Amos v Hogg

Supreme Court of NSW|2018-07-04|Before: Hallen J, Santow J

Issue about Property of the deceased said to have been disposed of

The Plaintiff asserted that "Jennifer Byrne, Robin Amos and Peter Hogg disposed of the entire contents of the house". He raised, in particular, concerns about a grand piano, a reed organ and a Nissan motor car, as not having been disclosed in the Defendants' evidence regarding the estate.
In a letter dated 24 February 2017, from the Defendant's solicitors, to the Plaintiff's solicitors, an explanation was provided going to what had happened to those items. In addition, a number of the witnesses, including Mr Hogg's wife, Lynnette Margaret Hogg, gave unchallenged evidence that "[m]ost of the furnishings were very old and worn and had to be thrown away as the charities did not want them".
Furthermore, in his affidavit, Robin gave evidence that he had attempted to contact the Plaintiff about his possessions, but that the Plaintiff "would not accept my calls or texts". There was really no dispute about this evidence.
At the commencement of the hearing, counsel for the Plaintiff accepted that any issue about the items referred to by the Plaintiff was not one that went to the nature and value of the deceased's estate: T2.21 - T2.22. Nothing more needs to be written about the Plaintiff's complaint about the items referred to. I am satisfied that he was given an opportunity to retrieve items from the Kings Langley property before it was sold, or the property inside was disposed of, and that he chose not to do so.

Costs and Disbursements of the Proceedings

Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate.
As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, as I have repeated many times, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
Nor should parties assume that in an estate, with a modest value, as this one is, that the fees of senior counsel (who, in this case, has been retained by the Defendants) will be borne out of the estate of the deceased. In my view, briefing senior counsel, in an estate of this size, may be regarded as being unnecessary and, somewhat extravagant.
I shall consider limiting the fees recovered out of the estate for senior counsel to an amount reasonably attributable to the rate charged by junior counsel. This will not prevent senior counsel recovering his fees; but it will prevent the whole of those fees being treated as a liability of the estate. (Junior counsel appeared with senior counsel without charge to the estate.)
In an affidavit affirmed on 21 May 2018, by Mr P C Proctor, the Plaintiff's costs and disbursements, including the costs of mediation, to the conclusion of a 3 day hearing, were estimated to be $71,400. Because the affidavit did not disclose the basis on which the costs and disbursements had been calculated, in answer to a question from the Bench at the commencement of the hearing, counsel for the Plaintiff, stated, that the costs and disbursements had been calculated on the indemnity basis, and that the Plaintiff's costs and disbursements, calculated on the ordinary basis, were $56,800: T2.39 - T3.07.
(Counsel for the Defendants accepted the estimate, given from the Bar table, only for the purposes of estimating the value of the estate out of which an order for provision might be made": T3.07 - T3.16.)
In an affidavit sworn on 18 May 2018, Ms Younes, revealed that the "Executors' Solicitors" costs currently outstanding were $24,446; that the costs up to the conclusion of the 3 day trial were estimated to be a further $18,000; and that "[senior] Counsel's fees up to the conclusion of the 3 day trial, including the fees currently outstanding, is estimated to be $43,000". The estimated total of the Defendants' costs and disbursements is, therefore $85,446.
Whilst the estimates provide some basis for calculating the total of the legal costs and disbursements that may have to be paid out of the deceased's estate before any distribution of that estate can take place, it is to be remembered that they are estimates only. In addition, in many cases, costs may not be ordered to be paid on the usual basis, because of the service of an Offer of Compromise or a Calderbank offer.
In this regard, the parties requested the Court to not resolve the issue of how the costs and disbursements of the proceedings should be borne, as there may be relevant documents that impact upon that issue.
Upon delivering these reasons, I shall set down the costs argument, if one remains, for hearing after allowing the parties to reach agreement on costs, including the quantum of costs. Needless to say, increasing the costs because of further argument should be avoided, if that is possible.
The parties also agreed that, in the event the costs estimates prove accurate, and if an order is made that the costs are to be paid out of the deceased's estate, the value of the estate, out of which an order could be made, would be about $479,368: T4.01 - T4.08. Accordingly, this is an estate of modest value, particularly if the whole of the estimated costs are deducted.

The Deceased's Prior Wills

In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J, after referring to an earlier Will of the deceased in that case, which had made much more generous provision for the applicant, stated that "the proximity of death and the clear light of perspective sometimes focus [sic] the mind; providing a final opportunity for considered reflection. The only will that matters is the deceased's last will."
Whilst the last sentence quoted is, undoubtedly, correct so far as the determination of the principal questions for determination under the Act, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also relevant, particularly if there was a long standing testamentary intention revealed by the earlier Will or Wills, and where there has been an incident that has, or incidents that have, caused a change to those long held testamentary intentions.
It may also demonstrate the recognition, by the deceased, at the time, of a degree of testamentary duty owed by her towards the Plaintiff. Also, as will be read, one of the matters that to which the Court may have regard, is "any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person": s 60(2)(j) of the Act.
The deceased made a number of Wills prior to her last Will. The earliest one in time, the subject of evidence, is a Will made by her on 3 April 2002. As best as can be gleaned (since the copy in evidence contains handwritten alterations, deletions and interlineations), the deceased, relevantly, left the whole of her estate to Maurice, but, if he did not survive her, she provided for the whole of her estate, after the payment of debts, funeral and testamentary expenses, to pass to the Plaintiff.
(The Will also directed that in the event the Plaintiff sold the Kings Langley property, $10,000 of the proceeds of sale should be given to Ms Daddow. In the event that the deceased was not survived by Maurice and the Plaintiff, her estate was to be divided equally between Robin, Brydie and Felicity.)
The next Will in time, on the evidence, is one made by the deceased on 15 February 2010. In this Will, too, the deceased left the whole of her estate to Maurice, provided he survived her by 60 days; but, if he did not survive her, she provided for the whole of her estate, after the payment of debts, funeral and testamentary expenses, to pass to the Plaintiff, provided he survived her by 60 days, absolutely. (In the event that the Plaintiff did not survive, she provided for 50 per cent of her estate to pass to Ms Daddow, and the remainder to "be divided equally between Robin, Brydie and Felicity.)
The second last Will is one made by the deceased on 28 July 2014. In this Will, the deceased appointed Peter Hogg to be the sole executor. She made bequests of personal items to Robin, Felicity and Brydie, and then provided that the executor was to hold the whole of the rest and residue of the deceased's estate, on trust, to sell, call in, or convert the same into money, at such times and in such manner as they thought fit, pay all just debts, funeral and testamentary expenses and all duties and any other costs fees or expenses associated with her estate, and, subject thereto, to divide the balance of her estate into different percentage shares, namely 10 per cent to the Plaintiff; 10 per cent to Judith; 50 per cent to Robin; 10 per cent to Felicity; 10 per cent to Brydie; 5 per cent to her friend, Jennifer Byrne; and 5 per cent to her nephew, the executor, Peter Hogg.
Ms Younes took instructions for, and prepared, the 2014 Will. She had been contacted by a social worker at the Blacktown Hospital to see the deceased, which she did, on two occasions. She took instructions, initially, from the deceased when in Hospital, and, subsequently, saw the deceased at her office when final instructions were given and the 2014 Will was executed.
Prior to meeting her at the Blacktown Hospital, Ms Younes had not met the deceased, or any of the other persons associated with this case: T132.14 - T133.05.
Prior to the 2014 Will being signed, Ms Younes was provided with a letter from a geriatrician, confirming the capacity of the deceased to give instructions. Ms Younes requested this to be provided by the deceased as she "hadn't met Nancy prior to early July 2014, [and] I just wanted to make sure cognitively - I'd seen her at the hospital, she seemed fine, shaken up, but just from a cognitive point of view, I just wanted to get some satisfaction that she had proper capacity": T134.24 - T134.30.
Reference has already been made to the last Will of the deceased.

The deceased's testamentary statements

The language of the Act, in s 100, permits the Court to take into account the deceased's expression of testamentary intention, even though not incorporated in a properly executed Will.
In relation to the written statements made by the deceased that are referred to, and otherwise in the evidence to which I shall refer, I have borne in mind that the Court must exercise caution in determining whether to accept the evidence, and, if accepted, carefully consider the weight to be attached to it.
Also, it is to be remembered that the truth of the version of events said to have been given by the deceased to the deponent of an affidavit, or to the author of a report, or to the author of parts of the hospital records, cannot be tested by cross-examination.
In relation to such declarations by the deceased, I bear in mind, also, what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 152): " ... the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim."
I remember, as well, that the fact a statement is made by the deceased does not mean, necessarily, that it must unquestionably be accepted as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35].
Yet, where the truth of the statement made by the deceased is admitted, or where the facts asserted in the statement are corroborated by other evidence, due weight should be given to the statement.
In an undated document, in the handwriting of the deceased, which document must have been written before the death of Maurice, the deceased set out her testamentary intentions and then wrote, under the heading "Explanation": "Maurice and I want our estate to go to our son John Allan Woodroffe Amos when we depart this earth; because he has looked after my Husband and myself very well, in our old age, and our daughter, Judith Anne Daddow very seldom gets in touch with us. We don't want her to miss out altogether as she was a very attentive and good daughter before she married Herb Daddow & resided in South Australia. So we want Judith to share with the grandchildren, Robin, Brydie & Felicity, if she survives 30 to 60 days. Judith has a roof over her head but John hasn't."
Needless to say, the Plaintiff did not dispute the facts asserted in this statement. In any event, I consider that it accurately records the deceased's acknowledgement of the assistance provided to her and to Maurice by the Plaintiff.
The deceased left a document, dated 15 February 2010, headed "Testamentary Statement", which provided: "I, NANCY JEAN AMOS, of ### Anderson Road, Kings Langley in the State of New South Wales, hereby state as follows:- 1. In the event that my husband, Maurice Amos predeceases me, I give devise and bequeath my estate to my son, John Allan Woodroffe Amos ("John"), as he has no house of his own due to the breakup of his marriage. John is our carer with Centrelink and he has looked after us very well in our old age. He does the washing and ironing, the lawn mowing the garden which is large. He prepares our breakfast and dinner at night and does so much of the shopping. He also takes us for all our appointments which are many and I am wheelchair bound. John has painted two of our bedrooms and re-varnished our window frames and put up new curtains. John was showering my husband for many weeks on his return from the nursing home, which he is now able to do himself. 2. Our daughter, Judith Anne Daddow ("Judith") seldom gets in touch with us. She has a home of her own in South Australia. 3. Our daughter Judith is 64 now. She was a very attentive and good daughter before she married Herb Daddow and moved to South Australia. Provided our son John does not survive both of us, we want Judith to share our Estate with our grandchildren if she survives for 60 days."
Again, there was no dispute about the facts asserted in this "Testamentary Statement" so far as they relate to the Plaintiff. Again, I consider that it accurately records the assistance provided by the Plaintiff to the deceased and Maurice.
Ms Younes also prepared a document, dated 28 July 2014, upon the oral instructions given by the deceased, initially, whist the deceased was in hospital, and completed on the deceased's attendance at Ms Younes' office a few weeks later. No written notes were provided by the deceased to enable the preparation of the document. Ms Younes spoke with the deceased to obtain the instructions to enable the document to be prepared and some of it was prepared in the deceased's presence: T134.08 - T135.06.
The document, which was signed by the deceased, whose signature was witnessed by Ms Younes, provided: "I Nancy Jean Amos of room 205 Anglican Retirement Village Castle Hill have today provided instructions to my solicitor Therese Valerie Younes to draw a new Will for me. I want to put down in writing simultaneously today the reasons why I have changed my Will so substantially. My husband Maurice Amos died on 16 June, 2012. Prior to my husband passing away my Son John Amos moved in with my husband and I to our home at ### Anderson Road, Kings Langley. We didn't ask my son to move in but he just moved in with my husband and I approximately 7 years ago. My son did not pay any money after moving in. My son didn't pay any food or any expenses for the house. I paid for all the Bills for the house and I paid all the food expenses. Prior to my husband Maurice passing away He was in Westmead Hospital and my son John would not take me to visit my husband. The lady who would assist me with showering from Homecare used to take me to visit my husband. I was fortunate enough to be able to say my goodbyes before my husband passed away because the lady who showered me took me to visit my husband. I have an AVO order in place currently against my son which was applied for and obtained by the Police on my behalf. My son physically assaulted me on 3 July, 2014 and I was required to be hospitalized at Blacktown hospital. I was taken to hospital by ambulance and my son said to the ambulance driver to take me into the mental ward at Blacktown Hospital. My hand and my arm were very bruised because of the assault and the Police photos of the bruising. I was able to contact a Solicitor with the help of the Social Worker from the hospital. My son snatched the mobile out of my hand whilst I was trying to call the Police when he and his daughter Bridie were both verbally abusing me. I have asked the Police not to charge my son with the assault but just to record it as I didn't want my son to get in trouble but I am not sure what the Police have done. My son has treated me badly over the seven years that he was living with me. My son would verbally abuse me constantly over the last two years since my husband passed away. The abuse got worse after my granddaughter Bridie Amos also moved in with me at my Kings Langley home. The hospital was concerned about me returning home to my abusive son so respite care was arranged for me to have accommodation until my son vacated the Kings Langley home. Prior to my recent hospitalization I received a telephone call from my GP and he said can I come and see you. The Doctor called me at home. At this time the Doctor was on holidays and asked if he could be excused as he would be coming in his jeans. The Doctor tested my blood pressure and pulse. The Doctor also said can I test your mind and then proceeded to ask 30 questions and I got 29 out of the 30 questions correct. I thought it was very odd indeed that the Doctor would come and visit me at home especially given he was on holidays. I think my son John asked the Doctor to come and see me as my GP is also my sons [sic] Doctor. The Doctor gave me a hint and said: 'My mother lived until 96 and I could have sold the house from under her.' I thought this was a bit odd too and perhaps the Doctor was trying to warn me about things. In hospital I had a test also of 100 questions and I got 93 out of 100 correct. I was told by the hospital that there was nothing wrong with my mind. I have been assisted greatly by my grandson Robin Amos with trying to find some nursing home care. My son John Amos would drink quite a lot at night and after he was drinking he would become more aggressive. My grandson got rid of his mobile telephone because his father would often call him and annoy him after my son John had been drinking. I am proposing to give to my son John Amos an amount of $20,000 from the sale of the Kings Langley property. This gift is to make sure that my son can find some accommodation for himself."
Many of the matters of fact asserted in the 2014 Statement were disputed by the Plaintiff. The inconsistency in regard to the Plaintiff's conduct, whilst he was living with the deceased, from the deceased's earlier statements of his conduct, is obvious.
With the last Will, the deceased left a three page document, in her own handwriting, in which she stated "the reasons why I have changed my Will so substantially". The original document was given to Ms Younes and retained by her in the solicitors' Will file: T135.08 - T135.22.
The handwritten document stated: "I, Nancy Jean Amos of Apartment ### Windsor Road the Willows Retirement Village, Winston Hills NSW 2153 have today provided instructions to my solicitor Therese Valerie Younes to draw a new Will for me. I want to put down in writing simultaneously today the reasons why I have changed my Will so substantially. My Husband Maurice passed away on the 16th June 2012. Prior to my husband passing, my son John's wife, Carol, left their home with my 2 grandchildren, Brydie and Felicity. My son John A W Amos and his son Robin Amos moved in with my husband and I to our home at ### Anderson Rd, Kings Langley. We did not ask my son to move in but he just moved in approximately 7 years ago and became my carer. He did not pay any board or food. Prior to my husband Maurice passing away he was in Westmead Hospital because he had a fractured pelvis. He fell out of bed in the nursing home. He had dementia following 3 mini strokes and my son would not take me to see him. The lady who assisted me was the lady who came from Home Care to shower me. I owe this dear lady so much. She rang my son and said I want your mother's wheelchair out in my car by 4.30 pm and she took me to see my husband, who by now developed pneumonia. I was able to tell him Jesus was waiting for him with open arms. I was able to hug and kiss him, and he passed away at 5.30 am the next morning. Praise God!! I was able to be with my Darling before he went. We were married for 68 ½ years. He was 88 a wonderful husband and father. My granddaughter Brydie was not happy at home with her mother and sister so I asked John if he would like to ask her to come and live with us. I thought it would be nice for her to be with her father for a change. She moved in before Christmas. I asked her to pay $50 board. She bought quite a lot of her own food and John called me "a greedy selfish old-woman". Things got worse John turned her against me. I rang the Government Dept for people who have carers who verbally abuse them. I wanted someone to come out and speak to them, but they replied I could only call the police. One night at 11.00 pm I was getting ready for bed and they were both abusing me so I picked up my mobile phone to call the police and John snatched the phone out of my hand badly bruising my hand and my arm. Brydie called our Doctor who told her to call the ambulance and John told the driver to take me to the mental ward at Blacktown Hospital. I didn't get a bed for a couple of days. On the 3rd day I was put in emergency and the Head of Paediatrics came to talk with me after a while he said I'll get a lady to talk with you; she gave me a 100 questions and I got 92 correct. The Doctor said there is nothing wrong with you. Whilst I was in hospital my home Doctor Dr Chong called as he often did to see how I was. When John answered the door Dr said where is your mother and John answered "She is in hospital and she is not coming home". Dr said, "Wait a minute this is your mother's home". The Police came to the hospital to see me and they had John and Brydie removed from the house and put an AVO on them both not to see me for 12 months. I asked the police not to charge John just to record it in case it happened again and they said no he had to be charged it was violence. The hospital staff were concerned about me returning home so respite care was arranged for 6 weeks whilst my grandson and friends helped me to sell my home and I moved into 'The Willows'. I have been greatly assisted by my grandson Robin Amos. John my son has disowned his son because he helps me and we love one another very dearly. John told me he didn't love me he only wanted my home. He was so upset I was getting so old. I am 91 and he was not well enough to look after me. He has diabetes and a bleeding ulcer under one foot. I was always mopping up blood and I told our Doctor I was so distressed about him and he said 'You can drag a horse to water but you can't make it drink'. John's daughter Brydie said 'I was killing him'. When I returned from respite in A.R.V. I found John had stolen my husband's Wills, my Will and my identity. He had taken my Medicare Card and Pensioner Concession Card and it took me a long time to regain my identity. I have given my son John A W Amos $20,000 from the sale of my home. This gift was to make sure my son could find some accommodation for himself. [Signed: Nancy Jean Amos] I gave this letter to solicitor today 16.6.2016"
At least some of the facts stated in the deceased's handwritten document are not in issue. However, I shall next refer to the event of 3 July 2014, that preceded the deceased being admitted to the Blacktown Hospital, as there was a real dispute about what had occurred. It was upon these events that much of the cross-examination of the Plaintiff and, to a lesser extent, Brydie, revolved.

Events following death of the Plaintiff's father

The Plaintiff asserted that the deceased's "behaviour started to deteriorate" after the death of Maurice and that at about the end of 2013 she "started to become verbally abusive. I would be doing something, not saying anything to the deceased and she would suddenly start yelling at me. I did not know what I had done. This started to happen more regularly being about once a fortnight and then more often about once a week".
He also wrote that the deceased had a "major episode" towards the end of 2013 and that "she was admitted to the dementia ward at Blacktown Hospital for assessment". (It should be mentioned that no hospital records relating to any admission to Blacktown Hospital forms part of the medical evidence upon which either party relies.)
The Plaintiff, somewhat surprisingly, wrote nothing about the event that occurred on 3 July 2014 in his affidavit in chief affirmed on 3 July 2017.
In his affidavit in reply, affirmed 20 December 2017, by reference to the Hospital records, the Plaintiff denied that either he, or Brydie, had abused the deceased on the evening of 3 July 2014 and that he had done nothing to cause the deceased's arm to be bruised. He then wrote: "I spoke to Dr Chong that evening and told him about Nancy's erratic behaviour. He spoke to her on the phone and she got worse. I spoke to Dr Chong again and he told me to move away from her and leave her alone and he would ring the ambulance. The ambulance turned up a short time later and took Nancy to Blacktown Hospital… I did not grab Nancy by the arm and cause a bruise. I was not verbally abusive toward her…"
He then stated: "108. On 3 July, 2014 I was at Anderson Road, Kings Langley with Nancy, and my daughter Brydie. I had been at home looking after Nancy through the day and had prepared a cooked meal for dinner which she ate. 109. Brydie and I had finished dinner and I was in my bedroom. I heard raised voices of Brydie and Nancy and it appeared to be a disagreement. 110. I went out of my room and Nancy and Brydie were in the Family Room still arguing. I believe it was about how much rent Brydie was paying. I intervened and Nancy started making accusations against Brydie and I such as "you are against me". I told her "that isn't true". 111. Nancy's disposition became worse and very antagonistic and she said such things as 'I'm not being looked after', and 'I am not getting what I asked for'. I said 'that's not true Nancy, only last week we went to Blacktown on the Tuesday, as we normally do and on the Friday, we went a saw Auntie Betty.' 112. Before I realised it, she had opened the back door to the verandah [sic] and went out without her walker and began to lose her balance, grabbing things to prevent her falling. I heard her banging things on the verandah [sic]. 113. I remained inside and called Dr Chong on my mobile phone and he advised us to leave her alone and asked to put her on the phone. 114. I went out to her and handed her my mobile phone and said to her 'Its [sic] Dr Chong on the phone, he wants to talk to you.' 115. She took the phone and spoke to Dr Chong for a short time and handed the phone back to me. She then made her way inside and still appeared quite agitated. 116. Dr Chong said to me 'I'll call the hospital and let them know what is going on. I want you keep away from her until the ambulance people arrive'. 117. The ambulance, who I believe were called by Dr Chong, arrived within a matter of minutes. Brydie let them in to lounge room where I spoke to them and explained to them what had happened. I gave them her medicare card and health care card, which is the normal thing to do and they into the family room where she was sitting and they lifted her up, one on each side, grabbing hold of her arms and marched her out the door and down the stairs. At no time was there any contact made between myself or Brydie with Nancy."
Brydie wrote about the event occurring 3 July 2014 in the following terms: "20. On 3 July, 2014 I was at Anderson Road, Kings Langley with Nancy, and my father. Nancy appeared to be acting irrationally at the time and proceeded to walk out onto the balcony and call out for help. My father and I decided to call Nancy's GP, Dr Chong who was located at Boomerang Place, Kings Langley. Dr Chong advised me that we call an ambulance, leave her alone and let them make an assessment. 21. The paramedics attended and had to help her down the stairs each holding her arms firmly on each side as they descended the stairs as she was very unsteady on her feet. 22. Nancy was then taken to Blacktown Hospital by Ambulance."
Perhaps, the most detailed statement about the event is one that is said to have been given by the deceased a few days after the event, and which appears in the documents referred to as part of Ex. D2, being "COPS Entries NSW Police" at Ex. D2/166 - 167, which, relevantly, states: "About 23:00 on 03 July 2014 the victim was having a discussion with POI 2 [Brydie] regarding payment of board of $...... per week, when POI 1 [the Plaintiff] said that it was too much and that it should only be $...... per week. The discussion become heated and evolved into an argument where POI and 2 yelled abuse at the victim. The victim due to her age and frail state felt intimidated and unsafe and stated to POI 1 that she was going to call the police. POI 1 immediately stated 'No your [sic] not?' The Victim picked up her mobile phone as she said this and POI 1 has grabbed the Victim by the left wrist with force causing a bruise and snatched the mobile phone out of the Victims [sic] hand. Within moments POI 2 stepped forward and took hold of another phone that was on the lounge next to the victim and POI 1 took a wireless phone away from the Victims [sic] reach. The victim feeling scared has managed to walk to the outside deck and attempted to call for a neighbour to assist her, the victim is very unstable on her feet, as she was calling for help POI 1 came to the door and told the victim that her Doctor has told her to come inside. The victim shuffled her way along the bannister railing holding herself up, POI 1 did not assist her with walking and left her to struggle to walk from the railing to the door, the victim had to lean on a home made gate that was damaged to be able to walk across the deck area to go back inside the house. POI 1 has called for an Ambulance to attend the location and gave instructions to the Ambulance officers to take the victim to the 'mental part of the hospital'. The victim was conveyed to Blacktown Hospital."

Medical Records

Both parties exhibited contemporaneous medical, and other, records relating to the deceased. It is necessary to consider these records and refer to them. There were records that formed an exhibit to the Plaintiff's affidavit affirmed 20 December 2017. The records relied upon by the Defendants, were tendered as Ex. D2.
At the request of the Court, senior counsel caused to be prepared a typed transcript of those parts of Ex. D2 upon which the Defendants relied and counsel for the Plaintiff did not dispute the accuracy of that transcript. I shall refer to the typed transcript as well as other relevant parts of the medical records in Ex. D2 hereunder.
(I remember that care must be taken before relying on the history given, or the circumstances of an incident, recorded in clinical notes, or other medical records, as cogent evidence of disputed facts in issue in court proceedings: Afoa v McBride [2017] NSWCA 323, at [70].)

Pre-July 2014

The first record in time is one from Blacktown Hospital, and relates to the deceased's admission on 24 January 2011. She was referred by Brydie. The Plaintiff and Brydie are referred to as "Contact Person[s]".
There is a Rehabilitation & Aged Care Services report dated 30 March 2011. The deceased is said to have been living with her husband and son and that her son was their "carer", although, at that time, he was in hospital. The Plaintiff was disclosed as doing all the home maintenance, transport and banking. It goes on to note that the carer "has [his] own health issues - [he] was recently in Hospital - [he] also cares for [his] father …who has vascular dementia".
The report also discloses that the deceased was "aware of place and time" and that she had been "an accounting person, manager" when working. It stated that the deceased was "happy with home care". It also revealed that the deceased's daughter "in SA, occas. Phone calls, not much contact". The deceased was said to read, watch television, manage accounts, and "rings or sends cards to elderly people in parish".
Progress Notes dated 30 March 2011, relating to the deceased, stated: "Client … says her condition is deteriorating and she may need [increased] … services soon. She is worried about her son's health & would like access to residential respite care."
In an Aged Care Client record also dated 30 March 2011, under the heading "Comments", the following appears: "Mrs Amos is an 86 year old lady who lives with her husband in their own home. Her husband has vascular dementia and other medical and physical issues. Her son has moved in to care for his parents. Mrs Amos suffers from pain and fatigue as a result of rheumatoid arthritis and osteoporosis. She also has crush fractures in her spine caused by osteoporosis, fractures of the pubic rami, polymyalgia rheumatica, hypothyroidism and oedema especially in her ankles. This affects her ability to manage independently at home. She has assistance from HACC services for housework. Her son, who has his own health issues, assists with all other activities. Mrs Amos is worried about her son's heath and would like access to a CACP [Community Aged Care Package] to assist with her care and low level residential respite to give her son a break from caring for her."
By letter dated 1 April 2011, sent to her, the deceased was advised that she had been approved as being eligible to receive residential respite care at a low level, which allowed her up to 63 days of subsidised residential respite care in a financial year, as well as a Community Aged Care Package.
In Clinical Notes dated 12 June 2012, an assessment was completed with the deceased and the Plaintiff, who was, again, described as the deceased's "main carer". There was a reference to him "helping with house maintenance, transport and shopping". The deceased was noted as "a member of Anglican Church and belongs to praying group".
In an Aged Care Client Record dated 18 June 2012, the following appears: "Mrs Amos is an 88 year old female who lives with her supportive son who is her main carer. … She would like to remain in her current accommodation as long as possible and CACP will be beneficial to assist with it. She also would like to use residential respite to give her carer a break and put her name on the waiting list for permanent residential care. She needs low level care."
By letter dated 18 June 2012, sent to her, the deceased was advised that she had been approved as being eligible to receive permanent residential care at a low level, and residential respite care at a low level, the latter of which allowed her up to 63 days of subsidised residential respite care in a financial year, as well as a Community Aged Care Package.
These records reveal information that is consistent with the Plaintiff being a loving son who was, and had been, providing care and attention to the deceased.

3 July to 14 July 2014

The Blacktown Hospital Emergency Department Clinical Record, revealed (with minor editorial corrections) the "registration date/time 03/07/2014 23:21" and stated: "Presenting information: BIBA [brought in by ambulance] as patient's family concerned about her mental wellbeing as she has been agitated as per CDA [Central District Ambulance]. On seen patient mildly agitated however settled as soon as she left the house. Patient states her son and granddaughter are trying to control her life. OE [on examination] patient airway, patient co-operative, pleasant manner, not agitated, nil behaviours, disturbance noted TA triage, strong radial pulse."
Hospital Progress Notes dated 4 July 2014, reveal (with minor editorial corrections) that the deceased was said to have been brought in the night before because the patient was agitated at home. They went on: "[1.59 p.m.] Chief complaint Patient brought in by ambulance. Family phoned GP whom advised them to phone the ambulance/police because the patient was agitated at home this evening. Ambulance personnel report that the patient was slightly distressed when they arrived but very quickly settled when she was removed from the home environment. … She can only mobilise with a wheelchair outside the house and is dependent on them for help, her son has refused on multiple occasions to help her, not taking her to her husband when he was dying, he is refusing to take her to her sister who is currently very ill. He is also withholding objects from her like her mail, gifts that friends have brought, and putting it out of reach. On arrival in the [Emergency Department] the son told the triage nurse that his mother should be committed to a mental institution and that he does not want to be contacted and that he does not want to have her back home even though it is Mrs Amos' home he is living in currently. … The patient is oriented in time place and person. She is very bright with good long and short term memory. … [3:05 p.m.] [Background] - 89 year old Caucasian female was [brought in by ambulance] as son/granddaughter was concerned about her mental wellbeing, as per CDA, patient was mildly agitated but settled as soon as she left home. … 'Do you believe you have any mental health issue?' 'No, obviously not, my son want [sic] to label me as a mental patient, he wants to take my home over' … 'The only issue is my property, my son wants to take that from me. He wants to put me in a mental place. … I still manage my finances by myself, pay my bills, John even don't [sic] pay anything for food!' Denied depressive symptoms, stated his [sic] sleep is usually good but due to the current home situation her sleep is not the best. Stated on one occasion his [sic] son grab her on right hand made a bruise. 'My left hand is still sore, look at the bruise'. I saw the bruise in her left arm. … [4:11 p.m.] Interview with Carer/Son - Son's concerns Son and granddaughter presented at Social Work department at 9am today to discuss with social worker concerns re patient's mental stability and her need for placement. Son advised that he called an ambulance last night because he could not calm his mother down and their GP advised to do so. He said his mother was on the veranda yelling and screaming. … Social worker questioned son about bruises on his mother's arm. Son and granddaughter stated that she bruises easily and they were from her repeatedly banging her arm on the veranda railing when she was distressed the previous night. Son stated that he will not have his mother back home and that he can no longer care for her. Son stated that patient needs a cognitive assessment and to be placed in care. … Patient Interview - Patient concerns Patient was interviewed in Emergency Department with patient consent. Patient advised that social worker had already spoken with son. Patient presented as lucid and clearly outlined events of the night before. Patient became distressed and anxious when she related events. Patient stated that the bruising on her arm was from her son grabbing and pulling her by her arm to take the phone from her hand. Patient stated she was trying to phone the police as she was afraid as they had been having an argument about the car. She stated as he grabbed the phone her granddaughter grabbed her mobile. She became more fearful and ran on to the veranda to call the neighbours for help. She stated her son then called the police and ambulance on the direction of her GP. Patient stated that her son has a very controlling personality and plays mind games with her. She states he and her granddaughter are verbally abusive. He [sic] stated that her son has refused to take her to see her dying sister, to go a friend's 90th birthday celebration, refuses to take her to church or to visit her husband's grave. She stated he will not give her her mail and takes mail from her friends. Patient stated that he has become more controlling over the last 6 months - after she asked to see a copy of her Will. Plaintiff stated that her son is worried she is going to change the will, of which he is the sole beneficiary. Plaintiff confirmed that her son is her enduring [power of attorney] and guardian. … Social Work Concerns/Intervention Patient does not appear to present with impaired cognition or capacity. Bruising on arm appears to be that of being grabbed."
Handwritten "Progress / Clinical Notes", which are also dated 4 July 2014, stated (with editorial corrections): "[4:00 p.m.] States relationship worsened when he asked for her Will, states son grabbed arm yesterday [leading to] bruised [left] arm, adopted son verbally abusive. States son has turned granddaughter against her as well. [7:10 p.m.] Patient does not want to press charges and does not want son to move out of house. Wants son to 'learn his lesson'. Nephew (Peter) and his wife present ‑ not aware of current situation. Have not noticed any cognitive issues. Keen for patient to sell the house and move into a retirement village with her sister (The Willows)."
The Notes also reveal, in relation to the deceased's mental state examination, that she was "alert and oriented"; that her attitude towards the examiner was "co-operative"; that her "behaviour and psychomotor activity" was "normal"; that both her speech and mood were "normal"; that her "affect" was "appropriate; and that: "This patient is oriented to time place and person. She is very bright with good long and short term memory. … Mrs Amos appears mentally in good condition with no signs of any mental health problems."
The Progress Notes of 5 July 2014 reveals: "[6:55 a.m.] Noted bruising to left arm and lower legs."
The Progress Notes of 7 July 2014 reveal (with minor editorial corrections): "[1:20 p.m.] Patient seen by social worker regarding family issues. Visited by Granddaughter who verbally abused her and then verbally abused a nurse then left the ward. Patient very distressed and has a good friend visiting at the moment. [2:45 p.m. - Social Worker Notes] Issues: 1. Patient's son continues to claim that GP supports patient's cognitive decline and irrational behaviours. Son also states that service provider Bridgette (Homecare) acknowledges patient's erratic behaviour at home. Son has refused to bring patient's personal belongings to hospital as he has no car to transport them and has declined patient's friends from picking them up at the house. Son states he will not give patient her mobile phone or other personal belongings as their GP has advised him against [to] do so. Patient's granddaughter was abusive to patient on the ward saying that she never wants to see or speak to patient again and that she was moving out of the home. She was also threatening to nursing staff upon leaving the ward. Immediately after granddaughter contacted social worker by phone saying she was upset and apologises for threatening nurses - states she did not want the police called. Granddaughter denied abusing patient. 2. Social Worker Contact with Service Provider Bridgette stated that patient has become more agitated at home over recent months. [Bridgette] stated that she believes that this is due to patient having no freedom in her own home and because her son reacts and yells at her. She stated patient is not difficult at home and managing ok. 3. Jennifer Byrne - friend - contacted by phone. Jennifer stated that patient's son has treated patient terribly for years. Jennifer has known patient for 30 years and sees her weekly. Jennifer confirmed son being emotionally abusive, controlling, refusing to take her out, and taking her mail. Jennifer has seen son losing his temper and has had patient on the phone, crying and shaking in fear. Jennifer has agreed to the appointment of an enduring POA/guardian. Social worker intervention: 1. Met with Team to discuss discharge plan. Agreed for family conference Tuesday 11am. Son has agreed to attend as long as patient not present as this is not good for his health."
A Report dated 7 July 2014, prepared by the Geriatric Registrar of Blacktown Hospital, states: "Upon assessment today she was able to score 92/100 on the Addenbrooke's Cognitive examination". This indicates that she is cognitively intact and has the capacity to make her own informed decisions."
(As I understand it, the Addenbrooke's Cognitive examination is a brief, but sensitive and specific, cognitive screening instrument, being an extension of the Mini-Mental State Examination, which attempts to address the neuropsychological omissions and improve the screening performance of the latter. It encompasses tests of five cognitive domains: attention/orientation, memory, language, verbal fluency, and visuospatial skills. It is scored out of 100, with a higher score denoting better cognitive function.)
In the Addenbrooke's Cognitive Examination document, completed by the deceased, at least in part, under the heading "Language" there is a notation "Ask the subject to write two (or more) complete sentences about his/her last holiday/weekend/Christmas". In the deceased's handwriting, the following appears: "My son who is my carer did not want to have anything to do with last Christmas. So my sister & her son & his wife took me up to the Blue Mountains for Christmas Dinner & we had a wonderful time. Praise my Lord."
The Progress Notes of 8 July 2014 reveal (with minor editorial corrections): "[12:05 p.m.] Family conference: Dr Cheuk … son John. Discussed circumstances around patient's admission: • Patient's son states she had an unwitnessed fall out on the virandah [sic] and that she was having a 'melt down', screaming for help. Denied physically harming. • Noted [increase] in difficult behaviour and suspects a mental … • Limits patient's visits for her own good given her frailty Explained that the collateral history from patient's family & friends do not support his claims GP has noted that patient has been [increasingly] agitated due to limitations placed on her by him. Recent MMSE was 29/30. Son keen for patient to go into placement & he wants to remain in the house. Explained that given patient is cognitively intact she can make her own decisions re [discharge] destination Options include (1) going into placement and/or selling her house (2) … home … services and son has to move out The final decision will be up to Mrs Amos. Her son states that he will challenge her decision with a solicitor if she decides to either sell the house/have him move out as it is his right to stay in the house. Son does NOT want to be contacted/involved in any decisions/medical progress … [12:40 p.m.] Social worker attended [family conference] as per Treating Team entry. Dr Cheuk outlined reason for admission and concern for patient wellbeing if she returns home. Dr Cheuk also advised son that patient was advised she had the right to take legal action re accusations of son's treatment of her, i.e. bruising on arm. Son advised there are nil medical issues and nil mental health issues: Son also advised patient has been assessed as having nil cognitive issues and therefore is fully competent to make her own decisions. Son stated that he would not have his mother back in the house, never wanted to see her again and did not want to be contacted about what happened to her from here. Son denied all patient's concerns regarding her care at home. Social worker outlined how Treating Team had come to this decision … Son stated that none of this is true and patient has everyone fooled. … Son stated that he will not be moving out of the house and will take his mother to court if she tries to sell the house or change the will. Son advised that is his right to follow through but that in the meantime discharge will be planned as follows: (1) Patient to decide where she wants to live - at home or in a supported aged care environment. (2) Patient to decide in this process if she will sell the home or leave son living there. (3) Treating Team and social worker to progress discharge in accordance with patient's wishes. Post [Family Conference]: Social worker was contacted by patient's granddaughter wanting to know outcome of [family conference]. Granddaughter advised as per above. Granddaughter stated she is very worried about her father as he has diabetes, a heart condition and has bi-polar disorder. Social worker questioned is she concerned that her father will harm himself. She stated yes as he had nowhere to go if house is sold. Granddaughter advised to contact GP or MHT [Mental Health Team] if she has concerns for her father's safety. Granddaughter wanted to know what her grandmother's plans were re selling house and would her father get any money. Social worker stated that this was unknown as patient had yet to plan her discharge. … GP, Dr Cheung stated that he feels things escalated in family home since granddaughter arrived to live with them. GP stated that patient feels granddaughter and son are ganging up on her. GP confirmed 29/30 for MMSE. GP advised son had said to him that his mother needed to be kept in hospital and he could not look after her in his home? GP stated that he pulled son up on referring to the home as his and told son that patient would have to explore LL care in an ACF or son & granddaughter to move out and patient get a fulltime carer to live in with her. … [7:15 p.m.] Patient's granddaughter was seen talking to patient aggressively. Granddaughter has left the room crying with an older male. … [7:44 p.m.] Received call from son - 'John Amos' … • Had been contacted by son (Nancy's grandson Robin) that accusation of 'abuse' was made to him by member of staff: Regarding an arm. John was very 'disappointed' and felt his mother (Nancy) was 'manipulative'. Mr Amos proceeded to become verbally aggressive and distraught. … [9:00 p.m.] When patient's family visited patient at 1915 hours, no nursing staff approached family. But from a distance nursing staff observed that patient's granddaughter was abusive towards patient. Granddaughter was angry, shouting [in a] commanding manner. DR after hours was notified about granddaughter's behaviour. NO member of staff has approached family yet. DR after hours advised to call security if situation changes. DR has advised to tell granddaughter to leave if not call security. By this time granddaughter has left ward crying.
The Progress Notes on 10 July 2014 reveal (with minor editorial corrections): "[1:00 p.m.] Patient has had the police involved & has made a statement Remains anxious about her current situation … [5:05 p.m.] Ongoing social worker intervention Notes written in retrospect from today. Social worker contacted DVLO at Blacktown Police this morning as per patient's request on 9/7/14. DVLO unavailable on 9/7/14. Social worker also consulted with Elder Abuse Hotline re process and protocol. Social worker advised to contact DVLO at Blacktown Police. Report made to DVLO, Janelle Wearne this morning. Social worker advised that police would come to hospital to follow up today. … Police arrive within the hour - before lunch. Police took patient's statement and advised that Police would be taking out an AVO on patient's son John Amos and granddaughter Brydie Amos. Neither are to approach patient. AVO would also include an exclusion order i.e. that neither party are able to reside at patient's address. Social worker was present for statement taking. DVLO at Blacktown also requested that if patient consented that the Forensic Medical Unit be contacted to conduct an assessment in case issue goes to court. Patient consented to Forensic Medicine being contacted. Social worker left message on forensic medical unit voicemail referring patient - after discussion with Treating Team RMO. Forensic Medical Unit arrived after lunch. Patient interviewed re alleged assault. Social worker did not remain for interview."
A Forensic Medical Unit Domestic Violence ProForma (diagrams), completed on 10 July 2014, reveal several bruises on the left arm and both wrists of the deceased.
The Aged Care Client Record dated 10 July 2014 reveals that the deceased suffered from pain, polymyalgia rheumatica, osteoporosis with multiple pathological fractures, hypothyroidism, anxiety, recurrent cellulitis, non-specific skin eruptions to left heel, constipation, gastro-oesophageal reflux, macular degeneration and urinary incontinence. She was also noted as having "anxiety, sadness & sleep [disruption] from stressful relationship with close family" and to be "physically limited by pain & poor standing balance & endurance" with "functional ability limited by lower limb weakness, generalised pain, shortness of breath on exertion, fatigue" and that she was "prone to bone fractures". She was also noted as having "poor hearing in left ear", and "decreased peripheral vision & some difficulty with vision from right eye".
The Record also stated that: "She received assistance from HAAC services 3 days per week with personal care and one day per fortnight with domestic care. She attended shopping with her son weekly. Her son attended to meal preparation, laundry and home maintenance."
The Progress Notes of 11 July 2014 reveal: "[4:30 p.m.] Patient seen on the ward re follow up to week's events. Patient advised son has taken her Medicare and pension card. Police Assistance Line contacted by patient. Event number provided for re-issue of cards. … Legal Issues 1. AVO has been issued to son. 2. No AVO to granddaughter but she has been warned. 3. Friend Jennifer Byrne is now enduring POA/guardian. Paperwork to be provided. 4. Patient's home is secure - locks have been changed and son has an exclusion order not to reside there."
There is a "Note" dated 11 July 2014 in the Progress Notes in the following terms: "Son John Amos is not to approach or contact patient. Patient has an AVO on son due to episode of Elder Abuse. Granddaughter Brydie Amos is also not to approach or contact patient. Please call security if there are issues."
The Hospital records reveal that the deceased was discharged from Blacktown Hospital on 14 July 2014. She was transferred to Donington Court Flinders Village, at Castle Hill.

The Plaintiff's financial resources and needs

Because there was no dispute about it, I shall next deal with the financial resources of the Plaintiff. I should point out that no affidavit was filed on his behalf before the hearing in accordance with Paragraph 17 of Practice Note SC Eq 7, and a direction made by the Court, when the matter was set down for hearing, regarding compliance with that Paragraph of the Practice Note was not complied with.
Needless to say, a Plaintiff (and any beneficiary who advances a competing financial claim), should state, in detail, his, or her, financial resources and needs in accordance with the Practice Note and in accordance with the directions of the Court so that the Court is aware of his, or her, current financial resources at the date of hearing.
Perhaps, because Robin, who was advancing his financial resources and needs as a competing claimant upon the bounty of the deceased, also, had not complied with the Practice Note in this regard, the parties accepted that, to the extent there was no updating affidavit of financial resources (and needs), the affidavit sworn by the relevant deponent which set out his respective financial resources and needs, should be regarded as his financial resources (and needs) at the date of the hearing: T48.14 - T48.25.
The Plaintiff deposed to be in receipt of about $900 per fortnight, by way of disability support pension. He stated that "about $400 per fortnight is taken for accommodation". In fact, the copy of the Retirement Village Contract (Ex. PC) tendered at the hearing, revealed that the "recurrent charges" that he must pay to occupy the premises, described by him as a "bedsit", where he lives in the Cardinal Gilroy Village, Merrylands, are a "single occupancy base fee of $174.80 per fortnight" and that the "Additional Fee" that he is required to pay is $150 per fortnight, making a total fortnightly expense for accommodation of about $325 per fortnight. Exhibit PC also revealed that the Retirement Village Contract had been entered into in September 2014.
The Plaintiff accepted that he had been living there for a little less than 4 years. He does so under licence, which permits him to occupy his residential unit, the common areas, and the communal services, of the retirement village. (Indeed, there is even permission given to "park one motor vehicle in each Car Space included with the Premises": Clause 20.)
The Plaintiff does not co-habit with any other person.
The Plaintiff stated that he has no assets; that he has some clothing and personal effects, of little value; and that he has "no financial resources at all". (He also referred to the items referred to earlier that he said had been lost to him at the time he vacated the Kings Langley property.)
The Plaintiff said that he has Type 1 diabetes and heart disease. He suffers from depression. He says he needs "to be within 20 minutes travel of a major hospital". He takes about 22 tablets of prescribed medication per day and injects insulin four times per day. He also stated that he has no feeling from the knee down and wears special shoes. He may have to have his leg (or foot) amputated. He does not have the use of two fingers on his left hand, and he suffers pain in his fingers.
The Plaintiff was diagnosed with atrial fibrillation in September 2017 and had surgery for the insertion of two stents. He also had a "mild heart attack" in November 2017.
The Plaintiff tendered a report dated 25 June 2018, from his current general medical practitioner (Ex. PA), that confirmed that the Plaintiff has been recently admitted to Westmead Hospital and that he has been diagnosed with "Atrial fibrillation"; that he "has lost the vision in his [left] eye due to diabetes and its complications" and that he is under the care of a Consultant Opthalmologist; that in April 2018, he was diagnosed with "Moderate, Acute Right Sciatica"; and that he has been started "on medication to manage his stress and anxiety". In addition, it identified his current medication.
In his last affidavit, the Plaintiff stated that the costs of his medical expenses are about $170 per month and that these expenses are likely to increase.
I am satisfied that, at the age of 68, and bearing in mind his medical condition, that the Plaintiff does not have an earning capacity.
As to his needs, the Plaintiff said that he requires accommodation and that he would like to purchase a house in the Hunter Valley "as my daughter Brydie lives at Kurri Kurri". He said he had looked at a number of homes for sale in the Maitland area and that there are many within the price range of $350,000 to $400,000. The copy of the two advertisements for the sale of homes that he provided (without disclosing whether he had inspected either), were of properties with two bedrooms, one bathroom and a car space. One of them had a sale price of $395,000 whilst the other was described within the range of $348,000 to $378,000. The latter property, which was a townhouse, was described as being "located in a gated estate". (This information was included in his first affidavit that was affirmed about 12 months prior to the hearing.)
He also stated that he would like to buy a car ($7,000), even though he has not had a driver licence since mid-2016; that he would need furniture and a piano ($10,000); and that he "would like to go back to University and do my PhD. I expect that this would cost me in the vicinity of $15,000 per year for three years". (There was no evidence that he had completed a Master's degree or that he would otherwise qualify for acceptance. Nor was there any evidence of any steps taken by him to enable a finding that pursuit of post-graduate work could soon occur.)
The Defendants disputed that the Plaintiff had the needs to which he referred. In relation to the asserted need for accommodation, I accept the submission made by senior counsel, that, so long as the Plaintiff complies with the terms of the Retirement Village Contract, he is secure in his current accommodation for as long as he wishes to remain living there: see, Clause 11 of the Retirement Village Contract.

Credit of the Witnesses

It is apparent that some of the underlying issues turn, at least in part, on questions of credit. Somewhat surprisingly, following all of the evidence having been given, there was not really much left in issue between the parties.
The Plaintiff was a somewhat unimpressive witness. I do not suggest that he was intentionally misleading the Court, but it is clear that he was greatly upset by the events, particularly those events that followed the death of his father, involving the deceased, and that in about 2014, he was also struggling with his own debilitating health issues.
Furthermore, it is clear that he felt aggrieved by what he perceived as the deceased's lack of gratitude for all that he had done, not only for her, but also for Maurice. In explaining his conduct, after the event of 3 July 2014, he stated that he felt that the deceased, and other members of the family, had not recognised how unwell he was, and that she, and they, offered him no support when it became clear that he was having difficulty looking after the deceased and also himself. Whilst giving his evidence, his sense of grievance was palpable. In my view, this sense of grievance affected the manner of giving his evidence, and, indeed, in respect of some parts thereof, affected the accuracy of that evidence.
The following passages of his evidence, in cross-examination, at T106.33 - T106.44, at T107.07 - T107.18, and at T108.35 - T108.42, provide ample support for the conclusion stated above: "Q. You agree with the proposition that by the time of your mother's death you had told people you didn't want anything to do with her? A. That is true, because the way that I had been treated. I was a very ill man in hospital, I was under very heavy medication, I was about to lose a foot, if not a leg. I was not told, nobody of that side of the family come to find out what was wrong with me. The only person who ever came near me, believe it or not, was my ex-wife and the daughter that was living at Anderson Road. Q. None of that was your mother's fault, was it? A. I'm not saying that. What I'm saying is nobody came to see or talk to me about the situation what was happening. All they did, they did everything behind my back. … Q. But over the last, since July 2014, now three years away, you haven't recanted on any of these positions, have you? A. Well how would you feel if you, if you-- Q. Please just answer the-- A. I will answer. I'll answer the question. How would you feel if you'd looked after nine years, two parents, gave up an early retirement. I had a gentleman with dementia who went to the nursing home and mother begged to bring him home again. I had to survive in a house that had to be locked continually so he didn't escape. And then when he passed away things started to change a little bit with Nancy, and nobody, nobody came to me to ask if I was okay or was I surviving. … Q. Yes. You didn't go back to her and say, 'It's good to hear from you, can I bring you up to date on my circumstances?' A. No, because as I just explained to the judge, I was still very hurt and very upset. You've got no idea what it takes to look after a mental patient. You've got no idea what it takes to look after a woman in her 80s who some days has very special days and other days are very difficult. And for me to lay in a bed myself and not be told of what's going on or what is happening, I find that, I just find that inconceivable."
It is clear that some of his evidence on the topic of his conduct between 3 July 2014 and the date of the deceased's death over two years later was inconsistent with other objective evidence. Importantly, he stated that after the event of 3 July 2014, the deceased did not "show any signs that she wanted any love from us" (the Plaintiff referring to himself and Brydie).
Inconsistently, with this evidence, the Plaintiff tendered a Christmas card, sent to him by the deceased, in 2015, in which she expressed loving sentiments towards him: Ex. PB. Its contents suggested recollection of the Plaintiff as a young child in very fond terms. The card concluded: "Lots of love from your Mother".
When it was put to him that the Christmas card was "quite a decent and affectionate card" he responded "No, it absolutely alarmed me…because she knew what I had gone through in hospital, she knew that I was about to lose my foot, she knew all the complications I had, she knew that I was made homeless out of the situation…I was discharged from hospital as nowhere to go": T80.20 - T80.42.
In addition, the Plaintiff accepted that the deceased had caused a cheque for $20,000 to be sent to him after the events in July 2014, which amount he maintained that he had used to pay medical expenses. He accepted that he had not acknowledged receipt of the cheque in any way. Indeed, when this was raised with him by the Court, he responded at T109.00 - T109.10: "Q. Well, didn't someone send you a cheque for $20,000 from her? A. Yes, and that all went on medication. Q. But be that as it may, you received a cheque for $20,000 from your mother after the property was sold? A. But then I lost property of my own worth a couple of hundred thousand dollars. Q. What property was that? A. It was the piano, the car, a certain amount of my livery is still missing."
(There was no evidence, and it had not been suggested, at any time, before this evidence was given, that the value of the property said to be missing was anything like "a couple of hundred thousand dollars" or that it was his property.)
Later, when the topic was raised again by the Court, the Plaintiff gave the following evidence at T114.08 - T115.08: "Q. … the next event was you received a cheque for $20,000 at the end of 2014. A. About August. Q. August was it? A. Mm-hmm. Q. In any event, you didn't do anything after that either. I'm just wondering why you didn't? A. Because I have been told before the cheque arrived that somebody had seen me and had mentioned to Nancy what my condition was. Apparently she didn't really fully understand. Q. But she sent you a cheque for $20,000. A. Yes and it all went on medical. Q. Well what it went on is beside the point at the moment. I'm really trying to inquire of you why having received a cheque for $20,000 you didn't consider that it was worthwhile responding even to say, 'Thank you for the cheque.' A. I was just shocked, sorry, I was still very ill, I was still under very heavy medication. Q. So having received the cheque you were shocked at its receipt? A. Mm. Q. That's why you didn't respond for nearly two years to even say thank you to her for receipt of the cheque? A. That's right. Q. Then as I understand it, the next thing was the card that you've produced which again as Mr Ellison put to you was in loving terms, you didn't respond to that either. A. No, because I was so shocked because she used the word 'love' towards me and she knew how much I cared for Maurice and she knew how much I cared for her and yet there was no - tried to make any contact with me whatsoever. Q. But hadn't she sent you a cheque for $20,000 and written you a card? A. But I don't class that as trying to make a contact. I, I see that trying to sort of appease things that had happened. Q. Well whether it was - isn't that trying to make contact, appeasing things that had happened? A. Well I didn't see it that way at the time, and the medication was very heavy I was on. Q. Then you received the card and you didn't make contact-- A. No. Q. --after that at any time? A. No."
Even if he was shocked and heavily medicated, as he alleged, his failure to acknowledge receipt of the cheque of a not insignificant amount, and to thank the deceased for it, or to acknowledge receipt of the Christmas card, does him no credit. His conduct is consistent with recorded statements, expressed to the Hospital staff, namely, that he "never wanted to see her again and did not want to be contacted about what happens to her from here": Ex.D2/91. In this regard, I am of the view that his statements to the effect that the deceased did not show signs of love towards him cannot be accepted.
His failure to attend the deceased's funeral is also consistent with the sentiments that he expressed to others, of not wanting to have anything further to do with members of his family (other than Brydie).
I do not accept the Plaintiff's evidence that the deceased did not make any attempts to resurrect their relationship after the events of 3 July 2014. Nor do I accept the reasons why he did not take any steps to resurrect the relationship with her, namely that he was shocked, or under the influence of medication. Even if he were, that would not have made attempt at reconciliation impossible.
I am satisfied that, despite the two attempts made by her, the Plaintiff made a conscious choice to not make contact with the deceased.
Another part of the Plaintiff's evidence that I find to be inconsistent with the objective evidence, relates to his failure to take the deceased's personal effects to her after she was taken to hospital. It is inconceivable that he did not have the ability to drop off a bag of personal effects to the deceased, particularly when he was at the Hospital on 4 July 2014, having been driven there by a friend (T99.41 - T99.49). He chose to leave the bag at the front door of the Kings Langley Property until days later, when Brydie took it to the Hospital. I do not accept his evidence on this topic, where it conflicts with the evidence of Mr Hogg.
Another part of his evidence that I do not accept relates to a text message sent on 17 July 2014, identified in Ex. D3, to Mr Hogg, which message was in the following terms: "Trust you & Lyn are happy that I'm now one of Sydneys [sic] homeless man [sic] !!! All that I did for your mum ! Hoggs are never to contact me again ! Trust you both are enjoying the thout [sic] of me on the street s of [S]ydney !"
In his affidavit, he explicitly denied having sent the text message, adding "On 17 July 2014, I had no personal possessions with me. I did not have a mobile telephone or telephone charger with me as it was left [at the Kings Langley property]".
In cross-examination, he recanted the denial, saying that "I have no recollection" (T59.08 - T59.11); then that "I really can't say because of my, my medical state at the time" (T60.30 - T60.32); and then, when it was put that it was "the very message transmitted by you to Peter Hogg on 17 July at 8.05 a.m.", he responded "Well, well, it could be.": T60.47 - T60.49.
Yet, I do accept the Plaintiff's evidence that he made a significant contribution to the conservation of the Kings Langley property, particularly whist Maurice was alive, and to the welfare of the deceased and Maurice. However, in relation to him being their carer, it is to be remembered that he received a carer's allowance.
Whilst it is difficult to conclude that the Plaintiff did not contribute financially to the household, as alleged by the deceased, the Plaintiff's evidence regarding his payment of board (in the affidavit said to be $200 per week, but in his oral evidence, $120 a week, whilst Maurice was alive, and then $100 to the deceased), is somewhat inconsistent: T110.01 - T110.33.
Even if he did pay board of $100 per week to the deceased, it was far less than what he would have had to pay to rent premises (if what he currently pays is used as a guide). He lived in the Kings Langley property for nearly 11 years.
Brydie affirmed an affidavit read in the Plaintiff's case. I considered that she was endeavouring to tell the truth when cross-examined. Yet, in her affidavit, she was extremely vague about what had occurred on the evening of 3 July 2014, which had led to the deceased being admitted to Blacktown Hospital.
However, her failure to recollect the details may be explained by the high level of emotion that existed at the time, as well as the time that has passed since the event.
Yet there is one aspect of her evidence that I do not accept, namely, her denial that there was only one attendance by her at the Blacktown Hospital when she had harsh words with the deceased and with members of the Hospital staff. In this regard, I refer to the Hospital records referred to above, in which the events said to have occurred on 7 July 2014 and on 8 July 2014, involving Brydie were stated.
I accept Mr Hogg's evidence that he had only one attendance at Blacktown Hospital, during which he had a conversation with Brydie, and that this had occurred, not in the afternoon, but in the evening, after he had finished work, had gone home and then had gone to the Hospital: T139.05 - T139.36.
In relation to the dispute about what had occurred, which resulted in the deceased being taken to Blacktown Hospital on 3 July 2014, I remember that in making a finding of serious misconduct against the Plaintiff (and also Brydie), the Court is obliged to take into account the gravity of the allegations made against him (and her): s 140(2)(c) of the Evidence Act 1995 (NSW).
Section 140(2)(c) is generally regarded as giving effect to the principles stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. His Honour rejected, at 361, the suggestion that the common law developed a third standard of persuasion, other than proof on the balance of probabilities and proof beyond reasonable doubt. His Honour went on to say (at 362) that in a civil case: "... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
In this case, the allegation made against the Plaintiff is not limited to the finding that he caused the bruising found on the deceased by grabbing her arm, but also that he has lied to the Court about having done so. In relation to Brydie, the allegation that she, also, has lied to the Court.
I also remember that where evidence cannot be tested by cross-examination, as the deceased's statements cannot be, it may be treated with reserve. That is especially so in a case in which it is contradicted by other evidence and where the party against whom it is adduced has been unable to test it by cross-examination: State of New South Wales v Thomlinson [2018] NSWCA 151, at [35].
Having considered all of the evidence, I am unable to be satisfied that the Plaintiff intentionally caused the bruising to the deceased by grabbing her arm. Nor am I satisfied that he has lied to the Court about the events that occurred by denying the event that occurred. Whilst an actual finding of a battery would not assist the Plaintiff's case for a family provision order, it is to be noted that there was no suggestion of any other conflict between them that resulted in physical injury to the deceased.
I next turn to the evidence of Peter Hogg. I am satisfied that he was a truthful and reliable witness who gave his evidence clearly and honestly. In particular, I have no hesitation in accepting the following facts about which he gave evidence: 1. He had a close and loving relationship with the deceased; 2. After the Plaintiff moved into the Kings Langley property with the deceased and Maurice, Mr Hogg and his family, would go and visit, particularly for family celebrations, including Christmas and birthdays. Initially, the Plaintiff would engage, but as time passed, there would be occasions when he would stay in his room during the whole of their visit. 3. The Plaintiff said to him in 2012, "She [the deceased] is living too long." However, the Plaintiff also reported that the deceased was suffering: T151.37 - T152.07. This did not mean that he had taken what the Plaintiff said "out of context": T153.06 - T153.10. 4. Sometime during 2013, the deceased telephoned him and asked him to come over "as John has been drinking. I am scared. He has been abusive to me." When Mr Hogg arrived, the Plaintiff was in his room and would not talk to Mr Hogg, who repeatedly called out to the Plaintiff from outside to get his attention. 5. On 30 August 2014, Mr Hogg sent a text message to the Plaintiff informing him that his mother (the deceased's sister) had died. The substance of the text message forms part of Ex. D3. No response was received to the text message from the Plaintiff. 6. In cross-examination, he accepted that the Plaintiff "undertook the tasks at the Anderson Road property", and that "he tended the garden and mowed the lawns": T145.25 - T145.30. 7. He did not personally observe any conduct on the part of the Plaintiff in interacting with the deceased and Maurice that caused Mr Hogg concern: T148.03 - T148.08. However, when he raised a concern about issues that the deceased had raised with him or that Mr Hogg's mother had raised, the Plaintiff would "disregard them and tell me it was all [the deceased]": T148.21 - T148.26. 8. Mr Hogg's wife, Lynnette, assisted the deceased in finding accommodation at The Willows Retirement Village. It was Lynnette who chose the unit in which the deceased was to live. 9. After moving into The Willows, the deceased settled in well and "became a new person, who loved the company of the other ladies there, she could have her friends visit, she was jovial, happy and smiling". Lynnette would take her shopping once a week, Jennifer Byrne would visit the deceased after work, and would often have lunch with her on Sunday. 10. When the deceased died, Mr Hogg telephoned the Plaintiff to inform him. When the Plaintiff returned the call and was informed of the deceased's death, he responded "She was not my mother, I can't help you." He then hung up. 11. Under cover of a letter dated 12 September 2016, following a telephone call from the Plaintiff on that day, Ms Younes provided the Plaintiff with a copy of the deceased's last Will and referred to her 2014 Will. In this letter, the Plaintiff was made aware of the funeral arrangements but did not attend the funeral. 12. Brydie did not attend the funeral either. However, Robin and Felicity were there.
I shall next deal with the evidence of the witnesses in the proceedings whose affidavits were relied upon by the Defendants. As stated, Judith and Felicity did not give evidence in the proceedings. Only Ms Younes, Mr Hogg and Robin were cross-examined.
I have no doubt that I should accept the evidence of Ms Younes. The two affidavits which were served that were sworn by her went to formal matters (the value of the estate and costs). Whilst she was cross-examined as to the events that occurred involving her, as the author of the 2014 Will and the final Will of the deceased, it was not suggested that her evidence on the topics should not be accepted.
I have included some of the evidence of Ms Younes as to how she became involved with the deceased and how the deceased's two Wills and the 2014 testamentary document were created. I have also referred to the handwritten document of 2016 having been simply handed to her by the deceased and retained by her in the Will Deed Packet: T136.17 - T136.21.
She also confirmed that it was the deceased who raised having given $20,000 to the Plaintiff from the proceeds of sale of the Kings Langley property and that "she realised that John was living in her home, she realised her home would need to be sold to pay the ingoing contribution to the nursing home and she wasn't going to return home on her own, and she wanted to pay $20,000 to give to John to help him rehouse himself": T136.47 - T 137.10.
Ms Younes also gave evidence of having had several telephone discussions with the deceased after the preparation of the 2014 Will. She also gave evidence of her conference with the deceased concerning the 2016 Will, but the subject of these conversations is not relevant.
I should also mention that Ms Younes gave evidence that the deceased had been brought to her office by Ms Jennifer Byrne and that Ms Byrne waited in the reception area whilst Ms Younes conferred with the deceased: T134.47 - T134.49. Apart from being introduced and some pleasantries, she did not have any conversation with Ms Byrne: T135.03 - T135.05.
Ms Younes also stated that the only occasion when she met Mr Hogg was when he accepted appointment as the deceased's Attorney, under a Power of Attorney, the exact date of which Ms Younes could not recall: T136.01 - T136.07.
Finally, in answer to questions from the Bench, Ms Younes confirmed that she had provided a copy of the 2014 Statement and a copy of the 2014 Will to the deceased on 28 July 2014 and that she had not asked the deceased, subsequently, to prepare the handwritten document that was provided at the time of taking instructions for the 2016 Will.
Robin gave evidence about his financial resources and needs as follows: "4. I completed Year 12 at Model Farm High School in Winston Hills in 2005. In 2007 I completed Certificate 2 in Agriculture at Inverell Tafe. The course was for a period of one year. After this I obtained employment at Farmers Warehouse in Rutherford in 2008 on a fulltime basis as a storeman. I am now a Merchandise Manager at Farmers Warehouse and have recently worked my way up to an average wage of $1090 each week. I work Monday to Friday each week and every second week I also work on Saturdays. … 38. I purchased a property jointly with Michael Irvine's daughter [Kimberley Irvine] in August, 2015 for $449,000.00. We purchased this property so that we didn't have to move from rental properties all the time. We live in this property with Michael Irvine and his wife Wendy Irvine, Kimberley their daughter, Christopher their son and myself. We borrowed $426,000.00 to purchase the property. 39. The home is a 4 bedroom home. 40. I own a one-half share of the property which is worth about $220,000.00. I still owe on my half share of the loan $200,000.00. 41. I have a 2005 FPV Super Pursuit worth approximately $22,000. 42. I have a personal loan of which I still owe $32,000.00 with St. George Bank. 43. I have accumulated Superannuation worth $40,000 with ANZ 44. I have a credit card debt with St. George Bank with $3,000.00 outstanding. 45. I have income weekly of $1090 per week. I pay $281.00 each week off the mortgage. 46. I have to pay the personal loan repayments of $218.00 each week. I also pay ¼ of all household bills for the house and my share of the groceries. I have no other assets."
He was cross-examined, albeit briefly, but only in relation to whether he was in a personal relationship with the co-owner of the real estate that had been purchased, Ms Kimberley Irvine. He denied that he was in a personal relationship with her: T169.20 - T169.44.
He also gave other evidence about which he was not cross-examined, and which I accept. His evidence included: 1. He moved with the Plaintiff into the Kings Langley property with the deceased and Maurice, in mid-2003; 2. Initially, his grandparents were in reasonably good health; 3. He recalls there being "lots of raised voices and shouting between my father and my grandparents"; 4. The Plaintiff said to him things like "I wish they would die so I can sell this place and buy a pub or post office. I want to live in a country town"; 5. He would speak to his grandparents each week when he was not living with them. The deceased would express concern that the Plaintiff was listening to the telephone conversations; 6. The deceased, in July 2014, whilst she was in Blacktown Hospital, said to Robin that she would need to sell the Kings Langley property "and go into a nursing home". He said that he would support her in any way that he could. He also said that he would speak with the Plaintiff to discuss what he wanted to do with his possessions, which were at the Kings Langley property. 7. Robin gave the following account of his conversation with the Plaintiff: "…I called John and said: 'Nan cannot come home. She needs to sell the house to go into a nursing home.' John said: 'You can't fucking sell my house. I have nowhere to live I am in a shelter' I said: 'you don't have a choice in the matter. What would you like me to do with your possessions?' I then said: 'I can pay the bond for a rental property for you.' John then said: 'you are an arsehole. Don't touch anything in that house it is mine. Don't contact me every [sic] again.' John then proceeded to hang up on me…" 1. Robin telephoned the Plaintiff about his possessions but the Plaintiff said to him that he should not touch anything in the Kings Langley property and that Robin should not contact him ever again. 2. After he conveyed the terms of the conversation to the deceased, she agreed that a storage unit should be obtained and that she would pay the costs of its hire, so that the Plaintiff's possessions could be removed from the Kings Langley property. This was done, and in about December 2014, the Plaintiff appears to have taken his own property (or, at least, most of his own property) from the storage unit. 3. Robin spent some time clearing the Kings Langley property (about 2 weeks of his annual leave and another week) before its sale. There was also lots of rubbish that had to be removed. He stated that after various unsuccessful attempts made to sell the piano, it was sold at a garage sale "for little money". He confirmed, also, that most of the furniture in the house was old and of no value.
Ms Byrne gave evidence, also, and was not cross-examined. Her evidence, which I accept, included: 1. She had known the deceased for about 30 years and they were close friends. They were neighbours between 1985 and 1995, when they lived at Kings Langley. Even after she moved, she would see the deceased weekly, usually on a Sunday. 2. Ms Byrne would take the deceased to visit Mr Hogg's mother (the deceased's sister) when Mr Hogg's mother was a resident at The Willows. (Regrettably, her sister died shortly after the deceased moved into The Willows.) 3. It was Ms Byrne who purchased some toiletries and underwear for the deceased whilst she was in Blacktown Hospital, and before she was able to obtain her own personal items from the Kings Langley property, which Brydie brought for her, a few days after her admission. 4. On the day after her admission to Hospital, the deceased told Ms Byrne that she had given a statement to the Police; that she had said that she did not want the Plaintiff to be arrested; and that she did not "feel safe in my home with him anymore". 5. The deceased told Ms Byrne that the social worker had given her a telephone number for a solicitor to come and visit her in Hospital. 6. After the deceased was discharged from the Hospital, she asked Ms Byrne to take her to see the solicitor. Ms Byrne confirmed the evidence given by Ms Younes that whilst the deceased and Ms Younes conferred, she sat outside in the reception area. She also said that she did not discuss the Will with the deceased. 7. Ms Byrne did not play an active role in clearing the Kings Langley property. 8. After the deceased became a resident at The Willows, Ms Byrne continued to visit her regularly. She confirmed the evidence that the deceased fitted in remarkably well whilst there and seemed to be "bright, happy and enjoying life" when she became a resident there.
Mrs Lynnette Hogg, the wife of Peter Hogg also gave evidence by affidavit, upon which she was not cross-examined, which evidence I also accept. The evidence included: 1. She had known the deceased and Maurice from about 1972. She and Peter Hogg married in 1974. 2. The deceased told Mrs Hogg that she and Maurice had not asked the Plaintiff to come and live with them. 3. The deceased and Maurice had assistance with home care, with showering and with the cleaning of bathroom and living areas. The cleaners were not permitted into the Plaintiff's room in the Kings Langley home. 4. The Plaintiff, she and Mr Hogg, and sometimes, Ms Byrne, would take the deceased to visit her sister at The Willows. 5. The deceased and Mrs Hogg had a conversation following Maurice's death in which she said that she wanted to sell the Kings Langley property, and from the proceeds of sale, to buy a serviced apartment. She said that she offered to buy the Plaintiff a self-care unit in The Willows. She also said that "John will have none of that". 6. She, too, repeated statements made to her by the Plaintiff, referring to the deceased (and her sister) that "they're living too long." 7. Mrs Hogg was present, with her husband, on the occasion when Brydie became upset and started raising her voice to the deceased. Brydie said to the deceased "You're killing my father". 8. After the deceased moved into The Willows, she described the Plaintiff to Mrs Hogg as "very controlling". The deceased also said that she felt that she could talk freely on the phone with friends without the Plaintiff eavesdropping on the conversations. Mrs Hogg observed that the deceased liked living at The Willows very much. 9. It was Mrs Hogg who took the deceased shopping and to doctor's appointments after she moved to The Willows. 10. For the time that she knew the Plaintiff, he had never purchased a home.
An affidavit was sworn by Ms Mary Burns, and was read in the Defendant's case. She, too, was not cross-examined. I accept her evidence, which included the following: 1. Ms Burns, who is a hairdresser, would do the deceased's hair, at different times, for over 30 years. After Maurice became unwell, she would attend to the deceased at the Kings Langley property. For the 8 years prior to the deceased moving from the Kings Langley property, she would attend at the home twice a week. 2. On an occasion when Ms Burns attended with her two grandchildren, she had a disagreement with the Plaintiff who told her to get her grandchildren "out of here". Following this, she told the deceased that she could not come back, but the deceased pleaded with her to come back, saying "Don't not come back because of John". 3. She provided examples of what the deceased described to her as the Plaintiff's "controlling conduct". She, too, repeated that he had refused to take the deceased to visit Maurice. 4. On one occasion, not long before the deceased was admitted to Hospital, the Plaintiff said to her "If I had known she was going to last this long, I would have changed the Will when I had a chance". 5. Ms Burns attended at the Kings Langley property on 4 July 2014 and the Plaintiff told her "Please don't tell anyone. Nancy lost it last night and I have had her admitted to the Psychiatric Ward at Blacktown Hospital." Following this conversation, Ms Burns visited the deceased at the Hospital. 6. The deceased told Ms Burns that she had given the Plaintiff money "so that he can find somewhere to live and relocate". 7. Ms Burns described the deceased as appearing much happier after she moved to "The Willows".
Finally, Ms Patricia Anne Quayle, who was another friend of the deceased, swore an affidavit read in the Defendant's case. She, too, was not cross-examined. She gave evidence, which I accept, that included: 1. She knew the deceased and her husband through her association with the Church at which they attended in Parramatta. 2. The deceased suggested to her that the Plaintiff had first moved into the Kings Langley property because his marriage had broken down and because he had nowhere else to live. 3. The deceased complained to her that the Plaintiff had refused to take her to see Maurice after he was hospitalised. When she arrived to collect the deceased, the Plaintiff told her to leave. However, he then agreed to take the deceased on this occasion to visit Maurice. 4. The deceased described the Plaintiff to her as "so controlling" and complained that he had said she had "mental issues". The deceased also said that she felt "trapped in my own home". 5. The deceased said to her "I don't like what he has done to me, but he's still my son, and I still love him".

The Relationship of the Plaintiff and the deceased

It is clear that the Plaintiff lived in the Kings Langley property for about 10 years prior to the event of July 2014.
Of course, during the whole of the period that he lived in the Kings Langley property, and whilst he was the carer for both of his parents, the Plaintiff received a carer's pension (T109.37 - T109.49); he paid only "a small amount of rent", although he "did the lawns and the maintenance" (T110.00 - T110.06).
Because a considerable amount of time was spent on this issue, and because the principal submission made on behalf of the Defendant was that the relationship of the Plaintiff and the deceased was such that he should be regarded as having been "estranged" from the deceased and, as a result, should not receive any further provision out of the deceased's estate, I shall deal with this issue next.
The relationship of the Plaintiff, and others, particularly Robin, with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of "the character and conduct of the applicant" and "the conduct of any other person". Also, although the reference to conduct does not expressly refer to the conduct of the deceased, "that must be a relevant factor in assessing the relationship of the deceased and any other person": Poletti v Jones, per Basten JA, at [25].
An evaluation of "character and conduct" may be necessary, not for the sake of criticism, but to enable consideration of what is "adequate and proper" in all the circumstances.
In Price v Roberts [1992] NSWCA 191, Clarke JA wrote, at 5 - 6: "The words 'character or conduct' are used in apposition; both are related to the purpose of the Act. 'Character' would enable the court to have regard to the question whether the need for maintenance arose from the mode of life and the habits or actions of the applicant; 'conduct' would have regard to the relations between the applicant and the testator. It is of course not suggested that the fields of inquiry are separate or would not most often cover parts of the same area. It cannot be doubted that the character and conduct spoken of are related to the purposes of the Act but I do not think that there should be an inflexible approach to the application of s9(3)(b) of the Act nor should the field of inquiry be limited by the terms of the illustrations given by the judges in Gilbert. For instance, the character and conduct of an applicant could have a direct impact upon the deceased, such as where a son steals from his mother, or it may have a more subtle effect on the relations between the two where, for example, the son steals from the mother's best friend leading the mother to feel great shame. Because the statutory provision is expressed in such general terms I do not think that there should be any qualification upon the character or conduct taken into account except insofar as it must be borne in mind that it must be relevant to the purposes of the Act.
In Collicoat v McMillan [1999] 3 VR 803 at [40], Ormiston J wrote, in relation to the manner in which an applicant's behaviour towards the deceased is to be considered: "Ordinarily each of the persons who have a statutory right to make [an] application are entitled to have their position considered by a testator but their behaviour (right or wrong) towards the testator may only provide a basis for measuring appropriately the testator's obligation to make provision for each of those applicants. Their sins are irrelevant except in so far as a testator might properly take exception to their behaviour."
The Defendants rely upon Murphy v Stewart; Estate PE Stewart [2004] NSWSC 569, in which case Palmer J wrote, at [41]: "Nevertheless, the important consideration is that, however difficult or offensive the Deceased's behaviour might have been at times, there could have been no possible justification for the Plaintiff to respond with violent physical abuse. Domestic violence is not a response that our society condones in any circumstances and it must be quite clear that this Court cannot condone it either."
There can be no doubt about the correctness of Palmer J's statement. However, it is to be noted that in the case with which his Honour was dealing, there was a history of violence and drunkenness by the Plaintiff in the relationship, almost from its commencement and there were physical injuries caused to the deceased by the beatings given her by the Plaintiff. There was no dispute about the conduct of the Plaintiff as found by his Honour.
In the present case, there is a significant dispute about the Plaintiff's conduct on 3 July 2014. It has not been possible to come to a concluded view that it was the Plaintiff (or Brydie), who caused the bruises to the deceased. (In considering the evidence, I have taken into account that the deceased has given her own version of events, which cannot be challenged.)
Furthermore, it seems unlikely, even if the Plaintiff caused the bruising which the deceased suffered, that he did so intentionally. I tend to accept his evidence that he would never have harmed the deceased, or done anything to cause her to be fearful, intentionally.
Also, without in any way condoning it, there was one isolated incident of conduct, which involved an injury to the deceased, that has been alleged, in the whole of the period of time that they lived together. Had there been any other incidents, it is likely that the deceased would have told one, of the several close friends, who has given evidence.
This is not to say that some of the comments made by the Plaintiff that the deceased was "living too long" would not have been hurtful to the deceased. Even if the statements echoed what the deceased had said to him, they should not have been repeated by him to others.
The parties accepted that the nature of the relationship and what is described as "estrangement" complicates the assessment of the obligation owed by a deceased parent to the Plaintiff. It is his conduct, after the events occurring on 3 July 2014, about which conduct there can be no dispute, which, in my view, goes to the Plaintiff's "character and conduct" and affects the entitlement to additional provision.
In this regard, the view I have arrived at is that, acting wisely and justly, the deceased was entitled, when making her Will in 2016, to regard the Plaintiff's comments made before July 2014, and his conduct during the last two years or so of her life, in particular, as hurtful and undutiful, to an extent bearing heavily on the amount of the provision she should make for him out of her estate.
However, as will be read, acting wisely and justly, the deceased was obliged to have considered his character and conduct before that time as well.

The Statutory Scheme

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. As the Plaintiff's eligibility, and the commencement of the proceedings within time, is not in issue, the only questions for the Court to determine are whether the Plaintiff has been left with inadequate provision for his proper maintenance, education and advancement in life and, if so, what, if any, further provision ought to be made out of the estate of the deceased for those purposes.
It is the mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied that the provision is neither adequate nor proper that consideration is given to whether to make a family provision order (s 59(1)(c)). Only then, may the Court make "such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"(s 59(2)).
The Act stipulates no automatic entitlement to provision and the deceased's Will applies unless a specific application is made to, and acceded to, by the Court.
Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment (Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).
Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) said that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "'an evaluative determination of a discretionary nature, not susceptible of complete exposition' and one which is 'inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific'": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].
Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.
In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: "'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
The concept of "advancement in life" extends to a person's adult years: Mayfield v Lloyd-Williams [2004] NSWSC 419 at [114].
In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575: "The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant ... 'Advancement' is a word of wide import."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an early period of life in the members of the family: Blore v Lang, per Dixon CJ at p. 128." [Footnotes omitted]
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
The words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476: "The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478: "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that: "It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at [19], pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration: "The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, at [114], Callinan and Heydon JJ wrote: "…the use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at [12]: "'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied." [Citations omitted.]
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J (as his Honour then was) observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life "involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [123]: "The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]: "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added: "'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act provides: "(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).

Estrangement

On the topic of estrangement, in Underwood v Gaudron [2014] NSWSC 1055, I set out the principles at [230] - [233]. An appeal was dismissed: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, with the summary of principle not disturbed on appeal.
That summary of the principles was also referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [95]. It was also referred to, more recently, in Nicholas v Tubb [2016] TASSC 53, at [21], by Holt AsJ, with approval, in Toscano v Toscano [2017] NSWSC 419, by Robb J, at [90], and by Kunc J in Condello v Kim [2018] NSWSC 394, at [190]. I have recently referred to the principles in Gargano v Coves [2018] NSWSC 985.
I repeat what I wrote in Underwood v Gaudron [2014] NSWSC 1055, at [230] - [233]: "On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]: 'The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.' Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: '... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.' (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility': Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): 'If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.' (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102]. In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows: 'As explained by the primary judge, the term "estrangement", which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the "natural" process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience.' His Honour added: 'The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. … Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of "love and support" from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.' "
Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal [2009] NSWCA 54 at [27].
I have carefully read all of the affidavits from the close friends of the deceased, all of which are consistent, and all of which demonstrate the deep level of distress that the deceased felt, particularly in regard to some of the Plaintiff's conduct. For his part, the Plaintiff says that he found some of the conduct of the deceased, bearing in mind he was, and had been, her primary carer, difficult to comprehend.
When one reads all of the evidence, it is clear that each of the deceased and the Plaintiff placed responsibility for the estrangement in the hands of the other. The subjective perception of the events existing at the time of those events, which subjective perception the Court is unable to replicate, can often create this result, with the consequence that the Court often accepts the estrangement as a background fact and as part of the platform from which it must then determine the result of the case. Experience dictates that very rarely can one party be absolved, completely, from all responsibility for the breakdown of the relationship.
What is often clear is that for the period of the estrangement between child and parent, there does not exist between them the companionship and support which might be seen in an harmonious parent/child relationship.
The Court, of course, in this case, has the evidence of the deceased's state of mind, and, in particular, how the events that involved the Plaintiff affected her testamentary intentions. That she was well aware of the Plaintiff's entitlement to provision cannot be disputed. In fact, she made some provision for him in each of her Wills and made various testamentary statements going to her reasons for making the provision that she did. It just so happened that there was a significant change in that provision from 2014.
(I have earlier referred to the Christmas card that the deceased sent to the Plaintiff, in 2015, which suggested that the deceased, at least, was willing to continue her relationship with the Plaintiff. I have also not forgotten the cheque that she had caused to be sent to him shortly after the events in July 2014. In some of her conversations with others, she appears to have recognised a continuing obligation to him.)
Overall, when I consider the whole of the relationship of the Plaintiff and the deceased, I am satisfied that that the estrangement that existed for the last two years of the deceased's life, and to the extent that it is established, the Plaintiff's conduct after Maurice's death, does not prevent him from obtaining a family provision order. I reject the Defendants' submissions that the estrangement entitles the Court to resist, completely, any grant of relief to the Plaintiff upon the basis that adequate and proper provision has been made for him.
Yet, there can be little doubt that the existence of the estrangement and the Plaintiff's conduct in the last few years of the deceased's life should be taken into account in calculating the quantum of the provision that ought to be made for her. In all the circumstances, I am of the view that his conduct does mean that there should be restraint in the amplitude of that provision.

Qualifications on "Principles"

As long ago as 1980, in White v Barron at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 by Basten JA, at [18] - [20], and by Barrett JA, at [66] - [67]; in Burke v Burke, at [84] - [85]; and, in Yee v Yee [2017] NSWCA 305 at [172]. They must be remembered.

Determination

Having established eligibility, and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the Will of the deceased.
What is written below should be read as a continuation of what has been written above, and also upon the basis that I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.
It is to be noted that this is not a case where no provision was made for the Plaintiff. He receives 10 per cent of residue, which, without these proceedings, would have been in the order of $62,000.
I have concluded, having regard to his financial resources, his debilitating medical condition and his disabilities, the fact that he has no earning capacity, that he is not cohabiting with any other person, and that there is no other person liable to support him, notwithstanding the Plaintiff's conduct towards the deceased, and the fact that they had no relationship for about the last two years of her life, that the provision made for him in the Will of the deceased is not adequate for his proper maintenance and advancement in life. It cannot be forgotten that apart from the 4 years before her death, the deceased seemed to have considered him to be a loving and dutiful son.
In all likelihood, the true facts of what occurred on the night of 3 July 2014 will never be known. The events on that night must be considered in perspective and also in light of the years preceding the event, throughout which the deceased regarded the Plaintiff lovingly.
In all the circumstances, I have concluded that his conduct in those 4 years before the deceased's death is not such as would disentitle him, completely, to any additional provision if he can otherwise establish the jurisdiction of the Court.
The question of the adequacy of the provision that was made for the Plaintiff's proper maintenance and advancement in life must be considered at the date of hearing and not at the date of the 2016 Will. Yet, the provision of $20,000, gifted to the Plaintiff in 2014, is a relevant matter to be borne in mind.
Since 2016, it appears that, in particular, the Plaintiff's medical condition has worsened and he remains with virtually nothing, by way of capital, on which to rely for exigencies of life. In this regard, at his age, and in his circumstances, ten per cent of the deceased's estate (which equated to about $62,000 had proceedings not been commenced) would not provide him with sufficient for the exigencies of life.
I have also borne in mind in reaching this conclusion, that between 2002 and 2014, the Plaintiff believed that he was to receive the whole of the estate of the deceased if Maurice did not survive her. Whilst he did not give evidence that he changed his position in the expectation of that inheritance, he was clearly aware of the earlier Wills of the deceased (and of Maurice).
In addition, I am of the view that whilst the deceased had some obligation to the other beneficiaries named in her Will, it was the Plaintiff who had lived with her and Maurice, and who had been their, at least until Maurice's death, and then, her, primary carer. Her written statement in 2001, and then in 2010, make clear that the deceased made no complaint about the care that the Plaintiff had provided to them. Furthermore, none of the beneficiaries, other than Mrs Daddow, and perhaps, Brydie is an eligible person.
There is another matter which I must consider in reaching the conclusion, and that is that only Robin is a competing financial claimant on the bounty of the deceased. I have earlier referred to his financial resources and needs. I have also set out what flows from a beneficiary's silence.
Of course, I have not forgotten that respect should be given to the judgment of a capable testatrix as to who should benefit from the estate, if it can be seen that she has duly considered the claims on the estate: Sgro v Thompson [2017] NSWCA 326, at [83] and [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127].
In this case, the deceased clearly did consider his claim on her bounty. She would have known the true state of their relationship at the time she made her last Will, whereas the Court, some years after her death, has to assess, as best as it can, where the truth lies, having regard to the conflicting versions given by the Plaintiff and others. The Court can never be certain that it knows all the circumstances.
Bearing in mind the detailed written statement at the time of her last Will that the deceased made, I have given considerable weight to the fact that she made such a careful assessment of her obligation to the Plaintiff. What she wrote, to the extent that it has been established as being accurate, demonstrates that the Plaintiff was, at least in part, a victim of his own actions.
Some might consider that the Plaintiff's conduct, particularly, from early July 2014, demonstrates a significant lack of love and respect for the deceased, and his silence, in response to the receipt of $20,000 in 2014, and to the Christmas card, written in loving terms, that she sent to him in 2015, and also his willingness to wound the deceased by his silence, is such as to disentitle the Plaintiff from any provision. Certainly, that was the case advanced on behalf of the Defendants.
Yet, as a matter of human behaviour, a wise and just parent will realise, as stated by Holland J in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 540: "[P]erfect harmony between parent and child is in the nature of things not to be looked for … Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in all of the circumstances and make the judgment that it considers that a wise and just parent would have made in the circumstances".
I also bear in mind her earlier Wills and the statements made by her at the time she made each.
Bearing in mind that the adequacy of the provision required by the Act is measured by reference to the "proper" maintenance, education or advancement of the applicant for provision, I am satisfied, in all the circumstances, that the Plaintiff has established the jurisdiction of the Court to make an order in his favour. As I have previously noted, there has been a change in the Plaintiff's circumstances, since 2016, of which the deceased would not have been aware, namely, that the Plaintiff's medical condition has worsened. The Court must have regard to the circumstances, as they are relevant at the time the Court has considered this application.
The question of what additional provision for the Plaintiff's maintenance and advancement in life ought to be made, having regard to all of the circumstances of the case, is more difficult. It involves an intuitive, or an evaluative, judgment. The measure to be applied is not what has been given to other beneficiaries, but what the Plaintiff needs for his proper maintenance and advancement in life, giving due regard to all the circumstances of the case. It is not a mathematical assessment, or one that is dependent upon only calculating the costs of meeting demonstrated need.
In my view, in lieu of his entitlement under the Will of the deceased, the Plaintiff should receive 20 per cent of the residue of the deceased's estate. That provides him with an additional 10 per cent of the residue.
On the present estimates, assuming costs come out of the estate, the amount of the total provision that he receives will be about $95,000. This will provide him with a capital sum for exigencies of life. After paying for a piano, and a car, if that is what he wishes to do, the balance can be used to provide a sum for exigencies of life, and to supplement his income, which should improve the general quality of his life.
I do not consider the purchase of accommodation to be a "need" of the Plaintiff, and even if it were, that the deceased owed a duty to the Plaintiff to make such provision for him, or that she was bound to leave to him an amount sufficient to purchase an unencumbered residence. As stated, he is secure in the accommodation in which he has lived since about late 2014, provided he complies with his obligations under the Agreement. There was no evidence that he would not do so. In any event, the size of the deceased's estate is not so large that it should bear the costs of providing the Plaintiff with an unencumbered home.
Nor do I think that the Plaintiff should receive any additional lump sum by way of provision to reflect any difference between indemnity costs and ordinary costs. The size of the estate does not warrant increasing the lump sum for that purpose. Furthermore, the Plaintiff's conduct to which I have referred, as well as the competing claims of the beneficiaries, recognised by the deceased in her Will, restrains the amplitude of the provision that ought to be made for the Plaintiff.
Section 65(1) requires the Court to specify, amongst other things, the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided. In this regard, there were no submissions made and I have had to make my own assessment of how the burden of the provision should be borne.
In this regard, each of the beneficiaries, other than Robin, has said nothing about his, or her, financial resources and needs. Doing the best I can, and taking into account what I know about the beneficiaries and the relationship of each to the deceased, the burden of the provision should be borne as follows: 1. by Mrs Daddow, as to 3.0 per cent, thereby reducing her share of residue from 15 per cent to 12.0 per cent; 2. by Ms Byrne, as to 3.0 per cent, thereby reducing her share of residue from 15 per cent to 12.0 per cent; 3. by Mr Hogg as to 1.5 per cent, thereby reducing his share of residue from 10 per cent to 8.5 per cent; 4. by Felicity Amos by 1.5 per cent thereby reducing her share of residue to 8.5 per cent; and 5. by Brydie Amos by 1.0 per cent thereby reducing her share of residue to 9.0 per cent.
Robin should not bear any part of the burden of the provision made for the Plaintiff bearing in mind his competing claim, both financially, and otherwise, upon the deceased.
If one considers that 1.0 per cent of the estimated value of the estate (after costs have been deducted from the gross value of the estate) equates to about $4,800, it can be seen that the share of Mrs Daddow and Ms Byrne will be reduced by about $14,400, whilst the share of each of Mr Hogg and of Felicity will be reduced by about $7,200. Brydie's share will be reduced by $4,800. Each of the beneficiaries who is bearing part of the burden of the additional provision for the Plaintiff will not, thereby, be deprived of a substantial part of the provision made for her and him.
It will be necessary to hear the parties on how the costs of the proceedings should be borne. It is obvious that they have spent, in costs, more than double the amount of the increase in the provision made for the Plaintiff. This is regrettable, but will need to be dealt with bearing in mind the request made regarding costs to which I have referred.
The Court: 1. Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of the proposed orders, including any orders as to costs. 2. Directs the parties to bring in Short Minutes of Order reflecting these reasons and proposed orders. 3. Orders that if agreement is reached, Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date will be vacated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2018

Family Provision Act 1982(NSW)

Inheritance (Family Provision) Act 1972(SA)

v Harkness (No 2) [2012] NSWSC 35 Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 13 Jodell v Woods [2017] NSWSC 143 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Manuel v Lane [2013] NSWCA 61 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 Meres v Meres [2017] NSWSC 285 Murphy v Stewart; Estate PE Stewart [2004] NSWSC 569 Nicholas v Tubb [2016] TASSC 53 Palagiano v Mankarios [2011] NSWSC 61 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Price v Roberts [1992] NSWCA 191 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Sammut v Kleemann [2012] NSWSC 1030 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Smith [2018] SASC 93 State of New South Wales v Thomlinson [2018] NSWCA 151 Steinmetz v Shannon [2018] NSWSC 1090 Szypica v O'Beirne [2013] NSWSC 297 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Toscano v Toscano [2017] NSWSC 419 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Texts Cited: R Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5(1) Aust J Leg Hist 5 Category: Principal judgment Parties: John Allan Woodroffe Amos (Plaintiff) Peter Hogg (first Defendant) Therese Valerie Younes (second Defendant) Representation: Counsel: Ms J McIntosh (Plaintiff) Mr L Ellison SC and Ms L Nurpuri (Defendants)

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