Summers v Garland[2006] QSC 85

SUPREME COURT OF QUEENSLAND

1. Ms Barbara Summers seeks further provision from the estate of Peter James Garland deceased (“the testator”).

2. The basis of Ms Summers’ claim is her assertion that she was in a de facto relationship with the testator for 16 years, terminating on his death and was substantially supported by him. The testator died on 19 July 2002, following an operation for a double knee replacement.

3. The testator died leaving a will dated 9 July 2002. Under that will the testator left a property at 14 Hawke Street, Emu Park together with its contents (excluding antiques and collectable items) to trustees on trust to “permit and allow my friend BARBARA FAY SUMMERS to have the use occupation and enjoyment thereof during her lifetime (she paying the rates and outgoings thereon and keeping the same repaired and insured to the satisfaction of my trustees) or until she signifies that she no longer desires to live there or until she is incapable of living there or until she remarries or enters into a de facto relationship AND UPON her death or upon signification incapability or marriage or entry into a de facto relationship to transfer my house property and contents thereof UNTO such of them my children as shall survive me in equal shares”

4. In addition Ms Summers was left a legacy of $50,000.

5. As at the date of trial the value of the estate was fixed by the respective parties as between $2,239,540.39 and $2,364,540.39. The only disagreement in value was in relation to some property at Bright Street, Emu Park.

6. The property at 14 Hawke Street, Emu Park had an agreed value of $327,500. No additional value was attributed to the contents.

7. The balance of the estate after allowing for Ms Summers’ legacy and right of residence was left equally to the testator’s five children.

8. At the date of death, Ms Summers’ entitlement to claim was governed by Part 4 of the Succession Act 1981 which at that time read, relevantly, as follows:

40 Definitions for pt 4

In this part—

…

“dependant” means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being—

…

(d) a de facto spouse.

“spouse” means, in relation to a deceased person, the husband or wife of that person and includes a husband or wife who has been divorced whether before, on or after the commencement of this Act by or from that person and who has not remarried before the death of that person, if that person is receiving or entitled to receive maintenance from that person at the time of that person’s death.

…

41 Estate of deceased person liable for maintenance

(1) If any person (the “deceased person”) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

…

(8) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.

9. Three principal issues arise for determination.

1. Should time be extended for the making of this application in the circumstances of this case? 

2. Was the applicant a “dependant”?  This question involves a consideration of whether the testator and Ms Summers were in a de facto relationship and whether the testator substantially supported Ms Summers. 
3. Was proper provision made for the applicant and, if not, what provision should now be made? 
4. There is a subsidiary issue which is said to arise irrespective of the outcome of the three principal issues. The deceased maintained detailed diaries of his activities for many years prior to his death. Those diaries have been in Ms Summers’ possession since the testator’s death and were tendered in support of her case at trial. Both Ms Summers and the testator’s children have claimed the diaries.

Extension of Time

11. Ms Summers consulted solicitors in about August 2002. In her first affidavit filed on 21 July 2003, Ms Summers deposes that the purpose of that consultation was to receive advice on her entitlements. Following that consultation the solicitor wrote to the solicitor for the estate giving notice of Ms Summers’ intention to make a claim and advising of the basis for that claim. The letter expressed the belief that the testator’s children were sympathetic to Ms Summers’ position and invited proposals with a view to settlement.

12. Not having received any response to his letter Ms Summers’ solicitor again wrote to the solicitor for the estate on 18 September 2002.

13. On 9 October 2002, Ms Summers’ solicitor wrote to the estate’s solicitor making a firm proposal and threatening to institute proceedings if no response was received by 1 November 2002.

14. An offer to settle the dispute was made by two of the residuary beneficiaries on 19 October 2002.

15. Ms Summers was absent from Rockhampton for a period in late October and early November 2002. Discussions followed between the solicitors concerning an inspection of the Hawke Street property.

16. Following her return, discussions concerning the estate were conducted personally between Ms Summers and the testator’s executrix, Mrs Pearce.

17. Finally, on the afternoon of 18 April 2003, Mrs Pearce made a proposal which she said had the approval of all the beneficiaries. Ms Summers asked her to convey the offer to her formally through the solicitors. The offer was not received by the solicitor until 9 May 2003. By 19 April 2003 the time for bringing the application without leave had expired.

18. The application was filed on 21 July 2003. This was approximately three months out of time.

19. Notice of the intention to make the claim was given early and the matter was pursued via negotiations throughout the period between August 2002 and the filing of the application.

20. Despite the failure to file the application on time, I am satisfied that no prejudice has been suffered by the beneficiaries of the estate. Interim distributions totalling $400,000 have been made to the residuary beneficiaries. The delay in the resolution of this matter has resulted in a substantial increase in the value of the estate. A high proportion of the estate assets are in real property which has increased significantly in value since the testator’s death.

21. I am satisfied that this is an appropriate case in which to give leave.^[1]

De Facto Relationship

22. Ms Summers gave oral evidence and was extensively cross examined. In many respects I found Ms Summers an unsatisfactory witness. She often gave unresponsive answers to relevant questions and on many occasions appeared to be attempting to argue her case rather than give factual evidence. Despite my reservations about Ms Summers, there was sufficient corroboration of the critical features of her evidence to make the findings that I set out below.

23. Ms Summers gave evidence that her sexual relationship with the testator commenced in about 1982. At that time both Ms Summers and the testator were in existing relationships.

24. In 1986, Ms Summers moved to a house at Nine Mile owned by the testator. A few months later the testator commenced to live in the same house. Ms Summers and the testator shared a residence from that time until the testator’s death in 2002. The nature of that relationship was a subject of controversy.

25. Ms Summer’s evidence was inconsistent with her having claimed Centrelink benefits throughout most of the period of cohabitation.

26. In May 2003 – at her instigation – Ms Summers attended an interview with a Centrelink investigator for the purpose of disclosing her improper receipt of Centrelink benefits over a long period. In many respects, Ms Summers’ evidence before me was inconsistent with the information she gave to the Centrelink investigator.

27. In view of the findings below, I am of the opinion that the receipt of Centrelink benefits by Ms Summers during the period of her relationship with the testator was fraudulent. I do not consider she was completely frank with the Centrelink investigator in 2003.

28. In my opinion, the relationship between Ms Summers and the testator was one of de facto spouses. In reaching this conclusion, I am satisfied that, despite my reservations about Ms Summers’ evidence, there is sufficient independent evidence to support the finding that Ms Summers and the testator lived together over the period of sixteen year in a relationship of mutual physical and emotional support. They shared a sexual relationship throughout the period. They presented to third parties as a couple. In some respects the relationship was less than a complete merging of lives and interests. The testator kept his finances separate from those of Ms Summers throughout the relationship. The parties did not share a bank account.

29. Despite an ongoing sexual relationship the parties did not habitually share a bed. At home they maintained separate bedrooms but shared a bed when on holidays or visiting the testator’s children. Ms Summers kept her clothes and personal effects in the testator’s bedroom but said she was unable to sleep properly with him because he was a chronic insomniac and his restlessness prevented her sleeping. The testator also snored.

30. The testator did not fully accept responsibility for Ms Summer’s child by her earlier relationship, although the child was recognised as part of the household.

31. The definition of “de facto spouse” in operation at the date of the testator’s death was contained in s. 5(1) of the Succession Act and read as follows:

“de facto spouse”, of a deceased person, means a person who—

(a) has lived in a connubial relationship with the deceased person for a continuous period of at least 5 years ending on the death of the deceased person; or

(b) within the period of 6 years ending on the death of the deceased person, has lived in a connubial relationship with the deceased person for periods totalling at least 5 years that include a period ending on the death of the deceased person.

32. “Connubial relationship” was not defined in the legislation but it has been the subject of judicial consideration. In Re the Will of Colin Kenneth Mackenzie^[2] Ryan J said of such a relationship:

“The enquiry is whether the parties maintained a relationship as though they were husband and wife, though not married to each other.  That enquiry cannot be answered simply by reference to any list of factors which commonly are found in such a relationship and a determination whether they are present in a particular case.  It is essential to have regard to the personalities and circumstances of the parties concerned.  At the same time, it is, I consider, involved in the notion of a connubial relationship that it is one of some duration, that it involves arrangements for living together in a residence (though not necessarily exclusively or without interruption) and for the provision to one another of mutual support, and that it includes a sexual relationship”

33. In the course of the resolution of the case before him, Ryan J had recourse to a list of relevant factors identified by Powell J in Roy v. Sturgen^[3].  Powell J’s list included such matters as the duration of the relationship; the nature and extent of common residence; existence of a sexual relationship; degree of financial  interdependence; procreation of children; performance of household duties; degree of mutual commitment; mutual support and reputation and “public” aspects of the relationship.

34. Having regard to the authorities I can discern no material difference between the matters which give rise to the conclusion of a connubial relationship and the matters now considered under s. 32DA of the Acts Interpretation Act 1954.

35. Senior counsel for Mrs Pearce pointed to the claiming of Centrelink payments; the failure of the testator to nominate Ms Summers as his spouse in his tax returns; the absence of joint property; the occupation of separate beds and the testators lack of support for Ms Summers’ son as factors militating against a finding that the testator and Ms Summers were in a de facto relationship.

36. In this case, however, I am of the view that the most critical factors are the personal ones - the long term companionship, the sexual relationship, the public presentation and the sharing of domestic duties.

37. As to these matters, my reservations about Ms Summers’ evidence are overcome by the evidence of Dr South, Mr Morris, Mrs Christiansen and the documents in exhibits 4 and 5.

38. Dr South was the orthopaedic surgeon who carried out the operation following which the testator died. Although no specific evidence was adduced concerning the cause of death, there is an entry made by Ms Summers in the 2002 diary which suggests that she was told by the hospital that death was caused by a post operative blood clot. Ms Summers’ diary entry does not accept that as the cause of death. The real cause of death is not material to these proceedings. It is sufficient to note that it was connected, in time at least, to the operation performed by Dr South.

39. Dr South recalls his initial consultation with the testator. The testator was accompanied by Ms Summers, who was introduced as the testator’s partner, a fact that Dr South noted in his records. Dr South recalls the consultation specifically despite the lapse of time because of the operation’s unfortunate aftermath and the resulting investigation. Dr South was able to give evidence of his observation of the interaction between the testator and Ms Summers. From the non verbal indicators given by the two persons consulting him, Dr South formed the opinion that they were a couple with the close emotional ties to each other typical of married or de facto partners.

40. Mr Morris was a longstanding friend of the testator. They were partners in the acquisition of land at Emu Park in about 1983. Mr Morris was introduced by the testator to Ms Summers about 15 years ago. From the way they presented together, Mr Morris had always believed that the testator and Ms Summers, although not married in law, were de facto married spouses.

41. Mr Morris deposed in his affidavit to a conversation with the testator in which the testator had confided to him that he wished to marry Ms Summers but, as a previously married man, felt unable to do so because of conflicts with his religious beliefs. This is consistent with one of the cards contained in exhibit 4 which is a card from the testator to Ms Summers congratulating her on the wise choice she made to become engaged. There is no suggestion any such engagement could be to anyone other than the testator.

42. The sentiments expressed by the various birthday cards, Valentine cards and other correspondence which formed exhibit 4, as a whole, were not consistent with a relationship of friendship and companionship only.

43. Interestingly, despite Ms Summers concession in this respect, the correspondence does not support the antipathy which was said to exist between the testator and Ms Summers’ son Carl. Since the correspondence is undated, this might reflect a stronger relationship between the two at different stages of that relationship. Carl Summers also acknowledged in his affidavit that his relationship with the testator was better when he was younger and declined during his teens.

44. An affidavit was supplied by a Mrs Christiansen, a friend of Ms Summers and the testator of many years standing. Mrs Christiansen was not required for cross examination. The relationship between Ms Summers and the testator was such that despite regular social contact, it was not for many years that Mrs Christiansen realised the couple were not married. In the absence of any cross examination I accept the contents of Mrs Christiansen’s affidavit.

45. Exhibit 5 contains correspondence directed to the testator, Ms Summers and her son. This correspondence seems to be sourced from the testator’s adult children. Most of it is addressed to “Dad, Barbara and Carl.” The fact that most is addressed to the three persons suggests that at that time, in the children’s minds, the three were thought of together.

46. When the testator’s children gave evidence, it was apparent that none of them had retained any great affection for Ms Summers. This antipathy appears to be as a result of the present proceedings. Ms Summers had previously had a close relationship with some of the children. Nonetheless, all the children described the relationship between their father and Ms Summers as one of friendship and companionship. None of the children were able to comment on whether this extended to a sexual relationship. All agreed that Ms Summers had worked on maintaining and improving the properties which the testator owned from time to time and which have contributed to or now form part of the estate.

47. Ms Summers’ claim of a sexual relationship extended to attempts by her and the testator to have a child. This claim is corroborated by some independent evidence. In 1988 or 1999, Ms Summers’ general practitioner, Dr McClymont, referred her to a specialist for fertility treatment. She also notes that Ms Summers’ partner underwent a semen analysis in December 1989. This was consistent with Ms Summers’ evidence to the same effect. Dr McClymont did not treat the testator. He never attended with Ms Summers at Dr McClymont’s surgery. There is no reason to believe that Dr McClymont knew the testator. Nonetheless, it was not suggested in a long cross examination of Ms Summers that she had any other intimate relationship during the 16 years she lived with the testator.

48. Of the testator’s children I found the evidence of Mrs Pearce and Mrs Warner most helpful. The evidence of the other three children appeared to me to be affected by the bitterness this litigation has engendered. They appeared to me to have difficulty being objective in relation to any aspect of their father’s relationship with Ms Summers.

49. Mrs Pearce described the relationship between her father and Ms Summers as “odd”. Her impression of the relationship was that it was strained. She did not see any of the overt signs of affection she would have expected, apart from her father sometimes patting Ms Summers’ hand. She regarded the fact that Ms Summers received Centrelink benefits as odd. She also regarded as odd the identification of items of property as being owned either by the testator or Ms Summers rather than jointly.

50. I agree that the matters identified by Mrs Pearce were odd and I regard her assessment of the relationship as perceptive. Nonetheless, apart from the Centrelink payments, these features of the relationship are not unknown or even individually, particularly uncommon.

51. Ms Summers conceded that her relationship with the testator was often volatile and that she felt like leaving on many occasions. She frequently threatened to do so.

52. On the other hand, Ms Summers said that she loved the testator and believed that he loved her. Because of that she did not leave except on a couple of occasions for short periods of a night or two.

53. Mrs Warner acknowledged that Ms Summers provided care and comfort to her father. She observed a sharing of household duties with the testator cooking on some occasions she visited and on other occasions Ms Summers doing the cooking.

54. Relationships are often stormy. Sometimes the parties to a relationship get on with each other better than at other times. Sometimes affection is overt. Sometimes parties are more reserved. There is often a mingling of finances but not always. None of these things are decisive. For the reasons I have indicated and on the basis of the evidence I have referred to I am satisfied that the testator and Ms Summers were in a de facto relationship over the period of time they lived together.

Wholly or substantially maintained or supported

55. Throughout the relationship, it is accepted that the testator provided Ms Summers with a house for herself and for much of the time a house for her son as well. The testator also provided Ms Summers with a vehicle for transport.

56. Ms Summers had an income from Centrelink until the beginning of 2002. For some months, until July 2002, she worked for Keppel Community Care. Ms Summers earned approximately $110.00 a week from this employment. She worked approximately ten hours a week. The testator appears to have opposed Ms Summers taking on paid employment. His diary for 21 January 2002 records:

“Bar off to work day (1) Home Care Kinka etc.  I am not happy about it and I said we have enough money but I said up to her what she wants.  It will spoil our quality of life.”

57. “Bar” is the abbreviation for Ms Summers commonly used throughout the diaries. The phrase “we have enough money” suggests that the testator was supporting Ms Summers in part at least.

58. Ms Summers ceased the work for Keppel Community Care on 16 July 2002 which was the day the testator underwent his joint replacement surgery. She deposed that the reason for this was to be able to care for the testator full time during his recovery.

59. Ms Summers and the testator both purchased groceries but, apart from the toothpaste, these were shared after purchase. In 2000, the testator paid for a holiday for himself and Ms Summers in the Mediterranean. Ms Summers spent a significant part of her income on the support of her son who the testator was said to be reluctant to support.

60. Ms Summers kept a number of animals as pets including cattle as well as dogs. The testator was not prepared to pay to feed these animals and Ms Summers spent some of her income in providing that food.

61. At Easter 2002, after moving to the house at Hawke Street, Emu Park, the testator informed members of his family, including Mrs Warner, in the presence of Ms Summers that “This is Barbie’s home.”

62. A Mr Thomas gave evidence that he had provided a quotation for renovations in the order of $150,000 for the Hawke Street property and expected to commence the work shortly after the testator’s operation. Of course, the testator’s death ended any prospect of those renovations being carried out.

63. Had the testator survived the operation, Ms Summers would have been wholly dependent on him for at least some period.

64. I am satisfied that the testator provided a significant level of financial support for Ms Summers during their relationship. His opposition to Ms Summers working outside the home, the fact that Ms Summers had given up work at the time of his operation, his public statements that Hawke Street was to be Ms Summers’ home and his intention to spend a significant sum of money renovating Hawke Street are matters that suggest an ongoing commitment by the testator to Ms Summers’ maintenance.

65. The relevant authorities on what constitutes “substantially maintained or supported” were considered by Mullins J in Lohse v Lewis^[4].  Factually, Her Honour’s findings at 667 are not materially dissimilar to the position here:

“[96]At the date of the deceased’s death, he was providing a home for the applicant including his furniture and furnishings, her means of transport and for her financial needs, except to the extent that she could meet her personal expenses and the expenses of keeping her dogs from the Centrelink benefits. By way of support for the applicant’s future with him, the deceased had made a considerable investment in purchasing Rossgae and was proposing that they both relocate for an “easier” life. The probabilities also are that if the applicant’s Centrelink benefits had been discontinued whilst the deceased was alive, the deceased would have paid for those expenses that the applicant managed to meet out of the Centrelink benefits.

[97] In these circumstances the applicant has shown that at the date of the deceased’s death she was being substantially maintained or supported by him. The applicant was therefore a dependant at the time of the deceased’s death within the meaning of the definition in s 40 of the Act.”

66. In the circumstances here, I am also satisfied that the applicant was substantially maintained or supported by the testator as at the date of death.

Was adequate provision made for the applicant?

67. The provision made for Ms Summers comprised the conditional right of occupation (subject to meeting expenses) and a legacy of $50,000. Ms Summers was unemployed. Her assets consisted of about $7,000 in a bank account and a 24 year old Commodore motor vehicle.

68. There were other claimants to the estate. None of the testator’s five children are wealthy. All are coping financially but without much in the way of surplus assets.

69. As at the date of death, the estate was valued at around $1,500,000.

70. At the time the relationship commenced, Ms Summers earned a living as a screen printer and artist. Over the years of her relationship, those skills were neglected and she does not consider she is any longer capable of performing those activities to a sufficient level to be commercially viable. The work performed at Keppel Community Care was of a domestic nature. For the balance of her relationship Ms Summers assisted the testator with the maintenance and improvement of the properties from which he derived his income.

71. In Singer v Berghouse^[5] the majority (at 209-210) made the following statement concerning the approach to be taken to determining whether adequate provision had been made for the claimant under the will:

The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

72. In my view, the provision made in this will for Ms Summers was inadequate.

73. Despite the number of beneficiaries the testator had to consider, the estate was sufficiently large materially to benefit all those with proper claims. The provision fails properly to acknowledge the nature and length of the relationship between the testator and Ms Summers, her contribution to the preservation and improvement of the assets or the sacrifices she made to her own capacity for financial independence by maintaining the relationship. Ms Summers was 28 when she commenced her relationship with the testator, 33 when they commenced to reside together and 48 when he died.

What provision should be made?

74. The second stage of the process is to determine whether further provision should be made for Ms Summers.

75. Since the death of her partner, Ms Summers has coped poorly. She has been undergoing psychological counselling.

76. She is presently receiving a Centrelink benefit. She lives some of the time with her sister in Melbourne and some of the time at Hawke Street.

77. My assessment of her as a witness and from reading the affidavits is that her prospects of returning to the workforce in any satisfying role are limited. Ms Summers is now 52 years old.

78. The value of the estate has grown to the figure of at least $2,200,000 to which I earlier referred.

79. I have already found that Ms Summers was being substantially supported by the testator at the date of death.

80. Having regard to all these factors and the claims of the other beneficiaries it seems to me that proper provision for Ms Summers would involve securing her a furnished house of her own and some proper level of income for the future. The former can be secured by giving Ms Summers the title to the house at Hawke Street. An income of $300 per week can be obtained from a capital sum of $253,500 invested over 32 years at 5%. Adding this to the legacy of $50,000 makes a total of $630,500 and represents a little more than a quarter of the estate. This leaves between $320,000 and $350,00 for each of the residuary beneficiaries. The costs of this application have already been brought to account by the parties in calculating the net value of the estate.

The diaries

81. The remaining issue relates to the testator’s diaries.

82. Both sides have understandable emotional claims to these documents. From the point of view of the testator’s children, they represent their family history. From Ms Summers’ point of view they represent records of a long term relationship.

83. The diaries tendered cover a period longer than the relationship between the testator and Ms Summers and Ms Summers does not seek diaries for that earlier period.

84. The diaries are said to record intimate personal details involving Ms Summers. On the other hand the intimate details concerning Ms Summers are in a code which is unintelligible to someone unfamiliar with it. The other contents of the diary are a factual account of the testator’s largely mundane activities.

85. The gist of the argument advanced by senior counsel on behalf of Ms Summers was that the diaries are chattels of the deceased in the house at the date of death. They were neither antiques nor collectibles as those terms are commonly understood. By the terms of the will, Ms Summers was given the right to possession of the house at Hawke Street together with the contents thereof. The diaries form part of the contents and are thus placed in her possession for the duration of the right of occupation.

86. The alternative argument is that the expression “contents” is confined to those chattels in the house at the time of death that were or might have been used for the better enjoyment of the house as such.

87. Neither side was able to point to any authority in support of the rival contentions.

88. The resolution of this question turns on the meaning of the words “together with its contents’, which appear in the will.

89. My attention was drawn to the fact that, for intestacy purposes, the expression “household chattels” is defined in s. 34A of the Succession Act to exclude, inter alia, chattels of a personal nature. The significance of this from an intestacy perspective is that a surviving spouse with issue is entitled to the first $150,000 and the household chattels with the remainder divided according to the intestacy rules.

90. I am not sure that this has any real relevance to the present dilemma.

91. It should not be overlooked that the will itself limits the meaning of “contents” by excluding antiques and collectables. The term collectables is itself not without its ambiguities and might in appropriate circumstances include diaries.

92. In my view, I should construe the gift in the will in this case as confined to those items adapted for the better use of the house as such. This seems consistence with the testator’s own understanding of his obligation to Ms Summers as evident from the will itself, which was to provide a familiar house for her to use along with the furnishings, fittings and other chattels necessary or desirable to enable her to live in it in the manner to which she was accustomed. This also seems to me to be consistent with the testator’s inter vivos statement to the effect that the house was bought as a home for Ms Summers. However, it does not necessarily follow that the gift should include personal rather than household items.

93. While not accepting its direct relevance, this construction gives a meaning to the term “contents” in this will equivalent to the meaning given to the expression “household chattels” by s. 34A of the Succession Act.

94. In the result, I am satisfied that the diaries, being the testator’s personal property and not adapted for the better use of the house as such, remain part of the residuary estate.

95. The orders that I make are that further provision be made for the proper maintenance and support of the applicant out of the estate of Peter James Garland by:

1. treating the will as if it bequeathed to the applicant the whole of the testator’s interest in the property at 14 Hawke Street, Emu Park free of encumbrances, together with the household chattels therein as that phrase is defined in s. 34A of the Succession Act 1981.

2. by a distribution to the applicant of the sum of $303,500 in lieu of the sum of $50,000 presently provided for.

96. I will hear submissions on costs.