69 According to the Third Defendant she is just managing to make ends meet financially. It was her evidence that it was only in consequence of the financial benefit which she received from the Deceased that she has been able to purchase the house property in which she and her infant sons currently reside.
70 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.
71 I have had the benefit of receiving chronologies and written outlines of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.
72 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings.
73 It will be appreciated that there was no actual estate left by the Deceased, since the greater part of her assets had during her lifetime been distributed by her among the Plaintiff and the three Defendants, and that the relatively small funds left in her estate after her death were not sufficient to pay the totality of her debts which had been incurred during her lifetime.
74 Accordingly, therefore, any order for provision an entitlement to which the Plaintiff might establish can only be made out of the notional estate of the Deceased. It is for that reason that the three Defendants, to whom assets of the Deceased were distributed before her death, have been joined as parties to the present proceedings.
75 It should at the outset be recognised that the Plaintiff must establish his claim upon its own merits. His claim cannot be enhanced by the financial and material circumstances of the Defendants, each of whom was the recipient of the generosity of the Deceased during her lifetime and two of whom were the chosen objects of the testamentary beneficence of the Deceased, expressed in her last will, being that of 21 February 2000. The competing claims of those persons can, however, have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise establish.
76 Further, it should be appreciated that an order for provision is not made as a reward for good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant.
77 I have already referred to the very considerable quantity of evidence adduced on behalf of the Defendants and other witnesses concerning the nature of the relationship asserted by those witnesses to have obtained between the Plaintiff and his mother, and concerning what was asserted by those witnesses to be evidence that the Plaintiff had a bad relationship with his mother, was disrespectful towards her and, indeed, at times violent towards her.
78 In this regard it is appropriate to bear in mind the following salutary admonition of Windeyer J in the High Court of Australia concerning the statutory predecessor of the Family Provision Act (the Testator's Family Maintenance and Guardianship of Infants Act 1916) in Blore v Lang (1960) 104 CLR 124 at 137,
The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometime overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.
79 That has certainly been the situation in the instant case. It is quite apparent that the First and Second Defendants, who were considerably older than the Plaintiff, did not have much in common with him whilst he was growing up, and have disliked him throughout his adult life. The Plaintiff was the child of elderly parents, his mother being aged forty-two and his father aged fifty-five at the time of his birth. The Plaintiff has suffered psychiatric problems. He has had an unsatisfactory history of matrimonial and other personal relationships and an equally unsatisfactory employment history.
80 In his relationship with the Deceased there were obviously problems, despite the assertion on the part of the Plaintiff that their relationship was a loving and harmonious one. The written document signed by the Deceased on the date when she executed her first will, 7 March 1997, was obviously prepared by someone else. The First Defendant acknowledged his involvement in its preparation. It is unlikely that a lady aged more than ninety years would have drafted that document in the form in which it finally emerged and was signed by her.
81 The Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically.
82 It was suggested by the Plaintiff that the written statement signed by his mother on 7 March 1997 had in fact been written by the First Defendant. The Plaintiff also said of his mother that he had known her to say one thing to one person and something different to another person. That latter suggestion was to an extent supported by the evidence of the Plaintiff's most recent, but no longer, partner, Irene Bronwyn Galbraith. In her affidavit of 27 June 2003 Miss Galbraith attributed to the Second Defendant's husband a statement that the Deceased and her husband would tell one family member something and another family member something else.
83 Both the First Defendant and the Second Defendant conceded under cross-examination that the Deceased was a person who was given to saying bad things about one member of the family to another family member, and that such statements made by the Deceased may not have been accurate. Such conduct on the part of the Deceased was consistent with what was revealed in the medical records of the Rockdale Nursing Home, where there were recorded a number of instances of what was described as "manipulative behaviour" on the part of the Deceased towards both members of the nursing staff at that establishment and towards members of the Deceased's own family.
84 I have already referred to the fact that many of the incidents concerning which evidence was adduced on behalf of the Defendants were denied or disputed by the Plaintiff. It is appropriate, therefore, that I should express my views concerning the credit of the witnesses whose evidence was in dispute and the reliance to be placed upon that evidence.
85 I considered the Plaintiff an unreliable witness. It is possible that his memory may have been affected by his history of depression. However, there were incidents asserted (for example the alleged confrontation with Mr Aldritt, at Banks Lodge) where the Plaintiff's total denial of the incident cannot be attributed to memory failure.
86 The Plaintiff's credit was seriously affected by the circumstances of his dismissal from the State Rail Authority (which resulted from his fraudulently and falsely seeking and obtaining bereavement leave).
87 In general, where unsubstantiated evidence of the Plaintiff was disputed by evidence of witnesses on behalf of the Defendant, I have preferred not to rely upon that evidence of the Plaintiff. It must, however, be recognised that the First Defendant and the Second Defendant manifested a considerable degree of animus towards the Plaintiff. Further, in respect to the confrontation with Mr Alldritt I was not favourably impressed by his evidence either, although I am satisfied on balance that there was some form of confrontation between himself and the Plaintiff. I am not, however, satisfied as to the accuracy of Mr Aldritt's evidence concerning the alleged consequences of the incident - the summoning of the Police and the employment of a security guard specifically to prevent the Plaintiff from attending at Banks Lodge. That evidence does not sit well with Mr Alldritt's agreement that shortly after the alleged confrontation the Plaintiff had resumed visiting the Deceased at Banks Lodge, unhindered and unimpeded.
88 However, despite the denials of the Plaintiff, it is on balance more likely that incidents of the nature described by the Defendants and the witnesses called on their behalf, although denied by the Plaintiff, did in fact occur.
89 The evidence suggests, however, that the problems which were manifested by the Plaintiff in his relationship with and conduct towards his mother were, at least in part, a result of his psychiatric condition. That condition appears to have contributed also to the Plaintiff's extremely disrupted employment history and to the various and unsatisfactory personal relationships in which he has been involved throughout his adult life.
90 The observations of the Defendants and other witnesses concerning the relationship between the Plaintiff and the Deceased support the conclusion that the relationship was not a particularly good one.
91 Nevertheless, the nature of the relationship between the Plaintiff and the Deceased is not determinative of the present claim. The bizarre conduct of the Plaintiff in inserting the death notice in the Sydney Morning Herald is difficult to explain, unless it was caused by the psychiatric problems from which the Plaintiff at an earlier stage had suffered, and had received hospital treatment. His attempted explanation, that for practical purposes, the Deceased was dead to him, is quite extraordinary and unbelievable, since the Plaintiff was residing with the Deceased at the very time when the death notice was published. When the Deceased became aware of that notice it can have caused her nothing but extreme distress, although the Plaintiff said that she subsequently forgave him.
92 However, neither the conduct of the Plaintiff in relation to the Deceased nor the fact that the Plaintiff did not present as a character who immediately attracted the sympathy of the Court of itself necessarily deprives the Plaintiff of an order for provision.
93 As was recognised by the Court of Appeal of New South Wales in Hunter v Hunter (1987) 8 NSWLR 573 at 574 per Kirby P (with whom Hope and Priestly JJA agreed),
If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.
94 In the same case, Priestly JA said, (in words which are apposite to the instant case), at 582,
In giving his reasons for dismissing the appellant's claim, Helsham CJ in Equity said, in my opinion rightly, that to deal properly with the case did not require an attempt by the Court to establish exactly what happened between the members of the appellant's family during the course of the many events over the many years which the evidence dealt with. The fallibility of human memory, the length of time involved, the natural differences in recollection of the surviving participants all make the task impossible. The evidence indeed provides some striking examples of how differently witnesses see, hear, understand and then remember the same event. Differences of this kind in the present case show how various members of the family felt about one another from time to time but, when taken incident by incident, provide unreliable clues as to the objective rightness (if such is possible) or wrongness of their opinions of one another.
95 I intend no discourtesy to him when I describe the Plaintiff as one of life's losers. He did receive financial and material benefits from his parents, and after the death of his father, from the Deceased, but he has now little to show for those benefits. Those benefits, however, appear to have been no greater than those received by his brother and sister. Indeed the distributions made by the Deceased from the proceeds of sale of the Oatley property when she entered the retirement residence were significantly less than those which the First and Second Defendants received.
96 At the age of fifty-four the Plaintiff has little in the way of assets. He has even been bankrupt. He has no qualifications. He is employed in a lowly paid position. He suffers significant health problems. He cannot afford a necessary health procedure or the acquisition of a hearing aid.
97 It is abundantly apparent that the Plaintiff has established relevant need, in that he has been left without adequate provision for his maintenance and advancement in life. He has thus satisfied the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 210.
98 Since the Deceased left no actual estate at the time of her death the Plaintiff invokes the provisions of Part 2, Division 2 of the Family Provision Act, relating to notional estate.
99 The conduct of the Deceased in making the inter vivos distributions in January 2000 and in January 2001 constituted prescribed transactions of the nature described in section 22 of the Act.
100 In the instant case I am, in the terms of section 23(a), satisfied that an order for provision ought to be made on the application of the Plaintiff.
101 Both the distributions to the Defendants took place within the period of three years before the death of the Deceased. I am satisfied that, in the terms of section 23(b)(i) the Deceased made the distribution of January 2000, "with the intention, wholly or in part, of denying or limiting, wholly or in part, provision for the maintenance, education or advancement in life of [the Plaintiff] out of the [Deceased's] estate". It will be appreciated that the consequence of the distribution made in January 2000 was to defeat the terms of the last will of the Deceased which would have given to the Plaintiff one third of the net estate of the Deceased, that is, would have given to him about $138,000. The distributions made to him by the Deceased in January 2000 and in January 2001 totalled $90,000, but he actually received only slightly more than $82,000 (because of the agreed deduction of amounts totalling $7,733.
102 Further, the distribution made in January 2001 in my conclusion came within the following description in section 23(b)(ii), of a prescribed transaction "which took effect within the period of 1 year before death, and was entered into at a time when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education and advancement in life of [the Plaintiff]… which was substantially greater than any moral obligation of the deceased person to enter into the prescribed transaction".
103 As I have already observed, the conduct of the Deceased in effecting the foregoing inter vivos dispositions, had the effect of defeating the testamentary provision made by her in favour of the Plaintiff in her will of 21 February 2000, by which testamentary provision she clearly recognised a "moral obligation to make adequate provision, by will… for the proper maintenance, education and advancement in life of" the Plaintiff.
104 Section 27(1) of the Act sets forth matters which must be considered by the Court before it can make an order designating property as notional estate of a deceased person. Those matters are:
(a) the importance of not interfering with reasonable expectations in relation to property,