Banks, Re; Re Banks [1990] QSC 167

10 ) 20 ) J )' \ ) --- ) I _/ 30 40 50 60 ··~ .... ,.=-_.. -r::-·-_".;:,. IN THE SUPREME COURT OF QUEENSLAND CHAMBERS-- No. 978 of 1988 Sc cro/1 7 BEFORE MASTER WHITE BRISBANE, 31 MAY 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) IN THE MATTER OF. the Succession Act 1981 - 1983 -and- IN THE MATTER OF the Will of MARGUERITE ROSE BANKS -and- IN THE MATTER OF an Application by DOUGLAS ROY BANKS under Part IV of the said Act JUDGMENT MASTER: In this matter, it is ordered that the Will of Marguerite Rose Banks be read and construed as though it contained a provision for a legacy to· Douglas Roy Banks in the sum of $20,000 and a legacy to-Debra Gail Seaton in the sum of $50,000. It is further · ordered that the costs of all parties be taxed as between solicitor and own client and be paid out of the estate of the deceased including reserved costs, i:f; any, and I grant liberty to apply. I publish my reasons. -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 18 -- ) Sc IN THE SUPREME COURT OF QUEENSLAND HELD AT BRISBANE NO. 978 OF 1988 IN THE MATTER OF the Succession Act 1981-1983 IN THE MATTER OF the will of MARGUERITE ROSE BANKS late of 1/134 Mein Street, Hendra in the State of Queensland, retired, deceased. IN THE MATTER OF an application by DOUGLAS ROY BANKS under Part IV of the said Act. JUDGMENT - MASTER WHITE Delivered the Thirty-first day of May, 1990 CATCHWORDS: COUNSEL: SOLICITORS: TESTATOR Is FAMILY MAINTENANCE - Application of adult son and daughter aged 34 years and 32 years respectively - moderate estate left to daughter from previous marriage - both applicants in financial need mother's cessation of relationship with applicant daughter since aged 15 years. D.G. Mullins Favell Applicants Respondent Gabriel Ruddy and Garrett - Applicants Gill and Lane - Respondent HEARING DATES: 15th May, 1990. -- 2 of 18 -- J IN THE SUPREME COURT OF QUEENSLAND HELD IN BRISBANE No. 978 of 1988 IN THE MATTER OF the Succession Act 1981-1983 IN THE MATTER OF the will of MARGUERITE ROSE BANKS late of 1/134 Mein Street Hendra in the State of Queensland, retired, deceased. IN THE MATTER OF an application by DOUGLAS ROY BANKS under Part IV of the said Act. JUDGMENT - MASTER WHITE Delivered the Thirty-first day of May, 1990 Two applicants, Douglas Roy Banks and his sister Debra Gail Seaton seek orders that adequate provision be made for their proper maintenance and support out of the estate of their deceased mother, Marguerite Rose Banks, who died on 9th March, 1988 aged 54 years. The deceased had first married at aged about 17 years, from which union there was one child, Lynette Robyn Moxham, the executrix and sole beneficiary of the deceased's estate who is now aged about 38 years. That marriage was dissolved and the deceased married Stanley Roy Banks on 6th October, 1964, the father of the two applicants. Douglas Roy Banks was born on 30th July, 1955 and Debra Gail Seaton was born 6th May, 1958. They are thus aged 34 and 32 years respectively. Another daughter, Lorelle, born 27th April, 1961, died on 26th August, 1988 leaving one child. The second marriage was dissolved on 23rd September, 1977 as endorsed by the registrar on the marriage certificate. All potential applicants pursuant to s.41 of the Succession Act 1981 have been served. Both applicants and the executrix swore affidavits and were cross-examined before me. -- 3 of 18 -- 2 By her will dated 13th October, 1987, which has not been admitted to probate, the deceased appointed her daughter, Lynette Robyn Moxham, · sole executrix and trustee of her will and bequeathed the whole of her estate to her. The affidavit of the executrix disclos~~ that at the date of death the estate consisted of ciash-asseti of $117,304.82 made up principally from a life insurance policy and a superannuation policy, land at Coolum Beach purchased by the deceased from· her late mother's estate, land at Mt. Mee, maisonettes· at Clayfield, a motor vehicle valued at approximately $7,000.00 and a one-sixth share in her late mother's house at Sandgate that share estimated at approximately $10,000.00. The real property has been estimated as being worth about $130,500.00 at the date of death. The Mt. Mee and Clayfield properties were encumbered by mortgages to the extent of $31,535.24. Those mortgages were paid out on the deceased's death by mortgage protectipn insurance policies. The rema'ining liabilities amounted to $4,027.37 comprising rates, the funeral account· and a loan from a brother. Thus, at the date of her death the deceased left an estate with a net value of $253,770~45. 0 It has been agreed between the parties that for the purposes Q of this application the present value of the Clayfield property is '$125,000.00, the Coolum land $28,000.00, the Mt. Mee land $19;000.00 and the interest in the Sandgate property is $12,500.00. The executrix has distributed to herself and used $32,000.00 of estate monies and has had the motor vehicle registered into her name. Thus, that part of the estate is no longer available out -of which an order pursuant to s.41 of the Succession Act ·ca'n be made, see, Re Lowe Deceased [ 1964] Q. W. N. 37 and Re McPherson [1987] 2 Qd.R. 394. · The present value of the estate is thus $265,777.45: The solicitor for the estate has -- 4 of 18 -- ') 3 estimated the costs, of these proceedings at $6,500.00 and administration costs outstanding at $2,500.00. The solicitor for the applicants has •estimated the. costs of the application at $8,875.00. There is thus a total of $17,875.00 which will be unavailable for distribution should all costs be paid out of the estate. Accordingly, the approximate amount available for any order which I might be disposed to make is $247,000.00. The deceased obtained $9000 from her former husband by way of property settlement in 1979. There is no evidence to suggest that she left that marriage with any other assets. The evidence of the executrix is that her mother thereafter worked hard to acquire her assets. The land at. Coolum was part of the deceased's mother's estate which either she or her daughter, the executrix, were given the option to buy under the will. Because the executrix was financially unable to purchase the land the deceased did so. The applicant, Douglas Roy Banks, is married and has two children born in 1974 and 1977 respectively who are still at school. He deposes to all of the family being in good health. He lived at home with his parents until 1974. After his parents ~ separated he swears that he kept in close contact with his mother and did odd repair jobs for her in her various places of abode. The executrix suggests that he has overstated the assistance which he rendered to his mother. It is not a matter which can be resolved but suffice it to say that the applicant appears not to have overlooked any service which he rendered his mother and needed to be reminded by the executrix of small gifts from the deceased to him. The only matter of any real substance done. by the applicant was assisting to paint the m~isonette property at Clayfield which forms part of the estat~.and mowing the grass there regularly for some years: A more significant contribution -- 5 of 18 -- 4 was made ·when his mother had altercations with the man with whom she was then living. The applicant would, at her request, come to her.aid ~nd change locks on the doors and occasionallt stay the night with her~ For her part, his mother gave him some furniture, a smai.l · loan for · a · short period, · tickets to· the theatre and babysat the applicant's children on occasions for himself and his wife: The breakup of the marriage between the deceased and her second husband (the applicant's father) appears to have been particularly bitter, at least as far as the deceased was·concerned and involved allegations by her of the children of that ·marriage "taking sides" against her. In about 1983 the deceased became angry with the applicant for maintaining contact with his sisters, whom, she insisted, had sided with their father in the breakup · of · the marriage and its consequences. The deceased was apparently seeing more of her daughter, the executrix, at this time. In 1984 the applicant moved to Coominya and 1 lived n~ar to the executrix who had been living there for some time. Although the deceased visited both families there were 'frequent: arguments with the applicant. The applicant has alleged that from time to time his mother appeared to be under the; influence · of alcohol. This is strongly denied by the executrix who swore that her mother suffered from severe stomach ulcers and was cautious as a result as to her alcohol consumption.· It is not a question that can be resolved and is not relevant to the application. The applicant swears that about January 1986:- ·"My. moth~r telephoned me and told me words to the effect that I no longer had a mother. I understood this to mean that she. wished to discontinue contact ·with me .... I therefore resolved to respect her demand and had no contact with· my mother between the·month of January 1986 and the date of her death." -----------------····---- (J 0 -- 6 of 18 -- ~) 5 The executrix does not suggest that this was unlikely to have occurred and considering the evidence from the , other applicant, I accept that the deceased caused the.cessation of the relationship with her son. The applicant swears that.had he known of his mother's illness he would have attempted to have communicated with her. At the date of her death the applicant and his wife owned a home at Brackenridge worth about $70,000.00, subject to a mortgage of $62,000.00 securing the purchase monies of the house and a sum of $15,000.00 borrowed in October 1987 to purchase a fast food shop at The Gap, and $5,000.00 to purchase a utility. They owned furniture and stock in the shop worth about $8,500.00 and the applicant's wife had a car valued at J about $5,000.00 ... She was in full time employment as a clerk earning approximately $16,000.00 to $18,000.00 net per annum. The shop was initially profitable but in about January, 1988 there was a downturn in trade because a competitive new shop opened nearby. At the time of his mother's death in March 1988 the applicant was still able to draw a slight wage from the shop \ J - it reached its lowest stage in June 1988. He was then working 12 hours per day, 7 days a week. Thus at the date of death the ~ applicant and his family were largely reliant upon the wife's wage for financial support. By the time.the application came on for hearing the situation had changed. Shortly after the filing of his affidavit in_ support of his application the applicant sold the shop business occasioning an overall loss of about $10,000.00. The loan was paid out and about $10,000.00 which remained from the sale price was paid off the house loan. The applicant was unemployed for approximately four months and then had some part-time work as a. taxi driver. _ He is currently employed part-time as a Community Corrections Home Detention Supervisor for the Department of Correctional Services at an -- 7 of 18 -- 6 annual income of $9,100.00. · He has looked for other work in truck driving and sales unsuccessfully. Prior to purchasing the shop business he had apparently been in· regular employment. He wishes to make a career out of his present position. Full time work seems to .be ·available to him if he would be prepared to work outside the ·sandgate: area but still be in the Brisbane· metropolitari ~rea. The full time salary for such a position is about -$23, 000. 00 per annum. · Why he has not sought full time employment was not explored fully in cross-examination. I do note that he has two school-aged daughters and his wife is in full.time employment. The applicant and his wife purchased a d~plex at Burpengary as an investment in October 1988 in which they have very little (-~ equity. They borrowed the whole-of the purchase price secured agairist the duplex and their home. A net rental of $120.00 per week for each unit is obtained. Exhibit "A" to the applicant's affidavit of 15th May, 1990 sets out the family's expenses and income. The schedule shows a net income for the family of $955. 00 per week and expenses of $976. 60 per week. The applicant and his wife'~ main-asset is the equity which they have in-their matrimonial home. Their net assets are worth approximately $75;000.00. The fragility of their financial security can be seen. ·rt is dependent particularly upon the continuing good health arid employment of the wife and also that of the applicant. Everi' were the applicant to fall into full time employment the family would have· little to shelter it against financial crisis. It'is propei fo consider the applicant in the context of his family situation- when considering his needs, see Hughes v. National Trustees, Executors and Agency Co. of Australasia Ltd .. (1979) 143 c.;r,.R. 134 at .p.147. I am mindful that the executrix has seen the deceased:with different eyes and, of course, the ------------ ------ ---------- --------~---------- 0 0 -- 8 of 18 -- ) 7 deceased's version of h,er relationship with the applicant may have been different. .However, the deceased maintained a relationship with the applicant after separation from the applicant's father. She behaved for many years towards him in an affectionate manner and he, in turn, did t~ose tasks which any dutiful and affectionate son might do for his mother situated as she was. Notwithstanding the assistance of the painting of the Clayf ield property, it cannot, be said that the applicant assisted the deceased in building up her estate. There appears to me to be no particular moral obligation on the part of the testatrix towards the applicant such that when making her will she ought to have made provision for him. However, she had a comfortable ~ estate to dispose of and had she been fully aware of the applicant's financial position and family responsibilities at the date of her death she must have recognised as a wise and just mother the need for some modest sum which would cushion ·the applicant against the very situation in which he now finds himself and which was reasonably foreseeable. The.approach to be taken to an adult son has been regularly pronounced upon since the oft~n cited passage of Fullagar J. in ~ Re Sinnott [1948] V.L.R. 279 at p.280: "No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to 'maintain and support' himself and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under,the Act." That passage was considered by .Gibbs J., as he then was, in Hughes v. National Trustees, Executors and Agency Co. of Australasia Ltd., supra, at pp.147-8. "More recent cases confirm the view there [In Re Sinnott] expressed: See Stott v. Cook (1960) 33 A.L.J.R. 447 at p.448; Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 C.L.R. 9, at pp.19,24; Re Buckland . I i -- 9 of 18 -- 8 Deceased [No. 2] [1967] V.R.3; Re Adams Deceased [1967] V~R. 881. In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or has helped him in other ways. In other case·s a Son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or menta1 infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by · some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependents who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question · whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances - that is, on all the facts that existed at the date of the death of the testator, whether the · testator knew of them or not, and all the eventualities that r___ ,) might at that date reasonably have been foreseen by a \ testator who knew the facts." Other authorities relating to applications for provision by adult sons have been collected in the judgment of Kelly J. - ( as ( ) he then was) in Re Anderson, unreported decision of 30th May, 1984 (O.S. No. 414 of 1981), and I shall not canvass them again here. Dowsett J. also adverted to the principles in Re Ale~0 ander, unreported decision of 25th September, 1985 (O.S. No. 85 of 1984). 0 · Although the applicant made no attempt to heal the breach between - himself and the deceased I am persuaded that, on· the evidence, this was not due to any wilful default on his part. Q It seems that to have healed the rift would have required the applicant to agree not to see his father or iisters. This is borne out by the deceased's relations with he~ daughter, the other applicant, to which I shall shortly refer. In all the circumstances, had the deceased acted with wisdom and justice bearing iri mind her means ahd the other claims upon her bounty, she would ha've made prov·ision · for the applicant out of her estate. I am of· the view that a relati~ely modest legacy·to the applicant would acquit the deceased's duty to him. I am of the view that a sum of $20,000.00 should be allowed for Douglas Roy -- 10 of 18 -- 9 Banks. I now turn to the applicant.Debra Gail Seaton. She is aged 32 years, is married and has two children aged four and 20 months. Her husband is a sales representative with C.I.G. Gas. She lived with her parents and left school during Grade 10. The reason for this was her. desire to . obtain employment and seek financial independence because of the problems at home between her parents. She worked for some years in a ladies' boutique and then in a fashion agency. During .this period she was working six or seven nights a week at a Chinese take-away restaurant. She states that prior to the final separation between~her parents there was a shorter separation when her mother took herself and her sister Lorelle (now deceased) with her. She deposes that she encouraged her mother to.consider a reconciliation with her father and this did occur but not for very long. She says that her mother blamed her for what she had done in trying to bring the parties back together again and their relationship was never the same afterwards. Prior to the final separation between her parents, her mother told her to leave the home. She left because she found the home situation had become unbearable and thereafter never lived with either of her parents. She was then aged 15 years. Her sister Lorelle, after separation, lived with the father. After she had left home, and while her parents were still living together, she would call in from time to time and deposes that her mother's attitude towards her showed great variation. At times she showed no interest and at other times she spoke to her daughter. She says that at no stage did her mother ever ask her to return home to live with her. She says that her mother showed no regret for what she had said and showed no affection. She was only about 15 or 16 at the time. She wa~ deeply hurt -- 11 of 18 -- 10 by her mother's attitude. After her parents' separation she had little contact with her mother. In about 1978 or 1979 her mother obtained· work· at the· Central · Railway Station kiosk and she herself was working in the city and would travel home by· train from Central Station.' The first time she· saw her mother she says that she greeted her but her mother ignored her. Occq.s±'onally she would seek service at the kiosk and when this occurred her mother would ignore her by·walking to the other end of the counter and serving someone else or would serve her but pretend that she was a complete stranger. Her mother demonstrated a complete change of attitude on the occasion of the applicant•~ 21 st birthday.·· The· applicant had arranged a small birthday party (\ \ ) an~ her father, close friends and sister Lorelle·were present. (-' She-~id not invite her mother but she and the executrix, Lynette Moxham, ·arrived without invitation and to the applicant's surprise. She deposes that on this occasion both her mother and· Lynette were very pleasant and her mother kissed and hugged her and told her she was proud of her. however,· short-lived. That reconciliation was,· 0 In 1980 the applicant contacted her mother in an attempt to mediate in a financial dispute between her parents as a result Q of theii marriage breakdown. The applicant contacted her by telephone and her mother told her that she was not her mother and did not wish to speak -to her. The applicant went to her house in the hope of being able to talk to her but she says that her mother laughed and said she did not care. She says that her mother repeated to her that she meant nothing to her and that the applicant had no mother. The man with whom the deceased was living told her to lea\,e and the deceased picked up the telephone . . .. . . to ring the police to have the applicant removed. Thereafter the applicant saw her mothe~ iri variou~ public places but sh~ made -- 12 of 18 -- ~ J 1 1 no sign of recognition towards her daughter. There were a number of occasions when the applicant would be sitting on a platform at Central Railway Station waiting for a train and her mother would walk past her and sit on the next bench seat. She would catch the same ,train but would walk into the next carriage. The applicant was deeply hurt by these experiences. She did not invite her mother .to her marriage as she was concerned that she would cause trouble at the wedding because .of her poor relationship with her father and the other members of her family. It can of course be said of this applicant also that the Court is hearing only her side of the story. However, I had the advantage of seein~ the applicant in the witness box and I had J no doubt that her distress as to her treatment by her mother from the age.of 15 years was genuine and still hurt her deeply. She impressed me as .an honest and straight-forward young woman still saddened by her mother's treatment of her. Whilst the executrix denies this applicant's claim upon the deceased's estate, she has advanced no material indicating disentitling behaviour on the part of the applicant, but merely the fact of no contact between them over a long period. At the time of the deceased's death the applicant had one child.aged about 20 months and was expecting her second child. Her husband was then a sales representative with C.I.G. Gas and was earning approximately $28,000.00 per year gross. She was living.at her father's house with the little boy and her husband was living at his parents' house at Wynnum. They were waiting to have a l!specll house built by her husband I s brother-in-law which they were hoping to purchase. Prior to that, when their child was seven months old, the applicant and her husband were struggling financially, she worked at night filling shelves at Coles Supermarket. That employment continued for seven months. -- 13 of 18 -- 12· She started work at· 6 o'clock in the afternoon and so~e weeks worked five nights a week until 4 o'clock in the morning. By the time her son·was about 14 months old she was unable to keep up that pattern of work. At the time of swearing her affidavit in April 1989 the applicant ·and her husband had an equity of about $30,000.00 in their matrimonial home, a motor vehicle valued at about $1,000.00 and personal affects and furniture of $8,000.00. Their joint weekly income was $372.00 net from the husband and $50.00 net from the applicant from the part-time sale of cosmetics, being a total o{ $422.00. She also received $23.75 per fortnight as faciily allowance. At that time she estimated their family's weekly expenses at $468.00. Some months prior to that affidavit she and her husband had sold their then motor vehicle and purchased a cheaper one to allow them some surplus cash to pay urgent bills. They had earlier sold other surplus furniture to reduce thei~ financial commitments. She deposes that the family live very frugally and that they have no c~rtains o~ floor coverings. In April, despite the fact that she had two very young children, she returned to part-time work because of financial pressures but by the time of the C) hearing she had given up that part-time work because the cost of I child care made it impractical to continue. She deposes in para. 2 of her most recent·affidavit:- "Our fin'ancial situation remains quite desperate as·we are not able to make ends meet on my husband's income." Iri her· oral evidence the· applicant said that she was looking.for work in the fashiort'industry since that was her area ' ' of employment prior to having her children, but that the fact of having two young· children seemed to make it very difficult for her to be offered employment. Just prior to Christmas 1989 the· -- 14 of 18 -- 13 mortgage repayments on their house went up by $33.00 per week making a weekly total of $186.00. They owe about $50,000.00 on their house mortgage. $37.20 per fortnight. The child endowment has increased to The executrix has sworn that "both Debra and Lorelle would ignore my mother and would make snide remarks to her whenever they saw her". However, it is quite clear that the only time that Mrs. Moxham saw her half-sister, the applicant, was on the occasion of her 21st birthday, apart from the period that they spent.together from time to time prior to the separation of the deceased from her husband. That allegation is strenuously denied by the applicant. As I have said above I accept that the applicant is truthful in her recollection of her relationship with her mother. The executrix lived with her maternal grand- parents and not with her mother and half sisters and brothe~. Although the executrix regularly spent Sundays with her sisters and brothers w:hen they visited the grandparents during their school period, she never formed any close bond .or friendship i• .. / . with them. It would appear then that the executrix is reflecting attitudes expressed by the deceased in relation to 1 the applicant. ,.__./ The deceased withdrew her affection from the applicant, her daughter, at the very tender age of 15 years. With the exception of the 21st birthday, although constantly confronted with opportunities, she chose to behave in a deeply hurtful and humiliating fashion towards her daughter. Even had the deceased felt some. resentment at the applicant's attempted intervention in her marriage, tne applicant was a child of 15 years at the time and can hardly be said to have earned from her mother the treatment which followed thereafter. The careless indifference which .the -deceased appears to have exhibited towards her -- 15 of 18 -- 14 daughter's welfare must be -regarded as a -serious dereliction from her duty-as a·parent. The principles to be applied in the case of an adult married daughter are similar to those set out in relation to an adult son. The long-held view that a married woman looks to her husband for financial support can no longer be regarded as representing the present approach of the courts. At the date of her death, bearing in mind the other claims upon her · bounty, · as a wise and just · mother she ought to have considered the circumstances in which her daughter was then situated and made provision for her then needs and the needs which were clearly foreseeable. In my opinion a legacy to the applicant of $50~000~00 should be made. On applications such as these it is necessary to look at the other claims upon the testatrix's bounty for which she did make provision in her will. I am, of course, referring to her provision for her daughter, Lynette Moxham. She was brought up by her grandparents, although her mother and second family visited regularly and from time to time she returned home to live with her mother and step-father. No explanation has been forthcomihg £or this arrangement. Indeed both applicants said that they thought that Lynette was their full sister until 1980 and did not fully understand why she lived with her grandparents. The executrix seems however to have had an affectionate relationship with her mother and certainly to have been close to her mother after her m6iher's separation from her second husband in 1977 and more particularly after she was diagnosed as· having cancer in October, 19~7. At the date of the deceased's death she and her husband were in receipt of unemployment benefits in the sum of $191.50 , , ' per week and'an Austud1 allowance of $91.20 per week in respect of 'her daughter and a iamiiy allowance of $5.3~ being ~·total 0 (-) ~/ -- 16 of 18 -- '- 15 weekly income of $288.00. Their weekly expenses at the time were estimated.to be $333.40. She and her husband's assets were a property at Coominya valued at $45,000.00, a motor vehicle valued at $500. 00 and another motor vehicle estimated to be worth $750.00. The Coominya property had been listed for sale for some months at the date. of the death of the deceased for $42,000.00. It appears that her husband had been in receipt of unemployment benefits from time to time when he was between jobs. In 1988 she and her husband borrowed money to purchase a small parcel courier run which was operated by her husband. He stopped working in March 1989, having been diagnosed as having acute myeloid leukaemia and he died in March 1990. The executrix' s house property was sold and she received almost $ 5 5, 0 0 0 . 0 0 from the proceeds of the sale . Those funds are invested pending the finalisation of these proceedings. She is in receipt of a widow's pension of $308.20 per fortnight, of which $25. 80 is a student allowance paid in respect of her daughter who is a student at the Redland Community College. That daughter is also in receipt of an Austudy allowance of J $57.00 per week. They now live in one of the maisonettes at the Clayfield property. It appears that at the date of the death of the deceased the state of health of her daughter's husband was undiagnosed and unforeseeable. All the same, it was clear that they were in a precarious financial situation. It was appropriate that the deceased make proper provision for her daughter. The executrix does not depose to having any skills for employment, but I assume that she has some employment capacity. I noted that she was a young, apparently healthy woman in the witness box. The estate of the deceased was, to a large part, built up by the -- 17 of 18 -- I 16 deceased's own efforts, save and except for the small interest in her mother's property and she clearly worked very hard to acquire her financial independence after separation from her husband. In such a circumstance it seems to me even more incumbent that one should resist any temptation to rewrite the deceased's will according to any particular view which might be held as to the justice of the matter. Accordingly it is ordered that the will of Marguerite Rose Banks be read and construed though it contained a provision for a legacy for Douglas Roy Banks in the sum of $20,000.00 and a legacy to Debra Gail Seaton in the sum of $50,000.00. It is further ordered that the costs of all parties be taxed as between solicitor and own client and be paid out of the estate of the deceased, including reserved costs, if any, and I grant liberty to apply. (; ( .· \ .) 0 0 -- 18 of 18 --