[2010] VSCA 195
Graham v Vukic [2020] NSWSC 180
Haertsch v Whiteway (2020) 102 NSWLR 386
John v John [2010] NSWSC 937
Kavalee v Burbidge
Vella v Vella [2020] NSWSC 849
Verzar v Verzar (2014) 12 ASTLR 523
[2014] NSWCA 45
Wheatley v Wheatley [2006] NSWCA 262
Wild v Meduri & Ors
Source
Original judgment source is linked above.
Catchwords
[2010] VSCA 195
Graham v Vukic [2020] NSWSC 180
Haertsch v Whiteway (2020) 102 NSWLR 386John v John [2010] NSWSC 937
Kavalee v BurbidgeVella v Vella [2020] NSWSC 849
Verzar v Verzar (2014) 12 ASTLR 523[2014] NSWCA 45
Wheatley v Wheatley [2006] NSWCA 262
Wild v Meduri & OrsMeduri & Anor v Neal & Anor
Judgment (26 paragraphs)
[1]
Introduction
These reasons relate to two different contested proceedings involving the notional estate of Maurice Mervyn Boatswain (the deceased), who died on 20 January 2020, aged 71 years, and a claim, separately made, by each of his two, now adult, children for a family provision order.
Each of Justin Maurice Boatswain, and Alicia Maree Boatswain, in different proceedings, applies for such an order under Chapter 3 of the Succession Act 2006 (the Act). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. It replaces the Family Provision Act 1982 (NSW) (the former Act). A family provision order is an order made by the Court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. (There is no suggestion that either Plaintiff seeks an order for provision for education.)
The Defendant named in each proceeding is Sondra Eleanor Boatswain, the widow of the deceased. She is not the mother, but the stepmother, of each of the Plaintiffs. She is the person named as the sole executor in the Will dated 3 May 2013 of the deceased to which reference will be made.
It was not necessary for the Defendant to obtain probate of the deceased's Will, as apart from a small credit card debt, the property in which the deceased had an interest, was held as joint tenants, with her.
Without any undue familiarity, or disrespect intended, in these reasons, I shall, hereafter, refer to each of the Plaintiffs, and the Defendant, individually, and any other family member, after introduction, by his, or her, given name. No disrespect or undue familiarity is intended.
It was necessary for each of Justin, and Alicia, to seek an order extending the time for the making of his, and her, application, respectively. Sondra opposed the application of each for such an order.
As in so many cases, nowadays, which proceed to hearing, involving a claim by a mature, adult child, seeking provision, or additional provision, out of the estate of a parent, some issues revolve around the character and conduct of the applicant and his, or her, relationship with the deceased, the deceased's views of those things, as well as the relationship of the deceased with the chosen beneficiary, or beneficiaries, named in her, or his, last Will.
In addition, as will be read, what follows may be seen as an exhortation to parties engaging in litigation under the Act to consider, in advance, the potentially devastating consequences of the legal dispute and the costs thereof, with the effect of depleting an already modest estate, or notional estate, as well as the futility of pursuing, to the completion of the hearing, claims which the available estate, or notional estate, is, on any view, not large enough to accommodate: Shama Amnir & Ors v Fahid Bala & Ors [2023] EWHC (Ch) 1054 at [1] (Master Brightwell).
At the hearing, Justin was represented by Mr A Katsoulas of counsel, instructed by Mr F Boitano, solicitor. Alicia was represented by Ms R Bianchi of counsel, instructed by Ms L McPherson, solicitor. Sondra was represented by Dr S Chapple of counsel, instructed by Ms K Penfold, solicitor.
[2]
The hearing
As often occurs where there are different Plaintiffs, in separate proceedings, making a claim for a family provision order in relation to the same estate or notional estate, the parties, well before the commencement of the hearing, proceeded upon the basis that both proceedings would be heard consecutively, with the evidence in one being evidence in the other, so far as material.
In the Succession List, at the time the matter was heard, no notice of motion seeking such an order was necessary, as the parties, and the Court, usually, agree to proceed in that way. That course was confirmed at the commencement of the hearing: Tcpt, 16 May 2023, p 1(30-37). In my view, that was sensible, and appropriate, there being 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, could 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 were not heard and determined at the same time, would be avoided; the defendant would be put to less expense in appearing with counsel at one hearing, rather than two; the just, cheap and quick hearing of all of the matters in dispute would be facilitated; and the most efficient and expedient use of resources, for the parties, and, by implication, the Court, would be achieved. For those reasons, it was "desirable" to make such an order: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 28.5.
It is also convenient to deal with both proceedings together in these reasons for judgment.
On 30 June 2023, I announced to the legal representatives, that I proposed to order the dismissal of each of the proceedings with there being no order as to costs, with the reasons to follow. These are the reasons.
[3]
The deceased's Will
Because of some of the evidence given by each of Justin and Alicia, it is necessary to set out the relevant Clauses of the deceased's Will verbatim:
"2. IF my wife SONDRA ELEANOR BOATSWAIN survives me for a period in excess of thirty (30) days I APPOINT her to be the Executrix and Trustee of this my Will I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and wheresoever situate unto my said wife SONDRA ELEANOR BOATSWAIN absolutely.
3. IF my wife SONDRA ELEANOR BOATSWAIN fails to survive me for a period in excess of thirty (30) days the following provisions of this Will shall apply:
(a) I APPOINT RUSSELL CRAIG MARTIN of 8 Flagstone Grove, Bella Vista, Advisor (who or other the Trustee or Trustees for the time being of this my Will is hereinafter called "my Trustee") to be the Executor and Trustee of this my Will.
(b) I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and wheresoever situate unto my Trustee to hold the same upon the following trusts, that is to say:
(i) To pay thereout not only in the first instance but finally all my just debts funeral and testamentary expenses probate and estate duties and other duties (if any) payable in consequence of my death.
(ii) Subject as aforesaid for such of RUSSELL CRAIG MARTIN, GEOFFREY PHILIP MARTIN, MICHELE BRONWYN STEWART, DARRAN BRIAN MARTIN, JUSTIN MAURICE BOATSWAIN and ALICIA MAREE BOATSWAIN as shall survive me as tenants in common in equal shares."
There is no evidence that the deceased and Sondra made mutual Wills.
[4]
Need for a grant of administration
Because there has not been a grant of administration in respect of the testate estate of the deceased, it is necessary to say something about whether there is a need for a grant of administration. In this regard, I refer to what I wrote in Stanford v Stanford [2021] NSWSC 1469, at [31]-[34].
It is unnecessary to repeat the lengthy passage in that case. Sondra appeared by counsel and solicitor at the hearing and otherwise participated in the proceedings since its commencement. Even so, the parties considered that an order should be made under s 91 of the Act for abundant caution. At the commencement of the hearing, I made that order.
[5]
Background Facts
It is next convenient to set out some facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.
The deceased was born on 2 October 1948 and died on 20 January 2020, aged 71 years.
The deceased was married, first, to Elizabeth Marion Boatswain. They had two children, being Justin and Alicia. Justin was born in September 1972 and will be 51 years old at his next birthday. Alicia was born in July 1977 and will be 46 years old at her next birthday.
The relationship between the deceased and Elizabeth broke down and they lived apart from between about 1993 and 1996. They reconciled in 1996, and lived together until about 1999, when the deceased left the house, taking several household items with him. During the initial separation, Elizabeth, Justin, and Alicia lived together.
A divorce order was made in relation to the marriage of Elizabeth and the deceased in about August 2000.
Sondra was born in October 1939 and is currently aged 83 years. There were four children, being the other four substitute beneficiaries named in Clause 3(b)(ii) of the Will, with her first husband, Brian Martin, who died in 1997. None of her children played any part in the proceedings.
She first met the deceased in 1975: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 8. They met again in December 1999 and their relationship developed thereafter. Between 1975 and 1999, their paths did not cross. They purchased a house together in 2003, and, on 24 September 2005, they married. The evidence reveals it was a happy and harmonious marriage.
[6]
Formal matters
Justin commenced his proceedings, by Summons filed on 28 March 2022, that is, outside the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). In his Summons, he sought an order extending the time for the making of his application.
Alicia commenced her proceedings, by Summons filed on 10 June 2022, also outside the time prescribed by s 58(2) of the Act. In her Summons, she, also, sought an order extending the time for the making of her application.
As Sondra did not consent to an order extending the time for the making of each application, for each of Justin or Alicia, to succeed, it will be necessary for the Court to make an order extending time "on sufficient cause being shown". It will be necessary to return to the meaning of the term "sufficient cause" later in these reasons.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. The category of eligibility upon which each of Justin and Alicia relies is s 57(1)(c) of the Act, namely that he, and she, respectively, is a child of the deceased. The language of the relevant sub-section is expressive of the person's status, as well as her, or his, relationship to the deceased. There is also no age limit prescribed by the Act in the case of a claim by any eligible person. 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" in s 57(1)(c) of the Act).
However, under s 60(2) of the Act, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "... (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 ...". This factor, however, will not be relevant to the question whether the applicant is an eligible person, in the case of a child of the deceased.
There was no dispute about the eligibility of each of Justin and Alicia.
As stated, there is no estate out of which an order for provision may be made. However, a family provision order may be made in relation to property that is not part of the deceased's estate, but which is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
It has been said, in respect of the notional estate provisions in the former Act, that an applicant for provision "may now apply in the same proceedings for orders for relief and designating property as 'notional estate' thereby compelling the 'disponee' of a 'prescribed transaction' to provide money or property for the purpose of making financial provision for the applicant": Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 at 441; [1998] NSWSC 111.
There was no dispute that if one, or both, of Justin and Alicia is successful, there would be a need for property to be designated as notional estate of the deceased, as there are no assets, of sufficient value, in the actual estate to satisfy any family provision order, and any order as to costs, that the Court is of the opinion should be made: s 88(b) of the Act. However, that concession did not extend to Sondra agreeing that the Court, in the exercise of its discretion, should make a notional estate order. Indeed, for reasons to which I shall come, whether any notional estate order should be made was a matter of significant contest in the proceedings.
Another matter relevant to the question of notional estate arises because each application for a family provision order was made later than 12 months after the date of the death of the deceased. I shall return to s 90 of the Act which, relevantly, requires the Court to be "satisfied that there are other special circumstances that justify the making of the notional estate order".
Whilst the Will is not the subject of the grant of Probate, and even though no property passes under the Will, it is important to remember that in Clause 2 of the deceased's Will, Sondra was the sole beneficiary named. The only eligible persons, within the meaning of that term in s 57 of the Act, are Justin, Alicia, Sondra, and Elizabeth.
Only Justin and Alicia commenced proceedings for a family provision order. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, or his, competing claim, as a chosen object of the deceased's testamentary bounty. Relevantly, Sondra is the only beneficiary named in the deceased's Will.
Section 61 of the Act provides that, in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased's estate) but who has not made an application.
There is evidence that Elizabeth was served with a notice of the application for a family provision order, and of the Court's power to disregard her interests. Whilst in an email dated 30 May 2022, from Elizabeth and Alicia, both threatened to bring proceedings, only Alicia has done so. In the circumstances, I propose to disregard the interests of Elizabeth in respect of whom an application for a family provision order may be made but who has not made an application.
I do not, however, propose to disregard the interests of Sondra, the widow of the deceased, as a competing claimant on the bounty of the deceased. She is now the holder of property that was formally held as joint tenants with the deceased.
There was evidence, from Sondra, upon which she was cross-examined, going to her contribution, financial and otherwise, to the acquisition, conservation, and improvement of the estate of the deceased and to his welfare. She also gave evidence of the reasons why no part of the deceased's interest in the property that passed to her by survivorship should be designated as notional estate of the deceased. I shall return to this topic later in the reasons.
As the executor, Sondra does not seek any commission, or percentage, for her pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).
[7]
The estate and potential notional estate
As already stated, there was no actual estate of the deceased at the date of death. Indeed, there were only liabilities, comprising a small credit card debt ($41), funeral expenses ($1,950), and legal fees and disbursements ($4,141). (I have omitted, and shall continue to omit, any reference to cents.)
The property which Justin and Alicia sought to be designated as notional estate of the deceased at the date of the deceased's death was a property described as the deceased's interest in a lease of a retirement village unit at Pemulwuy, a suburb in Greater Western Sydney, located about 30 kilometres west of the Sydney central business district, which lease had been held in the joint names of the deceased and Sondra ($390,000); his interest in funds held in the National Australia Bank with Sondra ($389,500); jointly held shares ($5,400); and superannuation ($62,189). The total gross value of the property, at the date of death, was $847,089.
At the date of the hearing, the parties agreed that the property that could be designated as notional estate comprised the deceased's interest in the lease which had been held in the joint names of the deceased and Sondra ($390,000), the deceased's interest in funds held in the National Australia Bank with Sondra ($389,500), the deceased's interest in jointly held shares ($6,061), and superannuation ($62,189). The total gross value of property that was asserted could be designated as notional estate, at the date of hearing, was $847,750.
The liabilities of the estate, other than the costs of the proceedings, remained the same ($6,091). These liabilities will have to be taken into consideration as they have been paid by Sondra.
However, during the course of the hearing, counsel for each of Justin and Alicia, said that no designating order was sought in relation to the deceased's interest in the lease which had been held in the joint names of the deceased and Sondra: Tcpt, 16 May 2023, p 80(11-15); 91(6-7). The concession was appropriately made as Sondra was living in the property the subject of the lease.
Then, during submissions, I raised with counsel the value of the other property that could be designated as notional estate so far as it related to the deceased's interest in funds held in the National Australia Bank. The total amount in the joint bank account, at the date of death ($779,000) had been reduced, with the result that, on 5 November 2021, the date Justin's lawyers first notified Sondra of his intention to make a claim, the total amount in what had been the joint account was $636,763: Tcpt, 16 May 2023, p 100(35-36).
At the date of the hearing, the total amount in what had been the joint account was $502,811: Tcpt, 17 May 2023, p 110(25-31). It was accepted that the maximum amount in the joint bank account that could be designated as notional estate was one half of that amount or $251,405: Tcpt, 17 May 2023, p 111(37)-112(5), 113(26-34).
[8]
Costs of the proceedings
Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, 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 or notional 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, be paid out of the estate or notional estate of the deceased, while the defendant, as the person representing the estate and notional 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 or notional estate.
Justin's costs, calculated on the indemnity basis, up to the conclusion of the hearing, were estimated to be $107,315 and, calculated on the ordinary basis, to be $90,000 (Tcpt, 16 May 2023, p 3(27-38)) (in each case, inclusive of GST, and based upon a hearing of two days duration). He has paid $7,054 and an amount of $4,375 is held in his solicitors' trust account. (If he were to succeed, and if a costs order in his favour were made, he may receive some of the amount paid.) This level of costs seems disproportionately high in relation to the value of the potential notional estate and the issues to be determined.
There was no suggestion that Justin had entered into a conditional costs agreement with his solicitors.
Alicia's costs, calculated on the indemnity basis, up to the conclusion of the hearing, were estimated to be $79,416 and, calculated on the ordinary basis, to be $64,676 (Tcpt, 16 May 2023, p 3(45-46)) (in each case, inclusive of GST, and based upon a hearing of two days duration).
In an affidavit affirmed on 6 April 2023, her solicitor, Ms L McPherson, gave evidence that Alicia "has a conditional cost arrangement with our firm and there is no uplift factor". The precise terms of that arrangement were not clear, but I infer that she will not have to pay costs to her lawyers if she fails in her claim.
Sondra's costs, calculated on the indemnity basis, up to the conclusion of the hearing of both proceedings, were estimated to be $74,598 (inclusive of GST, and based upon a hearing of two days duration). She has paid $40,779 (Tcpt, 16 May 2023, p 4(8-32)). (If she were to succeed, and if a costs order in her favour were made, she may receive some of the amount paid.)
Had no concession been made, but if an order for costs to be paid out of notional estate were made, the value of the notional estate out of which any order for provision could be made would be $412,131 (being $641,405 less $229,274). The estimated amount of $641,405 is reached by adding $251,405 (being the one-half interest in the joint bank account) and one half of the value in the joint lease ($390,000): Tcpt, 16 May 2023, p 2(43)-3(4), Tcpt, 17 May 2023, p 110(22-36).
Other judges, and I, have repeated, many times, in the context of a claim for a family provision order, that parties should not 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 or notional estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].
[9]
Net value of property that could be designated as notional estate
Using the costs estimates as a guide, and assuming the usual order for costs is made, the total amount of the parties' costs of the proceedings will be $229,274. In light of the concession made, virtually all of the property that could be designated as notional estate would be expended in the legal costs.
Sondra, very generously, if I may say, did not seek an order that either Justin, or Alicia, respectively, should pay her costs, in the event that his, or her, proceedings were dismissed: Tcpt, 16 May 2023, p 107(43-48). Justin and Alicia did not suggest that, if his, or her, proceedings were dismissed, the costs, respectively, should be paid out of any property that were designated as notional estate.
[10]
The Evidence
I shall next deal with the evidence given in the case and my impression of the witness giving that evidence.
[11]
Justin Maurice Boatswain
Justin swore 4 affidavits in the proceedings: the first, sworn 5 May 2022, comprising 93 paragraphs, spanning 12 pages, with 13 annexures; the second, sworn 28 July 2022, comprising 18 paragraphs, spanning 4 pages, with 4 annexures; the third, sworn 4 April 2023, comprising 14 paragraphs, spanning 4 pages, with 2 annexures; and the fourth, sworn 12 May 2023, comprising 18 paragraphs, spanning 4 pages, with one annexure. He was cross-examined only by counsel for Sondra.
Justin claimed that he shared a close and loving relationship with the deceased. He recalled that the family went on family picnics and outings approximately once a month. He also said that the deceased took him to cricket matches every Saturday and to the beach, and taught him how to cook, drive a car, and play lawn bowls: Affidavit, Justin Maurice Boatswain, 5 May 2022 at pars 14-16.
He gave evidence that the deceased first met Sondra in around 1982: Affidavit, Justin Maurice Boatswain, 5 May 2022 at par 22. However, in cross-examination, he acknowledged that he could not actually remember the precise date on which Sondra commenced a relationship with the deceased. He said that he had first learned of the relationship in about 2003, after the birth of his children: Tcpt, 16 May 2023, p 15(1-18).
Justin stated that, after the deceased married Sondra, his relationship with the deceased changed. He deposed that Sondra was very controlling and that she made it uncomfortable for him and his family when they came to stay at the deceased's house: Tcpt, 16 May 2023, p 16(3-4). Justin also claimed that Sondra listened to his calls with the deceased and instructed the deceased on how to respond: Affidavit, Justin Maurice Boatswain, 5 May 2022 at pars 30-31.
In cross-examination, Justin said that he had found Sondra "nice and pleasant" when he first met her, but those feelings had changed once she started lying to him, and disciplining his children, which was in around 2007 or 2008: Tcpt, 16 May 2023, p 15(27-47). He denied any belief that Sondra was one of the reasons the deceased and Elizabeth's marriage had ended: Tcpt, 16 May 2023, p 15(49)-16(1).
Justin deposed that he and his children did not go to the deceased and Sondra's wedding because of financial reasons. This was despite the deceased and Sondra intending his children to play a role in the ceremony, and his grandmother offering him money to enable them to attend. Justin stated that he had refused to accept the offer because he did not want to owe her money and leave her in a bad financial position: Tcpt, 16 May 2023, p 16(6-49). He eventually accepted that he thought it was more important not to owe his grandmother money than to attend the deceased's wedding to Sondra: Tcpt, 16 May 2023, p 17(5-7).
I do not find his excuse to be persuasive or compelling bearing in mind his evidence regarding his description of the relationship with the deceased.
When Justin married in 2011, the deceased and Sondra did not attend his wedding either.
Prior to the deceased's death, Justin said that he made every effort to visit the deceased and they kept in touch by telephone: Affidavit, Justin Maurice Boatswain, 5 May 2022 at par 35; Tcpt, 16 May 2023, p 17(23-35). However, when it was put to him that he had only visited the deceased twice during the deceased's marriage to Sondra, his response was "I visited him on regular basis when I was driving interstate. I'd stop there as well." I do not regard the answer as a denial of the suggestion that it was on only two occasions that he had done so during the duration of the marriage.
Justin said that after he received a telephone call from Sondra, on 18 January 2020, notifying him that the deceased was about to die, he immediately boarded the first available flight, on 19 January 2020, and stayed with the deceased (and Sondra) until his death.
The fact that Justin was contacted by Sondra, and that he stayed with the deceased and her, hardly supports the picture of Sondra being controlling, or wishing to exclude Justin, from the deceased's life.
Justin also asserted that almost immediately after the deceased died, Sondra told Justin that she no longer wanted to have any contact with him, or his family, saying words to the following effect (Affidavit, Justin Maurice Boatswain, 5 May 2022 at par 90; Tcpt, 16 May 2023, p 29(10-12)):
"I never want to have anything to do with any of the Boatswains ever again."
Despite that evidence, Justin accepted that following the funeral, he had returned to the home to shower, and that whilst there, Sondra had given him the deceased's watch and an engagement ring belonging to Justin's grandmother, both of which items were of sentimental value to Justin. This conduct, also, is inconsistent with the picture of Sondra presented by him. But the evidence provides a reliable window into his state of mind for bringing, and persisting with, the proceedings.
Furthermore, in about March 2020, Justin telephoned Sondra to ask about the deceased's Will. He said that she had yelled at him, saying "It's got nothing to do with you". He alleged that this was the last time he had any form of direct contact with her: Affidavit, Justin Maurice Boatswain, 5 May 2022 at par 92.
However, Justin admitted, in cross-examination, that within 24 hours of his conversation with her, he had sent a text message to Sondra asking, again, for a copy of the deceased's Will within the next 3 working days: Tcpt, 16 May 2023, p 31(3-8); 32(25-36). Initially, he said he "had no idea" why he chose three working days. Later, he stated that he had inserted the time limit on the advice of a friend who had been undergoing family-related legal proceedings: Tcpt, 16 May 2023, p 32(29-50). He indicated that he had "possibly" done so to give his message a "legal flavour" but denied contemplating bringing legal proceedings at this time: Tcpt, 16 May 2023, p 33(1-31).
Again, somewhat inconsistently with his evidence in chief, Justin accepted that Sondra had provided him with a copy of the deceased's Will within "24 hours of that conversation", as well as providing to him with details of her solicitor, as she had said she would do. None of these matters had been included in any of his affidavits in chief. At first, he said that he did not know why he had omitted the reference to receiving a copy of the Will from Sondra. Later, he said that he had not included the reference to the Will because he had not comprehended its relevance. He was unable to explain why he believed it was not relevant and denied that he had omitted the evidence from his first affidavit in order to create the impression that Sondra did not tell him what was in the deceased's Will.
In his affidavit sworn on 28 July 2022, in reply, Justin agreed that he had received a copy of the deceased's Will in the mail, but "did not understand all the legal terms in the Will". Of course, that excuse does not provide an explanation for his failure to disclose, earlier, that he had received the Will from Sondra.
I do not accept Justin's evidence, which, on these matters, I find to be untruthful, rather than him lacking the mental acuity to appreciate the significance of the evidence he had omitted.
Justin also gave evidence that when he read the copy Will that had been sent to him, he believed that he was going to receive one-sixth of the deceased's estate. He said that the belief had led him to consider that there was no need for him to bring a claim, or to seek any legal advice: Affidavit, Justin Maurice Boatswain, 28 July 2022 at par 16.
I do not accept this evidence, either, which I am also satisfied was given untruthfully. Whilst, he may not have completely understood all the legal terms in the deceased's Will, he could not explain why he found the effect of the words "give, devise and bequeath" in Clause 2 confusing, but had been able to understand their effect when he read Clause 3 of the Will: Tcpt, 16 May 2023, p 35(1-7), p 36(1-17).
Justin did not contact the solicitor whose name Sondra had provided. He was asked why he had not done so and responded at Tcpt, 16 May 2023, p 35(9-13):
Q. If you had the contact details for the solicitor and you didn't understand all the terms in the will, why didn't you give the solicitor a call to ask her to explain it to you?
A. Because I was under the understanding that you can't contact the other sides anybody's solicitors. …"
Earlier he had also given evidence that he was unsure if the solicitor would help him, or whether he would be charged a fee, by the solicitor if she did. His uncertainty, if it existed, could have easily been resolved by making a single telephone call to the solicitor.
Justin also agreed that he had maintained regular contact, by telephone, with Sondra, until March 2020, and that she had sent his children money for Christmas even after the deceased's death.
Justin also gave evidence that he was to receive a legacy of $15,000 from Sondra's estate, which was provided for in a subsequent will made by Sondra on 12 November 2020: Affidavit, Justin Maurice Boatswain, 4 April 2023 at par 14.
These are matters inconsistent with the picture of Sondra portrayed by Justin. Nonetheless, he continued to maintain, in his oral evidence, that Sondra had said she did not want to have anything to do with any of the Boatswains ever again: Tcpt, 16 May 2023, p 30(16-29).
Justin also maintained that he did not have any contact with Alicia between the deceased's funeral and the commencement of his proceedings. He may not have spoken with her, but for reasons to which I shall come when dealing with the evidence of Alicia, I am satisfied that they were in some communication. For this reason, Justin's evidence on this topic, should also not be accepted.
Justin claimed that he was not aware of his legal rights to bring a claim on the deceased's estate and of the time limits for bringing a claim in NSW: Affidavit, Justin Maurice Boatswain, 5 May 2022 at par 79; Tcpt, 16 May 2023, p 28(31-38). However, he admitted that he was, by the hearing, aware that he needed to explain why his claim was brought late: Tcpt, 16 May 2023, p 28(40-41).
In explaining the delay in commencing his proceedings, Justin said that towards the end of 2020, he had spoken with his cousin, Deborah, about the administration of the deceased's estate. She informed him that there had been no grant of probate. Justin stated that he did not understand what this meant, and that he did not think to contact Sondra again. He did not explain why he did not, then, contact her, or any other solicitor. (I note that Deborah was not a witness called by Justin in the proceedings.)
Accepting the date when he spoke to Deborah, Justin's evidence is that he did not seek legal advice until October 2021. He explained that the further delay had been due to COVID lockdown restrictions, and that it had not occurred to him to contact a solicitor until he spoke to a friend, at a barbeque, after the lockdown had ended, who told him to talk to a lawyer immediately.
Once again, I am of the view that Justin's evidence was untrue. It is difficult to accept that he could, reasonably, have considered that he should not seek legal advice, having discussed the matter with a friend (which conversation had prompted the text, with "a legal flavour", being sent to Sondra), and then, with his cousin, who had carried out a search to ascertain whether Probate of the deceased's Will had been granted.
He agreed that (according to his evidence) he had done nothing to progress any claim that he might have had between March 2020 and October 2021: Tcpt, 16 May 2023, p 41(47)-42(4).
It was only on 5 November 2021, that Justin, through his solicitors, notified Sondra of his intention to make a claim on the deceased's estate: Tcpt, 16 May 2023, p 28(28-29). By this date, his proceedings were 10 months out of time.
Justin gave evidence that Sondra's solicitors had indicated that it was premature to commence proceedings because they wished to negotiate resolution: Affidavit, Justin Maurice Boatswain, 28 July 2022 at Annexure D. Subsequently, he had provided full disclosure of his financial position and participated in good faith negotiations to try and resolve his claim before going to Court: Affidavit, Justin Maurice Boatswain, 28 July 2022 at par 15.
The delay caused does not help him in establishing "sufficient cause" since the time for making a claim had expired some months before the solicitors were contacted.
Justin contended that the deceased's testamentary intentions were for both his children to benefit from his estate. He said that the deceased spoke words to him to the following effect (Affidavit, Justin Maurice Boatswain, 5 May 2022 at par 82):
"When I die the property is going to be split 6 ways between you and Alicia and Sondra's 4 kids".
He further stated that, when Sondra was not present during his telephone conversations with the deceased, the deceased said words to him to the following effect (Affidavit, Justin Maurice Boatswain, 5 May 2022 at par 83):
"my inheritance from Reita is going to be split between you and Alicia, you should each get about $250,000 and the property goes 6 ways".
Once again, if the conversations did occur, this would provide another reason to take steps to obtain legal advice and/or commence proceedings, particularly after he received a copy of the deceased's Will which did not make such provision for either him or Alicia.
In his affidavits of 5 May 2022 and 4 April 2023, Justin gave evidence of his financial and material circumstances. Again, some of his evidence did not withstand scrutiny, and, in my view, the Court was not given the full picture.
He stated that he was currently employed as a casual truck driver by RT Haulage. He had previously owned a company known as Just Truckin Pty Ltd that operated a trucking business. This company owned a truck and a trailer, which were both sold in October 2018: Tcpt, 16 May 2023, p 20(11-12). The company was deregistered on 6 November 2019.
He deposed that full time employment was not available to him: Affidavit, Justin Maurice Boatswain, 4 April 2023 at par 5. He stated that his weekly gross income for the past month was between $1,037 and $2,017. His weekly net income for the past month was between $868 and $1,527. He also received some temporary Centrelink payments because of the Queensland floods and ensuing road closures, which totalled about $642 per fortnight: Affidavit, Justin Maurice Boatswain, 28 July 2022 at Annexure B. This assistance ceased on 5 May 2022.
Justin gave evidence that he resided in shared rental accommodation: Affidavit, Justin Maurice Boatswain, 12 May 2023 at par 16. He stated that his main need was for secure accommodation in different areas of Queensland. He gave evidence that he required provision to assist in paying off, or reducing, his current debts and loan, current and future accommodation needs and contingencies, general cost of living, double knee replacement surgery, weight loss surgery, living and physiotherapy expenses for post-surgery recovery and to purchase a car: Affidavit, Justin Maurice Boatswain, 5 May 2022 at pars 63-67.
In cross-examination, Justin was taken to bank statements showing payments made in 2020 and 2021 to the Department of Transport and Main Roads, the Queensland government body responsible for car registration: Ex. DJB-2. He gave evidence that some payments were in respect of his motorcycles, some were for his son's car, and some were for the car that he had at the time, a Holden Commodore which he later sold for $500 due to engine problems. There was also evidence that shortly before, he had paid $1,151 (or more than double the sale price of the car).
There were some registration payments in respect of a vehicle or vehicles he could not identify.
It also emerged, in cross-examination, that Justin had two motorcycles in 2021, and that he had sold another motorcycle in 2018 for $10,000 but had kept the motorcycle in his name (and paid for registration on behalf of the purchaser) until early 2022. He said that this was because the purchaser had been paying the price in monthly instalments: Tcpt, 16 May 2023, p 24(37)-25(17). He stated that he had simply forgotten about the motorcycle when declaring that he had not sold any property for $1,000 or more in the past three years in his affidavit of 5 May 2022: Tcpt, 16 May 2023, p 25(19-33).
Justin was also taken to payments, made in 2022, to CIL Insurance, which entity is said to provide specialist insurance coverage for caravans and recreational vehicles. He said that he had insured a caravan belonging to his friend, which caravan had been left at his residence for two months, but that it was no longer with him. Initially, he said that he paid insurance because he did not wish to be financially responsible for it, but later said that he did so because he was going to use it: Tcpt, 16 May 2023, p 26(16-18), p 27(3-7).
When shown a photograph taken on ANZAC Day, 2023, that is shortly before the hearing, he identified the caravan depicted, parked in front of his residence, as the caravan in question, but was reluctant to admit that the caravan had been with him after the period about which he had given evidence in 2022: Ex. DJB1; Tcpt, 16 May 2023, p 26(23-34).
Surprisingly, he stated that he did not know whether the caravan was then at his house, as his friend "[came] and [picked] it up periodically": Tcpt, 16 May 2023, p 26(49-50).
In the photograph referred to, a Holden Colorado motor vehicle was parked next to the caravan. Justin identified that as the vehicle purchased by his housemate but, which was said to be registered in his name, because "she was having problems with people chasing her for money and she asked me if I could register it in my name:" Tcpt, 16 May 2023, p 27(16-19). He admitted that he had some use of this car: Tcpt, 16 May 2023, p 27(35-36).
Again, it is to be noted that neither the flatmate, nor the friend, gave evidence about the matters referred to by Justin. One would have expected each to be called to corroborate his evidence because of the nature of that evidence. Even if what he said was truthful, his explanations hardly do him credit. In any event, I did not find his oral evidence on these topics at all convincing.
Justin's current assets and liabilities were said to be:
ASSETS
Superannuation - Sun Super $ 9,338
Harley Davidson - 2012 Road King $ 10,000
NAB Bank Account $ 428
Furniture and Personal Effects (used) $ 1,000
TOTAL $ 20,767
LIABILITIES
Personal Loan $ 15,500
TOTAL $ 15,500
[12]
His monthly expenses were said to be:
EXPENSE
Loan repayments $ 621
Telephone and internet $ 322
Rent $ 1,240
Water usage $ 35
Electricity $ 200
Groceries/Food $ 700
Household supplies/cleaning products $ 130
Motor Bike Registration, CTP, Insurance $ 120
Petrol & Maintenance $ 120
Comprehensive Insurance $ 200
Medical/Dental $ 45
Chemist/Pharmaceutical $ 50
Entertainment $ 100
Streaming subscriptions - YouTube, Stan $ 30
Other incidentals, clothing, shoes, and Sundries $ 100
Assistance to Kuda and Vylette $ 100
TOTAL EXPENSES $ 4,113
[13]
In cross-examination, Justin denied making extra payments to pay off his personal loan: Tcpt, 16 May 2023, p 21(41-43). Despite this evidence, he could not explain how it was that the capital of the loan had decreased by around $10,000 in just over 11 months (although accepting that had occurred). He speculated that his first affidavit may have recorded an incorrect starting figure: Tcpt, 16 May 2023, p 21(37)-22(11). His evidence on this topic was unconvincing.
Justin was diagnosed with hypoandrogenism in 2020. He currently suffers from sleep apnoea; he requires knee replacement surgery in a few years' time; and he may need gastric band or sleeve surgery: Affidavit, Justin Maurice Boatswain, 12 May 2023 at pars 7-13.
Overall, whilst it is a serious matter, I found Justin to be an unimpressive, and, at times, an untruthful witness. I do not accept his evidence where it conflicts with the evidence given by Sondra. That conclusion, of itself, undermines the weight of his evidence on important topics upon which his case rests.
[14]
Alicia Maree Boatswain
Alicia swore one affidavit in the proceedings on 6 April 2023, comprising 12 pages, spanning 85 paragraphs. She was only cross-examined by counsel for Sondra.
As the deceased worked as a store manager at K-Mart, they moved houses frequently, living in various locations across Queensland and New South Wales. She described her relationship with the deceased as "difficult" and "abusive", recounting several instances of physical and verbal abuse throughout her childhood directed towards her, Justin, and Elizabeth. She attributes the estrangement to that conduct.
In 2001, Alicia wrote that the deceased visited her at her home in Nambour, Queensland, and then informed her that he had moved to Sydney. She said that, thereafter, they kept in contact via telephone until 2002, when the deceased requested that communication occur by email. Alicia said that when, after about 2003, the deceased stopped responding to her emails, she ceased sending emails. She stated that she believed his lack of reply indicated that "he wanted nothing to do with [her]": Affidavit, Alicia Maree Boatswain, 6 April 2023 at par 26. Neither of them contacted the other again thereafter. (She had not spoken to him since 2001: Tcpt, 16 May 2023, p 55(18-26).)
She said that the deceased did not tell her about his relationship with Sondra.
In cross-examination, Alicia accepted that she, too, had made no attempt to contact the deceased after 2003: Tcpt, 16 May 2023, p 45(49-50). Indeed, she maintained that she had not been in contact with Justin, until prior to the commencement of proceedings. Nor had she been in contact with her cousins, her aunt, or her grandmother: Tcpt, 16 May 2023, p 46(10-11).
She stated that she believed the trauma and abuse she had experienced from her father throughout her childhood significantly negatively affected her ability to form healthy relationships as an adult: Affidavit, Alicia Maree Boatswain, 6 April 2023 at par 35. (There was no expert evidence provided on this topic.)
Of course, no opportunity was given to the deceased, or someone who had been involved in the family during the period she was giving evidence about, to provide his version of the events as so much time had passed since the events occurred.
Be that as it may, ultimately, whatever its causes, the estrangement between Alicia and the deceased was not a short-term relationship breakdown, or a case where an otherwise long, and loving, relationship between a daughter and parent had been ruptured shortly prior to death. It was not a temporary, but a longstanding, breakdown of the relationship. For many years, there was a severance of all ties between Alicia and the deceased. Its occurrence, and its deep-seated nature, has been established.
Also, this is not a case in which an applicant for provision, prior to the estrangement, has made personal, or financial, sacrifices in caring for her, or his parent, or in contributing to the parent's estate. On the contrary, it was Sondra who had lived with, and had made significant contributions to, the deceased.
Alicia maintained that she had learned of the deceased's death through a notice posted in the Daily Telegraph on 22 January 2020 with details of his funeral service: Tcpt, 16 May 2023, p 102(34-35). She and Elizabeth attended the funeral.
She said that she believed her father's estate to be nominal, from her awareness of his financial and employment status up until the point where they ceased contact. Yet, in cross-examination, she agreed that she did not know anything about the deceased's financial circumstances after 2003, and that she had based her assumptions about the size of his estate on information that was 17 years old: Tcpt, 16 May 2023, p 50(17-43).
In relation to her application being brought out of time, Alicia gave evidence that she was unaware that the deceased's estate included a significant inheritance from her paternal grandmother until she sought legal advice on 6 June 2022, following the service of Justin's notice of claim on 27 May 2022.
After receiving a copy of the Court documents in Justin's proceedings, she understood that the sum of $549,428.75 paid to the deceased from her grandmother's estate was deposited into a joint account held by Sondra and the deceased, and subsequently passed to her by survivorship. Following this, Alicia commenced her own proceedings on 9 June 2022.
During the hearing, a copy of two emails, one dated 22 May 2020 and another dated 26 May 2020 respectively, showing Alicia as the sender, to Ms Karina Penfold, Sondra's solicitor, was tendered: Ex. DAB-1 and Ex. DAB-2. I set out the contents of each:
(22 MAY 2020)
"To Katrina,
My name is Alicia Maree Boatswain I was born [XX]/07/1977 and was wanting to request a copy of my father's will please.
Your assistance with this would be greatly appreciated.
Thanking You
Alicia Maree Boatswain"
(26 MAY 2020)
"To Katrina,
Thank you for supplying me with a copy of my father's will. Was just wondering why do you wish to know when I last saw or spoke to my father?
Thanking You
Alicia Maree Boatswain"
Though Alicia identified the email address from which the emails had been sent as being her email address, she claimed that she did not recall sending the emails: Tcpt, 16 May 2023, p 51(37-50). Nor did she recall receiving a copy of the Will, despite the contents of the email which specifically referred to having done so: Tcpt, 16 May 2023, p 53(9-19).
Nor could Alicia explain how, in the email she had acknowledged the receipt of the deceased's Will, whilst asserting that she did not "have a copy of his will until I'd got one from Lucy" (who I understand to be her solicitor, Ms McPherson): Tcpt, 16 May 2023, p 54(22).
Alicia was unable to say how some personal details (her middle name and complete date of birth), which were correct, had been included in the email.
When asked to explain, she advanced the remarkable story that her email and Netflix accounts had been hacked in 2020, when she lived in New South Wales: Tcpt, 16 May 2023, p 52(17-19). She offered no explanation of how a hacker might know details peculiar to the deceased or of the solicitor acting for Sondra.
She said that she had deleted everything in her inbox and had sent items to a folder to clear up space: Tcpt, 16 May 2023, p 53(43-49).
When it was put to her that she had misspelled Ms Penfold's name as "Katrina" (instead of "Karina") because she had received Ms Penfold's contact information from Justin, she denied it, as she said she had not spoken to Justin since 2002. She could not explain how she would have obtained Ms Penfold's details otherwise.
(Ms Penfold's first name had been spelt incorrectly, the same way in the text message containing her details, that Justin had received from Sondra: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at Annexure G.)
Alicia did not accept that she had had a conversation about the deceased's Will with Justin after March 2020, or that she had been interested in the deceased's estate from at least May 2020. However, she was unable to offer any explanation about the sending, and receipt, of the emails other than that they appeared to have been sent, and received, by her: Tcpt, 16 May 2023, p 55(12-14).
I am of the view, having observed Alicia, that she had, intentionally, not disclosed the evidence in her affidavits. The effect of disclosing the emails, and then having done nothing for over two years thereafter, is self-evident.
Alicia gave evidence of her financial circumstances, setting out her assets and liabilities as follows:
ASSETS
Direct debit bank account $ 841
Smart Access bank account $ 1
NetBank saver bank account $ 7
TOTAL $ 849
LIABILITIES
Personal loan $ 31,106
Credit card $ 3,184
TOTAL $ 34,290
[15]
She stated that her direct debit account was used for bill payments, that her Smart Access account was used for receiving wages from her position at Coles, and that her NetBank account was for savings. She noted that she had no additional funds in her personal loan, nor any redraw capacity. Her accumulated superannuation entitlement had a value of $168,286.41, but she would be unable to access this until reaching retirement age. She gave oral evidence that she would likely need "a million dollars, if not more" in her superannuation to provide for her retirement: Tcpt, 16 May 2023, p 49(47-48).
In cross-examination, paragraphs 36 to 38 of Alicia's affidavit sworn 13 June 2022, that were not read, were tendered as Ex. DAB-3. These Paragraphs showed that the amounts owing on her personal loan and credit card debts at that time were $45,000 and $4,500 respectively, when taken with other evidence, demonstrated that her liabilities had reduced by about $14,000 and $1,200 respectively in less than a year.
Alicia had stated that she only made the minimum repayments on her debts via direct debit: Tcpt, 16 May 2023, p 47(13-48). When pressed by counsel, she admitted that she "may have made a mistake with the figure" initially: Tcpt, 16 May 2023, p 48(38-40).
Alicia agreed that her liabilities were decreasing, not increasing. Whilst, at first, she denied that she earned more than she spent, she conceded that, on average, she earned at least enough to pay her monthly expenses: Tcpt, 16 May 2023, p 48(49)-49(13).
She did not own a car but leased one through Nissan Financial Services. She did not own her own home. She held household items jointly with Elizabeth but stated that these were of little to no commercial value.
She set out her monthly income as follows:
INCOME
Baker - Coles Supermarkets $ 4,433
TOTAL $ 4,433
[16]
She stated that her income varied from week to week, alternating between amounts of $1,294 and $921.
Her monthly expenses were as follows:
EXPENSES
Rent $ 2,100
Electricity $ 360
Food and groceries $ 700
Fuel $ 80
Vehicle registration $ 66
Car lease payments $ 469
Car insurance $ 81
Content insurance $ 31
Medibank private health insurance $ 195
Loan and credit card repayments $ 426
Storage fees $ 198
Union fees $ 42
Kindle $ 13
Apple $ 12
Netflix $ 10
Vodafone $ 109
TOTAL $ 4,898
[17]
She claimed that she could not afford to register her car other than on a month-to-month basis, and that she had not bought new clothes in a long time as she could not afford to do so either.
Alicia also gave evidence of her health, stating that she had asthma, lipedema, and a broken toe that had healed without visiting a doctor, as she could not afford the $150 cost of an appointment.
In the last three years, she had not purchased, or sold, real estate, or shares in public companies, had not made any gifts of amounts of $1,000 or more, or sold any other property for $1,000 or more. She said that she held no interests in companies or trusts, excepting her superannuation fund.
Currently, Alicia is renting a property with Elizabeth, who is financially dependent upon her. Alicia has primary responsibility for the household expenses and rent, while Elizabeth pays for her own expenses.
Elizabeth's financial circumstances were set out as follows:
ASSETS
Cash at bank $ 49
TOTAL $ 49
LIABILITIES
Credit card debt $ 3,290
TOTAL $ 3,290
INCOME (MONTHLY)
Aged pension $ 2,278
TOTAL $ 2,278
EXPENSES (MONTHLY)
Medibank private health insurance $ 236
Physiotherapy $ 352
Vodafone $ 22
Credit card repayments $ 400
Lawn mowing $ 200
Bathroom cleaning $ 200
Food and groceries $ 600
Scripts $ 7 to $163 per script
Doctor's appointments $ 200
TOTAL $ 2,217 to
$ 2,373
[18]
Alicia stated that there was no other person liable to support her.
Alicia set out her financial needs, noting that her modest income was only enough to pay her day-to-day expenses and insufficient to repay her debts owing. She wished to own a reliable car, which she estimated would cost about $20,000. She also wanted the financial capacity to see a psychologist to address her childhood trauma. Overall, she stated that she required the means to pay her debts, purchase a car, and maintain an adequate contingency fund as a buffer for the vicissitudes of life. The source of the estate or notional estate out of which such provision could be made was not identified.
I also found Alicia to be a less than impressive witness. Be that as it may, it is important to note that an undisputed fact is that she was estranged from the deceased for the last 17 years of his life. There was a complete abandonment, it would appear by each of Alicia and the deceased, of the relationship of child and parent, some 17 years before he died. She made no effort to contact the deceased in that period, did not inform the deceased of where she was living, or provide him with any other information.
[19]
Sondra Eleanor Boatswain
Sondra swore 6 affidavits in the proceedings: the first, affirmed 26 May 2022, comprising 22 paragraphs, spanning 5 pages, with 3 annexures; the second, affirmed 26 May 2022, comprising 32 paragraphs, spanning 14 pages, with 10 annexures; the third, affirmed 8 July 2022, comprising 7 paragraphs, spanning 4 pages, with 2 annexures; the fourth, affirmed 11 April 2023, comprising 11 paragraphs, spanning 5 pages; the fifth, affirmed 9 May 2023, comprising 10 paragraphs, spanning 6 pages, with 2 annexures; and the sixth, affirmed 21 July 2022, comprising 8 paragraphs, spanning 3 pages. She was cross-examined by counsel for each of Justin and Alicia.
Sondra gave her oral evidence in a composed, quiet, and articulate, manner. She engaged, unhesitatingly, with counsel for Justin and for Alicia, and calmly answered the questions put to her by each. She did not engage in histrionics and was not at all belligerent, or combative, in answering questions. She appeared willing to answer questions directly and truthfully.
Without hesitation, I accept her evidence where it conflicts with Justin's evidence. I am of the view, having observed her, that her recollection of the past was far more reliable than was Justin's or Alicia's.
Sondra described the deceased as a "gentle and considerate partner" who displayed no abusive behaviour towards her, or towards any other person. She said that he was a social drinker and that he did not exhibit issues with alcoholism. In cross-examination by counsel for Alicia, Sondra agreed that as she had not had contact with the deceased between 1975 and 1999, she did not know what his relationship with Justin, Alicia and Elizabeth had been like, nor whether he had alcohol problems during that period: Tcpt, 16 May 2023, p 65(47-50)-66(1-10).
She disputed Justin's assertion that she did not like him or his family. She said that she did not prevent Justin, or his children, from seeing the deceased, and denied physically disciplining Justin's children. She also maintained that she and the deceased would send Justin's children $50 each for Christmas, as well as money for birthdays, and that she had continued sending cash gifts after the deceased's death: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at pars 7, 10. (Justin acknowledged that this had occurred: Tcpt, 16 May 2023, p 30(10-11).)
Sondra also disputed Justin's contention that the deceased's behaviour towards Justin and his side of the family changed after she married the deceased. She gave evidence that she had never interfered with what the deceased wanted to do with his own children. She said that, to the contrary, she had encouraged the relationships. She claimed that she had insisted he divide his estate equally among her children and his, in his Will. She said he had been hesitant to do so and thought that her children should receive a larger share, as Sondra had been the one who had purchased their home, which was their primary asset at the time: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 17.
She also gave evidence that she had never listened to the conversations held in the telephone calls between Justin and the deceased or instructed the latter on how to respond to Justin. She stated that the deceased wore hearing aids, and so, used the speaker phone to assist with his hearing when he used the telephone: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 10.
She gave evidence that she did not control the deceased's actions, and that the deceased's family had always been welcome and had been included with her own family: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 10.
Sondra appeared to suggest that Justin's relationship with the deceased was not as loving and close as he had depicted. She recalled that Justin had only visited the deceased on two occasions during the marriage: Affidavit, Sondra, Eleanor Boatswain, 26 May 2022 at par 13. I have earlier referred to Justin's evidence: Tcpt, 16 May 2023, p 17(37-40).)
Sondra said that Justin rarely contacted the deceased and had only sent three birthday, or Father's Day, cards over the course of her 14-year marriage with the deceased. She also claimed that Justin only called regarding the deceased's health, when he had a prostate operation and needed intensive care, after the deceased was out of the hospital for about 3 days: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at pars 10-11.
She deposed that Justin had asked the deceased for financial assistance on three separate occasions: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 16.
She denied that she had said the words "I never want to have anything to do with any of the Boatswains ever again" after the deceased died: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 22.
Sondra said that following the deceased's death, Justin would ring her every Wednesday. On 11 March 2020, she recalled that they had a conversation to the following effect (Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 24):
"JUSTIN: I don't mean to be disrespectful, but could I have a copy of Dad's Will?
SONDRA: Of course, I did not even think about it. I will send you a copy. I'm really sorry, I should have thought of this."
Later, on the same day, she said that Justin had asked her to send him a copy of the deceased's Will within three business days, as well as details of her solicitor (Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 24; Annexure G):
"JUSTIN: Hi sondra, can you please send me a copy of my father's will [sic] to PO Box XX Palmwoods QLD 4555 or text me the solicitor details to this mobile number. Would appreciate this done within the next 3 working days. Thank you.
SONDRA: Justin I told you I would send you a copy of Maurice's will and I will..."
I accept Sondra's evidence so far as it relates to Alicia's relationship with the deceased. Their evidence was not really in conflict. She stated that she had never met, nor spoken to, Alicia in person.
Sondra believed that Alicia had not spoken to the deceased from about 1999 onwards: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 10. As well, she denied that the deceased visited Alicia in Queensland in 2001, as he was working at the time and did not take leave until late 2002. She rejected counsel's suggestion that she simply did not recall the deceased travelling to Queensland, stating that they had already taken leave in 2001, so the deceased "definitely" could not have taken leave until 2002: Tcpt, 16 May 2023, p 66(18-22). Sondra's evidence was that around March 2000, the deceased said to her that he had told Alicia about his relationship with Sondra, and Alicia had ceased contact with him as a result: Tcpt, 16 May 2023, p 66(28-30).
Sondra was unaware of any occasion on which Alicia had attempted to contact the deceased: Affidavit, Sondra Eleanor Boatswain, 21 July 2022 at par 8. However, she agreed that the deceased had some contact with Alicia in early 2000: Tcpt, 16 May 2023, p 66(35-37).
She also remembered that the deceased had provided Alicia with a credit card and that he was paying the amounts accrued. Though she could not recall when Alicia had been given the credit card, she believed it was "well and truly before" the early 2000s: Tcpt, 16 May 2023, p 66(41)-67(21).
Sondra said that the deceased had told Alicia about his relationship, although she accepted that she did not know whether he had done so. However, she said that following that disclosure, the deceased's relationship with Alicia ceased: Tcpt, 16 May 2023, p 66(28-41)
In her affidavit of 26 May 2022 and the affidavit of 11 April 2023, Sondra gave evidence of her financial and material circumstances.
She had the leasehold interest in the retirement village at Pemulwuy. As of 17 May 2022, she had savings, totalling $574,203; shares with a value of approximately $30,000; a car; and some personal possessions.
Sondra has been diagnosed with several medical conditions such as septicaemia, acromioclavicular joint degeneration, small vessel renal disease, osteoarthritis in her hip, anaemia, Morton's neuroma, chronic obstructive pulmonary disease, hypertension, bronchial asthma, and trochanteric bursitis. She recently had an epidural treatment for the aneurysm in her back and was admitted to hospital due to a lung infection. She otherwise stated that she was in good health: Affidavit, Sondra Eleanor Boatswain, 11 April 2023 at par 11.
She claimed that she needed to have secure accommodation for the rest of her life in the event that she loses capacity or becomes ill and requires to be moved into aged care accommodation: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 30.
She also claimed that she needed provision to have a contingency fund to pay for any out-of-pocket medical expenses, pharmaceuticals, or services that she might require in the future: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 31.
According to Sondra, given that she had paid the testamentary expenses and legal fees associated with the deceased's estate and the costs of these proceedings out of her own pocket, which had depleted her savings, this necessitated more provision: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at par 32.
I accept her evidence on these topics also.
[20]
Justin's submissions
Counsel for Justin submitted that sufficient cause had been shown. He argued that the delay was caused by Justin's ignorance of his rights to bring a claim, combined with his belief that he was entitled to one-sixth of the estate under the Will since he was named in it, as informed by his expectations arising from oral representations said to have been made by the deceased to him. As a child of the deceased, Justin was said to have a strong claim.
While Justin's evidence was that he first sought legal advice in late 2021, he did not bring proceedings at that time, as he was engaging in settlement discussions with Sondra. Counsel described the statement of Sondra's solicitors that "Considering your client has not provided full disclosure of his financial position, commencing proceedings in the Supreme Court of NSW would seem premature" as unconscionable if Sondra sought to press the limitation period against Justin. Once settlement discussions were unsuccessful, Justin promptly filed proceedings. It was also stated that Sondra had not complained of any prejudice.
Further, counsel noted that Justin was to receive a legacy of $15,000 under Sondra's Will dated 12 November 2020, which meant he would not benefit from the estate of the deceased or from the estate of his paternal grandmother. He placed reliance on Nettle J's remarks in McKenzie v Topp; McKenzie v Topp [2004] VSC 90 at [56]-[61], regarding the responsibility of a widow to provide for the children of the deceased from a prior marriage where her estate benefitted significantly from the deceased's estate.
In arguing that adequate provision for Justin had not been made, Counsel highlighted the ongoing and close relationship between Justin and the deceased and the provision of financial assistance by the deceased to Justin throughout his lifetime, as well as the oral statements made by the deceased as to the provision he intended to make for him in his Will.
In oral submissions, counsel said that no Will had been made after the death of Justin's grandmother with the effect that the deceased's Will did not reflect the change in circumstances relating to the inheritance he had received.
He stated that Justin had not displayed any disentitling conduct or character that would reduce his claim. He relied upon the principles applicable to claims brought by adult children in Anderson v Hill [2017] NSWSC 1149, at [135] and the principles governing proper and adequate provision in general in Vella v Vella; Vella v Vella [2020] NSWSC 849, at [29].
It was submitted that Justin's difficult financial circumstances, and significant health conditions, made his needs more pressing than those of the competing claimant, Alicia, and that a modest order for provision would not prejudice Sondra, particularly as Justin did not seek for Sondra's interest in the retirement unit to be designated as notional estate.
Counsel argued that there was sufficient notional estate to grant Justin's claim for provision while still ensuring Sondra's needs were met. How this submission could be made in light of the concession regarding the property that could be designated as notional estate and the estimated costs of the proceedings was not clear.
[21]
Alicia's submissions
Counsel for Alicia also submitted that there was sufficient cause to extend the time for making the application, pursuant to s 58(2) of the Act, because Alicia did not become aware of the deceased's estate until she was served with notice of Justin's claim, though she knew of his death and had attended his funeral. Reliance was placed upon the fact that Alicia had commenced proceedings very soon after engaging a lawyer. It was argued that the sole beneficiary, Sondra, had not been prejudiced by the delay, and that Alicia's case was strong enough to warrant granting an extension of time. As the child of the deceased, the community would expect the deceased to provide for Alicia, giving her a strong claim on his estate.
Counsel stressed that the estrangement between Alicia and the deceased should be viewed in light of the deceased's previous issues with abuse and alcoholism, and that the responsibility lay on the deceased to maintain a relationship with Alicia. Therefore, the estrangement did not extinguish her moral claim on his estate. It was submitted that the deceased failed to fulfil his moral obligations, as a parent, and that it was material that Alicia was still named as a substitute beneficiary under the deceased's Will. (In fact, Alicia was one of a number of substitute beneficiaries.)
Then, counsel submitted that adequate provision for Alicia had not been made, citing the general principles in relation to a claim brought by an adult child in Page v Hull-Moody [2020] NSWSC 411 at [176]-[177]. She highlighted Alicia's difficult financial circumstances, inadequate resources, lack of financial security, frugal lifestyle, and unmet needs. In comparison, counsel stated there were sufficient assets available to be designated as notional estate so that a modest claim for provision could be made without affecting Sondra's ability to meet her own needs. It was noted that Sondra was aged 83, had generally good health other than her medical conditions, had sizeable assets and no liabilities, and had only one unmet need of a contingency fund.
In oral submissions, counsel stated that Justin, as the competing claimant, had received provision from the deceased during his lifetime, which evidence was not challenged by Sondra, and which should be considered when assessing Justin's claim: Tcpt, 16 May 2023, p 91(22-30).
Counsel acknowledged that a notional estate order would have to be made as most of the deceased's estate had passed by survivorship to Sondra and the estate was not otherwise large enough to meet a claim or any order for costs. She noted the factors under s 87 of the Act and argued that the deceased and Alicia held reasonable expectations that Alicia would benefit from the sum of $549,428.75 forming the majority of the savings account jointly held by the deceased and Sondra, which the deceased had inherited from his mother.
According to evidence given by Justin, the deceased had wished for this amount to be split between Justin and Alicia. The Will had been executed prior to the receipt of this inheritance, and it was submitted that Sondra was aware that the deceased intended for his biological children to receive the money and that she had no reasonable expectations in relation to this amount. On the contrary, the deceased expected that Alicia would receive part of the inheritance from his mother, while Alicia expected that the deceased would provide for her.
It was also submitted that Sondra's age meant that her estate would receive the benefit of this amount, rather than her personally. Her current Will, which was in evidence, gave Alicia a pecuniary legacy of $5,000: Affidavit, Sondra Eleanor Boatswain, 26 May 2022 at Annexure B.
Finally, counsel submitted that the fact that the source of a large part of jointly held fund was the inheritance received from the deceased's mother's estate, along with the deceased's wishes for the funds to pass to Justin and Alicia, formed "other special circumstances" justifying the making of a notional estate order, in the meaning of s 90(2)(b) of the Act.
[22]
Sondra's submissions
Counsel for Sondra submitted that both Justin and Alicia's claims had been commenced after "material and substantial" delay, noting that the limitation period on applications under the Act was not merely procedural, but substantial: Stone v Stone [2016] NSWSC 605 at [36].
With regard to Justin, counsel argued that the time should not be extended because the delay had been significant; Justin had been aware of the deceased's death and attended his funeral; Justin had asked Sondra for a copy of the deceased's Will to be sent "within the next 3 working days" less than 2 months after the deceased's death and thus had been aware of its contents from around 11 March 2020, but had not notified Sondra of his intention to bring a claim for another 17 months; and Sondra had incurred prejudice due to the delay, as she had used the funds from the joint assets that had passed to her by virtue of survivorship to make gifts to her grandchildren and to fund her living expenses in the meantime.
Alicia was also aware of the deceased's death and had attended his funeral. Counsel pointed to the lack of evidence that she took any steps to ascertain the value of his estate or otherwise took any interest in it, describing her claim as "somewhat opportunistic" following her receipt of Justin's Notice of Claim.
It was accepted that Justin and Alicia were both eligible persons, as children of the deceased. Counsel questioned the degree of closeness between Justin and the deceased after Justin became an adult, noting that Justin had not invited the deceased to his wedding in 2011, but accepted that the deceased called Justin every Sunday and assisted him on occasion with expenses. Though Justin's assets were negligible, Counsel invited the Court to infer that Justin's income was sufficient to meet his expenditure, as his personal loan had reduced by about $10,000 between May 2022 and April 2023.
Counsel further noted Alicia's evidence of estrangement from the deceased, with their last contact occurring in 2003, which would be a relevant consideration in determining the amount (if any) of provision made for her: Keep v Bourke [2012] NSWCA 64 at [3]; Wheatley v Wheatley [2006] NSWCA 262 at [37]. Alicia's assets were negligible, but counsel also invited the Court to infer that her income exceeded her expenditure, as her liabilities had reduced by about $15,000 between June 2022 and April 2023: Tcpt, 16 May 2023, p 48(36)-49(12).
The significant financial effect that any provision made for Justin or Alicia would have on Sondra was stressed, particularly in the context of the general duty of a testator to his spouse to ensure her security in the matrimonial home, ensure she had a sufficient income to permit her to live in the style to which she was accustomed, and to provide her with a contingency fund: Luciano v Rosenblum (1985) 2 NSWLR 65; Cropley v Cropley [2002] NSWSC 349 at [56]. Counsel pointed out that Sondra had no superannuation and funded the balance of her living expenses from her relatively modest savings, which the deceased and Sondra had jointly intended to use to fund their retirement. In making their claims, Justin and Alicia both identified a need to supplement their own superannuation to fund their retirements, but this would directly conflict with Sondra's ability to fund her retirement.
Even if the time for making an application were to be extended, counsel submitted that the Court should not exercise its discretion to make an order designating notional estate out of which provision could be made. Counsel accepted that the deceased's failure to sever the joint tenancy over the retirement village unit and the bank account was a 'relevant property transaction' within the meaning of s 75 of the Act.
However, he identified as relevant considerations the deceased's clearly expressed testamentary intentions for Sondra to have the benefit of his estate even if the assets were not jointly owned; the significant financial contribution made by Sondra to their joint assets, as she owned property at the time of their marriage, while he did not, and supported the deceased financially after his redundancy; the conscious decision made by the deceased and Sondra to purchase a leasehold interest in the retirement unit, which Sondra currently resided in; and her lack of superannuation and need to fund future expenses from her savings, which would be reduced by an order designating part of the fund as notional estate.
Further, as the claims were made out of time, counsel submitted that no special circumstances pursuant to s 90(2)(b) could be established to enable the Court to make a notional estate order. He noted that more was required than the circumstances under s 58(2) to justify an extension of time, as special circumstances needed to be unusual, uncommon or exceptional in character, quality, or degree, though they did not need to be unique: Charnock v Handley [2011] NSWSC 1408 at [89]; Campbell v Chabert-McKay [2010] NSWSC 859 at [91].
On the second day of hearing, counsel for Sondra provided supplementary written submissions going to the issue of notional estate.
It was not in dispute that the two relevant property transactions immediately prior to the deceased's death were the $389,500 (being half of the joint bank account) and $62,189 (being superannuation), which funds were paid into Sondra's bank account. At the date of commencement of proceedings, Sondra's bank account balance had reduced to $636,763.
Counsel argued that the Court could consider changes in the value of the property since the relevant property transaction occurred, as well as any other matter it considered relevant, as the Court had to take a range of mandatory considerations, identified in s 89(1) of the Act, into account when determining the property that was to be the subject of a notional estate order. He submitted that it was open to the Court to decide that the property to be designated notional estate was a sum of a value less than the relevant property transaction at the time of the deceased's death.
[23]
The relevant principles
I turn next to the relevant principles that apply on the issues that, in my view, will determine the result of each of Justin's and Alicia's proceedings.
[24]
Extension of time
It is to be noted that in endeavouring to explain the delay in commencing proceedings, neither Justin, nor Alicia, gave specific evidence about when he, and she, respectively, had first formed the intention to bring a claim; what steps, if any he, and she, respectively, had taken during the 12 months after death to obtain legal assistance; or of the reasons why he, and she, respectively, did not seek legal aid, or pro bono assistance, if he, or she, considered that he, or she, did not have the financial capacity to obtain such assistance.
On the evidence, it was not until 26 months, and 28 months respectively, after the deceased's death, that each manifested any obvious intention to bring proceedings for a family provision order. This means that Justin's proceedings were not commenced until 14 months after the prescribed period had ended and Alicia's proceedings were not commenced until 16 months after the prescribed period had ended.
On its face, s 58 of the Act confers a wide and general discretion on the Court to extend the time for the making of an application. As earlier stated, s 58(2) of the Act, relevantly, provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (It is to be noted that s 58(2) is in terms similar to s 16 of the former Act, but the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown".)
The onus is on Justin, and Alicia, respectively, to persuade the Court that "sufficient cause" has been shown for the Court to make an order allowing the proceedings, respectively, to be commenced out of time.
In Madden-Smith v Madden (Estate of late Doris Linda Madden) [2012] NSWSC 146, Pembroke J wrote at [23]-[24]:
"…Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3).
The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."
I dealt with the principles that apply in relation to s 58 in Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113, at [997]-[1002]:
"Clearly, permitting the court to "otherwise order" was included in the Act to avoid the section becoming an instrument of injustice. Yet, "[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380 at [98] (Lindsay J). (The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175 (Sir Robert Megarry V.C.)
In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[87], I set out the applicable legal principles relating to an application to extend the time, as follows:
"The decision of the court to extend time is a discretionary decision. Other than 'sufficient cause being shown', there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.
The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]- [47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.
The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.
The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21]."
There is no disciplinary element to s 58(2). The power should be exercised for its proper purpose, taking account of the context in which it arises, namely, in making adequate provision for the proper maintenance, education and advancement in life of an applicant from the estate or notional estate of a deceased, in light of all of the circumstances of the particular case. Where the proceedings are dismissed, an order extending time would be futile.
As was written in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]:
"Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application..."
If an order is made extending time, as each is an eligible person, the next question for the Court to determine is whether each of [the applicants] has been left with inadequate provision for his proper maintenance or advancement in life in relation to the estate of the deceased. This, and what follows, applies, equally, to [the respondent's] claim for a family provision order.
The answer to this question "constitutes a finding of fact, albeit one that is, in light of the subjective character of the matter to be decided, evaluative. Nevertheless, making the finding involves a binary choice - either adequate provision has been made, or it has not. A finding on the issue does not, therefore, involve an exercise of discretion": Strang v Steiner [2019] NSWCA 143 at [76] (Macfarlan JA)."
In Moore v Randall [2012] NSWSC 184, at [39], White J wrote that the expression "sufficient cause" means "sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period." This meaning has been adopted in other cases since then.
In Stone v Stone at [36], Brereton J made the following observations about the operation of s 58(2) of the Act:
"The effect of the section is to confer on the Court a discretion to extend time, having regard to all the circumstances of the case, but only if sufficient cause is shown for the application not having been made within the 12-month period. This limitation period is not merely procedural nor a mere formality, but is substantive. An applicant for such an extension must demonstrate that there was sufficient cause for not having made the application within the 12-month period. So much is mandatory. This requires some explanation for the failure to make the application during that period. Once sufficient cause is shown for not having made the application within that period, the discretion to extend time (by making an 'otherwise order') is enlivened. It is not a jurisdictional prerequisite that sufficient cause be shown for any further delay after the expiry of the 12-month period; however, any such further delay and the reasons for it are plainly part of 'all the circumstances of the case' to which the Court must have regard in exercising the discretion. Other discretionary considerations include whether the extension of time would occasion prejudice to any beneficiary under the will; whether there is any unconscionable conduct on the part of the applicant (which is essentially concerned with deliberate decisions not to make an application, upon which an executor or a beneficiary has acted to their detriment); and the strength of the applicant's case for relief under the Succession Act. A mere change of mind on the part of an eligible person, who has decided not to make a claim - even if that change of mind is triggered by the success of a claim of another eligible person, or by another eligible person bringing a claim - is ordinarily not sufficient cause for granting an extension of time."
However, a slightly different view seems to have been expressed in Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45, at [24], in which Meagher JA wrote that "[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time".
Respectfully, I agree that the meaning of "sufficient cause" is "sufficient, in all the circumstances, to justify the granting of an extension of time".
White J in Vasconelos v Bonetig [2011] NSWSC 1029 at [20], noted, in respect of the section of the former Act, that the "policy behind s 16(2) would be put at nought if an applicant could decide, at his or own choosing, how long he or she should wait before plucking up the strength to institute proceedings." (Section 58(2) is in terms similar to s 16 of the former Act, except that the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown".)
In Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133 at [53], Meagher JA (with whom Macfarlan JA at [1] and Leeming JJA at [78] respectively) explained, at [53], that there were two steps to obtaining an extension of time to apply for provision under the former Act: first, showing sufficient cause for the application not having been made within the prescribed period; and, secondly, the Court exercising its discretion in favour of granting the extension of time:
"As White J (as his Honour then was) observed in Vasconelos v Bonetig [2011] NSWSC 1029 at [16], an applicant for extension of time must show "sufficient cause" for the application not having been made within the prescribed period. If such cause is shown, the court then has a discretion to extend the time for the making of an application."
In John v John; John v John [2010] NSWSC 937, at [44], Ward J considered that sufficient explanation given for the failure to commence proceedings in time was a "threshold requirement" that had to be met before considering the other discretionary factors.
I turn next to the other relevant factors on the exercise of discretion, being the prejudice to the defendant arising from the delay, whether there has been unconscionable conduct by and the strength of each applicant's claim.
In my view, in considering "sufficient cause", the court must consider not only the period prescribed by the Act for the making of the application, but also the period after the twelve months had expired but before the Summons was filed. The lapse of time, should, ordinarily, entitle executors and beneficiaries to assume that there will be no challenge to the Will: Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14, per Steytler P (with whom Pullin and Buss JJA agreed) at [38].
The unconscionable conduct on the part of an applicant, such as deliberately holding off making a claim in a way designed to lull the beneficiary into a false sense of security so that she, or he, orders her, or his, affairs on the basis that the entitlements received could not be disturbed is relevant: De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep).
I have earlier referred to the diminution of the amount held in the joint bank account between the date of death and the date that each of Justin and Alicia commenced the proceedings. By his, and her silence, respectively, each of them allowed Sondra to live her life without having any idea that not one, but two different, proceedings against the property which passed to her by survivorship, might be brought.
Counsel for each of Justin and Alicia, respectively, seemed to submit that whether there are good prospects of success on the merits of the substantive application is a matter of greatest importance, and if reasonable prospects of success are shown, that it should necessarily follow an extension of time must be granted.
I do not accept this submission. Good prospects of success are not, invariably, the trump card. If what was being submitted was intended to mean that regardless of the length of the delay, or the reasons for it, an order extending time must be made, that proposition should be rejected as unduly rigid.
In Choras v Farmakidis [2020] NSWSC 367, Parker J wrote at [168] that the strength of an out-of-time claim cannot overcome prejudice to the defendant or a lack of explanation for delay:
"There is no dispute that if the claim is a weak one that is a factor which tells against there being "good reason" to allow the proceeding to continue. This fits comfortably with the basic principle that it is for the plaintiff to show that there is a good reason to expose the defendant to a claim. But the converse proposition put by counsel does not follow at all. There is no reason why, if the plaintiff has failed to give an adequate explanation for delay in bringing the claim, a belief on the Court's part that the plaintiff's claim is a strong one should somehow make up for the lack of adequate explanation. Similarly, it is difficult to see why the strength of the claim should displace prejudice to the defendant from the delay."
Yet, the fact that prejudice may be caused to the holder of property that is sought to be designated as notional estate if an extension of time is granted, should not necessarily defeat the application in all circumstances. As earlier stated, ultimately, the critical question will be whether it is in the interests of justice that the time for the application to be made should be extended. In determining this question, the approach of the Court should be flexible.
I am not satisfied that each of Justin, or Alicia, has provided any satisfactory explanation for the delay in him, and her, respectively, commencing the proceedings within time. Importantly, I do not accept Justin's explanation that he thought he was to receive a share of the deceased's estate under the deceased's Will. Alicia clearly was aware that the deceased was dead and had sought, and received, a copy of his Will. On his, and her, evidence, respectively, neither appear to have done anything to advance the claim until well after the expiration of the prescribed period.
Even if Justin and Alicia, respectively, had provided a sufficient reason for not commencing the proceedings, and if I had come to the view that Sondra had not suffered prejudice by each not having commenced the proceedings within time, I am also satisfied, on a preliminary consideration, that each of Justin and Alicia does not have a claim for a family provision order that would succeed.
In addition, I should mention that on a preliminary consideration of each claim, I have formed the view that a notional estate order, as a matter of discretion, would not be made, with the result that there would be no property out of which any order for provision could be made. For that reason, also, I would make an order dismissing both of the proceedings.
For these reasons I must refuse the application to make an order extending time. As a result, the whole of the proceedings brought by each of Justin and Alicia must be dismissed.
In Underwood v Gaudron [2015] NSWCA 269 at [89], Basten JA wrote:
"There was thus clear evidence of prejudice resulting from the delay. That factor, added to the incomplete justification for the delay and lack of notice to the respondents, permitted the Court, unless satisfied on a preliminary consideration of a strong claim for a family provision order, to refuse to "otherwise order" pursuant to s 58(2). On that basis, the application should have been dismissed without a full consideration of the circumstances of the claim."
However, in case I am wrong, I shall deal, with the question whether any designating order should be made, even though one would normally not get to that question.
[25]
Notional estate
Section 73(1) states that Part 3.2 of the Act applies to property designated as part of the notional estate of a deceased person in the same way as it applies to property that is part of the estate of a deceased person.
Section 74 of the Act provides that "relevant property transaction" means a transaction, or circumstance, affecting property and described in s 75 or s 76. "Property" includes "any valuable benefit".
Section 75 of the Act provides:
"(1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being:
(a) held by another person (whether or not as trustee), or
(b) subject to a trust,
and full valuable consideration is not given to the person for doing or not doing the act.
(2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction.
(3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person's estate."
Section 76 of the Act then provides a description of some, but not all, of the circumstances that constitute the basis of a relevant property transaction for the purposes of s 75. One of the circumstances, described, in s 76(2)(b), arises:
"if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person's death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust …"
There was no dispute that as the deceased did not sever the joint tenancy in the property earlier referred to, before his death, that resulted in Sondra's entitlement to his share, by right of survivorship, was capable of giving rise to a designation of notional property. That was a "relevant property transaction" enabling an order and is deemed to have been entered into immediately before, and to have taken effect on, the deceased's death (ss 75, 76(2)(b), 77(3), 80).
It could also not be disputed that the relevant property transaction would have directly disadvantaged Justin and Alicia, eligible persons who were entitled to apply for a family provision order. This was because, had the deceased severed his joint interest in the property prior to his death, that interest would have formed part of his estate (s 83(1)(a)).
As stated, the power to make a notional estate order is discretionary. Even so, before the Court is able to exercise that discretion, it is necessary to establish that the transaction is one to which the section applies.
The effect of a notional estate order is that a person's rights are extinguished to the extent that they are affected by a notional estate order (s 84).
The Court's power to make a notional estate order is also circumscribed by other sections.
Section 87, contained in "Division 3 - Restrictions and protections relating to notional estate orders", circumscribes the Court's power to make a notional estate order. That section provides:
The Court must not make a notional estate order unless it has considered the following:
(a) the importance of not interfering with reasonable expectations in relation to property,
(b) the substantial justice and merits involved in making or refusing to make the order,
(c) any other matter it considers relevant in the circumstances.
In John v John; John v John, Ward J wrote, at [118]-[120]:
"What amounts to 'reasonable expectations in relation to property' was considered in Petschelt v Petschelt [2002] NSWSC 706, at [68], by McLaughlin M (as the Associate Justice then was), who said:
That phrase does not, however, indicate the person by whom those reasonable expectations are held. Clearly the Court must consider the reasonable expectations of the First Defendant in relation to property. By the same token, however, the Court should also consider the reasonable expectations of the Deceased herself in relation to property, and also, possibly, the reasonable expectations of the Plaintiff.
In D'Albora v D'Albora [1999] NSWSC 468, at [53], Macready M (as the Associate Justice then was) gave examples of the circumstances which might give rise to reasonable expectations for the purposes of this section:
Under s 27(1)(a) the Court has to consider the importance of not interfering with the reasonable expectations in relation to the property. Such reasonable expectations may well occur in a number of circumstances. For example, a beneficiary who receives a property may have spent money on the property or worked on the property. … Another common area where one often sees in this matter is where there is a promise in relation to the property and the acting by an intended beneficiary on the fact of that promise.
Similarly, in Wentworth v Wentworth [1992] NSWCA 268, Priestley JA, with whom Samuels AP and Handley JA agreed, referring to the 'more general precautionary provisions' in ss 26 and 27 of the Family Provision Act, said:
S27(1) for example, says the court shall not make an order designating property as notional estate unless it has considered, amongst other things, the importance of not interfering with reasonable expectations in relation to property. If someone is in possession of property, otherwise than by gift, after having given up something of equivalent value in order to obtain that property, it would be entirely reasonable for that person to expect to remain in possession of it." (emphasis omitted.)
In reference to s 87(a), Basten JA in Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [125], wrote:
"While it remains true that the section… is silent as to whose 'reasonable expectations' must be considered, the requirement is a constraint on the making of a notional estate order. It is not sensibly construed as referring to the reasonable expectations of the applicant who wants a share of, but does not own, the property. Nor does it sensibly refer to the expectations of the deceased person, because the court must already have determined that an adjustment in the distribution effected by the will was appropriate: s 89(2). Since a notional estate order will only be made in relation to property which never was, or no longer is, part of the estate, it is unlikely to refer to the expectations of any person other than the person who is the present holder of an interest in the property."
Other members of the Court of Appeal took a different view. Whilst Basten JA disavowed reliance on Petschelt, Beazley P (Meagher JA agreeing) quoted, at [105], Ward J's decision in John v John; John v John, including the passage where her Honour quoted Petschelt.
Slattery J in Manning v Matsen [2015] NSWSC 1801 at [156], cited Beazley P's judgment. His Honour did so without any reference to the conflict between the President and Basten JA. In the same way, his Honour followed Beazley P in Carr v Douglass [2016] NSWSC 854 at [76]. Similarly, Henry J referred to that judgment without reference to Basten JA's view in Purnell v Tindale [2020] NSWSC 746 at [319].
Parker J (although it was unnecessary for his Honour to decide the point) preferred the view expressed by Basten JA in Petschelt and John v John; John v John: Graham v Vukic [2020] NSWSC 1801 at [126]-[127].
It is unnecessary, for present purposes, to resolve the issue, as the deceased's "reasonable expectations" do not appear to be relevant even if (on a view favoured by Ward J, Beazley P and Meagher JA) the section permitted consideration of that view.
Sondra, then, is the person whose "reasonable expectations" should be considered, since she is the spouse of the deceased, and in the events that happened, the person who has come to hold the jointly owned property by survivorship. In my view, her expectation was that she would be able to remain living where she had been, a matter acknowledged by each of Justin and Alicia, as neither sought to interfere with her accommodation, and that she would receive the jointly held funds to which each of she and the deceased had contributed. Her relationship with the deceased, and the role she played in his life was a most significant, and enduring, one. It was one that the deceased, himself, expressly recognised in his Will. She is 83 years old and, not unreasonably, would reasonably expect, in addition to her accommodation, that she would have financial security.
Those reasonable expectations would have been cemented by the failure by each of Justin and Alicia, not having commenced, or even, not having threatened, commencing proceedings.
The "substantial justice and merits" referred to in s 87(b) of the Act are linked to the making, or refusing to make, an order designating property as notional estate: Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) at 20. (In that case, the reference was to the equivalent provision (s 27(1)(b)) of the former Act.)
The position of the parties should be considered in respect of s 87(b) and s 87(c).
Importantly, the power does not arise unless the Court is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances (s 88).
In Alvarez v Matthews [2021] NSWSC 1551, Parker J wrote, in relation to this section, at [27]:
"…In particular, s 88 reflects an intention on the part of Parliament that notional estate orders should be limited to cases where there is a lack of funds in the estate to meet the provision which the Court considers proper, or costs. The reason for that is obvious. Parliament wishes to keep to a minimum interference with the proprietary rights of those who own property which may be designated as notional estate."
Section 89(1) of the Act, relevantly, provides that in determining what property should be designated as notional estate of the deceased, the Court must have regard to (a) the value and nature of any property the subject of a relevant property transaction; (b) the value and nature of any consideration given in a relevant property transaction; (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into; (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into; and (e) any other matter it considers relevant in the circumstances.
Furthermore, the Court must not designate as notional estate, property that exceeds what is necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both (s 89(2)).
Section 90 of the Act provides:
"(1) This section applies to proceedings where:
(a) an application for a family provision order is made later than 12 months after the date of the death of the deceased person, or
(b) an application for a family provision order is made in relation to an estate that has been previously the subject of a family provision order.
(2) The Court must not make a notional estate order in the proceedings unless:
(a) it is satisfied that:
(i) the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and
(ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and
(iii) the property is not vested in interest in any beneficiary under the trust, or
(b) it is satisfied that there are other special circumstances that justify the making of the notional estate order."
Since the claim by each of Justin and Alicia was not made within time, and since s 90(2)(a) of the Act does not apply, each must also satisfy s 90(2)(b), namely that there are "other special circumstances that justify the making of the notional estate order".
What "special circumstances" may mean is, perhaps, a matter for debate. It is potentially a phrase of large ambit although it falls to be considered in the context of the Act. Circumstances that are out of the ordinary, but without having to be extraordinary or exceptional. there needs to be something out of the ordinary or unusual Haywood v Collaroy Services Beach Club [2002] NSWSC 991).
In Underwood v Gaudron at [202] to [204], I wrote, in regard to "other special circumstances":
"The meaning of "other special circumstances" in s 28(5) of the former Act, which was, in its terms, similar to s 90(2)(b) of the Act, has been considered in a number of cases (see, for example, Lewis v Lewis [2001] NSWSC 321; Zirkler v McKinnon [2002] NSWSC 285; Blyth v Spencer; Spencer v Neville [2005] NSWSC 653; [2007] NSWCA 33; Campbell v Chabert-McKay McKay [2010] NSWSC 859; John v John; Alexander v Jansson [2010] NSWCA 176. ("Incapacity" of the applicant was referred to in the former Act but that reference does not appear in s 90.)
The following summary regarding s 90(2)(b) may be gleaned from the authorities which dealt with s 28(5) of the former Act:
(a) The phrase is not defined in the Act and the sub-section gives no direct indication of the nature of "special circumstances". It is incapable of precise, or exhaustive, definition. The words are of indeterminate reference and it is neither possible, nor desirable, to attempt to codify the circumstances to be regarded as special.
(b) The phrase prescribes a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition.
(c) The qualifying adjective, "special", looks to circumstances that are unusual, uncommon or exceptional; the Oxford Dictionary defines "special" as meaning "of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree". The Macquarie Dictionary states the meaning as: "of a distinct or particular character or purpose"; "being a particular one"; "particular, individual or certain"; "different from what is ordinary or usual"; "extraordinary, exceptional". This does not mean that the circumstances must be unique, but they must have a particular quality of unusualness that permits them to be described as "special".
(d) A circumstance may be "special" by reason of degree, as well as of kind; circumstances need not be unique to be special, but they will be unusual; it is legitimate to have regard to a combination of factors in reaching the conclusion that they are special.
(e) More should be demonstrated to prove "special circumstances" than to justify an extension of time; the latter requires "sufficient cause" to be shown; however, to establish such special circumstances, does not require the court to exclude circumstances considered under s 58(2).
(f) In a case where an extension of time is sought, the sub-section superimposes a further requirement, or extra hurdle, over and above the matters that a court will consider under s 87.
(g) Whether circumstances answer the description in the phrase must depend upon the context in which they occur; it is the context that allows one to say that the circumstances in one case are markedly different from those in the usual run of cases. Their existence is also, in a sense, evaluative in character.
(h) Section 28(5) of the former Act gave some indication of the types of circumstances that may count as special circumstances, namely circumstances involving such things as property not finally vesting in interest and lack of capacity in the plaintiff; those matters may amount to special circumstances under s 90.
In Cetojevic v Cetojevic, Campbell J (as his Honour then was) wrote, at [77]:
"The case law shows that no exhaustive account of what counts as 'special circumstances' has been attempted to be given. Previous decisions have held them to include incapacity as a result of infancy (Dare v Furness (1997) 44 NSWLR 493; Stojcesvska & Tosevski v Tosevski [2001] NSWSC 274 at [45]), and the strength of an applicant's claim (including her financial and other contributions to the assets of the Deceased), together with the fact that it was through no fault of hers that her application was not made within the prescribed period (Stojcesvska & Tosevski v Tosevski [2001] NSWSC 274 at [46]). They are not limited to the types of circumstance which are expressly mentioned in section 28 or circumstances closely analogous to them: Lewis v Lewis [2001] NSWSC 321 at [85].
(In Underwood v Gaudron, although there was a challenge related to the contingent refusal to make a notional estate order, it was not necessary to address that ground because the appeal was dismissed for other reasons: at [5], per Basten JA (Macfarlan and Ward JJA agreeing).)
The existence of "special circumstances" justifying the designation of notional estate poses a different hurdle to the requirement of "sufficient cause" to extend time under s 58(2), and necessitates separate consideration: Vaughan v Curran [2019] NSWSC 1562 at [41], per Emmett AJA. However, matters relevant to the extension of time can also be considered in determining "special circumstances": Campbell v Chabert-McKay at [85]-[89] (in relation to s 28(5) of the Family Provision Act 1982 (NSW), which was in similar terms to s 90(2)(b) of the Act).
The use of the phrase "special circumstances" reflects an intention that judicial discretion ought not be confined by a list of relevant factors. In Stone v Stone, Brereton J wrote at [71]-[72]:
"…Circumstances are special if they are unusual, uncommon or exceptional in character, quality or degree; if they differ from the ordinary or the usual; or if they are particular or individual; but they need not be unique. Circumstances may be special by reason of their weight as well as their quality, and because of a combination of factors. The terms of s 90(2) indicate that property not vesting in interest, incapacity, and circumstances analogous thereto, may constitute special circumstances; but special circumstances are not limited to those suggested by the terms of the section or closely analogous to them. Factors that contribute to a decision to extend time under Family Provision Act, s 16, can also contribute to a finding of "special circumstances", although more is required to establish special circumstances under Succession Act, s 90(2), than to justify an extension of time under Succession Act, s 58(2) …
Factors that have contributed to findings of special circumstances have included incapacity as a result of infancy, the fact that it was no fault of the applicant that application was not made within time, the strength on the merits of an applicant's claim, the absence of prejudice (such as the fact that there has been no significant dealing with the notional estate in the meantime), and the belated falsification, after time for bringing an application for provision had expired, of a reasonable expectation that if fulfilled would have made an application unnecessary."
I am not satisfied that there are any special circumstances which would warrant designating property as notional estate. In my view, there are no circumstances that are unusual, uncommon, or exceptional in character, quality, or degree, and none which differ from the ordinary or the usual.
Reliance was placed upon the deceased's inheritance from his mother, the grandmother of each of Justin and Alicia. Importantly, the Will of the deceased's mother was not in evidence. I am unable to infer that either of Justin or Alicia was a beneficiary, substitute or otherwise, in her Will.
This means that the Court cannot make a designating order in relation to the jointly held property. That provides another basis upon which to resolve each of the proceedings, in a practical sense, against each of Justin and Alicia. As there is no other property in the estate to satisfy any family provision order that the Court might make if sufficient cause had been established and property were designated as notional estate, each of the proceedings must be dismissed.
It is unnecessary to deal with whether or not an order for provision would otherwise have been made.
In the circumstances, each of the proceedings should be dismissed with costs. I made those orders on 30 June 2023.
[26]
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Decision last updated: 05 July 2023