Plaintiffs: L Steer, Solicitor Advocate
Defendant: CP Birtles, Barrister
[2]
Plaintiffs: Young and Muggleton
Defendant: Bridges Lawyers
File Number(s): 2022/00153594
[3]
INTRODUCTION
By a summons filed on 27 May 2022 (amended on 18 July 2022 and 24 August 2022) four plaintiffs apply for family provision relief (under Chapter 3 of the Succession Act 2006 NSW) in relation to the estate or notional estate of the late Fatma Awad (also known as Fatmi Awad) "the deceased".
On the hearing of the amended summons no application was made for an order that property be designated as notional estate. As argued, the plaintiffs' application was confined to an application for family provision orders in relation to the estate of the deceased.
The summons was filed within the time (12 months after the death of the deceased) limited by the Succession Act 2006, section 58(2).
The deceased died on 30 May 2021 aged 87 years, leaving a will dated 22 August 1973 probate of which was granted to the defendant (the husband of Amine, a daughter of the deceased) on 26 May 2022.
On her death, the principal asset of the deceased was her residence (historically, the family home of herself, her husband and their children) at Roselands, a suburb of Sydney. That asset has been recently sold, leaving approximately $1.4 million in the trust account of the defendant's solicitors as the net distributable estate subject to whatever orders might be made as to the costs of these proceedings. A peripheral issue about whether gold jewellery of the deceased formed part of her estate has been resolved by evidence that the deceased gave it to her daughters during her lifetime.
The deceased was married once only, to Mohammed Awad, who died in October 2017.
There were seven children of the marriage:
1. Allan, a son born in 1955.
2. Amine, a daughter born in 1956 (the wife of the defendant).
3. Neil, a son born in 1958.
4. Jimmy, a son born in 1961.
5. Steven (the first plaintiff), a son born in 1964.
6. Sandra, a daughter born in 1967.
7. Mona, a daughter born in 1971.
By her will the deceased left her estate equally to her seven children.
Allowing for a distribution of funds in the nature of an "interim distribution", in the absence of any orders for family provision in these proceedings each beneficiary stands to receive approximately $200,000, subject to any costs orders made in the proceedings.
During her lifetime the deceased accumulated cash totalling $95,000 in a safe at her home. Upon her death $12,900 of that money was used to pay her funeral and associated expenses. On or about 21 September 2021 the remaining sum of $82,100 was, with the consent of all her children but the first plaintiff, distributed to a charity (MATW International Limited), colloquially known as "Muslims Around the World", in accordance with an understanding within the family of an intention expressed by the deceased in a digital recording made on 18 November 2020.
On or about 19 August 2020 the defendant filed a summons seeking an order that the digital recording be admitted to probate under section 8 of the Succession Act as an informal codicil to the deceased's will. A registrar of the Court dismissed that summons on 14 September 2022, unconvinced that the recording was intended to constitute a testamentary instrument.
Rather than seek a review of the registrar's dismissal order, the defendant and each of the deceased's children other than the first plaintiff entered into a deed on 30 May 2023 in which they agreed to provide the defendant with a release and indemnity in respect of the distribution made to Muslims Around the World and acknowledged that that distribution represented an interim distribution of $13,683.34 to each of them.
In the course of the current proceedings the defendant has agreed that an allowance of $13,683.34 should be made in favour of the first plaintiff representing an interim distribution to him of an amount equal to the distributions notionally made to his siblings via the deed.
The fact that the first plaintiff refused to be a party to the deed is indicative of an estrangement between him and each of his siblings associated with delay on his part in vacating the family home after the death of the deceased and a sense that he seeks from the estate of the deceased more than his fair share. He, on the other hand, believes that his personal circumstances warrant more than an equal share of the estate given the comparative affluence substantive of his siblings.
As a child of the deceased the first plaintiff has undoubted standing (under sections 57(1)(c) and 59(1)(a) of the Succession Act 2006) as a person eligible to make an application for a family provision order.
The second plaintiff is the first plaintiff's de facto spouse. She claims to be an eligible person, as a dependent member of the household of the deceased, within the meaning of section 57(1)(e) of the Act. She is presently aged about 46 years.
The third plaintiff is the daughter of the second plaintiff (a step child of the first plaintiff), presently aged 12 years. Through a tutor, she claims to be an eligible person, within the meaning of section 57(1)(e), as a dependent member of the deceased's household.
As the four year old son of the first and second plaintiffs, through his tutor the fourth plaintiff claims to be an eligible person by virtue of section 57(1)(e) as a person who was dependent on the deceased and both a grandchild of the deceased and a member of the deceased's household.
As a child of the deceased, the first plaintiff is not required, by section 59(1)(b) of the Succession Act to prove that "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making" of his application for a family provision order. By contrast, because each of the other plaintiffs claim the status of an eligible person by virtue of section 57(1)(e) they are required to prove "factors warranting" the making of their applications.
The focus for attention on the first plaintiff's claim is upon sections 59(1)(c), 59(2) and 60 of the Succession Act. The same focus attends the respective applications of the second, third and fourth plaintiffs if they establish their status as eligible persons and the existence of "factors warranting" the making of their applications.
Section 59(1)(c) directs attention to whether, at the time when the Court is considering an application for a family provision order, adequate provision has been made for the applicant's proper maintenance, education or advancement in life in the will of the deceased.
Upon an assumption that the Court is satisfied that adequate provision has not been made for an applicant, section 59(2) empowers the Court to "make such order for provision out of the estate of the deceased … as the Court thinks ought to be made for [his or her] maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made".
Section 60 sets out a checklist of matters that may be considered by the Court for the purpose of determining whether to make a family provision order and the nature of any such order. In the context of the section, the plaintiffs invite the Court to note particularly that, as his life has unfolded, the first plaintiff (and by extension his co-plaintiffs as his immediate family) have fewer resources available to them than the first defendant's siblings, his co-beneficiaries.
[4]
THE FACTUAL MAXTRIX
The deceased, her husband and the six children then born to their marriage migrated to Australia from Lebanon in about June 1969. They all became Australian citizens in 1974.
The deceased enjoyed a close-knit family centred upon her marriage and her children, all of whom had a close and loving relationship with her and, according to their lights, attended to her needs as, with age, her mobility and capacity for self-management declined in the long shadow of death.
From about 2010 the family as a whole shared the experience of a decline in the capacity of both parents - first the father, then the mother - to care for themselves.
The first plaintiff is a person who, for whatever reason, has never quite settled down to a settled domestic life or regular paid employment. He attributes that to his devotion to his parents - as the deceased's designated carer, in particular - but this is largely, in my assessment, a self-justification for his embrace of a lifestyle living on one form of social security or another since 2009.
In 2009 the first plaintiff accompanied his parents on a trip to Lebanon for about a month in order to assist them with their travel arrangements.
While in Lebanon he married a cousin, Salem. That ended his relationship with a girlfriend with whom he had been living in Drummoyne.
Upon his return to Australia he assumed the role of a carer for his parents (funded by social security) and, largely for his own convenience, moved into the family home, which he claimed as his residence until (with his co-plaintiffs) forced (in these proceedings) to leave in April 2023.
Salem came to Australia in 2010. She lived with the first plaintiff, with the deceased and her husband, at the family home. She ended her marriage to the first plaintiff in 2012 and returned to Lebanon, after which time he lost contact with her.
From 2014 onwards, the Australian government allowed the first plaintiff three months' respite leave from his duties as a carer every year. He used that leave to visit Thailand, where he met the second and third plaintiffs. He and the second plaintiff formed a relationship. He lived with her in Thailand for three months of each year for five years between 2014 and 2019. The fourth plaintiff was conceived in Thailand.
In 2017, before the deceased's husband died, the older couple sold a property in Lebanon. Out of the proceeds of the sale of that property, they gave each of their seven children a cash gift of $15,000.
In 2019 the first plaintiff used his cash gift of $15,000 to pay for visas for the second, third and fourth plaintiffs to migrate from Thailand to Australia.
In February 2020 the second, third and fourth plaintiffs arrived in Australia. From the time of their arrival until they were forced in April 2023, with the first plaintiff, to vacate the property, they lived with the first plaintiff at the family home. During the lifetime of the deceased, they occupied a single bedroom in the family home.
They remained in the family home for about two years following the death of the deceased, the first plaintiff submitting (on or about 8 November 2022) to payment of an occupation fee commencing from 7 November 2022. This judgment is predicated upon the absence of any claim on behalf of the deceased estate for an occupation fee for any earlier period.
[5]
THE FIRST PLAINTIFF'S CLAIM
Between 2009 and the date of death of the deceased the first defendant received a carer's pension, which he represents to have been $1,300 per fortnight. When a sister was for a time paid a carer's pension for their mother, he demanded that it be paid to him and, to avoid friction, she handed her pension money to him, both periodic payments and a bonus.
Since the death of the deceased he has received a family allowance pension which he estimates to have been $1,108 per fortnight.
In his affidavit evidence and in cross examination the first plaintiff has maintained that the pensions he has received have been his only source of income since 2009.
I have some scepticism about that evidence because there is also before the Court evidence which tends to suggest that he may have supplemented his pension entitlements with trading in second hand motor vehicles and doing odd jobs befitting his self acclaimed skills as a spray painter and handyman. On his own evidence, he is not incapable of earning a living.
The first plaintiff is a witness whose evidence needs to be approached with caution. In giving evidence he was to some extent an advocate in his own cause. He displayed a tendency to exaggerate the nature and extent of the personal care he gave to his parents (his justification for more than an equal share of the deceased's estate) and to minimise the very substantial, regular and practical care given to the parents by his siblings (particularly his sisters) throughout the period during which he drew a carer's pension.
My scepticism about the first plaintiff's evidence is reinforced by clear evidence that when (in April 2023) he applied for a residential tenancy of premises presently occupied by the plaintiffs as their home following their departure from the deceased's family home, he made a false declaration in which he concocted an employment history for himself. In cross examination, his denial that he had made a false declaration was withdrawn when he was confronted with the false declaration, giving way to an explanation that he had of necessity to lie because he was desperate to find accommodation for his family in circumstances in which, because he had not been in gainful employment since 2009, he had no track record of employment.
It is not necessary to dwell on the veracity of that explanation in light of the fact that the leased property is perhaps larger than might reasonably be thought necessary for an impecunious family in need of accommodation. A possibility that that might be so nurtures doubt about his evidence.
The first plaintiff cries poor and manifests a sense of entitlement vis-a-vis his siblings, but resists any suggestion that, if in need of money (as he says he is for the care of his spouse and children), he could sell an admittedly valuable Holden Monaro motor vehicle that he has long owned. For the purpose of these proceedings he values it at $100,000. For insurance purposes it has an agreed value of $170,000. An expert valuation (which the plaintiffs contend is irrelevant because it values a different model of the same make of vehicle) values it at $250,000. Whatever its precise value, the first plaintiff is not prepared to contemplate the possibility that it might need to be sold for the benefit of his family.
When invited in final submissions to quantify the plaintiffs' claims for family provision relief their advocate proposed that the first plaintiff receive, in lieu of the provision made for him in the deceased's will, a legacy of $500,000 (that is, about $300,000 beyond the provision made for him in the deceased's will); that the second plaintiff, in recognition of her dependence upon and services to the deceased over the 15 months that she lived with the deceased, should receive a legacy of $50,000; that the third plaintiff, who will be completing school in about six years' time, a legacy of $15,000 should be awarded to her; and that the fourth defendant, in recognition of his position as a grandchild of the deceased and the fact that he has 12 years of schooling ahead of him, should receive a legacy of $20,000. In total, the plaintiffs contend that they should collectively receive from the estate a sum of $585,000 or thereabouts, a figure approaching half the deceased's net distributable estate.
No particular rationale what was advanced by the plaintiffs for supplementation of the first plaintiff's testamentary entitlements by an amount of $300,000. Counsel for the defendant accurately characterised it as a claim for establishment of a contingency fund rather than a claim to meet an identified need. The plaintiffs' advocate countered that it was required as a fund to support the plaintiffs' family in securing rental accommodation over coming years and maintained that it was a modest claim because it was not predicated on a perceived need to acquire full ownership of a residential property.
The first plaintiff bears the onus of persuading the Court that the provision made for him in the will of the deceased (an entitlement to about $200,000) is inadequate for his proper maintenance, education and advancement in life, recognising that what is "adequate" and "proper" in a particular case depends on the circumstances of the case (Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9 at 19) and that respect must be given to the testamentary intentions of a testatrix (Sgro v Thompson [2017] NSWCA 326; Bassett v Bassett [2021] NSWCA 320).
The determination of the deceased to treat her children equally is manifest in the terms of her will, reinforced by the fact that the children were treated equally in 2019 when a family distribution was made of the proceeds of sale of property in Lebanon.
I am not satisfied, for the purposes of section 59(1)(c) of the Succession Act, that the first plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life.
Although he is approaching 59 years of age, on his own evidence he remains capable of a productive working life using practical skills as a spray painter and handyman. The provision made for him in the deceased's will is on top of the benefit to him of many years free accommodation in his parents' family home, albeit with the chores of a designated carer and the benefits of a carer's pension.
Respect must be shown for the determination of the deceased to treat her children equally, particularly as the contributions made by the children other than the first plaintiff were no less significant than any contribution made by the first plaintiff. Although they are more settled and more affluent than the first plaintiff they are by no means wealthy. Each of them is a manifestation of a working class community.
It is not for the first plaintiff's siblings to prove their entitlements as beneficiaries of the deceased, but for the first plaintiff to prove that he has been left without adequate provision for his proper maintenance, education or advancement in life. In my assessment, this he has not done.
That finding is sufficient for an order that the first plaintiff's claim for provision be dismissed.
Upon an assumption that my finding that the first plaintiff has not satisfied the requirements of section 59(1)(c) of the Succession Act is incorrect, attention must be turned to section 59(2) of the Act.
In my opinion, a wise and just testatrix, in the position of the deceased and in light of all the circumstances of the case as now known, and having regard to current social conditions and standards and consulting the criteria set out in section 60(2) of the Succession Act (Bassett v Bassett [2021] NSWCA 32 at [170]-[171]) would determine that no greater provision should be made for the first defendant out of her estate than was in fact made. The deceased's decision to give the first plaintiff an equal share of her estate, in common with his siblings, was a reasonable exercise of her testamentary powers and it conforms with a common community expectation of what a wise and just testatrix might do.
In reaching the conclusions I have as to the correct operation of sections 59(1)(c) and 59(2) of the Succession Act I have taken into account the dependency upon the first plaintiff of each of the other plaintiffs. I am not satisfied that the first plaintiff cannot maintain his family, particularly as the second plaintiff has future prospects of earning an income free of immigration restrictions attending her arrival in Australia.
[6]
THE CLAIMS OF THE SECOND, THIRD AND FOURTH PLAINTIFFS
Although the respective claims of the second, third and fourth plaintiffs must be considered on their own particular merits the features of each case have much in common. Each applicant bears the onus of proving "eligibility" within the meaning of section 57(1)(e) of the Succession Act; "factors warranting" within the meaning of section 59(1)(b) of the Act; and "inadequacy of provision" within the meaning of section 59(1)(c), before the broad discretionary power for which section 59(2) provides can be engaged.
All uncontroversially were members of the deceased's household, within the meaning of section 57(1)(e), for a period of about 15 months after their arrival in Australia with the first plaintiff. The fact that the fourth plaintiff is a grandchild of the deceased distinguishes him from the second and third plaintiffs but not in any material way because the key issue that arises for all of them is whether, within the meaning of section 57(1)(e)(i), they were "at any particular time, wholly or partly dependent on the deceased".
[7]
Dependency
Whether an applicant for family provision relief was, or was not, "dependent" upon a deceased person is ultimately a question of fact having regard to all the circumstances of the case (in the examination of which the Court may, as section 60(1)(a) acknowledges, have regard to the matters identified in section 60(2) of the Act), taking care not to conflate the test for which section 57(1)(e) provides with the tests for which sections 59(1)(b) and 59(1)(c) provide: Chisak v Presot [2022] NSWCA 100 at [42]-[44] and [57]; Ballam v Ferro [2022] NSWSC 1200.
The Succession Act contains no definition of the word "dependent". Nevertheless, it may generally be taken as connoting a person who relies upon the support of another, financially or emotionally. The concept is wide enough to cover any person who naturally relied upon, or looked to, the deceased, rather than to others, for anything necessary, or desirable, for his or her maintenance and support in more than a minimal or insignificant way, leaving aside trivialities: McKenzie v Baddeley [1991] NSWCA 197.
Reliance on the deceased for accommodation may amount to dependence, but the mere fact of lodging in another's property without paying rent does not necessarily amount to dependence: Tobin v Ezekiel (2012) 83 NSWLR 757 at [109]-[111].
The fact that an applicant for a family provision order was partly dependent upon a person other than the deceased does not preclude a finding that he or she was partly dependent upon the deceased. In the context of the present case, that is worthy of notice because, in cross examination, each of the first and second plaintiffs acknowledged that at all material times each of the second, third and fourth plaintiffs was ultimately dependent upon the first plaintiff for their well-being.
Although the concept of "dependency" for which section 57(1)(e)(i) provides might well be regarded as requiring something more than the concept of "membership of the same household" for which section 57(1)(e)(ii) provides, a consideration of each criterion may coalesce with the other, requiring an holistic view of the criteria read together in the context of the purpose for which the Succession Act provides. That purpose is to place the assets of a deceased person at the disposal of the Court to make provision for specified categories of persons for whom, it might be said, a deceased person was under a moral, societal obligation (assessed by reference to considerations of wisdom and justice, informed by community standards) to make provision which, in light of all the circumstances known to the Court at the time of decision on an application for provision, was not made.
In my assessment, each of the second, third and fourth plaintiffs satisfies the requirement of "dependency" for which section 57(1)(e)(i) provides because they were not only members of the same household as the deceased (and, in the case of the fourth defendant, a grandchild of the deceased) but they were at least partly dependent upon the deceased in the sense that, in what was to them at the time of their arrival in Australia a foreign country, they had nowhere else to go but the family home of the deceased, at that time shared by the first plaintiff as her son and designated carer.
[8]
Factors Warranting
Although the second, third and fourth plaintiffs have established that they are "eligible persons" within the meaning of sections 57(1)(e) and 59(1)(a) of the Succession Act, in my opinion their applications must fail because I am not satisfied, as required by section 59(1)(b) of the Act, that "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making" of their respective applications.
Conventionally, "factors warranting" are taken to be factors which, when added to facts which render the applicant for family provision relief an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased: Re Fulop (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241; Brewer v Ney [2023] NSWSC 526.
Had the deceased made modest testamentary provision for any one or more of the second, third and fourth plaintiffs (as she was entitled to do) they might well have been plausibly regarded as a natural object of testamentary recognition. However, she made no such provision for them and section 59(1)(b) requires the Court to be satisfied that "there are factors which warrant the making" of their respective applications for family provision relief, a broader question.
Section 59(1) conditions the Court's jurisdiction to make a family provision order under section 59(2) upon it being satisfied of the applicant's status as an eligible person (section 59(1)(a)), that there are factors warranting the application (section 59(1)(b)); and that inadequate provision has been made for the applicant's proper maintenance, education or advancement in life from the estate of the deceased (section 59(1)(c)).
In that context, the requirement of proof of "factors warranting" both stands alone and looks forward to the operation of sections 59(1)(c) and 59(2). To the extent, at least, that it looks forward to whether a family provision order might be made, the Court might have regard to the matters prescribed for consideration by section 60(2) of the Act.
The question whether there are "factors warranting" the making of an application for a family provision order is not to be equated with the question whether there are "reasonable grounds" for the making of the application or for a belief that the applicant is in need or worthy of provision, although there may be some affinity between the two questions in some cases. The "factors warranting" criterion represents a gateway to section 59(2). It refines the nature of the relationships identified in section 57(1) considered appropriate for the making of a family provision order. It provides a filter through which a person who has established "eligibility" must pass, recognising that "eligibility" is not of itself sufficient to "warrant" (that is, justify) a claim on a deceased person's bounty.
The circumstances to which, on the facts of the particular case, the Court may be required to have regard in application of section 59(1)(b) include the structure and nature of relationships within the family or broader community of the deceased; the scheme of the deceased's will and any other evidence of a testamentary intention; the nature and value of the deceased's estate; and the competing needs, and reasonable expectations, of persons who may have a claim on the bounty of the deceased.
In the present case, notice is taken of the fact that the deceased died as a widow with seven adult children and several grandchildren, with all of whom she had a close and loving relationship and substantial social contact. Her principal asset was the family home, with which the three generations of her family had a connection. By her will, and by her distribution of the net proceeds of sale of property in Lebanon, she demonstrated a deliberate intention to benefit her children in equal shares, leaving each child to care for his or her own spouse and children. According to this scheme, no testamentary provision was made for the spouse or children of any of her children. The second, third and fourth plaintiffs are not in this respect any different from other members of the deceased's family in equal degree. No testamentary provision has been made even for a grandchild who undertook renovation work on the family home or for those (other than her children) who provided care for her when the first plaintiff was overseas on "respite" leave or otherwise unavailable.
In my assessment, even though the second, third and fourth plaintiffs each enjoy the status of an eligible person, they are not, in all the circumstances of the case, to be regarded as natural objects of testamentary recognition by the deceased.
That finding is sufficient to require that their respective applications for a family provision order be dismissed.
[9]
CONCLUSION
Having determined that each application for family provision relief before the Court should be dismissed, I propose to order that the amended summons filed on 24 August 2022 to be dismissed.
I will allow the parties an opportunity to make submissions about the costs of the proceedings.
[10]
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 July 2023