Barbuto, Bradley v Barbuto; Barbuto, James v Barbuto

Supreme Court of NSW|2019-07-04|Before: Hallen J, Hodgson J, Young J

Christie v Manera [2006] WASC 287 Collings v Vakas [2006] NSWSC 393 Crossman v Riedel [2004] ACTSC 127 Day v Perpetual Trustee (Supreme Court (NSW), Master Macready, 3 August 2001, unrep) Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Fulton v Fulton [2014] NSWSC 619 Gill v Permanent Trustee Company Limited [1999] NSWSC 394 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Green v Perpetual Trustee Co Limited (Supreme Court (NSW), Hodgson J, 10 July 1985, unrep) Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep) Grey v Harrison [1997] 2 VR 359 Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Hedman v Frazer [2013] NSWSC 1915 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep) Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In re Coventry [1980] Ch 461 Jodell v Woods [2017] NSWSC 143 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215 MacGregor v MacGregor [2003] WASC 169 Mann v Starkey [2008] NSWSC 263 Marks v Marks [2003] WASCA 297 Maynard v Maynard [2018] NSWSC 1961 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McCullum v Permanent Trustee Co Ltd [1999] NSWSC 1219 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Mead v Lemon (As Executor of Estate of Wright) and Baldock and Burt and VOC Group Ltd [2018] HCATrans 152 Meres v Meres [2017] NSWSC 285 Novak-Niemala v Perpetual Trustee Co Ltd [2002] NSWSC 251 Oxley v Oxley [2018] NSWSC 91 Page v Page [2016] NSWSC 1218 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Reeves v Commissioner of Police [2000] 1 AC 360 Salmon v Osmond [2015] NSWCA 42 Sgro v Thompson [2017] NSWCA 326 Shepherd v Shepherd [2010] NSWSC 167 Singer v Berghouse (No 2) (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson [2015] NSWCA 297 Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107 Steinmetz v Shannon [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stojanovski v Stojovski [2016] NSWSC 976 Stott v Cook (1960) 33 ALJR 447 Strang v Steiner [2019] NSWCA 143 Sung v Malaxos [2015] NSWSC 186 (Supreme Court (NSW), Hodgson J, 10 July 1985, unrep) Taylor v Farrugia [2009] NSWSC 801 Tucker v Tucker [2012] NSWSC 1302 Verzar v Verzar [2012] NSWSC 1380 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431 Wilcox v Wilcox [2012] NSWSC 1138 Yee v Yee [2017] NSWCA 305 Texts Cited: G E Dal Pont Law of Costs, (3rd ed, 2013, LexisNexis Butterworths) R Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History 5 Category: Principal judgment Parties: Proceedings 2018/99730: Bradley Dominic Barbuto (Plaintiff) Jacqueline Barbuto (Defendant)

Proceedings 2018/124370: James Francis Barbuto (Plaintiff) Jacqueline Barbuto (Defendant) Representation: Counsel: Proceedings 2018/99730: Mr A G Rogers (Plaintiff) Ms T Catanzariti (Defendant)

Proceedings 2018/124370: Mr A M Gruzman (Plaintiff) Ms T Catanzariti (Defendant)

Solicitors: Proceedings 2018/99730: Armstrong Legal (Plaintiff) Brown Wright Stein Lawyers (Defendant)

Proceedings 2018/124370: B M Salmon Layton & Co (Plaintiff) Brown Wright Stein Lawyers (Defendant) File Number(s): 2018/99730, 2018/124370

Judgment

HIS HONOUR: For hearing commencing on Monday, 1 July 2019 were two different actions, being proceedings 2018/99730 and proceedings 2018/124370, in which the Plaintiff, Bradley Dominic Barbuto, and James Francis Barbuto, respectively, each of whom is an adult child of the deceased, Frank Nickolas Barbuto ("the deceased"), sought, amongst other things, a family provision order under Chapter 3 of the Succession Act 2006 (NSW) ("the Act"). These reasons, and the orders made, determine both proceedings.
Both are contested proceedings in which the Defendant, Jacqueline Barbuto, the widow of the deceased and the mother of each Plaintiff, has opposed the relief being sought. In relation to the claim by Bradley, her opposition is to the quantum of the provision that he seeks, whilst in relation to the claim by James, she seeks an order that his proceedings be dismissed.
I have referred to Jacqueline as the widow of the deceased, even though there is no dispute that, at the date of the deceased's death, being 23 April 2017, she was, and had been for many years, separated from him (and in a relationship with another man). However, a divorce order, in respect of their marriage, had not been made. I shall return to the nature of the relationship later in these reasons.
Hereafter, I shall refer to the parties, who are family members who share the same surname, by his, or her, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity.
Regrettably, this is yet another case in which there is a great deal of antagonism between the parties, which appears to be deep, bitter, and, in the case of Bradley, reasonably longstanding. It can only be such antagonism that has led to the case between adult children and their mother being allowed to be heard over four days, and to have caused the parties to incur the quantum of costs, which, on any view, are disproportionate to the value of the deceased's estate.
Pertinent to the proceedings is what I wrote in Fulton v Fulton [2014] NSWSC 619, at [1]: "This is a sad and a regrettable case. It demonstrates, once again, that contentious proceedings involving an estate and family members, 'where the drama of the family rifts unfolds with all the ill-feelings, resentment and animosity between the protagonists climaxing on public display, are unavoidably destructive of what is left of the deceased's family. Win or lose, the family will most likely be torn further apart irretrievably': Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, at [1]."
The proceedings by Bradley were commenced by Summons filed on 29 March 2018. He sought a declaration that a property situated at Bangor, in New South Wales ("the Bangor property"), at the date of the deceased's death or alternatively on the date on which probate was granted in relation to the deceased's estate, was held by Jacqueline, on trust for the deceased, and that upon its sale, one-half, or in the alternative, all, of the proceeds of sale, were held on behalf of the estate of the deceased. He also sought consequential relief. (Bradley did not, in his Summons, seek a family provision order under Chapter 3 of the Act. He sought a family provision order in an amended Statement of Claim filed on 26 June 2018, to which reference will be made later in these reasons.)
On 4 May 2018, the Court ordered, in Bradley's matter, and without opposition, that the matter proceed by way of pleadings.
Bradley then filed a Statement of Claim on 15 May 2018, followed by an amended Statement of Claim on 26 June 2018. In the amended Statement of Claim, Bradley sought, for the first time since he commenced his proceedings, a family provision order. Jacqueline filed a Defence on 6 July 2018. Bradley filed a Reply on 3 September 2018.
The proceedings by James were commenced by Summons filed on 19 April 2018, in which he sought similar relief to that sought by Bradley, as well as a family provision order pursuant to s 59 of the Act, and consequential orders. On 20 August 2018, following an unsuccessful private mediation held in both matters, the Court ordered, in James' matter, and without opposition, that the matter proceed by way of pleadings. A Statement of Claim was filed on 31 August 2018, which was followed by Jacqueline's Defence, on 21 September 2018, and then a Reply, by James, on 10 October 2018.
The claims, by each of Bradley and James, other than his claim for a family provision order, respectively, by the date of the hearing, were no longer being pursued. In written submissions dated 21 June 2019, served on Bradley and James, counsel for Jacqueline wrote: "On a without admissions basis, in order to facilitate the just, quick and cheap resolution of the real issues in the proceedings, the Defendant has agreed to pay the whole of the Bangor Proceeds to the Deceased's estate net of any tax payable, either as a matter of law or because the Defendant has elected in her discretion to pay the whole of the Bangor Proceeds net of any tax payable to the Deceased's estate."
(There was a suggestion, in oral submissions, by her counsel, that notice of Jacqueline's intention to pay the net proceeds of sale into the estate, had been given in correspondence sent prior to the date the submissions were served: Tcpt, 4 July 2019, p 367(34) - p 369(6). Evidence about the correspondence may be relevant when the issue of costs is determined.)
Following receipt of the written submissions, the matter was listed before me, in order to confirm that the only issue for determination that remained, in each case, was the claim for a family provision order: Tcpt, 25 June 2019, p 1(32-48).
This was confirmed, again, at the commencement of the hearing, on 1 July 2019: Tcpt, 1 July 2019, p 1(31-41). The parties also confirmed that there was no longer any need to refer, in detail, to the trust aspect of each case, and that it would only be necessary to refer to the estate of the deceased, as the proceeds of sale of the Bangor property were to be treated as falling into the actual estate of the deceased.
Despite these concessions, the proceedings continued over 4 days. At the hearing, Mr A G Rogers of counsel appeared for Bradley; Mr A M Gruzman of counsel appeared for James; and Ms T Catanzariti of counsel appeared for Jacqueline.
A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Part 3.3 of the Act: s 63(5). As will be read, there is property that may be designated as notional estate of the deceased. However, the parties agreed that there would be no need to designate such property as notional estate, as there were assets of sufficient value in the estate of the deceased for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, in both cases: s 88(b) of the Act.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, Bradley and James is each an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person").
Bradley did not commence the family provision aspect of the proceedings within the time prescribed by the Act. It is unnecessary to go into the reasons why the Summons was not filed within time, because counsel for Jacqueline, at the commencement of the hearing, stated that if a family provision order is to be made, the parties to the proceedings consent to the application being made out of time: Tcpt, 1 July 2019, p 2(40-43). (Consent of the parties to the application being made out of time, is one way the Court can determine an application made out of time: s 58(2) of the Act.)
James commenced the family provision proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
As the deceased had dealt with all of his estate in his Will, to which reference will be made, the parties agreed that there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
As often occurs where there are different Plaintiffs, in separate proceedings, making a family provision claim in relation to the same estate, the parties, well before the commencement of the hearing, agreed that both of the proceedings would be heard consecutively, with the evidence in one being evidence in the other, so far as material. No Notice of Motion to that effect was filed, but in the circumstances, that was not necessary. (The proceedings could not be consolidated, without leave, because different solicitors act for the different Plaintiffs.) The agreement between the parties was confirmed at the commencement of the hearing: Tcpt, 1 July 2019, p 1(13-30).
In my view, that was a sensible, and appropriate course, as there are no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence; factual, and credit, issues that overlap, that are, or that may be, relevant to both claims, may be determined, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the same issues; the possibility of two appeals, with potential delays if the proceedings are not heard and determined at the same time, will be avoided; Jacqueline may have been put to less expense in defending only one hearing, rather than two; the just, cheap and quick hearing of all of the matters in dispute will be facilitated; and the most efficient and expedient use of resources, for the parties, and, by implication, the Court, will be achieved. For those reasons, it was "desirable" to make such an order: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 28.5.
Shortly after the commencement of the hearing, with the consent of the parties, and in the exercise of the Court's discretion, I made an order to that effect: Tcpt, 1 July 2019, p 3(13-30).
It is also convenient to deal with both proceedings together in these reasons for judgment.

Some background facts

The following facts are either not in dispute or, where stated, are facts in dispute that I am satisfied should be resolved as stated. To the extent that any of these facts are in dispute, the facts stated should be regarded as the findings of the Court.
The deceased was born in March 1948 and was aged 69 years at the date of his death.
Jacqueline was born in July 1950 and is 69 years old.
The deceased and Jacqueline met in mid-to-late 1966 and they were married in December 1968.
James was born in July 1969 and is now 50 years old.
Bradley was born in November 1972 and is now 46 years old.
The deceased and Jacqueline separated in about 1995. There is evidence, to which reference will be made, that suggests they continued to have a relationship, even after their separation, and their subsequent agreement as to the adjustment of their property interests.
A short time after their separation, Jacqueline moved into a property at Cronulla ("the Cronulla property") that they had earlier jointly owned and the deceased's interest in which was transferred to her pursuant to that agreement.
Jacqueline met her current partner, Doug Anderson, in about July 1996. In June 1997, they moved to Jindabyne where they stayed for about 2 years, after which they returned to live, together, in about 1999, in the Cronulla property.
James married Kellee in March 1995. They have four children, namely Mitchell, who was born in June 1996, and who is 23 years old; Blake, who was born in July 2000, and who is 19 years old; Ryan, who was born in November 2003, and who is 15 years old; and Claire, who was born in March 2010, and who is 9 years old.
Shortly after completing his studies, Bradley entered into a de facto relationship with Tanya Salamon. They moved to Perth, Western Australia, together, where Bradley started a career as an Aboriginal Teaching Assistant. They separated in 2009. Their daughter, Imogen, was born in October 2006, and she is presently 12 years old.
In 2010, Bradley met Nuraiman (Lulu) Saleh, while on holiday in Bali. The relationship, initially, was a long-distance one, as she experienced some difficulty in returning to Australia, with Bradley. They married in October 2013, in Perth, and remain married. They have two children, namely Dominic, who was born in August 2014, and who is presently 5 years old and Bronte, who was born in November 2015, and who is presently 3 years old.
Bradley admits that in 2013, the deceased contributed $2,000 towards the costs of his wedding, at which the deceased attended, and in 2014, the deceased contributed $7,000 to assist with the costs of obtaining an Australian visa, for his wife, Nuraiman. He also admits that as an adult, the deceased "would occasionally give me small amounts of money towards payment of my bills when I was in strong financial need" which amounts "did not exceed a few hundred dollars on any occasion": Affidavit, Bradley Dominic Barbuto, 19 May 2018 at par 99-101.
In the "Statutory Declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application", dated 1 December 2014, signed by the deceased, he states that because Bradley and his wife lived in Perth and he lived in Sydney, "[I] don't get to see them as often as I would like. However, I have been in their company for a week in Nov '12, another 10 days in Oct,'13, 15 days over Xmas 2013, and have just spent a week with them in Nov' 14". He described his relationship with Bradley as "still very close".
The deceased was involved in the life of each of his grandchildren, although he seemed to have had a particularly close relationship with his grandson, Blake. James gives examples of the deceased contributing $2,000 "to help pay for Blake's fees when he made the NSW School Boys Tour to Mackay"; of "help[ing] Blake with his driving lessons"; and the deceased being "present at all my [James'] children's swimming carnivals, athletic carnivals, and football games". James describes the deceased being "very generous" to his children: Affidavit, James Francis Barbuto, 18 April 2018 at par 25, 27-28.
(Jacqueline gives evidence that the deceased expressed a wish that Blake be given his car if Blake cleaned the deceased's pool, mowed the lawn of the Bangor property and got his driver's licence. She says that she does not know if Blake has his driver's licence, but observed that Blake did not clean the pool or mow the lawn of the Bangor property: Affidavit, Jacqueline Barbuto, 19 September 2018 at par 59.)
Bradley gave evidence of the deceased having flown to Perth to attend the birth of Bradley's first child, Imogen, and having attended her baptism: Affidavit, Bradley Dominic Barbuto, 19 May 2018, at par 51.
It follows from the evidence of each of Bradley and James that the position of the deceased's grandchildren as discretionary objects, should not, and cannot be ignored by the Court.
In circumstances to which I shall come, Jacqueline maintains a relationship only with Bradley's daughter, Imogen: Tcpt, 3 July 2019, p 248(9-10).

The properties of the deceased and Jacqueline

The deceased and Jacqueline purchased the Bangor property, as joint tenants, in about June 1977, for $17,950. It remained in their joint names at the date of the death of the deceased.
In about 1994, the deceased and Jacqueline purchased a unit at Cronulla which I have described as the Cronulla property for $179,000. It was purchased by way of a "Fully Drawn Advance" secured by way of a registered mortgage over the Bangor property: Affidavit, Jacqueline Barbuto, 19 September 2018 at par 15.
On or about 16 October 2007, the deceased and Jacqueline entered into a Financial Agreement pursuant to s 90C of the Family Law Act 1975 (Cth). It was asserted by Bradley and James that as a result of the Financial Agreement, Jacqueline was to transfer her interest in the Bangor property, held jointly, to the deceased, and that he was to transfer his interest in the Cronulla property, held jointly, to her. It was also asserted that whilst the deceased transferred his interest in the Cronulla property to Jacqueline in October 2007, she did not transfer the Bangor property to him, then, or ever.
Jacqueline asserts that she and the deceased agreed that the Bangor property would not be transferred to him despite the terms of the Financial Agreement. Her oral evidence, at Tcpt, 3 July 2019, p 257(40-44), and then at Tcpt, 3 July 2019, p 258(17-24), which I accept, was: "You've given evidence to say that Frank said "Don't worry about transferring Bangor to me", do you remember that, words to that effect? A. Words to that effect yes. … Q. You say that the only reason was that Frank decided that he didn't want the property transferred into his name and did he give a reason for that? A. Yes. He said: 'We both worked hard for Bangor and we both paid that off. Jacq you and I worked for Bangor. You have paid the majority of Cronulla, you have paid for all the renovations, I don't feel I own Cronulla, that should be yours.'"
In this regard, it is to be noted that there is no evidence at all, and it was not suggested to Jacqueline otherwise, that in the 9 years following the Financial Agreement being executed, the deceased did anything to cause Jacqueline to transfer the Bangor property to him. I shall also refer to the evidence of Mr Christopher Brown, a solicitor and long-time friend, who conferred with the deceased shortly prior to the date on which the deceased executed his Will, and to whom statements were made by the deceased about the Bangor property: Affidavit, Christopher Herbert Brown, 13 June 2019.
In any event, as the proceeds of sale of the Bangor property are acknowledged to be part of the deceased's estate, the issue is no longer a relevant one, other than perhaps on the question of costs.
Upon the death of the deceased, Jacqueline inherited the Bangor property by survivorship. A Notice of Death, dated 7 June 2017, was lodged for registration, and, subsequently, the title to the Bangor property came to be held solely in her name.
On 28 February 2018, Jacqueline sold the Bangor property for $1,050,000. The net proceeds of sale, after the payment of conveyancing costs, agent's commission, and the costs of sale, were $987,135.
There is evidence, which I accept, that prior to its sale, and following the death of the deceased, Jacqueline and Doug worked on the Bangor property. The improvements cost $38,714, and this amount has been repaid to them from the proceeds of sale. (Although it was not originally conceded, by the conclusion of the hearing, the deduction of that amount from the gross proceeds of sale was no longer an issue.)
Although in each Statement of Claim, respectively, Bradley and James sought the removal of Jacqueline as trustee of each Trust, and also as executor of the deceased's Will, respectively, those claims for relief were not persisted with at the hearing.

The deceased's Will

The deceased was diagnosed with cancer, and made his Will on 2 March 2017. This Court granted Probate of the deceased's Will to Jacqueline, the executrix appointed thereunder, on 2 November 2017.
The Will is a lengthy and detailed document. It comprises 27 pages. First, the deceased revoked "all previous testamentary acts": Clause 1.
Clause 2 of the Will contained "General Definitions" and "Special Definitions".
In Clause 3 of the Will, Jacqueline was appointed as the executrix and trustee.
There was, then, the gift of one-half of the residue of the deceased's estate to a testamentary trust, with Jacqueline named as the trustee and the appointor of the Trust, and her ("My spouse"), James ("the First Principal Beneficiary"), the children of James, the grandchildren of James, or any associated trustee of a trust or corporation, named as the discretionary objects of that testamentary trust ("the first testamentary Trust"): Clause 5. (Elsewhere in the Will, the trust was referred to as the "F N Barbuto No 1 Will Trust".
There was a gift of the other one-half of the residue of the deceased's estate to a different testamentary trust, with Jacqueline as trustee and appointor of the Trust, and her ("My spouse"), Bradley ("the Second Principal Beneficiary"), the children of Bradley, the grandchildren of Bradley, or any associated trustee of a trust or corporation, named as discretionary objects of that testamentary trust ("the second testamentary Trust"): Clause 6. (Elsewhere in the Will, the trust was referred to as the "F N Barbuto No 2 Will Trust".
Clause 7 of the Will, relevantly, provided the rights and powers of the Trustee. One such power, contained in Clause 7(c), was: "in the sole discretion …from time to time and as often as My Trustees shall think fit to pay or apply the whole of or such part or parts of the income or capital or both to which any beneficiary under this my will is entitled or contingently or presumptively entitled to such beneficiary or (if an infant) to the parent or guardian of such beneficiary or to any other person or persons for the maintenance education benefit support or advancement in life of any such beneficiary without being responsible to see to the application of any such income or capital so paid or applied."
In the Schedule to the Will, Clause 7F permitted the Trustee to exercise any powers and discretions conferred "in such manner as if my Trustees were not trustees and under no fiduciary obligation in exercising such powers and discretions (and notwithstanding that my Trustees for the time being or from time to time shall be a sole trustee").
Clause 7N provided a power to vary the trust on certain terms and conditions.
There was no dispute, at the hearing, that the practical effect of the deceased's Will is to empower Jacqueline, as the Trustee of each testamentary trust, to determine who is to benefit, by way of capital and/or income, from the deceased's estate and that, as she, herself, is an object of each Trust, she may allocate the entire estate to herself should she so choose. (In stating this, I do not intend to imply any criticism of Jacqueline or suggest that she would not properly perform her duties as a trustee.)
No distribution or payment has been made from either the first testamentary trust or the second testamentary trust to any discretionary object. This was unsurprising bearing in mind the commencement, and continuation, of the proceedings.

The nature and value of the estate and property that may be designated as notional estate

The parties agreed that, at the date of death, the gross value of the deceased's estate was $1,081,894. They also agreed that the liabilities of the estate, at the date of death, were $4,259: Ex. 1/2; Tcpt, 1 July 2019, p 4(42) - p 5(36).
On the second day of the hearing, the parties agreed that the gross value of the deceased's estate, at the date of hearing, was $1,203,854: Tcpt, 1 July 2019, p 109. The estate now consists of the net proceeds of sale of the Bangor property ($987,135) and interest accrued thereon ($22,419), proceeds of a superannuation fund ($158,007), cash in bank ($429), shares ($25,862) and a car ($10,000).
(The deceased and Jacqueline also had a joint bank account in which there was $2,649 at the date of death. It is one-half of this amount, or $1,324, which may be designated as notional estate. However, as earlier noted, in view of the value of the estate, and considering the amount of provision being sought by each of Bradley and James, it was accepted, at the commencement of the hearing, that one-half of the jointly held bank account will not be designated as notional estate: s 88 of the Act: Tcpt, 1 July 2019, p 5(48) - p 6(14). Jacqueline also accepted that since she has received, and/or retained, the whole amount of the proceeds of the joint bank account, the Court may take the notional share of the deceased ($1,324) as a financial benefit she has received as a result of his death.
After some discussion, and on the second day of the hearing, the parties were able to agree that there were liabilities of the estate, almost all of which were repayments to Jacqueline for amounts she has paid, and the amount accepted by counsel was that found in Ex. 1/5 ($29,818).
It follows that the value of the deceased's estate, before deduction of any costs, is estimated to be $1,174,036. It is an estate of moderate value before any costs of the two proceedings are deducted.

The Costs of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the 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 her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [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, 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. I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a relatively small value.
Mr D Evans, the solicitor with the carriage of the matter on behalf of Bradley, affirmed an affidavit on 11 June 2019. In that affidavit, he disclosed that his firm was acting pursuant to a costs agreement, signed by Bradley, on 13 July 2017 and that the firm was acting "on a contingency basis", meaning that Bradley's legal fees were only payable "… on the successful outcome of his case whether this occurs through negotiation or by Court Order". He also disclosed that the costs agreement "allows … to charge an uplift fee of 10% on the successful outcome of the matter".
Mr Evans estimated that Bradley's costs and disbursements, calculated on the ordinary basis, at the conclusion of the 4 day hearing, would total $94,516. He did not identify, in the affidavit, what, if any, part of those estimated costs and disbursements, was the amount of the uplift fee. He estimated Bradley's fees, calculated on the indemnity basis, at the conclusion of a 4 day hearing, to be $118,033, all of which remains unpaid.
Mr S J Burns swore an affidavit on 20 April 2018, referring to James' costs of the proceedings, calculated on the ordinary basis, up to and including the date of the mediation. He did not disclose, in that affidavit, that James had entered into a conditional costs agreement with his firm. However, in his affidavit sworn on 11 June 2019, the estimated costs and disbursements, inclusive of GST, to the date of the conclusion of the 4 day hearing, was said to total $91,000, all of which remains unpaid. Of that amount, $3,450 was described as "an uplift factor included in the calculation of the Plaintiff's Solicitor's costs of 10% pursuant to the Conditional Costs Agreement between the Plaintiff and the Plaintiff's solicitors dated 23 June 2017".
Mr Burns stated that the costs are only payable pursuant to the Conditional Costs Agreement by the Plaintiff "if he obtains a successful outcome from the Proceedings i.e. by way of a Settlement or an order being obtained against the Estate". He stated that "[T]here is no uplift on Counsel's contingency Costs Agreement".
Mr Burns estimated the total costs and disbursements, calculated on the indemnity basis, to completion of the hearing, were $121,031, inclusive of GST.
Finally, Mr Burns stated, at [11]: "I note that the Costs and Disbursements are higher than normal for matters of this nature given that there are a number of additional matters involved in the Proceedings relating to, inter alia, Notional Estate of the Deceased, an issue concerning a Financial Agreement between the Deceased and the Defendant pursuant to the Family Law Act 1975, the potential removal of the Defendant as Trustee of the Trusts created by the Deceased's Will, and an issue about preservation of Estate assets pending this matter being determined, and this matter being heard together with another Claim on the Estate by the Plaintiff's brother, Bradley Barbuto."
(I should mention that I have, now, dealt with the obligation of a solicitor to disclose the existence of a conditional costs agreement in, at least, two judgments, namely in Anderson v Hill [2017] NSWSC 1149 at [35]-[38], and at [40]-[41] and in Oxley v Oxley [2018] NSWSC 91 at [57]-[90].)
In Oxley v Oxley, at [88], I wrote: "It follows that if there is any conditional costs agreement, the nature of that agreement, and its effect on the payment of the costs of the party, including any term relating to an uplift fee, should be disclosed in each affidavit of costs that is relied upon by either party."
Legal practitioners, particularly those that practice in this area, should, by now, be well aware of these two decisions.
In relation to each matter, s 181 of the Legal Profession Uniform Law (NSW) deals with "conditional costs agreements" and states that such an agreement may provide that the payment of some, or all, of the legal costs is conditional on the successful outcome of the matter to which those costs relate. Section 182 provides that a conditional costs agreement may provide for the payment of an uplift fee.
Because a copy of each conditional costs agreement was not in evidence, the Court is unable to state whether the conditional costs agreement, respectively, is one that complies with s 181. However, for the purpose of this aspect, I shall assume, in each case, that it does.
None of the parties made any submissions, in writing, as to the entitlement of a plaintiff to an additional amount for costs for the uplift fee, or the reasons why any such amount should be passed on to a defendant by an order for costs calculated on the ordinary basis. Perhaps, this is because counsel for each of Bradley and James were told (at Tcpt, 1 July 2019, p 9(37) - p 10(21)) of authority to the effect that an "uplift fee" is not part of the ordinary costs of a Plaintiff: G E Dal Pont, Law of Costs (3rd ed 2013, LexisNexis) at [17.55]; Stojanovski v Stojovski [2016] NSWSC 976; Page v Page [2016] NSWSC 1218, at [38]. (Although Page v Page was the subject of an unsuccessful appeal, there was no comment on the principle referred to - Page v Page [2017] NSWCA 141, per Sackville AJA, at [70]). (Also see Day v Perpetual Trustee (Supreme Court (NSW), Master Macready, 3 August 2001, unrep) in which the Court dealt, at length, with the reasons for not usually allowing the charge of an uplift factor. His Honour, in that case, regarded the uplift fee as a financing cost which should not be passed on to the residuary beneficiaries.)
On the second day of the hearing, the Court was informed, from the Bar table, without objection, that the estimate of Bradley's costs and disbursements, calculated on the ordinary basis, earlier given, had not included the uplift fee, and were $94,516: Tcpt, 2 July 2019, p 112(40-45).
The Court was also informed, from the Bar table, without objection, that James' costs, calculated on the ordinary basis, excluding the uplift factor, were estimated to be $88,406 and that the uplift fee was estimated to be $2,594: Tcpt, 2 July 2019, p 112(33-38).
Ms C Homer, the solicitor for Jacqueline, with the day to day conduct of the matters, estimated Jacqueline's costs and disbursements, inclusive of GST, calculated to the conclusion of a 4 day hearing, of both proceedings, to be $177,434. (In fact, this estimate should be reduced by $3,850, being the costs of the private mediator and mediation room, which amount has already been paid out of the estate of the deceased.): Affidavit, Cherrie Homer, 11 June 2019 at par 4-6. It follows, that the estimate of Jacqueline's costs, for both proceedings, is $173,584.
It is tragic that the costs, as set out above, of the proceedings, which, in total, amount to $356,506, are so high. There is merit in the submission that, at least, in part, the costs have been higher than they might have been otherwise, because of the trust dispute, which appears to have been kept alive until about one week before the hearing.
The parties informed the Court that it would not be possible to deal with how the burden of costs should be borne as there may be documents, served by Jacqueline, which may be relevant on the issue of costs. I shall allow the parties an opportunity to consider these reasons for judgment and then if the issue of costs is not agreed, I shall list the matter for argument at a convenient date. One can only hope that further costs will not be incurred in arguing about costs: Tcpt, 1 July 2019, p 8(4-37). (If the hearing is any guide, this is likely to be no more than a forlorn hope.)
Almost at the conclusion of the submissions, counsel for Jacqueline stated that "if James' claim is dismissed, and there is no adverse costs order in relation to the matter of the Bangor property, then [Jacqueline] will not be pressing costs against James": Tcpt, 4 July 2019, p 355(36-39).
However, this concession may not determine the costs issue in those circumstances, as I apprehend that James would seek an order that, whatever the result, some of his costs should be borne by Jacqueline personally rather than out of the estate of the deceased.
It should also be made clear that the discussions during the course of the hearing, and the estimates that the legal representatives have provided and which have been used by the Court, are not to be treated as having been accepted as actual costs and disbursements by the opposing parties. One, or more, of the parties, may require a formal assessment of the costs and disbursements that are ordered to be paid out of the estate of the deceased.
For the purposes of the proceedings, it appears that if orders were made that all of the costs are to be paid out of the estate of the deceased, the value of the estate out of which any order for provision for each of Bradley, and James, could be made, is $817,530: Tcpt, 2 July 2019, p 112 - p 114.
Based upon these estimates, the amount that would be held, on behalf of each testamentary trust, by Jacqueline as trustee, would be in the order of $408,750.

Eligible Persons

There was no dispute that the only eligible persons are Bradley, James and Jacqueline. Only Bradley and James have made a claim for a family provision order. However, Jacqueline has given evidence of the bases of her claim on the bounty of the deceased. She has not raised her financial circumstances as a competing financial discretionary object. Each of the parties was cross-examined.
The parties did not suggest that any of the deceased's grandchildren was an eligible person.
In an affidavit sworn by Ms Homer on 25 June 2019, a person by the name of "Nikki" was referred to as another person who may be an eligible person. Initially, investigations did not reveal her full name, or her whereabouts. In this regard, Ms Homer had made enquiries of the deceased's brother, Natale Barbuto, and two friends of the deceased, namely Robert Coombs and Phillip Whyte, each of whom was a witness in the proceedings, but none of whom could provide any information.
Subsequently, a search of the deceased's laptop computer revealed a person called "Nikki Finch" and an email address for her. Following email correspondence, to which was attached the prescribed form of notice, Ms Homer spoke, by telephone, to Ms Finch, who stated that she was "not interested in making a claim. I'm not a blood relative": Affidavit, Cherrie Homer, 25 June 2019 at par 14-16.
In the circumstances, I am prepared to disregard the interests of Ms Finch, a person by, or in respect of whom, an application for a family provision order may be made, but who has not made an application even though the notice of the application by each of Bradley and James, and of the Court's power to disregard her interests, was served on her recently: s 61 of the Act.

Jacqueline's silence regarding her financial circumstances and resources

Although a discretionary object of each trust, Jacqueline is entitled to elect to remain silent about her financial resources and needs and simply look to the Court to not disregard the deceased's freedom of testamentary disposition and his nomination of her, respectively, as a trustee and discretionary object, regardless of her financial resources or needs: Meres v Meres [2017] NSWSC 285, at [85]. The Act specifically provides that her interests, as a beneficiary, and I would suggest, a potential beneficiary, cannot be disregarded, even though she has not made a claim: s 61.
She is entitled to rely upon the terms of the Will and her competing claim as a chosen potential object of the deceased's testamentary bounty.
Even though stated in the context of a named beneficiary, in Sammut v Kleemann [2012] NSWSC 1030, at [137]-[140], I set out the principles in a case where the beneficiary does not disclose her, or his, financial resources. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated the principle, far more succinctly: "The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (Supreme Court, Macready M, 5 December 1996 unreported), at 6). The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant."
Also see Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, at [23].
Even if I infer that Jacqueline has no financial need for provision from the estate of the deceased, and, that, on a comparative basis, she is significantly better off than each of Bradley, and James, her silence does not mean that her competing claim upon the bounty of the deceased should not be evaluated. As will be read, what is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of beneficiaries.
As I also stated in Meres v Meres, the consequences of not disclosing a beneficiary's financial resources and needs, simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by Bradley and James, respectively, the Court will not disregard the competing interest of any discretionary object as a claimant upon the bounty of the deceased. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, per Dixon CJ, at 19.
Neither Bradley, nor James, has given evidence going to any of his children's financial circumstances, respectively. Nor, it would seem, did Jacqueline seek any information, for the purposes of the proceedings, about his, or her, financial resources and needs. However, prior to the mediation, in a letter dated 12 July 2018, sent to the solicitors for each of Bradley and James, the solicitors for Jacqueline noted that there was "… some awkwardness in that objects of the testamentary trusts include your client's children and unborn children" and suggested "that the other objects of the testamentary trusts should be separately represented at the mediation, particularly as some of them are minors. They or their legal representative may wish to attend the mediation": Ex. 4.
There is no suggestion that the course suggested by the solicitors for Jacqueline was agreed to, or taken up, by either of Bradley or James, and there is no evidence of the financial circumstances of any of the grandchildren of the deceased.
James and Jacqueline, by counsel, each agreed that if provision is made for the relevant applicant, it should be borne out of the half share of the estate which passes to the relevant testamentary trust in respect of which he is a discretionary object. Counsel for Bradley took a different view submitting that the provision should be borne out of the deceased's estate. He did not specifically state how the burden of that provision should be borne.
In view of the submission made by counsel for Jacqueline that the case brought by James ought to be dismissed, the submission made on behalf of James is difficult to understand. Be that as it may, s 65(1)(c) of the Act provides, amongst other things, that a family provision order must specify 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 my view, it would be more consistent with the deceased's intentions to ensure that any provision made for either of Bradley, or James, should be paid out of the part of the estate in which he is named as a discretionary object. In this way, if the proceedings brought by James were dismissed, the value of the first discretionary trust will not be reduced by any part of the provision made for Bradley being borne by its one-half share.

Some additional findings

I am satisfied that the following facts about the relationship of the family members have been established. I have taken some of these matters from Jacqueline's evidence, which, as will be read, I accept, in particular, where there is any conflict with the evidence of either Bradley or James.
The deceased and Jacqueline kept in regular contact even after their separation and the commencement of her relationship with Doug. They would speak, on average, about once a week, following their separation, about twice a week, when she and Doug were living in Jindabyne, and more often when they returned to live in Sydney. I accept her description of their relationship as being that of "close friends": Affidavit, Jacqueline Barbuto, 19 September 2018 at par 28.
In 1999, when the deceased required surgery for prostate cancer, it was Jacqueline who provided emotional, and other, support, to him. She would take him to various doctors, specialists and hospital appointments. Whilst he was in hospital, she cleaned his house and washed his clothes.
When the deceased was in hospital recuperating from liver surgery, Jacqueline would visit him almost daily, and when he was discharged from hospital, she stayed with him for a few days. She did the same when he was in hospital, for 5 weeks, for pelvic exenteration. (The deceased referred to this in his email to Bradley on 10 March 2017 to which reference will be made.)
During the last weeks of his life, Jacqueline regularly visited the deceased in hospital. Whilst she was not there all the time, she was regularly in attendance, on most days, for different periods of time.
In 1994, the deceased and Jacqueline borrowed $20,000, which they gave as a gift to James and his wife, Kellee. They used the amount gifted as a deposit on their new home. It was Jacqueline who made the fortnightly repayments on the loan. She was also a guarantor on the borrowing made by James and Kellee.
Although James did not give any evidence about it, I accept that the deceased and Jacqueline, in about March 1994, also gave James $2,000 (by way of a term deposit with the Commonwealth Bank) towards his own landscaping business called "A Better Pave".
In February 2017, James visited the deceased at the Bangor Property, to assist him with pumping the pool and some maintenance around the property. James, in his Affidavit, 18 April 2018 at par 33, provides a description of the visit: "[w]e then went upstairs and had a cup of tea and I said to him: 'While you are still with us, have you got all your financials and Will sorted?' He said 'Yes, you don't need to worry about it. It is all going to Blondie' [which I knew to be my mother]. I said: 'What do you mean? The house, your savings, my Grandmother's inheritance, everything?' He said: 'Don't worry, me and your Mother are leaving you and Brad $5,000:00 each. We've worked out that as long as we leave you something, you can't contest the Will. I'll speak to your Mother about it and I'll look into it'."
There is little, if any, relationship, between each of Bradley, and James, respectively, with Jacqueline at the present time. That, perhaps, is demonstrated by, amongst other things, the hard fought nature of this litigation.
Bradley gave evidence that he "believed the deceased was manipulated to change his Will and everything last minute": Tcpt, 1 July 2019, p 100(34-44). (I shall return to this topic later in these reasons.) Furthermore, he appears to have had little to do with Jacqueline since about 2013.
In relation to Jacqueline's relationship with Bradley there was no dispute that they have had no meaningful contact since 2013. In cross-examination, Jacqueline asserted that the event that led to the breakdown of their relationship was as follows, at Tcpt, 3 July 2019, p 246(26) - p 247(14): "A. I can remember exactly 'cause we were watching State of Origin in June 2013 and I noticed that Brad and his daughter, Imogen, were having pizzas, homemade pizzas, and so I rang up and said to Brad, 'Oh,' and Imogen, 'we're having homemade pizzas tonight too. Go the Blues,' and Imogen said to me, 'Are you coming for dad's wedding?' I said, 'What's this about dad getting married?' So Brad gets on. He said, 'I'm getting married, mum,' and I said, 'Why? Why the rush? Who are you getting married to?' and he mentioned his present wife. 'Are you going to come?' and I said, 'Brad, I can't. I'm having major knee replacement surgery so I won't be able to come. Why the rush? You've only met her on holidays. Why don't you take it a bit slowly? You have a daughter that you have to look after. How could you possibly marry someone that you haven't got the funds to look after?' Bang. Q. You understood either from that conversation or otherwise that you were invited to come to the wedding? A. I couldn't get there. I'd had major knee surgery. Q. But-- A. I couldn't travel. … Q. --the question that you were asked was did you appreciate that Bradley might be upset that you were-- A. Yes. Q. --criticising his decision-- A. Yes. Q. --to marry?"
(In his affidavit made 19 May 2018, Bradley indicated his relationship with Jacqueline became "estranged" due to Jacqueline "taking sides" with his former partner over a family dispute about the paternity of a child, and the stresses of his parents' separation. The time period of these events is not specified. In any event, it is clear that there has been a long period of estrangement between Bradley and Jacqueline.)
In relation to James, Jacqueline gave evidence that she considered that she had previously had a good relationship with James, although in about February 2017, they had "a little tiff", when James had raised the deceased's Will: Tcpt, 3 July 2019, p 242(47) - p 243(3). She had not realised the importance of this event, as it was James who had consoled her following the death of the deceased. However, thereafter, despite attempts by her to resume their contact, he had not answered her text messages or her telephone calls. She came to regard their relationship as having completely broken down, as evidenced by her not being permitted to see his children, and not being invited to one of his children's 21st birthday party.
She gave a very detailed answer, in re-examination, as to the extent of the breakdown of their relationship at Tcpt, 3 July 2019, p 263(15-40): "Q. You also said that you tried to contact your grandchildren? A. Via text messages. Q. If I show you your phone, can you highlight some of those text messages? A. The last one - I, I sent text messages on all their birthdays. I even sent Christmas presents on the very first year that were returned to me, opened by I presume Kellee because she wrote the note saying that they couldn't accept them. I don't know if the children ever got to see that they got these presents. For the older boys there was money in gift cards 'cause that's what the older kids want. For Claire there was a big package of clothes. It was pretty heartbreaking getting that all sent back. I know that they were a little bit late but I couldn't go over to their place. But the last text message I sent to my son, James, was for his daughter, Claire, 'cause she doesn't have a mobile - the boys all do - "Would you please wish Claire a very happy ninth birthday, love always, Oma." His answer was: 'She will be having a great day surrounded by the love of family and friends, something you in your greed gave up on a long time ago. You had the power to change all this but decided not to, but that's the bed you and Doug made and you have to sleep in it. Bit easier for him. He still sees his daughter and grandchildren whilst leaving your life in tatters.' Pretty awful to receive that. My grandkids mean the world to me. I don't know why they were involved in any of this. I've never had an argument with any of my grandchildren."
I also accept that following the death of the deceased, and before its sale, Jacqueline cleaned out the Bangor property and that she boxed up items that she knew belonged to either Bradley or James. Although James did not return her calls, a mutual friend, Mr Whyte arranged to have James collect the boxes containing property of James, from him.
(The reason for making findings about the nature of the relationship between the parties relates to a consideration of the terms of the deceased's Will and the likelihood of each of Bradley and James receiving provision out of the deceased's estate as a result of the exercise of discretion by Jacqueline.)
I shall refer to the relationship of the deceased with each of Bradley and James later in these reasons.
For completeness, I should mention that the evidence, that I accept, discloses that the deceased had a relationship with all of his grandchildren. Indeed, Mr Whyte, one of the witnesses called by Jacqueline, said in cross-examination that the deceased had discussed his grandchildren "in glowing terms": Tcpt, 3 July 2019, p 284(15-16).

The Circumstances regarding the making of the deceased's Will

Mr C H Brown, a Partner in the firm of solicitors representing Jacqueline, swore an affidavit on 13 June 2019 and he was cross-examined.
Although the affidavit was served close to the hearing, and although counsel for each of Bradley and James, initially, objected to the Court reading it, each counsel fairly conceded that if he was given an opportunity, overnight, to consider the primary documents relating to the instructions given to Mr Brown (which had been produced), no prejudice would be suffered: Tcpt, 1 July 2019, p 39(50) - p 42(21).
Uniform Civil Procedure Rules 2005, r 10.2(1) provides that a party intending to use an affidavit that has not been filed must serve it on each other interested party not later than a reasonable time before the occasion for using it arises. Uniform Civil Procedure Rules 2005, r 10.2(2), provides that a party who fails to serve an affidavit as required by subrule (1) may not use the affidavit except by leave of the court.
Because the affidavit of Mr Brown was served late (on 14 June 2019), I consider that it was not served a reasonable time before the occasion for using it arose. However, in circumstances where the evidence of the conversations said to have occurred were, realistically, unlikely to be able to be challenged, in any significant way, by either of Bradley or James, and where Mr Brown was available for cross-examination, I granted leave to read his affidavit.
In the affidavit, Mr Brown gave evidence that he had known the deceased for more than 50 years. They met in High School; they played rugby together for many years, until about 1983; and they had met at various school reunions both before, and after, that date. He gave oral evidence that he had not seen the deceased for, perhaps, 20 years, before February 2017, when the deceased and Jacqueline attended at his office.
Until February 2017, Mr Brown had not been engaged by the deceased to provide legal services to him.
Mr Brown gave the following evidence in his affidavit: "9. Frank attended my office with Jacqui at approximately 2.00pm. on Tuesday, 28 February 2017. Frank gave me a colour photograph of the players in our team, in our last match together in 1983 at Coogee Oval. Frank called out names of players in the photograph and we reminisced together about rugby and old times. Frank said to me words to the following effect: I have terminal cancer. I will die soon. I need to make my will and make sure that I give everything to Jacqui. Bob Coombs suggested that you are the man to put things in order for me. I have not kept in touch with my old mates from the SHOBS. I am ashamed at the way I treated Jacqui, and forced her to leave me. I want to put things right. 10. I said words to the following effect: Frank, I will do what you ask me to do. I'm sorry to see you in this state, but me being sorry doesn't help you. 11. Frank then said to me words to the following effect: Jacqui is to get everything. Jamie and Brad are to get nothing. They have behaved disgracefully towards Jacqui and me. Jacqui and I have been separated for many years - that was all my fault for siding with the boys against her. We are still married, merely separated. I am glad that she has Doug, he is a good man and supports her emotionally in a way that I should have. Jacqui is my rock. We are Catholics and never divorce. 12. I said words to the following effect: Mate, how long have you got? 13. Frank said words to the following effect: Probably not more than 3 months, it is inevitable. 14. I then said words to the following effect: Mate, you need to make a will, probably an enduring power of attorney and probably an enduring guardianship. If I have understood you correctly, you want all of your estate to go to Jacqui and nothing to the boys. Is that correct? 15. Frank then said words to the following effect: Correct. I am ashamed at both of them. I've had a big argument recently with James. He demanded that our house go to Bradley and himself and that Jacqui get nothing. I told him that Jacqui is getting everything. At times, Jacqui and I were each working 3 jobs to pay for the unit and the house and Jacqui was a good mother. The boys have treated her very badly. I want Jacqui to have the lot, and after I am gone, it will be up to Jacqui to decide if she gives anything to the boys or the grandchildren. 16. I then said words to the following effect: I understand your intentions. I can draft a will, now, so that you give all of your estate to Jacqui. Separately though, is it possible for you to talk to the boys and explain how you feel, attempt some reconciliation? 17. Frank then said words to the following effect: Waste of time. Had enough. Don't want anything more to do with them. Both gamblers, can't be trusted. Blake is going to same way, under the influence of Jamie. Anything that I might give to Brad will go straight to the casino. Brad has had a number of relationships, and cannot be trusted. I should have listened to Jacqui all those years ago. Jacqui was right. I was wrong, I drove her away. I fear for the future of my grandchildren. 18. I then said words to the following effect: You might think about writing a letter to the boys, explaining how you feel. The boys could get the letter after you are gone. The letter is not a will, and may help Jacqui to engage with the boys, after you are gone. Sometimes a statutory declaration is used. 19. Frank then said words to the following effect: I will think about it."
Mr Brown also gave evidence of the discussion regarding a will that created testamentary trusts (which it is not necessary to repeat). He then wrote, in the affidavit: "22. Frank then said words to the following effect: I agree. Make the will giving everything to Jacqui, now. Then I can think about a more complex will with trusts, later. 23. I then handwrote a will for Frank, which was executed by Frank in the presence of myself and Madelaine Inglis. The execution of the will by Frank was witnessed by Madelaine Inglis and myself, in the presence of each other and Frank. … … 26. Before printing the suggested structure for testamentary trusts on the whiteboard, I said to Frank words to the following effect: We need to consider who should succeed Jacqui as appointor of the testamentary trusts, if Jacqui dies or loses capacity. Normally in the case of the first testamentary trust it would be the secondary beneficiary, James and in the case of the second testamentary trust, the secondary beneficiary, Bradley. 27. Frank then said words to the following effect: No, I don't want James or Bradley. Neither can be trusted. There would be nothing left for the grandchildren. Chris, can it be you? 28. I then said words to the following effect: Normally, it would be trusted family members, at least 2, and if need be, if you want, I would agree to act jointly with them as substitute appointor. 29. Frank then said words to the following effect: Okay. Then put in Mark Sloane and Glen Barbuto, my nephews with you, Chris. 30. I then said words to the following effect to Frank: This will that you've just signed appoints Jacqui as sole executrix and beneficiary. You should consider appointing Jacqui as your enduring power of attorney and enduring guardian, so that she can act on your behalf, even though you lose capacity. 31. Frank then said words to the following effect: I agree. … 33. Frank then said words to the following effect: I'll think about contacting the boys, but they don't deserve anything. I'm ashamed of them. Making my will today has been a relief. 34. I then said words to the following effect: Jacqui, you have said virtually nothing all day. Is there anything you want to ask? 35. Jacque [sic] then said words to the following effect: No. Frank and I are still married, and I'll be with him to the end. It is very upsetting to think that our sons are only concerned about property, and not about their father. Thank you for looking after Frank."
The handwritten Will, which was duly executed by the deceased and dated 28 February 2017, revoked all former Wills, appointed Jacqueline as the sole executrix and trustee and left to her the whole of the deceased's estate: Affidavit, Christopher Herbert Brown, 13 June 2019, Annexure A.
In an email dated 3 March 2017, the deceased wrote to Ms M Inglis, the solicitor who was to prepare the Will including the testamentary trusts, attaching "a list of my assets and how I would like to see them dispersed. These are not set in concrete and were a guideline for Jacqui to think about".
The attachment was in the following terms (Affidavit, Christopher Herbert Brown, 13 June 2019, Annexure C): "DISPERSEMENT OF ASSETS ASSET RECIPIENT HOUSE JACQUI (Joint ownwers [sic]) IAG Shares MITCHELL AMP Shares RYAN & CLAIRE Shares to be held in trust. Any dividends to be reinvested in shares. When Ryan turns 18 he is to receive half of the shares. Claire to receive balance of shares when she reaches 18 y.o Car JACQUI Initially ownership to be transferred to Jacqui but ownership to be transferred to BLAKE when he obtains his driving licence. Challenger Annuity JACQUI $50,000 to be invested and held in trust for Bradley's children. Upon reaching the age of 18years each child to receive a share of this trust the share to be paid is the value of the fund divided by the number of eligible children $100,000 to be invested in a trust fund to be named THE NORMA BARBUTO EDUCATION TRUST. This trust will pay the school fees (from Kingergarted [sic] to 12 year only) for Jamie's and Bradley's Children and any offspring they may have.. Payment to be made to the school direct upon receipt of school invoice. One Path Jacqui in addition each child shall receive an allowance of $200 p.a. for uniforms, books etc for years Kindy to Year 6 For years 7 to 12 This allowance shall be increased to $300.p.a This allowance to be made to their parents at the beginning of each school year. $10,000 each to Jamie & Bradley The balance to be used for renovation/repair of house."

I should refer, next, to the cross-examination of Mr Brown. Importantly, Mr Brown, in cross-examination, gave evidence that: 1. He had not seen the "Regrets" letter, and even now, had not read it: Tcpt, 3 July 2019, p 268 (1-2). 2. He had a clear recollection of the events of the meeting with the deceased and Jacqueline, despite the passing of over 2 years, because "this was clearly in my mind because meeting Frank in these circumstances was a shocking experience for me": Tcpt, 3 July 2019, p 268(38-46). 3. He confirmed that the deceased said that "he was ashamed of his behaviour … he was ashamed that he had taken the side of the boys against his wife, that he was ashamed that he had driven her away, he was responsible for the separation": Tcpt, 3 July 2019, p 269(25-28). 4. The deceased had described Jacqueline as "my rock". Mr Brown was unaware that they had been, and were, separated, until he met with them on 28 February 2017: Tcpt, 3 July 2019, p 269(35-47). 5. The deceased said that he intended not to leave anything to his two sons, and that all of his estate should go to Jacqueline. He said that he did not trust either of them; that both were gamblers; and that he had, and Jacqueline had, been treated "disgracefully." The deceased had not elaborated on the conduct of either Bradley, or James, that the deceased regarded as "disgraceful" and Mr Brown did not ask him about that conduct: Tcpt, 3 July 2019, p 270(4-10). 6. It was Mr Brown who had suggested that the deceased try to be in touch with his sons; that he sit down with them and have a discussion; and that he reconcile his feelings about them. Mr Brown also suggested that the preparation of a letter, or to otherwise write down his thoughts and feelings, might achieve this. The deceased had responded that he would think about it: Tcpt, 3 July 2019, p 270(12-33).
Neither counsel for Bradley, or James, suggested that Mr Brown's evidence should not be accepted. I am more than satisfied that I should accept his evidence and I do so. Importantly, I accept that it was Mr Brown who suggested that the deceased reduce to writing his thoughts and feelings.

The deceased's letter of "Regrets"

For reasons to which I shall come, there is a dispute about the role that Bradley and James assert the deceased played in the creation, or amendment, of the letter. I shall return to that topic shortly.
What follows, under this heading, is what I am satisfied has been established by the evidence.
The deceased is said to have written a letter which is headed "Regrets". The copy letter in evidence is undated, but it was sent, as an attachment, from the deceased's computer, on 6 March 2017, with an email, to Jacqueline.
I shall not set it out in full, but so far as is relevant, it provides: "… Until I was forced to think about the 'regrets' I may have, I had only one. That was the way I treated my wife Jacqui that caused her to leave me. Jacqui and I met when we were both very young and fell in love. We had two children, bought a house. We both worked several jobs to keep our home after being let down by our builder. The brunt of these extra jobs fell to Jacqui. She actually worked three jobs at once to keep us afloat. Although we worked several jobs each over the years we never left our children unattended whilst they were young. If Jacqui was working, I was home looking after our children. When I was working a second job, Jacqui was home to look after them. In the early years when Jacqui had medical problems. I took time of [sic] work to look after the kids. We did not have the Grandparent support to help out. WE had a very rewarding life together. We both came from similar dysfunctional family backgrounds and always wanted better for our kids. Jacqui worked her ass off to make sure that our kids had a better life than we had. If a problem arose between me and the kids. She always took the kids side. After all these were her babies and a mother's love knows no bounds. During our twenty years of separation Jacqui and I have maintained close contact with each other. We both agree that the separation was probably a good thing, it was not because we stopped loving each other but we just could not live together harmoniously. She has been my best friend and my soul mate for FIFTY years. I am extremely grateful to Doug for looking after Jacqui over the past 20 Years. He treats her the way I should have treated her. However since my diagnosis that I only have months left and not years I have done some serious reflexions [sic] on my life. I now realise that my worst regret is that I have been a lousy parent. Bradley has serious gambling and psychological problems. I regret that Jacqui and I did not pick up on these sooner rather than after he was an adult and out of our control. If we had, maybe so many innocent people would not have been hurt by his actions. Jamie is my real failure. After all the time I spent with him during his earlier years following him and supporting him through all his sporting activities I have been heartened by his application of these same efforts in his own children. But underneath he still has a preoccupation with gambling and drinking. Unfortunately he has passed on these afflictions onto his son Blake. Blake is struggling with his school work, yet Jamie allows him to miss school to attend race meetings. Jamie came to see me following my latest diagnosis and rather than ask if there was anything he could do for me or to help console his mother his only concern was his inheritance. I have written a new will that leaves everything to Jacqui, I have requested that Jacqui sets up trusts for the grandchildren using the 'family money' left to me by my mother. I have excluded both Jamie and Brad from this family money because neither of them understand or respect what being part of the Barbuto family means. What Jacqui does with her money is up to her."
There is no suggestion that a copy of the letter was sent to either Bradley, or James, prior to the death of the deceased.
For reasons to which I shall come, I am satisfied that Jacqueline played no part in the creation, or revision, of the "Regrets" letter. I accept her evidence that she first saw the letter when it was sent to her as an attachment to the email of 6 March 2017. Bradley, and James, each disputed that the letter was written by the deceased. Counsel for each cross-examined Jacqueline about the letter. I shall return to the reasons why I consider that the "Regrets" letter was written by the deceased later in these reasons. I shall also refer to the weight to be given to the "Regrets" letter later in these reasons.

Credibility of the party Witnesses

Counsel for Jacqueline made lengthy submissions concerning the credibility of each of Bradley and James, whilst each counsel for Bradley and James, respectively, submitted that Jacqueline should not be believed about parts of her evidence.
At the outset, I state that I have no hesitation in accepting Jacqueline's evidence where it conflicts with the evidence of each of Bradley and James, neither of whom did I find to be a satisfactory, or credible, witness. Whilst each appeared intelligent and articulate, I did not find either to be candid with the Court about his financial circumstances, and particularly in relation to his gambling activities. I considered that each was conscious of the effect of his evidence upon the case being advanced.
On the other hand, I found Jacqueline to be forthright, and responsive to the questions asked of her, and on only one occasion, did she display high emotion about a particular question. In my view, she was endeavouring to, and did, give, truthful evidence. I found each of Bradley and James to be a far less credible and reliable witness than Jacqueline.
In reaching this conclusion, I have focussed upon the inherent plausibility, or implausibility, of the evidence, particularly regarding gambling, having regard to the undisputed, or indisputable, evidence, the contemporaneous documents, and the summary, in each case, that was tendered.
In Collings v Vakas [2006] NSWSC 393, a case decided under the Family Provision Act 1982 (NSW), Campbell J (as his Honour then was) stated at [66]-[68]: "Before the Court can make an order in the plaintiff's favour, it needs to be satisfied that she was left, at the testator's death, without adequate provision for her maintenance, education or advancement in life. It is clear that she owns no real estate (unlike her brothers), and that she has ongoing family responsibilities. However, before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation. In the present case, even though there are two elements of the plaintiff's financial situation about which I am satisfied (that she owns no real estate, and has family responsibilities), when another crucial element of the plaintiff's financial situation (namely, her income and expenditure) is not satisfactorily proved, it is not possible to conclude that she has been left without adequate provision. In these circumstances, the plaintiff's claim is dismissed."
A similar approach was taken by McLaughlin As J in Foye v Foye [2008] NSWSC 1305, in which his Honour wrote, at [14]-[15] and [41]: "It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant's financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail (as Edward has failed in the instant case) to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court. Neither the Court nor the Defendant should be required to embark upon a search for information which Edward himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission. ... I have already referred to the obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information concerning the applicant's financial and material circumstances. I have also referred to the fact that it is not the responsibility of the Defendant to elicit evidence concerning those circumstances which the applicant herself fails to provide voluntarily."
This view was repeated in Mann v Starkey [2008] NSWSC 263, in which case, White J (as his Honour then was) noted, at [25] and [29]: "It has often been said that an applicant for provision must make a full and frank disclosure of his or her 'financial and material circumstances' (e.g. Fraser v Venables (Supreme Court of New South Wales, McLaughlin M, 30 September 1998, unreported); BC9805011; Draper v Nixon [1999] NSWSC 629 at [35]; Bennett v Bennett [2001] NSWSC 987 at [23]; Ernst v Ryf [2001] NSWSC 1167 at [37]; Van Ooyen v O'Driscoll [2002] NSWSC 445 at [55], [56]; Zaleski v Patterson [2005] NSWSC 54 at [42]; Troy v Slede [2005] NSWSC 1080 at [20]; Wheatley v Wheatley [2006] NSWCA 262 at [26]). The defendant's solicitors in correspondence stressed to the plaintiff's solicitors that the plaintiff had such an obligation, even going to the length of citing the abovementioned and other authorities for that proposition. They complained of the plaintiff's failure to produce bank statements, tax invoices and to explain how he had dealt with the distribution from the estate. They also complained that whilst it appeared that there had been substantial withdrawals from both his personal cheque account and from the V2 Plus account of Mann Securities, the plaintiff had given no explanation and produced no documents to show how the withdrawals had been applied. The plaintiff's personal cheque account with the ANZ Bank showed that there had been withdrawals totalling at least $57,463 during the period from 22 February 2006 to July 2007. The V2 Plus account of Mann Securities showed withdrawals of about $44,000 between 22 January 2007 and 1 July 2007. ... Counsel for the plaintiff submitted that as the plaintiff had given sworn evidence as to his assets and income and as none of his evidence about those matters were shown to be untrue, it ought to be accepted. However, the plaintiff needs to bring me to a state of persuasion or reasonable satisfaction, on the balance of probabilities, that his financial position is as he describes it and hence that he has financial needs (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J). I do not consider that the Court has been given the full picture."
Hammerschlag J, more recently, in Stone v Stone [2019] NSWSC 233, wrote at [60]-[66]: "Self-evidently, it is incumbent on an applicant to disclose to the Court, as fully and as frankly as possible, all details of her or his material and financial circumstances as they are at or about the time of the hearing: DJ Singh v DH Singh and Others [2018] NSWCA 30 at [284]-[291]. The requirement for the Court to have regard to the facts known to it at the time of the order brings with it the clear implication that the relevant facts will be placed before the Court. Added to this, an applicant's financial circumstances are matters specifically within her or his own knowledge. If it becomes clear that there are pertinent facts which have not been placed before the Court, it cannot make the evaluative judgment which s 59(1)(c) requires it to make: Cringle v Cringle [2018] NSWSC 1558 at [35]-[36]. Sections 56(1), (2), (3) and (4)(a) of the Civil Procedure Act 2005 (NSW) provide: (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. … (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, … These sections impose an obligation on parties and legal practitioners to assist the Court by participating in its processes and complying with its directions and orders, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. This requires full and frank disclosure to the Court of the material necessary for the Court to make the evaluative judgment which s 59(1)(c) of the Succession Act requires. There is an obligation on applicants to disclose any change in facts known to them at the time of the hearing, which may have an effect on the outcome. This obligation extends to beyond the hearing, including where judgment has been reserved and some not insignificant fact is known by them to have changed before judgment is given, they are duty bound to disclose the change to the Court. There is an obligation on practitioners to satisfy themselves, at the time of the hearing, especially where there has been a direction for updating affidavits, that there has been no change in the facts of which they are leading evidence, on behalf of the applicant, which may affect the outcome and, if there is such a change, to disclose it to the Court."
The references in Stone v Stone to s 56 of the Civil Procedure Act 2005 (NSW) are particularly relevant in respect of the case brought by James. It is necessary to digress to discuss an issue concerning his gambling activities, in relation to which his credit was materially undermined.
During the course of the afternoon on Friday, 28 June 2019, the Court received an email from Jacqueline's solicitor, Ms Homer, relating to the production to the Court of a tender bundle of documents. In the email, a reference was made to the "betting records" of James, which were said to comprise in excess of 1,400 pages, which were to be relied upon, and which had been produced by James in answer to a notice to produce. (It had not been suggested that the notice to produce, or the documents produced, had no legitimate forensic purpose.)
Upon receipt of the email, I sought the attendance of the legal representatives, as, it seemed to me, that reliance upon this number of documents might extend the duration of the hearing. The legal representative of each party appeared and discussion took place as to the best way to deal with those documents.
I made reference to s 50 of the Evidence Act 1995 (NSW), which provides that the court may, on the application of a party, direct that the party may adduce evidence of the contents of 2, or more, documents in question in the form of a summary, if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. I suggested that, perhaps, a summary could be prepared on behalf of Jacqueline and served on each other party, and that an opportunity could be given to each of other party's legal representative, to examine the summary and the documents (although in the case of James, they were his own documents). I hoped that by preparing the summary, there would be practical assistance given to the Court in being able to understand the documents. It would also promote the efficient use of court time.
Although I did not make directions in respect of s 50 of the Evidence Act on that occasion, the suggestion made appears to have been complied with over the weekend. On 1 July 2019, Ms Catanzariti, counsel for Jacqueline, produced a summary of the documents produced, to which Mr Gruzman objected as not being an accurate summary. (Mr Rogers also objected, but on the basis that he wished to consider the summary overnight.): Tcpt, 1 July 2019, p 48(36) - p 52(41).
Mr Gruzman, in discussion with the Bench, accepted that a very significant volume of documents had been produced, following service of a notice to produce; that it had not been not disclosed to Jacqueline's legal representatives that the documents that were produced were inaccurate, in any way; Ms Catanzariti had then taken steps to inspect those documents and had prepared the summary that formed the basis of the summary ultimately tendered; and that there were further documents, which James wished to produce, during the course of the hearing, that were not previously produced, and which were said to demonstrate inaccuracies in the documents that had been produced and summarised.
Then, in his oral evidence, for the first time, James stated that the documents, that he had produced, revealed flaws in the betting system and that double bets had been recorded in the documents that had been provided to him, which he had provided to Jacqueline's legal representatives. He went on to state, also for the first time, that not all the losses appearing in the documents produced, were his losses, not all the wins were his wins, and that he placed a lot of bets for "the punter's club" and people that he knew at the pub, whom he had encouraged to bet on his account: Tcpt, 2 July 2019, p 190(48) - p 191(18).
Needless to say, there was no witness who gave evidence corroborating the statement that James placed bets for him, or her, using James' own betting account. One might have thought that earlier consideration would have been given to this aspect, as well, had the documents, in the possession of James, revealed an inaccurate picture of his betting expenditure.
None of Bradley's affidavits reveal the historical extent to which he gambles, how much he bets, how much he wins and how much he loses: Affidavit, Bradley Dominic Barbuto, 19 May 2018 at Annexure E; Affidavit, Bradley Dominic Barbuto, 8 June 2019 at par 15; Tcpt, 1 July 2019, p 83(15-45), p 84(1-9). In fact, despite this being a real issue in the case, he conceded, in cross-examination, that he did not know how much he bets; what his average bet was; how much he wins; and how much he loses: Tcpt, 1 July 2019, p 64(29-30), p 65(3-10), p 66(30) - p 67(3), p 67(30-31), p 71(47-49).
Bradley's bank accounts disclose his ATM Touch, Crownbet, and newsagency withdrawals, total $16,306 in 2017-2018. Notably, this trend continued in 2018 to 2019, even after he started his proceedings. His bank accounts disclose apparent betting in the order of $17,814 in the period April 2018 to April 2019: Ex. 3/170F, 170G, 171-178.
This puts in doubt his evidence that he had included his gambling expenses in the category of expenses "Miscellaneous": Tcpt, 1 July 2019, p 64(15-16). That estimate amounted to $1,300 per year (Affidavit, Bradley Dominic Barbuto, 19 May 2018, Annexure E), whereas, evident from the amounts described earlier, documents produced revealed his actual gambling expenses to be over $15,000 per year.
Bradley asserted that he used his TAB Touch account as an ATM facility to withdraw cash to pay for household expenses, food and drink: Tcpt, 1 July 2019, p 70(14-18); 71(14-19); 75(26-37). Whilst it is possible, it seems somewhat unlikely that he would do so, making four or five withdrawals in one day of $50 to $100 on each occasion.
As was stated at the time, I am unable to accept the evidence given by James, or by Bradley (such as it is), on the topic of the extent of his gambling. I do not accept Bradley's evidence that he gambles "now and again". Bradley did not suggest any error in the summary that was tendered.
Nor am I prepared, in the case of James, to treat the summary documents as error-ridden. I reject James' explanations as to the level of his gambling. In my view, he significantly understated the extent of his gambling.
Ultimately, a summary agreed to, in respect of each of Bradley and James formed part of the evidence: Ex. 3; p 170F, 170G, 171-178 and Ex 3; p 170B, 178A, 179-184, 184A, 184B, 184C, 184D, 184E, 185-190. I am satisfied that each of the summaries that was tendered, provides a realistic economic analysis of the effect of the gambling of each of James and Bradley.
The expenditure on gambling also leads to doubt, in the case of Bradley, about his assertion of "substantial frugality", "living day to day, with the income barely covering expenses", being "worried about my future and concerned that I will be unable to pay for my family's ongoing living expenses" and being "concerned about the costs of raising my four minor children": Affidavit, Bradley Dominic Barbuto, 19 May 2018 at par 116-118.
In the case of James, I have grave doubts about the truthfulness of his assertion that "I am not presently able to afford to be a member of a Health Fund as I do not receive enough disposable income to effect health insurance". One might consider that if he is able to gamble in the way that he does, he would be able, if he chose, to afford membership of a health fund.
It is clear from the evidence given by each of Bradley, and by James, that he disputes the description of him, respectively, given by the deceased. Importantly, Bradley denied he was a gambler (other than one who places bets occasionally and not in any significant amounts). It is fair to say that whilst James appears to be a more sophisticated gambler (by which I mean his gambling appears to be on a more regular and structured basis) that does not mean that the deceased's description of each was wrong. I am satisfied, on the balance of probabilities, that each of James' and Bradley's interest in, and expenditure on, gambling, is more significant than he admitted.
However, it should be said that there is no medical evidence that suggests that either Bradley, or James, has a pathological addiction to gambling.
To form a picture of Bradley's character, and his conduct towards the deceased, from other evidence, it is necessary to refer to a chain of email correspondence between the deceased and Bradley that was not disputed as having been received and sent, in early March 2017. It is to be remembered that this chain of emails passed between them when the death of the deceased was imminent. It is important also to note that Bradley understood that the deceased had suffered a 15 year battle with cancer, and that in about January 2017, the deceased told him that "his cancer had spread and that his treating doctors had told him that he [had] about three months to live": Affidavit, Bradley Dominic Barbuto, 19 May 2018 at par 62.
Bradley wrote, in respect of the email correspondence to which I shall refer (Affidavit, Bradley Dominic Barbuto, 21 November 2018 at par 85-86): "[t]he emails my mother refers to were personal correspondence between my father and myself after he had informed me that he had very little time to live. He was in a position where he was dealing with his final moments… Until my mother returned to my father in the final weeks of his life, I had always maintained a strong father-son bond with my father…"
I set these emails out hereunder (with editorial corrections).
The first email in time is an email sent on 7 March 2017 by the deceased to Bradley (Affidavit, Jacqueline Barbuto, 19 September 2018, Annexure J): "Brad I got a phone call last night from Andrew concerning you questioning Nikki about a loan I made to Andrew for his night club venture. Firstly I am appalled that you chose Facebook to do this. Secondly, I do not know where you are getting your information from but it is out of date. Andrew and I settled this matter some months ago and he and Nikki owe me NOTHING. Thirdly, IF I lent money to or borrowed money from someone, UNLESS there is a legal contract for the transaction as far as I am concerned the debt dies with me e.g. The monies I have lent you over the years for rental bonds or the money I lent you for Lulu's visa. My will has been rewritten and everything goes to my wife (your mother) She will set up trusts to cater for yours and Jamie's children (including Brandon)."
The next email is sent by Bradley to the deceased on 8 March 2017: "His name is Brendan!!!! Who the fuck is Brandon???? Why leave your cheating wife everything, you're a fool. You're going to die alone unless Doug dies first then maybe Jac will come back. You're living in the reality of bullshit spread by Jac. You honestly believe that you and Jac are still in love and just can't live together. Just because Jac has lost her sons don't go down that road. Mend your fences. It's most probably too late with James and Kel as you no doubt felt after a 2 hour drive to Canberra to sit alone and watch your son and grandson paying you no attention. The Doctor has been there more than any of us and you've now alienated him too with your bullshit about Jac. As soon as you die Jac will change the Will she's already indicated this. Forward this to Jac if you like as you always do. Why did you tell Jac your bullshit that you paid $1000 of my rent? Trying to get in on team Jac???? You asked and I said I didn't need your help and you didn't pay anything so wake up to yourself. Jac and her whole family have always been screwy. Doug and Jac have already spent your money and you're not even dead yet, and they have their eye on a new unit. How come you had to go help out on their last unit???? You see dad you think I'm a no hoper and don't know what's going on. You ask me where is all my money??? Well reality check, where is all yours??? You live another 5 years cause that will fuck up Jac and Doug's plans. They're counting on the money. That's who really cares and if you can't see that, then you're beyond help. As for saying that my brother didn't talk to you because that's who he is. I'm proud that he stood up for me thinking I should get half of something even if now it means he gets nothing. What I didn't realise until we spoke the other day is how much he's hurting from our childhood. He's angry we never had family holidays he's angry we never did much. He's angry we looked after ourselves until you guys got home from work. But I think he's most angry you and Jac hide behind this belief you did it for us. Well fuck that. I'm not taking that bullshit anymore. You want the truth. The truth is we didn't care we lived on floor boards cause you couldn't afford carpet we rode our skateboards around the house when you weren't home. At the time we just thought this was normal but now we have kids of our own we make sure we do as much as we can and show them we love them each and everyday we care. Note by buying them off or lending them money but by actually being real parents showing interest and encouraging even when they are terrible at whatever they are doing. I can't even go on anymore as this is distressing. Make up with your sons James and Ian. Don't let Jac be the reason you lose everyone else. … Stop sticking up for the person you think let down the most or regret hurting and start sticking up for your blood. It's thicker than water. Well at least that's what we were brought up to believe. Which was hard to do when we weren't talking to certain members of Jac's family and then we were and now we're not and now we are and now we're not. Have a think don't talk to Jac. Talk to those who have really been there. The ones you used to call when you didn't call Jac. Maybe call your sister and your brother who have both loved and lost. Be the bigger man and apologise to them both. Shit childhood but still your son"
The next email is another, from Bradley to the deceased, sent on a date not disclosed: "You had your super and Nanna's inheritance you haven't spent that much on things a new car biggest purchase. How much have you already given Jac???? It will all come out once you're dead. You said you're ok with that, that I should understand as a believer in God. I've always been there for you but now everyone is seeing Jac for the person she really is. Everyone except you. You think you're still in love and married. Bullshit! If you're still married then she is a polygamist, which is illegal in this country. po·lyg·a·mist /pəˈliɡəmist/ Nounnoun: polygamist, plural noun: polygamists • 1. A person who has more than one wife or husband at the same time: She's been in a defacto relationship for 20 years, fucking another man. Reality just slapped you in the face. Wake up before it's too late. Pop would be ashamed of your behaviour towards James and Ian. Jac might think I claim to be a good Christian but I'm not really, well she's right. I'm struggling with God at the moment. Because one of the 10 commandmnets says honour your mother and father. Well you two make that impossible. So I pray that God will forgive me. You need to pray that Nanna and Pop will forgive you. Good luck in your battle and I hope that Jac and Doug are enough for you. Cause it's all you got!!! Lastly the Nikki thing. I asked a simple question and as for where I'm getting my information. It was you. You said they moved to QLD and you haven't been paid back. You are the source. You weren't happy that they sold up and moved without really informing you. Again good luck and have a real conversation with the love of your life. Get a divorce so she can marry the love of her life Doug. She's just waiting til you die and get your money and boom. They get married and then Doug gets your money. Bradley Batman Barbuto"
The deceased responded to Bradley in an email sent on 10 March 2017: "Jac and I have been good friends for over 50 years. She has always been there for me. Always giving and never asking anything in return. Whenever I was hospitalised she was the one who was there to visit me, to do my washing to come and clean and do my shopping and washing when I got out. When I was in hospital for 5 weeks for my pelvic exenteration, she was the one who took me to specialist appointments visited me in hospital and washed my dirty pyjamas. I can only remember your brother visiting me twice. Once in Intensive care where I spent 5 days and once in the ward where I spent 4 weeks. … Regarding your current lease arrangements. I told Jacqui that I got a call from a real estate agent trying to get in touch with you re rental arrears, Jacqui told me to offer you any assistance you may need. She would pay. She did not think it right that your family should suffer. No amount was ever mentioned because I did not know the details. Let me make this as clear as possible. I have never helped Jacqui or Doug with any money. The units you are talking about are industrial units and been fully paid for by Doug. You ask where is my money? It is tied up in superannuation. The secret of estate planning is to ensure that you have enough money invested to allow you to live in relative comfort for the duration of your life. I was expecting to live another 10 years not another month. Yes my car was my biggest single purchase so far. But I have also spent money on paying the hotel accommodation for your family and Ian in Bali for your 40th Birthday, Your wedding in Perth, the airfares and accommodation for your family and Ian for the trip to Bali and the cost of your wedding in Bali. Don't forget the visa for Lulu."
Then there is then an email from Bradley to the deceased sent on 11 March 2017: "You're sick and you need help. Not from cancer but from your stupid bullshit relationship with your ex-wife. … As for worrying about you and not inheritance I haven't mentioned anything about me and inheritance all I've talked about is the bullshit that your being fed and believe from Jac. … As for your superannuation and claims that you spent all this money on me. Give me a figure and I'll pay back what you led me to believe was a gift. Fuck you and your Indian giving bullshit. Give me a figure please that I owe you including all supposed presents. I have a reason to be shitty about my childhood and the lack of parental involvement getting other mums to drive me to footy games or walking to training myself. Working Saturdays and going to watch James play for sydney (sic) high. But never once seeing me play for adult when it WA switch st pats or the year that I played shobs. Besides tabourie name a family holiday we went on? Oh driving back from adelaide (sic) to visit aunty lizzette who is ????? Alive or dead no idea? Take in Sean so now I have another person in house to get your attention. Fuck you and your idealist bullshit. You need reality which is now. You weren't there either was Jac and your reason is putting a roof over our heads. We had to struggle poor JAC HAD TO WORK TWO OR THREE JOBS AND GIVE UP BEING WITH YOU BOYS. Bullshit neither one of you had too you chose to. I don't own my house now but I manage because my kids and not material things come first. I've been to every one of Imogen and Brendan's TBall games. When you and Jac got on your feet did you ever once apologize for how we were left to fend for ourselves??? Nope we just get the guilt trip that you guys worked so hard for us. Well again I call Bullshit you did it for yourselves well now as it turns out you did it for Jac and Doug. Sell the lot and go on a first class world cruise if it's not about money. You have a month to live then go start living stop bullshitting. Stop kidding yourself that Jac gives a shit. Yeah people get upset when then friend dies. I guarantee if you tried to sell the house or spend all your money in super in yourself Jac would stop you. Because that's all she cares about."
Some of the matters alleged by Bradley in a number of these emails about his and James' childhood are inconsistent with Bradley's written evidence on this topic. For example, in his second affidavit made in May 2018, Bradley stated that he recalled "a generally happy home life"; that the family always celebrated occasions such as birthdays and Christmas, as a family; that his parents "worked hard to support us"; that "each year we would take a family holiday to Lake Tabourie on the South Coast of New South Wales" and that these holidays "form some of my favourite childhood memories with my father". He also acknowledges in the affidavit that "his parents worked hard to support us and made sure our basic needs were met".
In his affidavit in reply, made in November 2018, in giving evidence of the work schedule of his parents, when he was a minor, he states that he and James were left to fend for themselves. Like many other children, he and James came home from school and were alone until one or other of his parents came home from work. This can hardly be regarded as a criticism when the evidence (including his own evidence in his May 2018 affidavit) reveals how hard his parents were working at the time to ensure the financial stability of the family.
None of the emails referred to earlier, sent by Bradley to the deceased, paint Bradley in a favourable light in relation to his conduct towards the deceased when the latter was facing imminent death. None of the emails is supportive, or loving, and all display what appear to be strong feelings of anger towards Jacqueline, which should not have been raised at that time, other than for the purpose of encouraging the deceased to change the terms of his Will.
Despite the above chain of emails, Bradley asserted that he contributed to the deceased's estate and to his welfare. Whilst he might have done so as a child, I do not accept, on the evidence before me, that he did so, in later life, to any great extent.
By way of a further example of evidence that I do not accept, Bradley gave evidence, in his affidavit in reply, that he obtained a loan, with the deceased, to purchase the Cronulla property (if by that it is meant he repaid the loan, in whole or in part). He annexes a copy of a number of Home Loan Bank Statements, covering a period from 11 May 2004 until 13 September 2007 and says that the documents show "the repayments we made".
Whilst addressed to the deceased and Bradley at the address of the Bangor property, all of the copy Bank Statements refer to loan repayments, and are in the form "Loan Repayment Barbuto FN/J". I infer that the reference to FN/J is to each of the deceased and Jacqueline. There is no information in any of the documents that Bradley, himself, made any loan repayments. I note also that by 2004, Bradley had moved to Western Australia.
The evidence on this topic is also inconsistent with the evidence given by Jacqueline. Furthermore, the agreement that Bradley says that he had with the deceased about the Cronulla property being for him is inconsistent with the undisputed evidence that Jacqueline moved into the Cronulla property not long after her separation from the deceased; that she and Doug moved back there, after they returned from Jindabyne; and it is inconsistent with the terms of Financial Agreement, upon which each of Bradley and James relied, pursuant to which the Cronulla property was transferred to Jacqueline in 2007.
Whilst Bradley stated that he "was open to reconciling with my mother and encouraging a relationship between my mother and my children" (Affidavit, Dominic Bradley Barbuto, 19 May 2018 at par 67), there was no evidence of any steps taken to do so. I do not accept this evidence either.
Bradley gave evidence, in his affidavit made 19 May 2018 at par 103-104, that the deceased told him, in the final weeks of the deceased's life, at "around the time the last Will was drafted", that "[T]he family home at Bangor will always be there for you and your brother. In case you ever fall on bad times, you'll always have a place to live." Bearing in mind the other evidence, particularly the evidence given by Mr Brown, I do not accept Bradley's evidence on this topic.
There are no emails in evidence from James to the deceased or from the deceased to James.
Despite other evidence about family life as a child, James described his family upbringing until about 1983 as being "quite dysfunctional". That description is followed, in his affidavit made 18 April 2018, at par 10-11, with: "My Parents both worked full-time and part-time at a restaurant at night time and my Brother and I were left alone from ages 12 and 9 whilst my Parents were at work. My Parents worked hard to build assets for the future of the family."
James then went on to confirm his "fond memories of spending a lot of time" with the deceased who played a big part in his junior and senior sporting activities and describes the other aspects of family life, which appears to have been enjoyable.
It seems to me that the value of the estate would not be as it is but for the efforts of the deceased and Jacqueline. Having read all of the evidence given by each of Bradley and James, I do not accept the description given by James. The criticism made of each parent appears to be quite unjustified.
James gave evidence of a conversation with the deceased in February 2017, in which the deceased told him that the whole of his estate was going to Jacqueline but that each of Bradley and James would receive $5,000. James does not go on, in his affidavit, to state his response to learning this information.
The deceased told Jacqueline that "…all James seems interested in is his inheritance and what I am leaving him. He made me angry the way he questioned me about it all, especially when he didn't even bother to ask me how I am or couldn't be bothered to visit more than twice while I was in hospital". She was not cross-examined about her conversation with the deceased and I accept that it took place.
She also said that she called James on 7 February 2017, and he responded that he was busy at work and would call her later, but never did. She could not remember saying to James that "You can go and sort this out with your Father and do a new Will with him."
James, in his affidavit in reply, gave evidence of the assistance provided by his son, Mitchell, to the deceased. However, neither Mitchell nor Blake gave any evidence in the proceedings. I give little weight to this evidence so far as it concerns the application made for provision by James.
James did not dispute that Jacqueline reimbursed James and Kellee, who had paid for Bradley to travel to Sydney to visit the deceased ($3,152).
Although James stated that it was his belief that no provision would be made for him whilst Jacqueline was in control of the first testamentary Trust, evidence, in the form of an annexure to his affidavit in reply, revealed that her solicitor had sent a letter, dated 22 June 2017, to his solicitors, confirming that Jacqueline was the trustee of that trust; that James was a discretionary object, together with others of the Trust; and that Jacqueline "will, of course, at all times act in accordance with her duties as trustee of the Trust." The letter concluded: "In order that the Executrix is informed about the circumstances of Your Client, as a discretionary object of the Trust, and to inform her exercise of discretion as trustee of the Trust, the Executrix request Your Client to provide us with details of the financial resources (including earning capacity) and financial needs, both present and future of Your Client. You would be aware that Your Client would be required to provide such information to the Court in Affidavit form pursuant to paragraph 6 of Supreme Court Practice Note SC EQ 7 if your client should determine to make a claim against the Estate."
There was no dispute that James, by his solicitors, did not respond to the request for that financial information: Tcpt, 2 July 2019, p 140(7-50) - p 141(30). No explanation was given for the lack of response to legitimate questions made on behalf of the trustee of the trust, the answers to which might have resulted in an exercise of discretion in favour of James.
(A letter in similar terms was also sent to Bradley's solicitor but it, also, was not responded to, on behalf of Bradley.)
Both Bradley and James, respectively, gave specific instructions to his counsel that it was not the deceased who had written the "Regrets" letter. James stated in his first affidavit, at par 36, that "I do not believe that my Father wrote this Note … The Note was sent 4 days after the date of the Will and is not consistent with the contents of the Will." The assertion was that Jacqueline had written, or had participated in writing, the letter.
I am not persuaded by the evidence tendered by James about the date of the letter having been created. There is some evidence that a Word document headed "REGRETS" was created at 8:44 a.m. on 24 February 2017: Ex. 3/286-291B. The document created, appears to have been revised 9 times between that date and 6 March 2017. However, there is no evidence about what the document included, when it was first created, or the nature, or extent, of each of the revisions that were made, at different times, to the letter.
Then, with that in mind, there was really no legitimate basis for the assertion made, principally by James. Firstly, no reason was put to Jacqueline for her having written, or having input into, the letter. No reason was suggested during submissions, counsel for James acknowledging that to suggest a reason would be speculation: Tcpt, 4 July 2019, p 337(31) - p 339(6).
Secondly, when Jacqueline was asked by counsel for James about the statement in the letter that the deceased's "worst regret is that I have been a lousy parent", she stated (at Tcpt, 3 July 2019, p 233(42-49): "A. I was very sad to read that. … A. I don't think he was a lousy parent. I don't ever agree with that."
It is hardly likely that Jacqueline would have written, or participated in writing, something about the deceased which made her sad to read, and with which she disagreed. Perhaps more importantly, it is unlikely that she would have written, or participated in writing, something about the deceased that may not have assisted any defence in a case brought by each of their children.
Thirdly, even if the letter, or part of the letter, was written, as alleged by James, before the deceased met with Mr Brown on 28 February 2017, there would have been no need to have sent it to Jacqueline, since the contents appear to have confirmed much of what the deceased had disclosed to Mr Brown on 28 February 2017. The sentiments expressed in the letter in relation to each of Bradley and James, were stated to Mr Brown.
Fourthly, the contents of the letter, so far as it relates to Bradley and James, is corroborated by other evidence and my overall impression of each of them.
Fifthly, having read the letter, it has the poignancy of having been written by a parent, knowing death was imminent, who wishes to relieve himself of the burden of regrets that he has, particularly in relation to family members.
Finally, as I have written, I accept Jacqueline as a witness of truth, and, therefore, I am satisfied that her evidence that she did not know about the letter until she received the email from the deceased to which a copy was attached on 6 March 2017, and that neither she, nor Doug, had any input into that letter, is truthful.

Credibility of witnesses other than the parties

Bradley called Mr Ian Porteous, a close friend of each of Bradley and James, who had also known the deceased and Jacqueline, as a witness. He gave evidence that he had not seen the deceased after 17 February 2017 and had not seen a copy of the letter until after the death of the deceased: Tcpt, 2 July 2019, p 197(5-6).
Mr Porteous confirmed that he had not had any discussions in which the deceased had referred to either Bradley, or James, as he had in the letter. They had never discussed the gambling habits of either Bradley or James, and the deceased had never mentioned any disappointment that he felt in relation to either of his two sons: Tcpt, 2 July 2019, p 197(47-50).
Mr Porteous asserted, in his affidavit made 21 November, that the deceased "struggled with his computer skills". However, the precise nature of the deceased's "struggles" was not identified. If by the evidence, he meant that the deceased could not use a computer, I do not accept the evidence of Mr Porteous. There is more than enough evidence, including the email correspondence between Bradley and the deceased, to demonstrate that the deceased was able to type and send emails.
Mr Porteous acknowledged that he did not know whether the deceased had typed the "Regrets" letter. However, in response to a question from the Bench, and although, it appeared, slightly hesitantly, Mr Porteous confirmed that, in their discussions, the deceased had referred to James as "Jamie": Tcpt, 2 July 2019, p 207(43) - p 208(8). (I note that in the discussions that the deceased had with Mr Brown, he had also referred to James as "Jamie".)
James relied upon an affidavit from Mrs N Edson, his mother-in-law. She disputed, in the affidavit, statements made in the "Regrets" letter as being in the words of the deceased. However, when cross-examined, she acknowledged that the deceased had never written her a letter. It was then put to her that her statement that the regrets letter was not consistent with what the deceased would write, was not correct and she gave the following evidence (Tcpt, 3 July 2019, p 220(42-50)): "Q. So is it true to say that Frank has never sent you a letter? A. Yes, I would-- Q. So when you say that the regrets letter is not consistent with what Frank would write, that's not correct, is it? A. No, no. Q. Because you don't know what Frank would say? A. No."
Another aspect of her evidence that is difficult to accept relates to her conversation with the deceased about his two sons. Bradley's counsel asked some questions about any conversation that she had with the deceased about Bradley, to which she responded (Tcpt, 3 July 2019, p 217(1-10): "Q. I'll come back to what he precisely might have said in a moment but, putting aside the last few months of his life, were the things he said, as you assessed them, positive or negative about Bradley or a mix? A. Positive. Q. What sort of things? A. He would often talk about his grandchildren. I'd have photos - he'd show me photos. He'd talk about them, talk about what they were up to, you know, just normal grandfatherly things."
As is obvious, nothing in the answer reflects anything, positive or negative, about Bradley. However, in answering the next question, she said (Tcpt, 3 July 2019, p 217(12-14): "Q. Did he ever say, leaving aside the last few months of his life, anything about Bradley that might make you think that he was at odds with Bradley? A. Never."
Having observed Mrs Edson give her evidence, I had the impression that she was endeavouring to assist James and Bradley, and that her relationship with the deceased was not particularly close. This is evidenced by her evidence that in the last two months of the deceased's life, she saw him about 5 times and her statement, made during cross-examination, "Why would I see him more?": Tcpt, 3 July 2019, p 220(30). It is not at all surprising that the deceased did not speak to her about his relationship with his sons, one of whom was her son-in-law.
However, one piece of her evidence was instructive. The following evidence was given by her: Tcpt, 3 July 2019, p 224(23-31) "Q. You're aware, aren't you, that James gambles? A. Yes. Q. And he has a number of betting accounts and betting - do you know anything about that or not? A. No. Q. You don't, okay. A. Well very little, except he has accounts."
I accept Mrs Edson's evidence that between 2016 and 2018, she was repaid, by Kellee and James, amounts totalling $2,285, and that these amounts were those which she had paid on their behalf.
Jacqueline relied upon the affidavit of Natale Barbuto, the deceased's brother. He was cross-examined. He gave evidence of the deceased's complaints to him about the gambling of each of Bradley and James, and the way which they were treating Jacqueline.
In cross-examination, Natale said that the deceased did not complain to him about the treatment of James and Bradley towards him (the deceased) and that when he saw Bradley at the hospital, visiting the deceased, Bradley's conversations with the deceased were "civil".
Natale gave the following evidence in relation to James at Tcpt, 3 July 2019, p 278(37-49): "James, to your observation, had a good relationship with his father? A. Yeah, growing up, yes. Q. When you say 'growing up', until the time that your brother died to your knowledge James had a good relationship with his father, didn't he? A. Not to my knowledge, no-- Q. You've set out-- A. --'cause we had not seen - we had not seen each other for a long time. Q. I see, so you just have no knowledge about whether the relationship was good or bad? A. No."
Overall, I accept Natale's evidence about his conversations with the deceased. However, he had no independent knowledge of the deceased's relationship with either Bradley or James in the months prior to his death.
Jacqueline relied upon the evidence of Mr Coombs, a close and long-time friend of the deceased. He, too, confirmed that the deceased had told him that he would not be leaving any money to Bradley or James as each "have gambling and social problems". He did not ask, and was not told, about the nature of the "social problems". The deceased also told Mr Coombs that he trusted Jacqueline to "look after Bradley and James and the grandchildren as she sees fit". It was Mr Coombs who had suggested that the deceased confer with Mr Brown, who was a close friend.
Mr Coombs gave evidence that the deceased "was absolutely paranoid about anything to do with gambling": Tcpt, 3 July 2019, p 292 (3-8).
Finally, Jacqueline relied upon an affidavit of Mr Whyte, another friend of the deceased. Whilst the deceased did not speak to Mr Whyte about the relationship with his sons, he did tell Mr Whyte that he was leaving his whole estate to Jacqueline.
Mr Whyte also gave evidence that, in December 2017, James showed him a copy of the "Regrets" letter and asked whether Mr Whyte had read it before. Mr Whyte responded that he "was aware that this letter existed" but had not read it. He also told James, that he believed "your father wrote it some time ago." James responded that he "was surprised when I was reading the letter, especially in relation to the tone of the letter and the comments he made about me. I can't believe he admitted he was a poor parent!"
Mr Whyte was also cross-examined about some of the evidence on this topic given by James at Tcpt, 3 July 2019, p 287(3-36): "Q. When you saw James at your place, you had a conversation with James? A. Mm-hmm. Q. And after he had shown you the regrets letter, you said something to the effect I suggest to you, to James, 'She,' meaning Mrs Barbuto, 'sent it to you so you won't take it to court and contest the will.' Didn't you? A. No, I did not. Q. You said to James, 'Are you taking her to court?' A. I asked that question, yes. Q. Did you have any discussion about the regrets letter? A. Yes, the fact that he asked me whether I had seen it, and the answer was that, no, I hadn't seen it before that time, but I knew it existed. Q. How were you aware that it existed? A. I think Frank had told me that he'd written the letter. Q. Frank had told you he'd written what? A. A letter. It was when I asked him whether he needed any help, and I used the word carefully, 'paperwork,' to be assisted with, and he said, no, he had been to Mr Brown, written a will, all that was all in place. And, and then he said that he'd also written a letter. And I'm not sure whether he said who he was sending it to, he just said, 'I've written a letter about it,' so. The first time I saw it was the day that James presented it to me. Q. After you asked the question of James, 'Are you taking her to court?' James said to you, 'I'm not sure what I will be doing and I am still seeking legal advice,' or something to that effect, didn't he? A. That is correct. Q. And you said to him, 'Your mother and Doug are coming over to our place tonight for the annual Christmas get together,' is that right? A. That's correct."
In cross-examination by counsel for James, Mr Whyte also gave evidence that he did not agree with the deceased's statement that he had been "a lousy parent". Mr Whyte gave evidence that he disagreed, "because one of the things that all the way through that I've known Frank and since he's really, like when his children were younger, the two go out and support them in both their, all of their sport, and their holidays, in the holidays that we used to have away. And I think the, the lousy parent may have only come in very late in his life when he sat down and thought about it. But until that, his attitude was that he was doing the right thing by his children": Tcpt, 3 July 2019, p 285(9-16).
Mr Whyte also gave evidence of discussions with the deceased about gambling. He said, in cross-examination by counsel for James at Tcpt, 3 July 2019, p 285(35) - p 286(3): "Q. What were those decisions? A. Just in terms of support of the family. And I know at the end that he was a little bit upset about the gambling situation. Q. Did he say something to you about that? A. Yes, he did. Q. What did he say? A. He just said to me that he was upset that he didn't realise earlier on the problem that James had with gambling, and the fact that he was disappointed that Blake was being brought into being part of that. Q. When did this conversation occur? A. That occurred in hospital. While he was in hospital, probably on my first visit there. Q. You had an opportunity to give that sort of evidence in your affidavit, didn't you? A. I wasn't asked specifically."
In addition, Mr Whyte gave evidence that he told James that he "would like to do everything I possibly can to get you and your mother together to talk about this" and that James said "That's not going to happen!"
I have no hesitation in accepting the evidence of Mr Whyte where it conflicts with the evidence of James. He is a witness who has no interest in the result of the case, and as was obvious from the statement made to James well before the hearing, and not the subject of dispute, his hope was to have James and Jacqueline talk to try to resolve their differences. That hope proved futile and even at the hearing any suggestion of resolution of their differences was spurned.

The Situation in life of Bradley

Bradley asserted that he and the deceased shared a close relationship. In his evidence, he stated the deceased "owed me the obligation of a father to his son" (Affidavit, Bradley Dominic Barbuto, 19 May 2018 at par 69).
So far as is it was disclosed, the financial and material circumstances of Bradley are as follows: 1. In his affidavit made 8 June 2019, he indicated he has a gross monthly income of $4,538. In his evidence, he stated that the family's yearly household expenditure was $67,280. Considered as a monthly sum, the expenditure totals around $5,606. Bradley is employed as an Aboriginal Teaching Assistant at a primary school. 2. Bradley gave evidence that his assets total $51,248, consisting of a savings account ($11), a 2013 Kia Carnival car ($9,400), superannuation ($42,017) and "nominal" household contents and personal effects, which were not given a monetary value. 3. His liabilities total $81,337, consisting of a credit card debt ($6,500); a car loan ($34,000); and a debt to Centrelink arising from an overpayment ($74,837). He gave evidence his credit card had been cancelled, with the debt remaining outstanding, and his car loan has been placed on hold due to financial hardship (Affidavit, Bradley Dominic Barbuto, 8 June 2019). 4. As I have earlier stated, I am not satisfied that Bradley's true financial position was disclosed in his evidence. In particular, I am not convinced that the true nature and extent of the amounts he spends on gambling were disclosed in his evidence.
Bradley resides in rented accommodation with his wife, Nuramain, and three of their children (two of whom are Bradley and Nuramain's children, and one of whom is Nuramain's child from a prior relationship), in Butler, Western Australia. The children are dependent upon him.
Bradley gave evidence of Nuramain's financial circumstances. Her assets total $145, being the contents of a Westpac Bank savings account, and "nominal" household contents and personal effects which were not assigned a monetary figure. Nuramain is said to have superannuation entitlements totalling $1,048. She works, on a casual basis, as a cleaner, and has a fortnightly gross income of $302, and a yearly gross income of $7,855. As is obvious, they do not own a home, and do not have any joint assets or liabilities.
As has been stated, Bradley is 46 years old. By his own evidence, he is in good health.
Evidence of the deceased's provision of financial assistance, during his lifetime, to Bradley, has been discussed earlier in these reasons.
There was no suggestion that Bradley was being maintained by the deceased before the deceased's death, and the nature of the deceased's Will, in terms of its provision for Bradley, has already been covered extensively in these reasons.
The deceased's testamentary intentions have also been raised earlier in these reasons.
The only other person who may be liable to support Bradley is his wife, Nuramain, although it seems that she does not have the financial capacity to do so.
I have already noted Bradley's relationship with the deceased during his lifetime, and the poor conduct by Bradley towards the deceased, particularly in the month or so before the deceased died.
In writing, Bradley, by his counsel, submitted that a "proper order in the circumstances would be that the Plaintiff receive no less than half of the residuary estate of the Deceased". On the final day of the hearing, there was some discussion between the Bench and the Bar about the possibility of provision for Bradley being made to assist in the repayment of his debts, by way of provision being paid directly to Jacqueline's solicitor, or a public trustee, via an undertaking: Tcpt, 4 July 2019, p 318(5) - p 319(32).

The Situation in life of James

James asserted that he and the deceased shared a close relationship. In his affidavit evidence, he did not identify any specific obligations owed by the deceased, to him. Indeed, under the heading marked "any obligations owed by deceased to the Plaintiff", he wrote "not applicable".
So far as is disclosed, James' financial position may be summarised as follows: 1. He has a gross monthly income of $7,628 and the family's monthly expenditure is said to be $12,401 (Affidavit, James Francis Barbuto, 30 May 2019). 2. He is employed full-time as a firefighter for Fire and Rescue NSW. He also works part-time in his own business as a landscaper. In the financial year ending 30 June 2018, he earned approximately $11,500 (net) from that business (Affidavit, James Francis Barbuto, 30 May 2019). 3. On James' evidence, his estimate of the total value of his assets comes to $720,085. His assets comprise a one-half share in a property in Sutherland, in which he resides with Kellee and their minor children ($550,000) (Affidavit, James Francis Barbuto, 18 April 2018); bank accounts ($9,037); a 2004 Toyota Hilux 4WD Ute ($6,000); superannuation ($150,648); interest in three race horses (totalling $3,400) (initially, it was indicated James held a 10% interest in the three race horses. In fact, he is said to have a 5% interest in the race horses, with Kellee also named as having a 5% interest. This was only confirmed in cross-examination: Tcpt, 2 July 2019, p 145(45) - p 146(16)); a one-half share in household furniture and contents ($5,000); and tools ($2,000) (Affidavit, James Francis Barbuto, 30 May 2019). 4. His liabilities total $277,822. They consist of a one-half share of a mortgage secured over the property in Sutherland in which he resides with Kellee and their children ($268,500); debt from an ANZ overdraft account ($949); debt from various credit cards ($8,373); and tax liabilities ($2,911) (Affidavit, James Francis Barbuto, 30 May 2019). 5. As has been stated, I am not satisfied that James' true financial position is known, due to questions surrounding the nature and extent of his gambling, and the non-production of various documents relating to his income.
James resides with Kellee and their children in their home in Sutherland which, as evidenced above, they jointly own. There is evidence, by James, of Kellee's financial and material circumstances, of which her assets are said to total $707,940 and liabilities $269,063. In his evidence, James asserted he and Kellee jointly meet the family's financial needs and expenditure. Kellee works as a Nurse, and is said to have a monthly net income of $6,478.
As has been stated, James is 50 years of age. James gave evidence he has high blood pressure, irregular back pain, and problems with a neck/disc injury, though no medical evidence of those conditions was provided. In 2010, he was diagnosed with, and subsequently had treatment for, prostate cancer. I accept that, given the strenuous physical nature of his jobs, and the likelihood of injury as he gets older, James may have more difficulty working in the future: Tcpt, 4 July 2019, p 364(50) - p 365(9).
James did not produce any specific evidence going to any contribution, by him, to the deceased's estate, or the deceased's welfare, other than his assertion of his "close relationship" with the deceased. He gave evidence he completed some maintenance work on the Bangor property, and performed other activities such as pumping out the pool at the Bangor property. He did not really elaborate on the nature and extent of the work completed by him (Affidavit, James Francis Barbuto, 18 April 2018).
Evidence of the deceased's provision of financial assistance, during his lifetime, to James has been discussed earlier in these reasons.
There was no suggestion that James was being maintained by the deceased before the deceased's death, and the nature of the deceased's Will, in terms of its provision for him, has been dealt with extensively in these reasons.
The deceased's testamentary intentions have been discussed earlier in these reasons.
The only other person who may be liable to support James is his wife, Kellee.
In writing, James, by his counsel, submitted that "proper provision from the Estate of the Deceased would be a bequest of half of the residuary estate which would provide him with a reduced mortgage, and a fund for the contingencies in life". On the final day of hearing, there was some discussion between the Bench and the Bar in relation to the possibility of any provision for James being made to reduce his mortgage, with an undertaking that "for example, for a 12 month period no application would be made to increase the mortgage, or something like that": Tcpt, 4 July 2019, p 353(28-42). This is discussed later in these reasons.

The Law

Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act 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: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (No 2) (1994) 181 CLR 201, at 210-211; [1994] HCA 40.
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) wrote 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, per Emmett JA, at [9].
As stated, under s 59(1)(c) of the Act, 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. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his estate: Sgro v Thompson [2017] NSWCA 326, per Payne JA (agreeing with White JA), at [6].
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration.
An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]: "… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
In Grey v Harrison [1997] 2 VR 359, Callaway JA, at 366-367, observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
"Provision" is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement": "'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176, Brereton J (as his Honour then was) (with whom Basten JA and Handley AJA agreed), wrote, 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."
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 Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."
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 Australian Journal of Legal History 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.
These 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, 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 Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502, citing Pontifical Society for the Propagation of the Faith v Scales at 19: "…the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin, Callinan and Heydon JJ wrote at 114: "…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 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]."
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."
I wrote in Jodell v Woods [2017] NSWSC 143, the following passages which were recently approved in the Court of Appeal in Strang v Steiner [2019] NSWCA 143, by Macfarlan JA, at [70]: "(1) The resolution of the mandatory question posed by s 59(1)(c) will always 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. (2) 'Need' is a relative concept, which means more than 'want', but falls far short of 'cannot survive without'. It requires consideration not only of a claimant's material circumstances but also of those matters necessary to guard against unforeseen contingencies. (3) The matters in s 60(2) are a 'multifactorial list' and a 'valuable prompt'; they are not prioritised and their weight will depend upon the facts of the individual case, with none being necessarily of decisive significance. (4) A reference to some of the matters in s 60(2) requires a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary. (5) The nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant is not fixed or static, but is a flexible concept, the measure of which "should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards". (Omitting citations)
Sackville AJA pointed out in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [84], that "the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew, Allsop P observed that "[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)". That observation applies to the concept of "financial needs" embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act".
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. In this regard, the assessment of what constitutes "adequate provision" for the "proper maintenance" of the person seeking provision is to be assessed not simply by an entirely objective assessment, in monetary terms, of alleged needs.
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 question of the process by which the Court is required to implement s 59(1)(c) and s 59(2) of the Act, revived by the Court of Appeal in Sgro v Thompson, has been compendiously dealt with by Robb J in Maynard v Maynard [2018] NSWSC 1961 at [121]-[163].)
I shall adopt the approach that I referred to in Vidler v Ivimey [2013] NSWSC 1605, in which I considered, in some detail, the history of this controversy to that point in time at [38]-[40], and [68]-[84] and concluded at [84]: "Perhaps, the way to approach the matter is simply to refer to the Act containing 'twin tasks': Goodman v Windeyer, per Gibbs J, at 502, being the jurisdictional question and the discretionary question, with one task overlapping, to some extent, with the other."
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 discretion means that it may refuse to make an order, even though the question regarding inadequacy of provision 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. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, "may" does not mean "must".
In Chapple v Wilcox (2014) 87 NSWLR 646, at 649; [2014] NSWCA 392, at [7], Basten JA wrote: "Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
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. In some cases, one or two factors may have a decisive influence on the outcome. Yet, 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).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question"; namely, whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
In In re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318, at [321], Jordan CJ described "disentitling conduct", in the context of s 3(2) of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), as "character or conduct relevant to the purposes which the 1916 Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default".
There is no equivalent provision that refers to character or conduct such as to "disentitle" the applicant to the benefit of a family provision order. Character and conduct may be considered under s 60(2)(m) of the Act, which is in broader terms, without employing the word "disentitling". As I have written in other cases, the Act requires the Court to consider the totality of a relationship: Fulton v Fulton [2014] NSWSC 619, at [395]-[398]; Hinderry v Hinderry [2016] NSWSC 780, at [120]-[124]; Page v Page [2016] NSWSC 1218, at [112].
I have dealt with the relevant matters identified in s 60(2) of the Act in relation to each of Bradley and James, respectively, earlier in these reasons.
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 Court's 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 interests: s 65(3) of the Act.
In this case, s 65(1)(d) is relevant, as each of Bradley and James accepted that if provision is made for him, it could be subject to a condition that it be used to reduce debts. That proposition has also been discussed earlier in these reasons.
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.
Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68]. The Court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815, at 820-821; Alcock v Cooper [2010] SASC 167, per Lunn M, at [39].
Yet, in small estates particularly, the court should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket & Ors (1993) 10 WAR 532, at 540. Bearing in mind the conclusion reached regarding notional estate, this is an estate with a small value.

Some Additional Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs, but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
In In re Coventry [1980] Ch 461, at 474-475, Oliver J wrote, speaking of the UK family provision legislation: 'It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court's powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant - and that means, in the case of an applicant other than a spouse for that applicant's maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased's dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased's position.'"
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].
In relation to the claim by each of Bradley and James, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond [2015] NSWCA 42, at [109]. 3. Generally, also, "the community does not expect a parent to look after her, or his, children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia, at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58]. 5. An adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. 6. An applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62].
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).
In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".

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), 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 permits 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.
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; in Yee v Yee [2017] NSWCA 305, at [172]; and very recently, by White JA, in Steinmetz v Shannon [2019] NSWCA 114, at [37]. They must be remembered.

Objects of a Discretionary Trust

As stated earlier, Bradley, and James, is an object of the Second Discretionary Trust, and the First Discretionary Trust, respectively, which, as has been read, is a discretionary trust. I have earlier referred to the attachment to the email sent to Ms Inglis, which revealed the guidance provided by the deceased to Jacqueline in how to administer each Trust. However, as stated by the deceased, it was no more than "a guideline for Jacqui to think about": Affidavit, Christopher Herbert Brown, 13 June 2019, Annexure C.
With a discretionary trust, until the trustee exercises the discretion in his or her favour, a discretionary object's interest is merely an expectation or hope. As such, other than in respect of distributions already made, and it is not suggested that there have been any, each of Bradley and James has no enforceable right to either the capital, or the income, of the relevant Trust. Each is reliant, for any future benefit, upon the exercise of discretion of Jacqueline in his favour, in circumstances where she, too, is a discretionary object of each Trust.
I dealt with the question of the nature of the testamentary discretionary trust created by a deceased's will in Hedman v Frazer [2013] NSWSC 1915. For the benefit of the parties, I repeat what I wrote then.
In Belfield v Belfield (2012) 83 NSWLR 189; [2012] NSWCA 416, Campbell JA wrote (at 206 [71]): "… when the FPA was enacted in 1982, it was common and well known that there were significant advantages for a person with some capital (who I will call the instigator) to arrange the setting up of a family trust, with a structure like that of the present trust deed. Common features of such trusts were that the trust was established by a settlor who was not the instigator or someone the instigator wished to benefit, the eligible beneficiaries were relatives by blood or marriage of the instigator, and there could be a discretionary allocation of income each year amongst eligible beneficiaries and ultimately a discretionary allocation of capital amongst eligible beneficiaries. Other common features were that there was power to alter the eligible beneficiaries, certainty achieved by provisions stating where income, and capital respectively would be distributed in default of a specific allocation of income or capital, and distribution of capital delayed for as long as permissible under the rule against perpetuities but with a discretionary power to advance the distribution date: see, for example, I J Hardingham and R Baxt, Discretionary Trusts, (1975) Sydney, Butterworths. Those discretions were usually conferred on the trustee of the trust. Such trusts enabled an instigator who was concerned to provide for a family, usually a parent or grandparent, to arrange for assets that they had accumulated to be made available to different members of the family as the need for money presented itself. Such trusts also had the effect of lessening the impact of death duties, while death duties remained in force in Australia, and of lessening the impact of income tax on the members of a family unit considered collectively, by enabling income to be appointed to those members of a family who had a lower marginal rate of taxation."
In Gregory v Hudson (No 2) (Supreme Court (NSW), Young J, 18 September 1997, unrep), it was said (at pp 10-12): "Mr Broun QC puts that the authorities clearly show that a provision in a will that trustees might pay additional moneys out of the estate for the benefit of the applicant is not a proper provision. He cites Re Brown [1972] VR 36. In that case, after citing some decisions from New Zealand and Canada, together with the note of Re WTN C McLelland, CJ in Eq. (1959) noted 33 ALJ 240, Norris, AJ said at 39, 'It is true to say that in most of the cases the fact that a discretion to increase a benefit existed was not regarded as rendering adequate a provision which otherwise was inadequate. I think, nevertheless, it is consistent with the authorities to say that such a discretion is not to be excluded from consideration in determining whether or not adequate provision has been made, and that it may in an appropriate case render adequate a provision otherwise inadequate.' He then cites Re Allen [1922] NZLR 218. Dickey in Family Provision after Death (LBC Sydney 1992) says at p 121, 'There is some authority for the proposition that where a person is in need of provision but the quantum of provision made for him or her from a deceased's estate is wholly dependent upon the discretion of trustees, this provision is not adequate. In all probability, however, this is not an inflexible rule. In all probability the question of whether provision of this kind is adequate depends upon the particular facts and circumstances of the case.' ... I consider, with respect, that Professor Dickey's comment is close to the mark. Ordinarily, a benefit provided under a discretionary trust is a fairly illusory benefit because it can be terminated without reason and there is little likelihood of a discretionary beneficiary being able to force the trustee to pay her a benefit. Hartigan's case shows that even if there is a memorandum of wishes, there is no obligation on the trustee to take that into account. Furthermore, even though the trustees say that they intend to follow the wishes, they are not bound to do so, and indeed, circumstances may change in such a way that they feel it is not proper to continue to follow the memoranda of wishes and carry out the spirit of what the deceased intended. … It seems to me that where a wealthy man, with an estate of at least 11 million dollars, leaves the bulk of the benefits to his widow under a discretionary trust over which she has no control, he has not made proper provision for his widow. The community would expect that the widow of such a man would at least have a home in her own name and some capital to which she could resort whenever she felt like it."
Gregory v Hudson was followed by Master McLaughlin (as his Honour then was) in Gill v Permanent Trustee Company Limited [1999] NSWSC 394); in McCullum v Permanent Trustee [1999] NSWSC 1219; Novak-Niemala v Perpetual Trustee Co Ltd [2002] NSWSC 251; and Stansfield v National Australia Trustees Ltd [2004] NSWSC 1107, and by Macready AsJ in Tucker v Tucker [2012] NSWSC 1302.
In Taylor v Farrugia, Brereton J (as his Honour then was) wrote, at [62]: "Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper [Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq; referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported."
The point raised by these decisions was more recently, and succinctly put, in Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215, in which Buss P wrote, at [188]: "In my opinion, a provision under a testator's will may not make adequate provision from his or her estate for the proper maintenance, etc, of a person mentioned in s 7 of the Act if, in all the circumstances, the form of the provision is not adequate or proper. That is, the evaluation by the court of the adequacy or propriety of a provision in a will is not confined to whether, in all the circumstances, the actual or potential quantum of the provision is adequate and proper."
Mead v Lemon (As Executor of the Estate of the late Michael John Maynard Wright) and Leonie Angela Maynard Baldock and Alexandra Odette Burt and VOC Group Limited [2018] HCATrans 152, was the subject of a special leave application, which was refused upon the basis that there were insufficient prospects that the appeal would succeed.
More recently, in Bkassini v Sarkis [2017] NSWSC 1487, Robb J, before quoting what I had written in Hedman v Frazer, wrote, at [304] that a discretionary object's "fate in the present case is an exemplar of the proposition that discretionary testamentary trusts will usually provide an inappropriate mechanism for ensuring that a beneficiary under a will receives adequate provision".
An earlier example of such a view is Shepherd v Shepherd [2010] NSWSC 167, at [53]-[55], in which McDougall J concluded that a will had made inadequate provision for an adult beneficiary, a son of the deceased, who had no vested entitlement to income and who was entirely dependent upon the trustees (his brother and sister) exercising their discretion in his favour from time to time.

The gambling issue

A significant part of the case advanced by Jacqueline was that Bradley and James each acknowledged that he gambles and that this was a relevant matter to consider in determining the form of provision that the deceased determined should be made for each of them. In the case of James, the gambling seems to be conducted on a more regular and structured basis.
As I understood the submission, Jacqueline's case was not that gambling was misconduct that would deprive an order being made, or that each of Bradley and James should not gamble if he chooses to, bearing in mind gambling is not an illegal activity. The submission was that neither should look to the deceased's estate, in his claim for a family provision order, to indirectly supplement funds dissipated in engaging in that activity, by making provision for "needs" that could be met, otherwise, in whole, or in part, if each did not gamble. In other words, the Court should take into account the gambling conduct of each where it is said to have a direct, or an indirect, effect on the fortunes of each, and that of their respective families. It was submitted, by way of example, that an adult child who suffers an illness, or a disability, in mid-life, is one thing; an adult child who squanders his, or her, money gambling, is another. (In my view, it is also relevant that there is evidence that the deceased disapproved of each of Bradley and James gambling.)
In Green v Perpetual Trustee Co Limited (10 July 1985, unrep), Hodgson J wrote that the Court could not "have regard to any likelihood of dissipation of any provision for the plaintiffs except in relation to the actual order" which was made, and that "such consideration could suggest that there should be terms attached to the order to prevent dissipation".
In Howarth v Reed (Supreme Court (NSW), Powell J, 15 April 1991, unrep) Powell J referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. His Honour wrote, at 43: "While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros ..."
Reliance was placed on what Campbell JA wrote in Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359, at [97]-[102]: "Ray v Moncrieff [1917] NZLR 234 concerned an applicant who was the only son of a deceased, who had been left the income of a sum of money, with the capital of that sum on his mother's death. The applicant was an able-bodied labourer, and 'a chronic drunkard'. Chapman J rejected the argument that the applicant should be treated as a man suffering from a chronic disorder, such as being maimed or insane. His Honour said, at 235: '[I]t would be a novel use of the powers of this Act to relieve the son of his burdens when the only result would be to set free his resources to be spent in drinking. The Court in these cases is asked to make good some failure on the part of the testator to perform his duty. It seems to me he has most thoroughly endeavoured to do his duty towards the applicant.' Similarly, in Bondy v Vavros (Supreme Court of NSW, Young J, 29 August 1988, unreported at 10) Young J (as his Honour then was) contemplated that: '... if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty.' In such a situation, if a plaintiff had been left periodical income, then even if another plaintiff who was similarly situated but not at serious risk of frittering away capital could have obtained a capital sum in lieu of the income stream, it might be concluded that for that particular plaintiff the income stream was adequate and proper provision. I should here mention that the passage I have quoted from Bondy v Vavros was preceded by the following statement: 'If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time.' That statement has sometimes been treated as though the court should disregard the likely use that an applicant will make of an award (eg Michael Bienke v Brian Bienke; Estate of the Late Harold Bienke [2002] NSWSC 804 at [24]), or disregard it at the jurisdictional stage though possibly taking it into account in the form of the order (Howarth v Reed, Supreme Court of New South Wales, Powell J, 15 April 1991 unreported at 42). In my view that involves a misreading of the statement in its context. The statement is part of the same paragraph that I have quoted at [98] above, and precedes the passage I have quoted at [98]. The sentence I have quoted at [98] commences with the words 'On the other hand, when one is considering what a wise and just testator would have done, ...'. The sense of the whole of the paragraph is, if a person is entitled to an order (ie, to receive what is adequate for proper maintenance, education and advancement in life, or what the wise and just testator would have given him) it is no further concern of the court that there is a prospect that the applicant might waste the money. However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life. There is ample precedent, and justification in principle, for a tendency of an applicant to spend excessive amounts of money unwisely (whether through an addiction to alcohol, drugs or gambling, or simply through habitual spendthrift characteristics) to enter into consideration for the purposes of the second stage of the process identified in Singer v Berghouse (No 2), namely, once jurisdiction is established, formulation of an order under the Family Provision Act. Some examples from the caselaw are collected and discussed in the appendix to this judgment."
Hampson v Hampson was a case involving the applicant's use of marijuana, and was not one involving gambling.
Yet, the Court remembers the words of Lord Hoffmann in Reeves v Commissioner of Police [2000] 1 AC 360, at 368, albeit in a different context: "…there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed…."

The undertakings proffered by each of Bradley and James

During the course of the hearing, there was discussion regarding whether any condition should be imposed by the Court in relation to the manner in which any family provision order: s 65(1)(d) of the Act. Each of Bradley and James consented to a condition being imposed.
Each of Bradley and James was prepared to give an undertaking to the Court, in relation to any provision out of the estate that was made for him. The type of undertaking that might be given was discussed during submissions but, at that time, no undertaking was proffered by either of them.
In the case of Bradley, the Court was informed that he was prepared to give the following undertaking to the Court: "The Plaintiff undertakes to the Court that, to the extent that the Court orders provision for the Plaintiff exceeding the total of the amounts paid to creditors pursuant to order 3 above, that the Plaintiff shall not apply any of such provision for the purposes of gambling of any description."
On 16 July 2019, by email sent on behalf of Bradley, by his solicitor, the undertaking set out, in essence, was that any lump sum ordered to be paid out of the estate of the deceased should be paid into the trust account of the Plaintiff's lawyers, Armstrong Legal; and that, thereafter, it be used to pay the debts to HSBC, Macquarie Leasing, and Centrelink, in whole or to the extent possible.
(The document also contained an undertaking given by Bradley, in relation to not using any provision made for him on gambling. That portion of the undertaking has been set out earlier in these reasons.)
After the hearing had concluded, in the case of James, the following document was provided, without opposition, by his legal representative, to the Court: "UNDERTAKING TO COURT AND AUTHORITY TO RECEIVE Any order for provision in favour of the Plaintiff out of the Estate of the Deceased be satisfied by payment to the Solicitors for the Plaintiff, Messrs Salmon Layton & Co, for application by those solicitors, for the sole purpose of reduction of the principal sum of the mortgage secured on xx Aldgate Street Sutherland, held jointly by the Plaintiff and Kellee Barbuto (Mortgage), and, in particular, not in reduction or payment of the Plaintiff's Solicitor's costs in the proceedings. The Plaintiff irrevocably UNDERTAKES TO THE SUPREME COURT OF NEW SOUTH WALES that he authorises and directs his Solicitors to receive and to apply the said sum to the reduction of the principal sum of the Mortgage, and will not, for a period of 12 months from the time of receipt by his Solicitors of the said sum, increase, or direct or authorise any person to increase the reduced principal sum of the Mortgage, or to redraw against the mortgage."
The form of undertaking was not precisely in the terms that had been discussed at the hearing. In view of the conclusion to which I have come in relation to the claim by James, this does not matter.

Determination

As stated, there is no dispute that each of Bradley and James is an eligible person. James commenced the proceedings within time and Jacqueline consents to the time for the making of Bradley's application being made out of time. Accordingly, in the case of Bradley, the extension of time for the making of the application is not an issue.
Then, 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 each has not been made by the Will of the deceased.
Bearing in mind the terms of the deceased's Will, there is a prospect that each of Bradley and James might receive nothing by way of income, or capital, out of the deceased's estate. Whether each does, depends entirely upon the exercise of discretion, in his favour by Jacqueline. To date, neither has received any distribution from the relevant trust, but I do not regard this as indicative of what might occur in the future.
The contingent nature of the disposition to each of Bradley and James under the deceased's Will, arising from the discretionary nature of each testamentary trust, without more, might compel the conclusion that the provision in the Will for each of his children by the deceased was not adequate for that child's proper maintenance or advancement in life.
As earlier stated, a court cannot describe, in terms of universal application, what adequate provision for the proper maintenance or advancement in life will entail for a parent in respect of an adult child. In many cases, as has earlier been said, adequate provision for proper maintenance will not require the parent to support a capable adult child for the rest of his, or her, life.
But every case will depend on its own facts, and in my view, the facts of the two claims are very different.
Overall, whilst Bradley has not disclosed what he spends on gambling, I am satisfied that he has disclosed, in broad terms, his financial circumstances. However, his expenditure on gambling, as disclosed in the summary document, does lead to the view that his claimed needs are not as great as he alleged, or if they are, that some of those needs could be alleviated by spending less on gambling.
In relation to gambling, the Court is morally neutral. However, there is merit in the submission made on behalf of Jacqueline that Bradley should not seek provision out of the deceased's estate to effectively supplement what he spends on that activity. The Court may take his gambling into account where it has a direct, or indirect, effect on the family fortunes.
Counsel for Jacqueline submitted that the Court should make an order for provision that enables him to pay off his debts: Tcpt, 4 July 2019, p 349(8-13). At the hearing, counsel for Jacqueline agreed that those debts (being the debts from Centrelink, Macquarie Leasing, HSBC and Bradley's car loan) totalled "around [$]110[,000] to [$]120[,000]" and that the amount should be updated as at the date of any orders that were to be made: Tcpt, 4 July 2019, p 349(15-35).
I note that it had earlier been agreed that Bradley's debts arising from Centrelink, Macquarie Leasing and HSBC, and not the car loan (which Bradley's affidavit evidence indicates has been put on hold), totalled in the order of $81,337: Tcpt, 4 July 2019, p 318 (23-26).
On behalf of Jacqueline, it appears to have been accepted that some provision should be made for Bradley with a number of conditions which were raised on the final day of the hearing, to all of which Bradley, in the undertaking subsequently received by his legal representative, appears to have agreed.
The first condition was that he should disclaim any future interest in the second testamentary trust, in which he is a discretionary object. The second condition was that the lump sum should be paid to Bradley's solicitors upon the basis that they would pay Bradley's debts to the extent they were able to out of the lump sum provision that is made. The third condition was that to the extent that there was any surplus, that surplus should not be used to pay the difference between any costs recovered and any costs that Bradley was required to pay his solicitors pursuant to the conditional costs agreement.
(I note that, in the correspondence received by the Court on 16 July 2019, Bradley's solicitors also forwarded correspondence from Jacqueline's solicitor, in which it was asserted that the undertaking provided by Bradley's legal representative was, in their view, "not sufficient". They deemed it appropriate that the undertaking should be coupled with an order that any provision made should be held on trust and a copy of the undertaking should be provided to the trustee; but that if the Court deemed the undertaking to be sufficient, then the orders and undertakings should expressly make clear any provision made should not be used for the costs of the proceedings, and that the undertaking should specify what provision would be used for, rather than what it would not be used for gambling).
I am satisfied that some provision ought to be made for Bradley and, in my view, the lump sum of $90,000 should be provided out of the estate of the deceased, upon the condition that it be used to repay his debts in whole or in part. An additional condition to be imposed is that he should disclaim any further interest as a discretionary object. In reaching my conclusion regarding the quantum of provision, I have, naturally, borne in mind the relevant matters in s 60(2) of the Act.
I do not accept that the lump sum provision should be enough to enable the payment of all of his debts (if they are, in fact $110,000 to $120,000.) In my view, that would exceed any obligation owed by the deceased to him.
The burden of the provision made for Bradley should be borne out of the Second Discretionary Trust. In this way, the deceased's desire to ensure that any provision made in favour of one or other of his children be borne out of one half of his estate will be achieved.
In relation to James, Jacqueline submitted that the Court could not be satisfied that the provision made for him in the Will of the deceased was inadequate, for three reasons, namely that he had failed to make full and frank disclosure about his financial circumstances, and, in particular, his gambling; second, that he had no "needs" that could not be met from his own resources; and third, that to the extent that he has a "need", such "need" is the result of James' own choices. In those circumstances, his claim should be dismissed.
Respectfully, I agree. I am simply not satisfied that James gave what I regard as a broadly complete picture of his financial circumstances. To the extent that he did disclose his circumstances, considering his situation in life, at the present time, I am not satisfied that adequate provision for his proper maintenance, education or advancement in life had not been made by the Will of the deceased. In particular, he is secure in accommodation; he and his wife have an income that is sufficient to meet their expenditure; and he also has superannuation to protect him from some of the exigencies of life. Whilst he does have the burden of a debt secured by mortgage, he has been able to pay the debt in the usual manner out of his and his wife's income.
Even if he has some "needs", that is not all that the Court is required to consider. Merely because financial relief could be given to assist him, does not mean that there is justification for judicial interference with the dispositions made in the Will of the deceased. The question whether "adequate" provision has been made "directs attention, not merely to an applicant's financial needs, but also to the size and nature of the deceased's estate, the relationships between the deceased and the applicant and others with claims upon his bounty, and the circumstances and needs of those other persons. The evaluation involved in deciding whether 'adequate' provision has been made is to be guided by applying the Court's assessment of what would, in the circumstances, be right and appropriate, according to prevailing community standards and expectations": Squire v Squire [2019] NSWCA 90, per Meagher JA (with whom Macfarlan JA and Simpson AJA agreed), at [10].
As well, the Court must not forget the word "proper", which is also used in the section, the meaning of which has been discussed earlier in these reasons.
Furthermore, to the extent that he does have any needs in the future, he will remain an object of discretion of the First Discretionary Trust and, depending upon his disclosure of such needs to Jacqueline, and her consideration of other competing discretionary objects at that time, she may exercise her discretion in his favour.
All of these considerations led me to find that there was no failure, on the part of the deceased, to make adequate provision for James. Accordingly, his claim fails at the jurisdictional stage. That finding concludes the matter and leads to the dismissal of the proceedings.
But, if (contrary to my foregoing conclusion), I were satisfied that James had been left without adequate provision for his proper maintenance or advancement in life, I would have turned, then, to make an evaluative judgment as to what provision, if any, ought to be made out of the estate of the deceased for his maintenance, education or advancement in life having regard to the facts known to the Court at the time the order were made.
All of the considerations that need to be made at that stage, also produces the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made for him. In this regard, I do not overlook the fact that the Court is not invested with a discretion to remake a deceased's Will upon some principle of fairness or to achieve equality amongst various claimants.
As Kitto J wrote in McCosker v McCosker, at 580: "This is the kind of case in which it would be much more pleasant to be open-handed with the testator's estate than to confine oneself to the jurisdiction under the Act. But even if I felt sure that I understood the whole situation so well that I could deal with the estate more justly than the testator dealt with it, I should still not feel justified in asserting that when he decided to give the respondent no more than he had already given him, and to leave his estate to members of the family who had been closer to him and to whom he had his own reasons for being generous, he failed to recognise a moral duty which lay upon him."
Whilst James might feel a sense of grievance, or hurt, as a result of the unequal disposition of the deceased's estate, he has not established, to my satisfaction, that further provision for him out of the estate ought to be made. In this regard, by his own failure to properly disclose his financial circumstances, he is the author of his own misfortune.
Accordingly, the claim by James for a family provision order should be dismissed.
In the circumstances, in light of the dispute between Bradley and Jacqueline as to the terms of the undertaking, now that the quantum of the provision is known, I invite the parties to discuss the precise form of the undertaking to be given, or alternatively, the condition regarding payment of the lump sum. The order for provision for him should be made "in lieu of the provision" made for him in the Will of the deceased.
The parties, within 7 days, should provide a form of orders, in each case, to reflect these reasons.
The matter will be listed for argument on the form of orders, if there is any dispute, and for the argument on costs.

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: 14 August 2019

Family Provision Act 1982(NSW)

Testator's Family Maintenance and Guardianship of Infants Act 1916(NSW)

At a glance

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Judgment (29 paragraphs)

Legislation Cited (9)

Cases Cited (115)

Cited By (5)