern. However, despite his and his wife's earning capacity, he will still be without a substantial fund which might be regarded as a form of security for himself and his family against the adverse contingencies of life, which is a factor which a wise parent should consider. The position of Kaye is different in some ways, but not in the final result. It was probably due to her departure to live a lifestyle independently of the family, and because she had no calls upon her by any dependents, that the testator felt that he had provided sufficiently by way of assistance to Kaye, who was born on 23 December 1954. He had lent her interest-free money from time to time which she usually repaid except on one occasion when, on discovering that she was making repayments, he forgave her the balance of about $4000. In addition,through his companies he provided her with a virtual gift of $70,000 to buy a house which she subsequently sold. She used the proceeds to purchase a half interest in her current home which she shares with her female companion. She too will receive the accelerated payment of more than $150,000 as her share of the residue under the will. As with her life-style, her assets are modest. In addition to the half share in her home worth about $70,000, she has shares in a brewery worth about $40,000, a motor vehicle worth about $5000 and cash in the bank of about $660. Her only liabilities are credit card debts of approximately $6500. She is a registered nurse, but she chooses to work only about twenty-four to twenty-eight hours per week. At the lower limit, she earns about $325 net per week -- 17 of 26 -- 8 and receives interest and dividends of about $30 per week. Her outgoings, including credit card repayments amount to about $320 per week. There is vague suggestion of possible redundancy, but she fairly and honestly indicated that this did not appear to be a serious threat. ·She still has no dependents and there is no suggestion that this will change in the future. Her companion and eo-owner of her home, with whom she has a close personal relationship, is a manager earning a reasonably substantial income, and there is no indication of any prospects of dependency in that direction. Although her lifestyle is somewhat limited, presumably by her income and resources, this seems to be in accord with her wishes. She attributes her decision to work less than ordinary (\ 1 working hours to some feeling of tiredness, but it seems also to be a matter of choice. Despite these things, it is obvious that as a wise parent the testator should have recognised her needs for some greater degree of comfort and security. Her debts and the absence of any great cushion against adversity is not altogether satisfied by the bounty provided under the will. For example, she is somewhat (. ,/1 dependent upon the. continuation of her present relationship for the continuation of . her residential arrangement; and she obviously has little in the way of resources against any serious illness or disability. Ian, the youngest child, was born on 5 August 1950. He and his wife own a few pieces of real estate used as investment property, some of which are leased by their two companies, Mambruil and Canlodge. Those companies were set up with the financial help of the testator, though Ian made some contribution. His best co~tribution was his work in the business, particularly when it was in difficulties; -- 18 of 26 -- 9 and it was this which caused the testator to show him some substantial preference in his will. They also own their own home in respect of which they owed the testator $230,000.00 on an interest-free loan, which was the debt forgiven by the will. The full value of his present benefits in the estate under the will, if the agreed settlement on the widow is paid from the residue, is in excess of $670,000. When this is taken into account in addition his own assets, it must be remembered that his benefits under the will includes the forgiveness of the abovementioned debt for otherwise it would be counted against him twice. In addition, he has to provide the benefits to the widow under the settlement as referred to above. It is alleged that his net asset surplus over liabilities is of the order of $945,000.00, but this is generally irrelevant except that it is clear, whatever the correct figure, that he is not a competing claimant on the testator's bounty on the basis of need. It is still relevant however to have regard to the burdens of his personal debt to the testator, which was forgiven, and that of Canlodge in the sum of $118,705.00, which was not. It remains only to consider the personal relationships of the children with the testator and their respective contributions to the accumulation of his estate. With his will he left a signed note dealing with this topic and explaining his motive for the preference shown to Ian who, he said, "deserves extra benefits". Although there is some explanatory criticism of Drew, the primary emphasis focuses upon Ian's loyalty to the testator, not only in their twenty-one years of continuous working association, but more particularly because in more recent years they were associated through Canlodge Pty Ltd and Mambruil Pty Ltd in their car rental business. This covered a period of some serious economic stress in the business which they weathered together, though the business remains demanding. It is for these reasons that he has -- 19 of 26 -- 10 endowed Ian with sole ownership of the business by bequeathing his half shareholding in the companies and has made other bequests which seem to relieve him of some financial stress. Part of his criticism of Drew, which cannot be described as excessive in style though there may be some minor inaccuracies, concerns some modestly serious differences which they had when Drew withdrew from the business on two separate occasions. There has also been some litigation between Drew and the testator over a substantial boat which was won as a prize during the time that Drew had been employed by the family business; and there had been some mild recriminations concerning his attitude concerning an aircraft which had been pu~chased by that business. The testator also criticised his management of· certain branches of that business which, he said, led to his giving Drew some instructions concerning expenses and sales in consequence of which he resigned leaving the testator to remedy the difficulties which he had left. Drew did not return to the new family business for about three years, as the testator noted, though he erroneously referred to it as four years. In the course of time after his return the business encountered financial difficulties which the testator attributed substantially to Drew's management. (_) Whether or not that is right, Drew again left in unhappy circumstances and the testator and Ian took over his interests and continued to run the business, which still survives because they rescued it. Drew, of course, never returned to it. The testator's comments are largely confirmed in evidence by Ian and, insofar as they imply blame, they are denied by Drew~ It is not necessary to resolve these issues in the sense of attributing blame. -- 20 of 26 -- ( c 11 It is sufficient to find that Drew's business relationship with the testator had been stormy over the years, leading to his departure on two occasions and that, insofar as blame (as distinct from personality differences) is relevant, he at least shared it. The testator's note was no doubt inspired by his correct expectation that Drew would contest the dispositions made by the will, and to that extent the note must be recognised to be self-serving and presenting only one point of view. However, his assistance to Drew in paying for his children's school fees on one occasion reveals an attitude that was not distorted by any bitterness, and indeed Drew himself confirms their good personal relationship at all relevant times. This is not consistent with the proposition that the testator's account s~ffers from any serious antipathetic origins, though of course it could still be merely erroneous in its perceptions. However the acceptable evidence supports the view that the letter was prompted by a legitimate expectation that Drew would make unjustified or excessive claims. It is certainly true that Drew, like Ian, spent a number of years employed in the family business, and he may have contributed generally to its well-being. However, he also derived a very comfortable lifestyle from it, having the benefit of interest free loans and other perquisites that were substantial, and he made large capital gains when finally he sold the assets which the loans were used to purchase. These have been referred to above. In addition, as it has been noted, in recent times the testator made a payment of about $9000 for the year's school fees of Drew's two sons in the same general period in which he made his will. The conclusion must be that Drew has already benefitted substantially through the bounty of the testator, and of course the accelerated benefit which he will receive under the will is quite -- 21 of 26 -- 12 substantial. His contribution to the amassing of the estate has not been shown to be of any notable value. However, the testator's payment of the school fees also acknowledged Drew's financial needs and the level upon which those needs should be properly regarded. Although this was a substantial benefit and quite clearly he intended to provide the further benefits under his will, the question must still be considered whether, on the level of lifestyle which the testator acknowledged as appropriate, this provision is sufficient. () Again the position of Kaye is different on a superficial level. In his note the testator is not critical of her in any way and merely observes as a matter of fact () that she was never employed in the family business. This is to be read in the context of his reasons for favouring Ian. Although she moved far away and has led an independent lifestyle, she remained on good terms with the testator and reasonably kept in touch with him. Although she did not contribute to the business, equally she ~- -, has received little of the contemporaneous benefits received by her brothers in their ~) asso.ciation with it. The testator had already provided her with some relatively modest though l) useful benefits and has now followed this with a reasonably substantial benefit to her under his will. These are in conformity with the type of relationship discussed above and the testator's recognition of her call upon his bounty consistently with the size of his estate. The limitation on that bounty lies only in his wish to reward Ian for his contribution, the details of which are generally unknown to Kaye. That apart, he saw fit to treat her equally with the others. -- 22 of 26 -- 13 Upon the foregoing facts and circumstances, it might first be observed that, subject to his making proper provision for Drew and Kaye by way of ensuring their proper maintenance and support to the level that might be expected having regard to the size of his estate, the testator was entitled to give effect to his preference for Ian as the beneficiary in his estate because of Ian's special assistance to him in difficult times and perhaps because of his perception of lan's ongoing needs in respect of the business. He was also entitled to take into account the fairly substantial combined earning capacity of Drew and his wife, their assets and the benefit which he was providing. under the will. However his estate was sufficiently substantial to require him to have regard to the adverse contingencies of life in order to consider whether the provision which he was making under his will was sufficient .to meet these so as to provide reasonable comfort and security. The motivation for their applications is largely driven by Drew's and Kaye's sense of unfairness at the substantial preference shown to Ian, despite their absence at the time of the difficulties of which the testator speaks. Further, Kaye's knowledge of the merits of the testator's difficulties with Drew is very limited or non-existent so that her judgment of fairness is hardly well-founded. In any case, it is not a simple question of fairness and the basis of any relief must be the respective need of the applicants. The principles are set out in Re William Moreton Brown deceased (unreported - Supreme Court of Queensland 11 December 1991), which all parties advanced as containing a proper statement of them. It is unnecessary to repeat them. -- 23 of 26 -- 14 Much the same general considerations apply to Kaye. She does not have the burden of dependents and she is capable of earning a modestly. comfortable livelihood. She is without substantial debts and the benefits which she will receive under the will improve her position. However her reserves are relatively few and her vulnerability is real, so that proper provision for her comfort and security, having regard to her reasonably lengthy life expectancy, must be assessed without the constraints that a smaller estate would impose. While Ian will benefit substantially under the will and there is no issue c-~' concerning his needs, it must still be recognised that the has undertaken the burden of making the necessary provisions of assets for the life interest of the testator's . . . widow referred to above, which will constitute a stress upon the financial resources of his business, and it is unlikely that he will enjoy his remainder in those assets for some years. Further, by his undertaking this burden, both Drew and Kaye, as well as he, will receive the benefit of the acceleration of their remainders by the removal of the widow's life interest. () However, the calculations upon which the merits have been considered depend upon the assumption that his company Canlodge Pty Ltd will pay its debt to the ( ) estate. There is some doubt about this because of its financial position. It is only fair then that he should bear any loss that might flow from this, a fair result can be achieved by giving him this asset and, in a balancing procedure, by giving to each of the other residuary beneficiaries an amount equal to it, that is, $118,110.00, by specific legacies. This will relieve one of Drew's complaints, which was valid enough. ___ ,__ _ -- 24 of 26 -- ( 15 If all the matters discussed are taken into account, the most that can be said by way of criticism of the provision made for Drew and Kaye as it now stands is that, if the payment of the cash sum to the widow comes from the residue of the estate, in each case it is mildly insufficient in giving them, in their respective circumstances, the degree of security which the size of the estate would warrant; and equally that would have been the case if their interests were limited to remainders, as the will originally read. If the payment now to be made to the widow were not to come from the residue, then their accelerated share in it under the proposed settlement would certainly not be insufficient. However, it is the most appropriate course to provide a simple direct legacy to the widow for. the agreed sum and this will have the effect of reducing the residuary estate by that amount. Rectification of the consequential deficiency in the provision made for Drew and Kaye will be achieved in such circumstances by providing for an additional legacy of $100,000.00 for each of them. Because this will, as well as the widow's legacy, have the effect of reducing the rest and residue of the estate in which they share, their benefit by this provision will not be the equivalent of that sum, and the result will be as though the payment to the widow had not come from the residuary estate, in which case their needs will have been properly provided for. All of this is recognised in making the assessment. With the legacy representing the equivalent of the Canlodge debt, each will receive a total legacy of $218,705.00. Upon the undertaking by the said Ian Charles Crossland that he will provide for the widow of the testator as specifically indicated in the terms of the settlement referred to above It Is Ordered As Follows - 1. Paragraph 4(a) of the will is amended by adding thereto the words - -- 25 of 26 -- 16 "and the debt due to me by Canlodge Pty. Ltd." 2. Paragraph 4 of the will is amended by adding thereto the following sub- paragraphs - 3. "(c) I Bequeath to my wife the said Alice Margaret Crossland the sum of One Hundred Thousand Dollars ($100,000.00) free of all death duties and deductions whatsoever. (d) I Bequeath to each of them my son Drew Benjamin Crossland and my daughter Kaye Patricia Crossland the sum of Two Hundred and Eighteen Thousand Seven Hundred and Five Dollars ($218,705.00) free of all death duties and deductions whatsoever." Paragraph 5 and 7 of the will are deleted and the following shall be substituted in lieu of Paragraph 5 - "5(a) I direct my Executor to permit my wife the said Alice Margaret Crossland to reside in my home unit at 1/1 McPherson Close, Edge Hill, Cairns until a home unit is provided for her pursuant to an agreement made between her and my said children and to pay her the whole of the net income from the rest and residue of my estate both real and personal until the payment to her of the aforesaid legacy. 5(b) Subject to all other provisions of this my will I Devise and Bequeath the rest and residue of my estate Unto And To The Use Of my Trustees Upon Trust for my said children Drew Benjamin Crossland, Kaye Patricia Crossland and Ian Charles Crossland equally between them." The costs of the said Drew Benjamin Crossland Kaye Patricia Crossland and Ian Charles Crossland and of the executors and trustees represented in the application are to be taxed on a solicitor and client basis and paid out of the estate. ( () () -- 26 of 26 --