Wright v Wright[2016] QDC 74

DISTRICT COURT OF QUEENSLAND

1. [1]
   Casandra Elizabeth Wright and Peter John Wright are the only children of Keith Arthur Wright.  They seek provision from his will.  He died on 24 February 2013 at the age of 73 years.^[1]  The applicants had barely seen their father since they were young children.
2. [2]
   By his last will, executed on 16 January 2006,^[2]  Keith Wright left the proceeds of a particular superannuation policy to the Royal Children’s Hospital Foundation, Queensland and the residue of his estate to be divided between his siblings, Trevor John Wright and Lynette Elizabeth Roberts.
3. [3]
   The application, brought under s. 41 of the Succession Act 1981, was commenced by Casandra Wright on 18 September 2013^[3] and joined in by Peter Wright on 7 April 2014.
4. [4]
   Section 41 relevantly provides that if a person dies and, in terms of the will, adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s child, the court may, in its discretion, on application by the child, order that such provision as the court thinks fit be made out of the estate of the deceased person for the child.
5. [5]
   No provision was made for the applicants in the will.  In the first place it is necessary to assess whether this was inadequate provision for the proper maintenance and support of the applicants in all the circumstances, including their financial positions, the size and nature of the estate, the ‘totality of the relationship’ between them and the deceased and the relationship between the deceased and others ‘who have legitimate claims’ on the estate.^[4] It is relevant, and the respondent places much emphasis here, that the applicants are adult children and there was a long period of estrangement between them and the deceased.
6. [6]
   If satisfied provision should be made for the applicants, I must assess what is a proper level of maintenance and support, largely on similar considerations but also having regard to the ‘age, capacities, means and competing claims, of all of the potential beneficiaries’.^[5] 
7. [7]
   In Vigolo v Bostin (2005) 221 CLR 191, Callinan and Heydon JJ, considering the terms ‘proper’, ‘maintenance’ and ‘support’, among others in the relevant New South Wales legislation, as indicators that moral considerations were relevant, said:

‘Proper’ invites consideration of all of the relevant circumstances (at [114]);

‘Maintenance’ may imply ‘continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live’ (at [115]);

‘Support’ ‘similarly may imply provision beyond bare need’ (at [115]). 

8. [8]
   Their Honours wrote that the use of the terms, ‘maintenance’ and ‘support’, ‘serves to amplify the powers conferred upon the court.’ (at [115]).
9. [9]
   I have had the benefit of reference to many cases but the above statements of principle are sufficient for the moment.

The Estate

10. [10]
    The estate is substantial.  In March 2014, its net value after deducting legal costs on estate administration and certain reimbursements, was $1,769,635.09.  That amount included $607,655.88, the value of the AMP Allocated Pension, which was the specific bequest to the charity.
11. [11]
    The present value of the estate is $1,799,250.32, of which the AMP Allocated Pension supplies $630,071.86.  Mr Fraser, who appeared for the applicants, submits the size of the estate is properly understood as including the respondent’s legal costs of the proceeding to date, namely, $76,712.15.  This would bring the total value of the estate to over $1.875 million.  The applicants’ estimated legal costs of the proceeding are $70,000. The respondent’s costs are said to be $163,712.15 (including the ‘to date’ costs).
12. [12]
    The estate in this case is not large compared to many yet its size is relevant to assessing what might have been proper provision for persons in the applicants’ position, as well as gauging the impact of any order in their favour upon the beneficiaries.  The issue remains one of adequate provision in all the circumstances of the case, including the size of the estate.  A larger estate may allow a ‘more liberal assessment of the moral duty owed’ by the testator.^[6]

The Applicants

13. [13]
    Casandra Wright was born on 18 July 1969.  She was about 7 years old when her parents separated in July 1976.  I will deal with her relationship with the deceased below.  She attended primary schools at Strathpine and Bray Park.  She completed year 12 at Pine Rivers State High School.  She started work as an apprentice hairdresser in 1987 but in 1988 was employed as a dental assistant by Queensland Health.  She has remained in that employment since, gaining 4 certificates relevant to the employment.  She married for the first time in September 1994.  She has twin daughters now aged about 18 years.  She and their father divorced on 18 July 2003.  She married a second time in October 2009 but became separated in February 2012.  She received a little more than $71,000 in a property settlement.  At the time she swore her first affidavit in this application, in September 2013, she had bought a car and some furniture and had $28,000 in savings.  She does not own a home.
14. [14]
    While Casandra Wright has stayed in employment her financial position has not improved.  One of her daughters lives with her.  That daughter studies a tertiary degree at the Queensland University of Technology at Kelvin Grove.  Casandra Wright lived, until recently, in rented homes.  She periodically took second part-time jobs to relieve financial stress. She now lives with her mother and her mother’s partner, a situation she says is not sustainable.  She works on Saturday mornings at a dental surgery which gains her an extra $150.00 per fortnight.  She has exhibited tax returns for financial years 2011, 2012 and 2013 showing taxable income from $38,771 to $40,762.  She now earns salary which equates, taking into account a salary packaging benefit, to about $951.00 a week.  She deposes to expenses of about $893 a week (this includes $391.50 for rent, which she does not pay while living with her mother).  She has a term deposit of $12,000, her car now worth about $13,000, furniture and other personal items.  She has superannuation entitlements of about $110,000 and liabilities of about $2,550.
15. [15]
    Casandra Wright has maintained reasonable physical health but has suffered various psychological disorders, including depression, anxiety, an eating disorder and obsessive compulsive disorder.  She deposes to these briefly in each of her three affidavits and attaches a letter from her general practitioner of 10 years and a Mental Health Plan from 2012 and 2013.  Her doctor expresses the opinion that the symptoms have increased at times of stress, notably relationship and financial difficulties.
16. [16]
    Peter Wright was born on 30 August 1966.  He was aged nearly 10 years when his parents separated.  He was in a relationship with the mother of his two children (born in 1992 and 1995) from mid-1991 to February 1997. They built a house in 1992. After separation, the children lived with their mother in the house. He paid the mortgage on that house and rent for himself. He started to accrue a child support debt. The couples divorced in February 1999.  Peter Wright was involved in another relationship for 10 years from 2000 to 2010.  He lived with the woman and her children, helping to support the children.  He has lived alone since.  He has lived in a small rented house near Yandina since 2011.
17. [17]
    Peter Wright completed High School at Pine Rivers and worked for 10 years in the manufacturing of signs.  He has since worked in the metal roofing industry.  He is casually employed.  Depending on variations due to weather and job availability, he earns around $1,100 per week.  An amount is taken from his pay to reduce his child support debt.  For example, in the week ending 10 November 2015, he worked 29 hours, was paid $1,073.00 gross, $203.87 was deducted for child support and $208.00 for tax.  His weekly expenses are about $670 of which $350 is rent. He has a 2007 Mitsubishi Triton 4 wheel drive which he valued at $4000 in October 2015 but is still under finance in the amount of $5,000.  He has a superannuation account of about $56,000, about $800 in the bank and furniture and personal items.  His overdue child support balance is $49,568.24 and he has credit card debt of $3,500.  He says his credit cards are ‘frozen because of non-payment’.
18. [18]
    Peter Wright is in reasonable health, as he needs to be to perform his occupation.
19. [19]
    The applicants’ positions, as I have just described them, have not changed significantly since the time of their father’s death.

The Beneficiaries

20. [20]
    Keith Wright’s sister Lynette was born in July 1945. She is, therefore, now 70 years old. She and her husband, Barry Roberts, have been married since 1965. They live in their home, which they own, at Aspley. It is valued at $470,000. They have two daughters who are now aged about 48 and 45 years.
21. [21]
    Mrs Roberts has survived breast cancer but is at risk of developing lymphoedema in her left arm. She suffers osteoporosis and has had numerous skin cancers removed. She takes medication for high blood pressure, high cholesterol, low thyroid levels and osteoporosis. Mr Roberts is not in good health. He did not attend the hearing. He receives a total and permanent impairment pension. Mr Roberts served in Vietnam and suffers post-traumatic stress disorder. He also has suffered damage to both eyes. He is blind in his left eye and has reduced vision in his right eye. He has lost some hearing and has trouble with his left knee and back. Also, he has been recently diagnosed with Parkinson’s disease. Mrs Roberts cares for him, helping him with showering, dressing, his medication and guidance when they go out.
22. [22]
    Mr and Mrs Roberts are considering moving to one level accommodation, an exercise which they expect will cost them significantly.
23. [23]
    When Mrs Roberts swore her affidavit - March 2014 - the couple had bank accounts of $370,000 and approximately $25,000 invested in shares.  They owned a Mazda 3 hatchback car.  At the time of the hearing, Mrs Roberts said the cash at bank was now $400,000 and the shares were valued at $45,000.  They receive dividend payments from the shares.  The total impairment pension is $1,800 a fortnight.  Her husband also receives a service pension of $465 a fortnight and she receives a service pension of $465 a fortnight.
24. [24]
    I accept what Mrs Roberts writes in her affidavit filed 18 March 2014, “We are modest people, and have always lived within our means.”
25. [25]
    She regularly saw her brother, the deceased, and had regular contact with him by telephone.  It is easy to infer that Keith Wright enjoyed a close and loving relationship with his sister, was well known to her family and was aware of her medical history and Mr Roberts’ deteriorating physical condition when he made his will. 
26. [26]
    Trevor Wright also enjoyed a good relationship with his brother, Keith, who was two years older than him.  They both served 20 years in the Royal Australian Navy, Trevor in the capacity of general service and submarine service from 1958 to 1978.  After the navy, Trevor Wright worked at Woolworths for 28 years before retiring in 2006.  He married his wife, Gladys, in February 1974.  They have two children now aged about 38 and 40 years.  They too have raised a close and loving family.  They too enjoyed a close and loving relationship with the deceased. 
27. [27]
    Trevor Wright suffers from several health issues, which he set out in detail in his affidavit filed 18 March 2014.  These included bilateral wrist osteoarthritis which seems to have resulted from a fall while in the navy.  He also suffers scarring on the lungs from asbestos dust that he was exposed to during his navy service.  His other ailments include tinnitus and asbestosis, chronic lymphoid leukaemia and a condition which affects his eyes.  He has had numerous solar keratoses removed. 
28. [28]
    As at March 2014, his fortnightly income was $1,919 from several sources - a service pension, Centrelink benefit, a payment from the Department of Veterans Affairs and payments from AMP.  His wife’s total income from Centrelink and AMP accounts was then $631.91 a fortnight.  Their combined annual income was, therefore, above $66,000.  Trevor Wright and his wife own their home at Samsonvale.  It is valued at $370,000.  They have an amount of about $252,000 in an AMP account.  Mr Wright’s wife, Gladys, has suffered significant hip and knee problems and has undergone eight operations in the past nine years.  Their home is very modest and needs repairs.  They intended, as at March 2014, to install a lift, at an expense of about $50,000, to give him access to the upstairs part of the house.
29. [29]
    Trevor Wright and his wife, like Lynette Roberts and her husband, have lived modestly their whole lives.  They have worked and raised children.  They are aging and not in good health.  It is likely that the deceased, Keith Wright, enjoyed a good relationship with his brother and his brother’s family and was aware of their financial and health circumstances when he made his will.
30. [30]
    The respondent filed an affidavit sworn by the chief executive officer of the Children’s Health Foundation Queensland, trading as Children’s Hospitals Foundation, Cameron Prout.  Mr Prout sets out in some detail the activities of the foundation in research, purchase of equipment and care programs.  Of the $16 million total revenue of the Foundation in 2012/13, $11.3 million came from donations – 10% of that amount from gifts in wills.  I take into account the worthy nature of the Foundation’s activities, the reliance it places on receiving gifts in wills and Keith Wright’s obvious desire to donate generously to it.

The Totality of the Relationship between the Applicants and the Deceased

31. [31]
    The relationship between the applicants and their father was largely characterised by his absence.  Trevor Wright says that Keith Wright was in the Navy from July 1961 to July 1981.  The applicants were born in 1966 and 1969.  Casandra Wright, while remembering little of his involvement in the navy, said in evidence, ‘All I knew is that he used to come and go a lot.’  Peter Wright agreed with the suggestion that his father was away ‘a fair bit because he was on the boats’. 
32. [32]
    The deceased and his wife separated in 1976^[7] when Casandra Wright was 7 years and Peter Wright was 10 years. There was contact with their father until she was about 10 years old and he, about 13, that is, until about 1979. 
33. [33]
    From such (second hand) information as is available on the topic I find the deceased helped the applicants’ mother with modest child support.
34. [34]
    On contact visits he would, on occasion, take them to eat at McDonald’s.  He would buy their food but if the children wanted some extra treat they would use money their mother had given them for that purpose.
35. [35]
    Casandra Wright swore that when she and her brother visited the deceased at their grand parents’ home, the deceased would keep to himself while the grandfather looked after them.  The deceased also took the children to his sister’s home where they would play with their cousins.
36. [36]
    Thereafter, the deceased maintained no contact with the applicants.  He did not acknowledge birthdays or give Christmas presents. 
37. [37]
    It seems each side of this parent/children divide felt abandoned by the other.  Casandra Wright remembers seeing her father until she was ten years old.  Asked whether access visits might have continued until she was 13 years, she said, ‘I would have liked to, but it didn’t happen.’ Challenged about her failure to look up her father’s telephone number in the phone book and initiate contact with him once she turned 16, she said, ‘I was a child.’  Asked, in effect, why she did not use her aunt and uncle as avenues for contact with the deceased, Casandra Wright said she did not know them well.  She conceded that between 1985 and 1997 she did not try to contact her father. She felt abandoned by him. She said in evidence, ‘I couldn’t understand why he didn’t want to continue seeing us.’
38. [38]
    The applicants both gave evidence of seeing the deceased at their grandfather’s funeral in 1989.  Each was disappointed and hurt when, after the service, their father saw them but walked away.  Their accounts differed and they were both cross-examined at some length about the event, to the effect that it was likely the father did not recognise them after such a passage of time.  I conclude it is likely the deceased saw the applicants at the grandfather’s funeral.  I am particularly persuaded by Casandra Wright’s evidence of the occasion - she was there with her mother and step-father; she could say the deceased saw her because ‘he looked directly at us’.  He then turned away, whether because he was otherwise occupied as a chief mourner or because he did not wish to deal with his own children at the moment does not matter.  I accept that each applicant was affected by the incident, receiving it as confirmation of their father’s abandonment of them.
39. [39]
    Casandra Wright deposed to sending two letters to her father and to asking her aunt, Lynette Roberts, to pass on photographs to him.  Under cross examination, her evidence reduced to sending only one letter but she confirmed the account, given in her affidavit, that she and her mother met Lynette Roberts at a café and the latter declined to pass on a letter and some photographs. In my view, little is to be made of the differences in accounts but given the respondent’s emphasis on the quality of attempts by the applicants to make contact with the deceased, I will refer to the evidence.
40. [40]
    Casandra Wright gave birth to twin girls on 3 July 1997.  Her affidavit of 30 October 2015 contains the following:

On two occasions, I sent letters and photographs to my father’s home in Wavell Heights. The first was to tell him that my twin daughters had been born and the second was to send various photographs of myself and my daughters, and of Peter and Peter’s sons, to my father. I had hoped that he would become a part of our lives as a grandparent. I did not receive any response from my father nor were the letters ‘returned to sender’. I did not keep any copies of these letters; and

On one occasion, I recall having morning tea with my mother and my father’s sister Lynette and I asked her to pass a letter and some photographs to my father. Lynette declined’

41. [41]
    The meeting with her aunt and mother was when her daughters were about 8 years old, so, in about 2005.  She asked her aunt to give a letter containing the photographs to her father. Her evidence was that her aunt declined.  When it was put to Casandra Wright that there had been such a meeting, that she had raised her desire to make contact with her father, that she had shown photographs to her aunt but that there was no letter, she conceded, ‘it’s that long ago now …’ but said, ‘I’m sure I had a letter in there with it.’  It was put no request was made of her aunt but Casandra Wright insisted there was and that Lynette declined.
42. [42]
    Lynette Roberts recalls the meeting.  It was the only time she met Casandra Wright as an adult.  Her memory was that Casandra asked, ‘Do you think Dad would see me if we got in touch with him?’ and Lynette replied, ‘Well, you can only try.’  She remarked, under cross examination, that the suggestion that there was a letter came as a surprise to her.  This was taken up in re-examination, where it emerged that Lynette Roberts still has the photographs Casandra Wright showed her at that morning tea.  That Lynette has the photographs but no memory of a letter is relied on by the respondent as undermining Casandra Wright’s evidence of the occasion.  On the other hand, Lynette’s possession of the photographs begs the question: why were they given to her if not to pass on to her brother, the grandfather of the children depicted?  And if that, then for what purpose other than to encourage contact with his daughter and grandchildren?  Apparently, Lynette did not give the photographs to the deceased.
43. [43]
    There is no need to decide whether there was a letter and a specific request to pass it on.  I accept that each witness gave an honest account of her memory of the meeting.  Relevantly, there is no doubt the incident was an example of Casandra Wright attempting to build a bridge to her absent father.
44. [44]
    Peter Wright was less active in attempting to contact his father.  What the applicants both saw as their father’s abandonment of them had a more conclusive effect on him.  When asked whether he sought out his father after the near-encounter at the funeral, he said, ‘My recollection of the day was I had to get back to work, so … it was a bit of a hit and run for me so … he turned his back. I walked away and said, “I’ve got to get back to work.”’  Peter Wright talked to his sister about sending photographs to the deceased but seems to have left the action to her.  When no response came from Casandra Wright’s letter and photographs he thought ‘he was not going to have any relationship with us, and that we would just have to accept that.’  He considered speaking to his uncle, Trevor Wright.  He stopped near Trevor Wright’s home a couple of times while driving home from work but ‘couldn’t get the courage’ to go inside.
45. [45]
    Effective cross-examination of the applicants demonstrated that the deceased was not necessarily as mean as suggested in certain paragraphs of the applicants’ material. 
46. [46]
    Little material is available from which to discern Keith Wright’s attitude to the estrangement with his children and so to understand their exclusion from his will.  Lynette Roberts recalls that whenever the issue of his children arose he ‘got very hurt and upset.’ Her impression was that he was ‘deeply hurt and disappointed over the breakup of his marriage, the way it was done and then the divorce.’  Keith Wright told his brother, Trevor, that his children did not want anything to do with him; that they had made no effort to contact him; that he had not heard from them since 1982.^[8]  Trevor Wright gained the impression that the estrangement distressed the deceased. 
47. [47]
    Keith Wright considered himself contactable – he was in the phone book and had always lived in Queensland.  There is no evidence that he took steps to contact the applicants.
48. [48]
    There was no evidence from the applicants’ mother.

The relevance of estrangement

49. [49]
    The respondent submits the key issue is the very long period of estrangement and the minimal steps taken by the applicants towards making contact with the deceased.  In Wheatley v Wheatley [2006] NSWCA 262, Bryson JA said the poor state of the relationship between the testatrix and the applicant ‘operates to restrain amplitude in the provision to be ordered.’^[9] Bryson JA referred to his reasons in Wentworth v Wentworth, Estate of GM Wentworth (Unreported 14 June 1991), which included the following:

‘I do not regard a state of estrangement or even hostility as necessarily bringing an end to any moral duty to make provision for an eligible person ….’;

‘A whole view of the relationship and the character and conduct of both parent and child should now be undertaken, and the influence of character can be complex.’

50. [50]
    Mr Keim also took me to Monaco v Keegan; Blight v Keegan [2006] NSWSC 825; Green v Holtom [2006] WASC 1; Rowley v Bouwmeester [2005] TASSC 34 and Burke v Burke [2015] NSWCA 195 as examples of cases showing a range of approaches where the applicant is an adult son or daughter and where the estrangement is or is not the fault of the applicant or of the deceased.  These are not matters of principle but of approach.  They are all facts which inform the court’s view of what was appropriate – sometimes expressed as the moral obligation of a testator – at the time of death.  Also, any positive or negative contribution made by a claimant to a period of prolonged estrangement might be relevant to the question whether the person’s character or conduct is such as to disentitle him or her to the benefit of an order.^[10]
51. [51]
    The lengthy period of estrangement is relevant to both aspects of the decision to be made in this case because it is part of the ‘whole of the relationship’ between the applicants and the deceased.  The applicants’ conduct does not, in my opinion, disentitle them to the benefit of an order.
52. [52]
    I am satisfied the applicants have demonstrated that inadequate provision was made in their father’s will for their proper maintenance and support in all the circumstances.  They had a claim on their father’s estate, whether it be described as moral, natural, legitimate or by some other term. At the end of the trial the respondent did not argue to the contrary.
53. [53]
    The question then, is what order should be made in their favour.  I have already set out their circumstances.  Neither owns a home.  They both work and, it seems, will continue to work.  The applicants do not reveal extravagant aspirations.  To be near her mother and accessible to her workplace, Casandra Wright would like to live in a house in the far northern suburbs of Brisbane.  She has identified several for sale at North Lakes valued, it seems, at around $450,000 - $500,000.  Peter Wright would be happy to continue to live in the north coast hinterland area.  He has identified properties, some are vacant land on which he could build, ranging in advertised price from $285,000 to $400,000.  He will need a new vehicle soon and, of course, he owes substantial debts. 
54. [54]
    The respondent has referred me to cases demonstrating the provision granted by a court to adult children might fall within the range of 5 – 18.4% of the estate: Highland v Burbidge [2000] NSWSC 12; Green v Ogden [2003] NSWSC 558; Rowley v Bouwmeester [2005] TASSC 34; Simons v Permanent Trustee Co. Ltd: Estate D Hakim [2005] NSWSC 223; Gorton v Parks (1989) 17 NSWLR.  The applicants rely on Goold v Field [2005] QSC 310; Allsop v Henderson [2015] QSC and Stewart v Stewart [2015] QSC 238 as examples of courts making significant awards to adult children. While providing interesting reading, none is so like the present case as to provide a yardstick.
55. [55]
    I have already said that it seems the deceased and his children both regretted the distance between them.  Casandra Wright took some steps towards reconciliation.  Peter Wright was a party to, or at least aware of, his sister’s writing to their father.  The deceased took no positive action in the direction of his children.  It is difficult if not impossible to speak of a duty or onus on the applicants to take more steps than they did to build a relationship with their father when he built no foundation for any such relationship. The applicants are both of good character but do not present as strong personalities. Casandra Wright, although she has a commendably consistent employment record, has suffered psychological disorders. Peter Wright, while in consistent employment and obviously a capable worker, lives in little more than a shed in the bush.  Both have suffered failed relationships.  I have set out their assets – they are not financially successful. The bare facts are that Keith Wright was the applicants’ father;^[11] they are his only children; he lived isolated from them; they were young children when the estrangement commenced; he probably provided such child support as he was required to by law; he died leaving a substantial estate.  He was entitled to benefit, by his will, his close and loving, hardworking and modest-living siblings (and through them, eventually, probably his nieces and nephews^[12]) and a worthy charity, but not to the exclusion of his own children. 
56. [56]
    The respondent submitted Casandra Wright has a better claim than Peter Wright on the grounds of her attempts to contact the deceased.  I accept she was more active than he was.  It is difficult to judge whether it was mere stubbornness on his part, or fear of (further) rejection.  More relevantly, Casandra Wright is younger and still has the care of a child, although her daughter is post-school age and receives Centrelink Youth allowance.  Peter expresses simpler accommodation needs – he writes, ‘I could build a cheap home on the vacant block’. 
57. [57]
    At the time of his death, Keith Wright’s estate was valued at about $1,769,635.09.  Had he been fully aware of all the relevant circumstances, it would have been wise and just to provide substantially for his children while leaving significant bequests to his siblings and the charity of his choice.  Having regard to all I have set out above including the current value of the estate, adequate provision from the estate for the proper maintenance and support of the applicants is achieved by a disposition of $400,000 to Casandra Wright and $350,000 to Peter Wright.  Those amounts are designed not to allow the purchase of a home and the clearance of all debt, but to provide sufficient equity for each to borrow the balance to purchase a modest property while keeping an amount aside for contingencies. I agree with Mr Keim’s submission that it is not necessary that the applicants ‘walk into a brand new house, without any mortgage at all’ in order to meet the needs that they have identified in their affidavits. 
58. [58]
    Leaving aside the estimated costs of this proceeding, that would have left about $1,100,000 to be distributed rateably according to the testator’s expressed intentions.  The costs of the proceeding are to be paid out of the estate.
59. [59]
    Broadly put, because of the value of the AMP account, the charity would have received a little more than one third (about $607,000) and each of the two other beneficiaries a little less than one third (about $581,000) of the estate valued in March 2014.^[13] Put another way, the charity received an amount equal to 105% of the amount the siblings each received.  Applying that ratio (1.05:1:1) to the balance of the estate at present value (c. $1,100,000) and leaving aside the costs of the proceeding would see the charity receiving  about $380,000 and each sibling about $360,000. Taking into account the evidence of the relationships of the siblings with the deceased and their future needs and giving weight to the testator’s implicit desire to provide, eventually, for his siblings’ children, the shares to be received by Trevor Wright and Lynette Roberts should not be depleted by the costs of the proceeding. I have already accepted the worth of the Foundation’s work, but no particular connection between the deceased and the charity was established. The interests of justice require that the incidence of the orders to be made in favour of the applicants not fall rateably on the whole of the estate. This would be most simply achieved by an order, pursuant to subs. 41(3) of the Succession Act, that the costs of the proceeding be paid from the Foundation’s share of the balance of the estate after effect is given to the orders for provision for the applicants.  I am minded to make such an order but will receive written submissions within three days as to an order for costs or any order under subs. 41(3).