Andrew v Andrew

Supreme Court of NSW|2018-08-30|Before: Lindsay J

Solicitors: Plaintiff: Turnbull Hill Defendant: Turner Freeman File Number(s): 2017/00269747

INTRODUCTION

Noreen Catherine McNamara ("the deceased") died on 18 November 2016, aged 83 years, leaving a will dated 18 November 2010, probate of which was granted to the defendant (the elder of her two sons) on 12 May 2017.
In these proceedings, the plaintiff (as the younger son of the deceased) applies for a family provision order, under chapter 3 of the Succession Act 2006 NSW, from the estate or notional estate of the deceased.

THE DECEASED'S ESTATE (AND NOTIONAL ESTATE)

It is agreed between the parties that the deceased's net actual estate (in substance, the deceased's former residence at Hurstville, a suburb of Sydney) has a value of approximately $1.15 million. If the deceased's residence were to be sold, that sum would be reduced to the extent of any costs incurred in effecting a sale.

THE DECEASED'S WILL

By her will, the deceased disclaimed any intention to benefit the plaintiff or the plaintiff's wife, and she made no provision for them jointly or severally. She provided for each of the plaintiff's two children (one now aged 17 years, the other now aged nearly 14) to receive a legacy of $20,000.00 conditional upon attaining the age of 25 years. She left the rest and residue of her estate to the defendant absolutely.

FAMILY RELATIONSHIPS, AND THE DECEASED'S INVESTMENT PROPERTIES

Before setting out the terms upon which the deceased disclaimed any intention to benefit the plaintiff, it is necessary to say something of family relationships.
That is because the deceased's husband (Brian Thomas McNamara) , who died on 21 November 2012, made a will on the same day as did the deceased, in substantially the same operative terms. It too disclaimed any intention to benefit the plaintiff. It was not admitted to probate, I gather, because (leaving aside property held in joint tenancy and passing ultimately to the defendant by survivorship) the husband died without an estate the administration of which required a grant.
From about 1993 the deceased, her husband and the defendant began purchasing investment properties together as joint tenants. Upon the death of Brian, his interest in those properties passed to the deceased and the defendant. Upon the deceased's death, her interest in them passed to the defendant.
The Deceased's Immediate Family. The deceased was married once only, to Brian. They were married in September 1960.
There were two children of the marriage. The defendant was born in February 1965. He is presently aged 53 years. The plaintiff was born in January 1968. He is presently aged 50 years.
The Plaintiff's Immediate Family. The plaintiff married his wife, Linda, in March 1991. They have two children: a son (Dylan) born in February 2001, and a daughter (Rachel) born in November 2004. Linda was born in November 1968. She is presently aged 50 years.
The Defendant's Immediate Family. The defendant lives in a de facto relationship with Jo-Anne Brennan. They met in about 2009. They have a son (Thomas), born in September 2013. He has been diagnosed as suffering from autism, a condition which may require special attention as he rapidly approaches school age.

THE PARAMETERS OF THESE PROCEEDINGS

The focus for attention in these proceedings is whether (within the parameters of section 59(2) of the Succession Act) the Court ought to make, in favour of the plaintiff, an order for provision out of the estate of the deceased for the plaintiff's maintenance, education or advancement in life, having regard to the facts known to the Court at this time.
There is no dispute that the plaintiff, as a son of the deceased, is an "eligible person" to make an application for a family provision order: Succession Act, sections 57(1)(c) and 59(1)(a).
The plaintiff's application for an order was made within the time prescribed by section 58(2) of the Succession Act, his summons having been filed on 5 September 2017.
As a son of the deceased, it is not incumbent upon the plaintiff to establish (pursuant to section 59(1)(b) of the Succession Act) that there are "factors which warrant the making of" his application.
The defendant expressly concedes, for the purpose of section 59(1)(c) of the Succession Act, that the Court should find (as I do find) that the plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life out of the estate of the deceased.
Acknowledging that section 59(1)(c) requires the Court to have regard not only to the plaintiff's financial position, but also to the size and nature of the deceased's estate, the totality of the relationship between the plaintiff and the deceased and relationship between the deceased and others with claims upon her bounty (Sgro v Thompson [2017] NSWCA 326 at [74]), the fact remains that the plaintiff received nothing from the deceased's will; he suffers ill health which impedes his capacity for sustained full time work; his relationship with the deceased appears to have been soured, at least in part, by a poor relationship between the deceased and his wife, if not other factors that led to profound misunderstandings between family members; and the estate of the deceased is of a size and nature able to accommodate some provision for the plaintiff. He may not have a large claim on the bounty of the deceased when all things are considered; but, for reasons to be explored further in the context of section 59(2) of the Succession Act, he remains a natural object of her bounty.
When pressed to quantify his claim for family provision relief, the plaintiff (by his counsel) submitted that he should receive a legacy in the sum of $450,000.00. That figure was said to be based upon a perceived need on the part of the plaintiff: (a) to pay a mortgage debt of about $400,000.00; (b) to pay credit card debts and a car lease liability of about $20,000.00; and (c) to provide relief against his wife's liabilities of about $30,000.00.
When pressed, the defendant (by his counsel) submitted that there should be "a modest order for provision" (quantified as "around $50,000.00") for the plaintiff.

DISCLAIMERS OF ANY INTENTION TO BENEFIT THE PLAINTIFF

The respective wills of the deceased and her husband (both dated 18 November 2010) were prepared, and witnessed, by a solicitor.
After its dispositive provisions, the deceased's will contains the following statement (the correctness of which the plaintiff disputes in some respects as he attributes blame to his birth family for any deficiency in his relationship with the deceased): "MY TRUSTEES should note it is with a heavy heart and after much soul searching that I feel the need to include this statement in my last Will and Testament. My son Luke, the younger of our two sons was always very close to me until he got marries [sic] in 1991. After this time he has shown again and again that he wants little or nothing to do with either me, or his father or his brother, indeed, after getting married he effectively lost contact with everyone he knew prior to getting married. To date, I am unable to understand why he has chosen to act this way. Over the years there have been periods sometimes extending too many years when we have had no contact with Like [sic], then he reappears then disappears just as suddenly, again we have no idea why this has occurred. Luke and his wife Linda now have two children, our grandchildren. Whilst we had some contact with Dylan their son, who is now ten years old, when he was younger, their daughter Rachel who is now six does not know us as we have not seen her since she was two. It has been approximately four years since we last saw our grandchildren. This has caused me considerable ongoing heartache. I would love to have the opportunity to spend regular quality time with our son Luke and our grandchildren, but we have never been given the opportunity. During the past 10 years, my husband Brian has had ongoing poor health, quadruple bypass surgery, kidney failure and Legionnaires disease to name a few of his near death experiences. And I have experienced periods of ill health of my own, including suffering Bells Palsy and now I am in early stages of Alzheimer's Disease/Dementia. We have been extremely disappointed during this period in particular that Luke has never been of any support or comfort to us, leaving our other son Paul to take care of us on his own. Nor has he made any effort to allow us to spend time with our grandchildren. Taking the above into consideration, it is my wish that the assets of my Estate be distributed as I have stipulated in this my last Will and Testament. I want to state categorically that I do not want to leave anything to either my son Luke or his wife Linda. I want my son Paul to be responsible for distributing the money to Dylan and Rachel McNamara upon the event of each of them reaching the age of 25 years old. The money is to be distributed as my son Paul deems appropriate. I want Luke and Linda to receive no financial benefit from this money."
In his will, after substantially the same dispositive provisions as found in the will of the deceased, the deceased's husband Brian made the following statement: "MY TRUSTEES should note that I have not made provision for my son LUKE PATRICK McNAMARA as they [sic] have shown no interest in our family since the date he was married to LINDA McNAMARA. LINDA has not wanted any involvement in our family and has not been interested in sharing our Grandchildren with us. In recent years as our illnesses have increased it has been left to our son PAUL McNAMARA to look after us and help in every way he can. Therefore I do not wish LUKE or LINDA McNAMARA to receive any benefit from my estate."

THE RELATIONSHIP BETWEEN THE PLAINTIFF AND THE DECEASED

The deceased's testamentary disclaimer of any intention to benefit the plaintiff is not without a foundation in fact. The fact that the plaintiff disputes the correctness of aspects of the deceased's statement does not detract from the observation (here made) that, viewed from the deceased's perspective, her observations were reasonably grounded in fact. She was entitled to offer an explanation for her testamentary dispositions, or lack thereof, and to have her views respected, subject to the due operation of the Court's family provision jurisdiction.
The deceased addressed a letter dated 10 June (2002) to the plaintiff in the following terms: "My dear Luke - today is the first day since your father had his bypass operation that we have had any good news to pass on to you. We have been told today that the healing process has now commenced and we need your input as we go forward with the task ahead. What has made it more difficult is the pain of the separation we are experiencing. Luke, will you please contact me as soon as you receive this letter as we do need to find a way to go forward together. Our hearts ache through your absence - and a day doesn't go by without your father & I wondering if Dylan is walking - does he have any teeth - what words can he say - how tall is he - knowing full well that he wouldn't remember us and we probably wouldn't recognise him - Dr Teo (G.P. to us both now) says our health is definitely suffering from the unnatural pain we are experiencing through being separated from our family. Please Luke for the sake of us all - please phone me when you receive this note. My love, Mum Why did the separation take place - we have so much love in our hearts which we can't share with you - what happened? Was it something I said or did - or didn't do - or whatever happened. I feel we have been deprived of so much not knowing what caused the break."
The plaintiff replied to the deceased by a letter dated 19 June 2002 in the following terms: "Mum, I received your letter and it is pleasing that the healing process has commenced. I question much of what you said in your letter as you made it sound like everything was fine between us up until this 'separation' as you call it. Christmas night in the hospital simply brought everything to a head. It was also a pretty accurate example of what things are like between us. Don't kid yourself into believing that things were so good or even pleasant up to that point. To be quite honest, I'm tired of trying and have accepted that things are better this way, and suggest that you do the same. I think it is best for everyone if we all get on with our own lives. Please respect my request. Luke."
The reference here to "Christmas night in the hospital" is a reference to a family altercation that took place at about 7pm on 25 December 2001 at St George Private Hospital, where the deceased's husband was recuperating following bypass surgery. The plaintiff, his wife Linda and their son Dylan (then aged about 10 months) attended the hospital, the plaintiff having foreshadowed to his mother that they would do so some time on Christmas Day. When the time came, the deceased and the defendant were both present.
Accounts of what occurred differ. The plaintiff and his wife say that, without any provocation, the defendant was aggressive towards the plaintiff. The defendant says that the plaintiff's wife shielded baby Dylan from the deceased's view; that he, the defendant, had a nurse of the baby; and that, when he handed the baby to the deceased for her to nurse, the plaintiff immediately removed the child from the deceased's arms and returned him to Linda. For her part, Linda denies that the deceased was impeded from access to the child - who, she says, was returned to her care because he was crying (as babies do from time to time).
There is no need to determine the truth or otherwise of each particular account. Whatever happened occurred against a substantial background of barely subdued tension which appears to have been present within the family from about the time, in or about 1989, that the plaintiff and his future wife formed a romantic attachment.
Whatever the rights or wrongs of each person's conduct, there appears to have been a falling away in the relationship between the plaintiff and the deceased from about the time that Linda became part of the plaintiff's life. According to him, his mother was a dominant, controlling personality who resented Linda's primacy in his life. On his mother's account (confirmed by the terms of her will), Linda was an alienating influence who drove a wedge between the plaintiff and his birth family.
Without attributing moral responsibility for a breakdown in family relationships, there does appear to be a basis for assigning to Linda's arrival on the scene a temporal connection with a breakdown in the plaintiff's relationship with the deceased.
Although (as the deceased's will says) there appear to have been long periods of no contact, or little contact, between the plaintiff and the deceased, there does not appear to have been a complete or permanent estrangement between them. For his part, the plaintiff accepts that he did reject the deceased in 2002; but, he says, he became reconciled to her at about the time of the birth of his daughter in 2004 even though family members were not invited to Rachel's christening. The deceased's friend, Joan Banks, deposed to a short period of a "thaw" in a frosty relationship between the plaintiff and the deceased (perhaps for as long as two years), following Rachel's birth, but says that it did not last.
Objectively, any reconciliation at about that time must have been qualified at best. Six years later, when she made her will, the deceased spoke of the plaintiff "appearing" and "disappearing" without rhyme or reason. Mrs Banks deposed to the deceased's distressed report of a phone call, made by the plaintiff to the deceased shortly after the death of Brian, in which, the deceased reported, the plaintiff had abused her. Between 2012-2015, when the plaintiff externalised dark thoughts about his mother (first in conversation with his wife and subsequently with a psychologist), it was too late for any meaningful reconciliation between mother and son. When he gave evidence in these proceedings he did not manifest the character of a man at peace with himself or her memory.
On the plaintiff's case, a key to understanding this pattern of behaviour is, he says, the fact that, between 1975 and 1979 or thereabouts (when he was aged between seven and 11 years) he was sexually abused by his mother. This is said to have occurred at a time when the relationship between his parents was not a happy one. The suggestion is that the deceased, at a time when she was deprived of affection within her marriage relationship, routinely touched the plaintiff inappropriately in a bedroom setting. The plaintiff says that his mother's abuse of him came to an end when his maternal grandparents moved into a granny flat built at the back of the family home.
There is no evidence that any allegation of sexual abuse was ever put to the deceased. As best we can tell, she went to her grave without knowledge of any allegation of impropriety against her.
As her will expressly acknowledged, she was in the early stages of mental decline at the time she executed her will. In May 2011 she was diagnosed with Alzheimer's disease. In March 2015 she became a resident of an aged care facility at St George's Basin, not far from the defendant's current residence on the South Coast of NSW. She remained there until her death.
It was not until some time after the deceased was diagnosed with Alzheimer's disease that the plaintiff told, first, his wife and then (with her encouragement) a psychologist about his belief that he had been the victim of childhood sexual abuse by his mother. He first saw his psychologist (Mariela Occelli) on 13 May 2015.
In an affidavit sworn on 21 February 2018 the psychologist records that, over a three-year period between May 2015 and May 2016, there were seven consultations during which the plaintiff was given therapy. He is not presently undergoing therapy, but he anticipates that he may need further treatment in the future.
Paragraphs 6-7 of that affidavit are in the following terms: [6] Luke reported having been sexually abused during his childhood by his mother. He reported symptoms indicative of complex traumatisation. He experienced overwhelming feelings of shame, anxiety, disgust, grief and hopelessness when dealing upon any aspects of what his mother had done to him. He reported that he struggled with the relationship with his mother through the years because being around her triggered painful feelings and emotions, which he had kept to himself as a dark secret for most of his life. He told that he worried that relatives and family friends would judge him because he found it too difficult to be in the same room as his mother, and as a result, had avoided her, in particular, after his father died. [ 7] I advised Luke that the relationship with his mother was harmful and toxic to him. Luke found seeing his mother emotionally derailing. As a therapist, I encouraged him to honour his own feelings and experience, and to stay away from his mother to protect himself. There was no point in confronting the offender as she was, according to Luke, in the last stages of dementia."
The plaintiff did not share any of this with the defendant until, after commencement of these proceedings, he served his principal affidavit in support of his claim for a family provision order. The defendant has no knowledge of any factual foundation for the plaintiff's allegation of sexual abuse, but he does not believe his brother's allegation to be true.
I accept that, rightly or wrongly, the plaintiff genuinely believes that he was the subject of sexual abuse by the deceased. I do not exclude the possibility that he was abused, as he says; but neither am I comfortably satisfied that he was. Where the truth lies on that score cannot responsibly be determined in the context of these proceedings, years after the event, in circumstances in which tensions between mother and son may reasonably be explained (for example, by reference to an inability on the part of the deceased to make way for the plaintiff's wife) without recourse to an allegation of misconduct which does not sit comfortably with contemporaneous evidence of normal family relationships; a family video of relaxed contact between the deceased, her husband, her grandson and the plaintiff in about 2001 (Exhibit D11); or her testamentary statement and that of her late husband.
Throughout his evidence, the plaintiff presented himself as profoundly negative (embittered) towards the deceased, attributing to her conduct an oppressive "controlling" character even in relation to fairly innocuous illustrations of maternal concern for a teenage son, out and about, beyond parental supervision. He seems to have repressed memories of happy experiences within his birth family.
This may be explained away, to some extent, by the plaintiff's current perception of himself as an "abuse survivor", and his tendency to think ill of his mother come what may, in the context of profound, long standing tensions between them arising from a clash of personalities between his mother and his wife.
The deceased's letter dated 10 June 2002 and her testamentary statement both reveal profound puzzlement on the part of the deceased as to why her relationship with the plaintiff was characterised by unexplained alienation and erratic patterns of contact.
There is no reasonable foundation in the evidence for doubting the sincerity of the deceased's expression of concerns about her relationship with the plaintiff. Nor is there a reasonable foundation in the evidence for attributing to her a Machiavellian intention of deflecting allegations of impropriety never put to her for rational examination or response. She exhibited a natural maternal concern for engagement with her son. He held back from her.
The deceased's testamentary disclaimer of any intention to benefit the plaintiff speaks powerfully against any (or any substantial) provision being made from her estate for the plaintiff. It stands independently of, but reinforced by, the contemporaneous, parallel disclaimer recorded in her husband's will. A deliberate scheme of testamentary dispositions by a capable testator is entitled to respect: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thompson [2017] NSWCA 326 at [1]-[2] and [83]-[87].
Whilst maintaining respect for the deceased's deliberate testamentary scheme, there are three factors which invite qualification of that scheme in the context of an application for a family provision order.
First, section 59 of the Succession Act requires the Court to have regard to facts known at the time of disposition of an application for family provision relief, even if those facts were not known to the deceased person whose estate is the subject of the application.
Secondly, the deceased's deliberate expression of views about the plaintiff was uninformed by knowledge (since acquired by the Court) that, rightly or wrongly, he was harbouring a resentment against the deceased based upon a belief that she had abused him.
Thirdly, despite her negative assessment of the plaintiff's relationship with her, and her emphatic rejection of any testamentary provision for him, her explanation of her motives in making no provision is as much a "cry from the heart" for a lost relationship as it is a criticism of the plaintiff and his wife.
In stating that she was "unable to understand" why the plaintiff had "chosen" to ostracise her, in recording that she "would love to have the opportunity to spend regular quality time" with the plaintiff and her grandchildren, and in expressing extreme disappointment with a lack of support or comfort from the plaintiff, the deceased was affirming her ongoing affection for the plaintiff, not unequivocally repudiating him.
The Court must endeavour to place itself in the position of the deceased, and to consider what she ought to have done in all the circumstances of the case, treating her for that purpose as wise and just (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Company Ltd [1938] AC 463 at 478-479; Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the criteria set out in sections 59-60 of the Succession Act which govern the Court's power to make a family provision order.
Upon an examination of the facts of the case from that perspective, and viewing the totality of the relationships between the deceased and her sons and their respective families, the deceased's testamentary disclaimer of an intention to benefit the plaintiff is not an absolute bar to the making of a family provision order in his favour.
The fact remains, however, that, by not engaging frankly with the deceased when he had an opportunity to do so, and when she was keen that he do so, the plaintiff left her largely, in a state of puzzled anxiety, to her own resources; made no, or little, contribution to her welfare and happiness during the last decades of her life; and imposed upon his brother, the defendant, a heavier burden of familial obligation than he might otherwise have had to bear. His deprivation of his mother of family contact extended, as well, to his father.
In all the circumstances, the plaintiff remained a natural object of the deceased's bounty; but not one entitled to substantial provision in competition with the defendant or in displacement of the provision made for his children.

THE PLAINTIFF'S NEEDS

The plaintiff and his wife are school teachers. She has stable, long-term, part-time employment. He is employed full-time; but, due to illness, he is permitted to perform some duties from home. He has suffered substantial ill-health, with various ailments, since May 2010.
The plaintiff and his wife own their own home (valued at about $975,000.00), subject to a mortgage debt of about $400,000.00.
Their indebtedness is, in part, a function of recent borrowings for the purpose of renovation of their home and their acquisition of a car. They have two cars, both leased.
Their indebtedness is also a function, in part, of their regular overseas travel as a family unit.
They have negligible superannuation entitlements.
Their combined income is of the order of about $110,000.00 per annum.
In the course of the proceedings the plaintiff has justified his claim for family provision relief by reference to a variety of perceived needs. The most persistent of them are a need to pay off a mortgage; a need to pay out vehicle leases; and a need to pay out credit card debts. The need to pay off the mortgage (recently increased from about $270,000.00 to about $400,000.00 to fund renovations) subsumes an earlier expressed need for funds to cover repairs and renovations to the family home. Other expressed needs include a need for an income supplement to facilitate a reduction in the plaintiff's working hours; a need for a capital fund in lieu of non-existent retirement savings; and a need for a fund for contingencies in life.
As he ultimately quantified the relief he claims, he seeks a sum ($450,000.00) about one half of the deceased's actual estate if costs of these proceedings are paid out of the estate. He justifies this, in part, by pointing to the fact that the defendant acquired benefits associated with his parents' wealth by acquisition with them (as joint tenants) of investment properties which ultimately passed to him by right of survivorship.

EVALUATION OF THE PLAINTIFF'S CLAIM

Had the plaintiff had a consistent, supportive and loving relationship with his parents (more particularly, his mother) throughout his life he would have a greater claim to his mother's bounty than he now has.
I accept (as the plaintiff contends by reference to Kleinig v Neil [1981] 2 NSWLR 532 at 540) that it was incumbent upon the deceased, as a just and wise parent, to respect the plaintiff's choice of Linda as his life's partner, and to be forbearing in intergenerational contact with her son's family. However, whatever may have been the inevitable tensions between different personalities, I am disinclined to allocate blame to any person within the deceased's extended family based on clashes of personality alone. The deceased held out more than one olive branch to the plaintiff. He and Linda from time to time appear to have reciprocated. On balance, however, the substantive reason for any degree of estrangement between the plaintiff and the deceased was his refusal to engage constructively with his parents when invited to do so.
Ultimately, any claim that the plaintiff has to the bounty of the deceased must be constrained by two factors. First, the deceased's deliberate evaluation of the plaintiff's claim on her bounty is entitled to respect even if, upon an exercise of family provision jurisdiction, some provision should be made for him out of her estate. Secondly, in circumstances in which the burden of any family provision order made in favour of the plaintiff must be borne by the defendant, regard should be had to be defendant's greater claim on the bounty of the deceased, as well as his personal circumstances and those of his family.
Relatively speaking, the defendant is asset rich but income poor. He has not worked in paid employment since 2004, in which year he gave up full time work to care for his parents. He has subsisted upon income from his investments. He recognises a current need to resume employment, if he can obtain it. His partner has previously worked in the welfare sector, but she is presently engaged in "home duties".
The biggest hurdle on the horizon for the defendant and his partner is the need to cater for the present and future needs of an autistic son as he fast approaches school-age. Special education services can be obtained on the South Coast, but they have contemplated a move to Sydney (living in the deceased's former residence) to bring them closer to such services. Whether a move of residence is necessary, desirable or attainable remains a subject of uncertainty unable to be resolved at the present time. The defendant and his partner were criticised for prevarication on this in presentation of their evidence, but uncertainty about their son's best interests grounded their prevarication.
The defendant can correctly be viewed as having benefited from investments jointly made with his parents. However, with a university education and experience in commerce, he appears to have been a moving force in effecting those investments and, generally, in supporting his parents on a consistent, long-term basis. Any wealth that he has acquired via joint investments can, and should, be taken into account. However, this is not a case in which the plaintiff's claim on the deceased's bounty is so strong as to require, or permit, a designation of property as notional estate; and what cannot be done directly should not be done indirectly by inflating any entitlement the plaintiff may have to relief from the deceased's actual estate.
In my opinion, an order for provision from the estate of the deceased should be made in favour of the plaintiff, and the amount of provision so made, should be quantified at $75,000.00 payable out of the residue of the estate (that is to say, the defendant's share of the estate).
That will provide some financial relief for the plaintiff, commensurate with his limited relationship with the deceased, without (as would his claim to $450,000.00) effectively depriving the defendant of the substance of his inheritance and setting the deceased's deliberate expression of testamentary views at next to nought.

CONCLUSION

Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made, and costs, I propose to make orders to the following effect: 1. ORDER that provision be made out of the estate of the deceased for the plaintiff's maintenance, education and advancement in life in the form of a legacy in the sum of $75,000.00. 2. ORDER that the burden of that provision be borne by the defendant as the deceased's residuary beneficiary. 3. ORDER that no interest shall accrue on the legacy if paid within 28 days of these orders being made, with interest to accrue (at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides), from the expiry of that period, on so much of the legacy as remains unpaid. 4. RESERVE liberty to apply for consequential relief, including orders for the sale of the deceased's residential property at Hurstville.
In inviting submissions about costs, I express disquiet about the size of the parties' respective costs estimates placed before the Court. They are disproportionate to the outcome of the proceedings. The plaintiff's costs (calculated on an indemnity basis) are estimated at close to $160,000.00, including an allowance of $21,250.00 for a 25% "uplift fee" on a conditional costs agreement. The defendant's costs (also calculated on an indemnity basis) are estimated at about $139,500.00.

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: 05 November 2018

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (1)

Cases Cited (5)

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