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Category: Principal judgment

Parties: Plaintiff: Calvin Broadus
Defendant: Peter Brian Cradduck

Representation: Counsel:
Plaintiff: K Morrissey
Defendant: JD Shaw
Solicitors:
Plaintiff: Turner Freeman Lawyers
Defendant: ZK and AS Lawyers

File Number(s): 2023/00465163

JUDGMENT

INTRODUCTION

1. These proceedings concern an application for a family provision order under Chapter 3 of the Succession Act 2006 NSW made by a grandson of a deceased person who died testate without making provision in his will for the plaintiff, although the plaintiff (in common with the deceased’s other grandchildren) was named as a default beneficiary in the event that the deceased’s principal beneficiary (his one surviving child, a son) predeceased him.

2. The application has a number of hurdles standing in the way of success:

(a) The plaintiff’s application (made by a summons) was filed 13 weeks outside the time (12 months after the death of the deceased) prescribed by section 58(2) of the Succession Act 2006 and, accordingly, the plaintiff must show “sufficient cause” for what is commonly regarded as “an extension of time”. (b) The plaintiff’s status as an “eligible person” (relying upon sections 57(1)(e) and 59(1)(a) of the Succession Act) is hotly contested because, although he is recognised as a grandchild of the deceased, there is a dispute about whether he was ever “wholly or partly dependent” on the deceased and, incidentally, whether he was ever “a member of the household” of which the deceased was himself a member. (c) The contest about the plaintiff’s status as an eligible person is closely associated with the question whether he has established, for the purpose of section 59(1)(b) of the Succession Act, that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making” of his application. (d) Because the estate has been distributed (by the defendant as executor to the defendant as beneficiary), and the plaintiff’s application was made out of time, he needs to persuade the Court to make an order for the designation of property as “notional estate”, having regard (in addition to the primary provisions of sections 59(1)(c), 59(2) and 60 of the Succession Act) to sections 63(3), 63(5), 79, 82, 83, 84, 86, 87, 88, 89 and 90. These provisions require the Court to consider, inter alia, the importance of not interfering with reasonable expectations in relation to property; the substantial justice and merits involved in making, or refusing to make, an order for the designation of property; the sufficiency of available property; and the existence or otherwise of “special circumstances”. (e) In approaching the separate but related questions raised by sections 59(1)(c) and 59(2) of the Succession Act (whether the plaintiff has been left without adequate provision for his proper maintenance, education or advancement in life and, if so, what, if any, provision “ought to be made” for him), upon an assumption that “factors warranting” have been established for the purpose of section 59(1)(b), and taking into account the matters prescribed by section 60 of the Act, any entitlement the plaintiff may have to relief (treating the deceased as “wise and just rather than fond and foolish”) must come: (i) at the expense of the defendant and his family; and (ii) operate as a departure from the deliberate testamentary intention of the deceased whose household at the time he made his last will, and at the date of his death, undisputably comprised himself, the defendant, the wife of the defendant and their three children, to the exclusion of the plaintiff: cf, Slack v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thompson [2017] NSWCA 326 at [1]-[2] and [83]-[87].

3. There is no dispute that in the exercise of its statutory powers in the determination of an application for a family provision order the Court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating the deceased as wise and just rather than fond and foolish (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20), making due allowance for current social conditions and standards: (Goodman v Windeyer (1980) 144 CLR 490 at [502]; Andrew v Andrew (2012) 81 NSWLR 656 at [12] and [16]; Chapple v Wilcox (2014) 87 NSWLR 646) and, generally, consulting specific statutory criteria so far as they may be material: Bassett v Bassett [2021] NSWCA 320 at [170]-[171].

THE DECEASED, HIS WILLS AND THE ESTATE

4. Walter John Cradduck (“the deceased”) died on 1 October 2022, aged 86 years, leaving a will dated 20 May 2022 probate of which was granted on 22 March 2023 to the defendant, the executor and sole beneficiary named in the will.

5. The will named the deceased’s granddaughter Jessica as his substitute executrix in the event that the defendant was unwilling or unable to act as executor.

6. The operative provision of the will was clause 3, which was in the following terms:

“I GIVE the whole of my estate both real and personal to my Trustee [the defendant] UPON TRUST to pay out all my debts funeral and testamentary expenses and then for my son PETER BRIAN CRADDUCK [the defendant] absolutely PROVIDED that if he dies before me then his inheritance shall go equally as tenants-in-common to such of my grandchildren being the children of my late son, Michael, the child/ren of my son Peter [the defendant] and the two children of Peter’s wife being CARLO LE and JEN LE, as attained the age of 25 years.”

7. On its face, the will was prepared by, and executed in the office of, a solicitor. The defendant’s unchallenged evidence is that the deceased organised the will without any involvement on his part.

8. The Inventory of Property annexed to the Grant of Probate records that the assets of the deceased at the time of his death had an estimated value of $1,040,702.74 comprising:

(a) a residential property (the family home of the deceased) in Danalam Street, Liverpool with an estimated value of $980,000; (b) cash at bank in the sum of $58,702.74; and (c) IAG shares valued at $2,000.

9. For the purpose of these proceedings the deceased’s estate can be taken to have a value of $1 million (not allowing anything for the defendant’s contribution to construction of a granny flat on the Property). That is the plaintiff’s contention.

10. The deceased’s penultimate will was dated 5 August 2014 (approximately one year before the death of the deceased’s first-born son, Michael) and apparently prepared by, and executed in, the Office of the NSW Trustee. The will named the NSW Trustee as executor and trustee. Its operative provision was clause 3, in the following terms:

“3.1 I give all of my property, after payment of my estate liabilities to those of my son MICHAEL JOHN CRADDUCK and my son PETER BRIAN CRADDUCK [the defendant] who survive me.

3.2 If either of my beneficiaries in clause 3.1 do not attain a vested interest in this gift leaving a child or children who do survive me I give to those children the share which would have gone to their parent. (This includes children born or adopted after the making of this Will).”

11. In neither of the deceased’s two wills (respectively dated 2014 and 2022) was the plaintiff identified by name. He was included in both wills as a “default beneficiary”.

12. Between the respective dates of the 2014 and 2022 wills the personal circumstances of the deceased and the context within which he came to make a will changed dramatically:

(a) His son Michael (the father of the plaintiff) died in 2015. (b) His son Peter (the only surviving member of his immediate family and his domestic companion of several decades) married in 2018 and brought his wife and her two children from an earlier relationship to live with him. (c) The deceased and the defendant in 2018-2019 joined in building a large “granny flat” behind the principal residence (and family home) on the deceased’s property, the defendant contributing $100,000 from his personal savings and the deceased contributing $70,000. (d) In 2019 a son was born to the defendant and his wife. (e) On 17 December 2021 (about 10 months before the deceased died) an altercation occurred at the deceased’s property, in the principal residence, between the plaintiff and the defendant which became physical. The plaintiff minimises the incident, but the defendant and his daughter are adamant that the plaintiff assaulted the defendant, placing him in a “choke hold” that severely restricted his breathing. (The deceased was at home at the time. He was subsequently enlisted as a prosecution witness for a trial of an assault charge brought against the plaintiff by the NSW Police which did not proceed after the death of the deceased and the defendant’s decision to withdraw from the proceedings rather than expose the plaintiff to a risk of gaol time). (f) At about the time that the police charged the plaintiff with assault they caused an apprehended domestic violence order to be taken out against him for the protection of the defendant and his family. (g) At the time the deceased made his 2022 will (about 6 months before he died) the plaintiff had effectively been excluded from the deceased’s property by the AVO, and the deceased enjoyed the company of the defendant, the defendant’s wife and their three children living in a stable and happy family environment (which he continued to do until his death).

13. The deceased’s 2022 will represented a deliberate recalibration of his testamentary arrangements. Had he not made that will then, under the 2014 will, one half of his estate would have passed to the children of his son, Michael: the plaintiff, Cherie, Jessica and Sophie. The plaintiff would have been entitled to 1/8th of the estate.

14. Implementation of the 2014 will (limiting the defendant’s interest to one half of the estate) would have disrupted the lives of the defendant, his wife and their three children, all of whom were living with the deceased on a family property the title of which was in his name alone, on which property the defendant (his closest living relative and companion) had lived with him for 50 years and, moreover, recently invested $100,000 in building the granny flat, as a secondary residence on the property, for his family.

15. The 2022 will protected the defendant, his family and his investment in the property, and made provision for those closest who had been to the deceased in his declining years. By naming Jessica as a substitute executrix and formally noticing Carlo Le and Jen Le as grandchildren, he demonstrated that he had given conscientious consideration to the moral claims of all his grandchildren on his bounty.

THE PLAINTIFF’S AMBIT CLAIMS

16. By his claim for a family provision order in these proceedings the plaintiff has sought to displace the defendant as the deceased’s principal beneficiary (and, incidentally, the defendant’s family). In final submissions his counsel disclaimed any such intention, but the record tells a different story of opportunistic, cascading ambit claims, falling away under challenge, without realistic articulation of needs reasonably able to be addressed or a plan for management of provision, if made.

17. In the plaintiff’s principal affidavit (affirmed on 16 February 2024) he articulated a claim on the deceased’s estate valued at between $738,893.86-$911,318.86, including an allowance of $465,000-$630,000 for a house, $42,442 for a motor vehicle, $10,791.86 for furniture and $200,000 for a contingency fund. In an affidavit affirmed by the plaintiff on 10 April 2025 he moderated that claim, reducing it to $238,000, comprising $150,000 for accommodation (calculated roughly as $4,000 per year for 38 years), $28,000 for a new car, $10,000 to pay off current debts and $50,000 as a reserve for medical and other unforeseen expenses. That claim was, perhaps, anticipated in the plaintiff’s Case Outline dated 9 April 2025 (MFI P1) restated as a claim for “an order for provision equivalent to 20% of the value of the Danalam Street property” (approximately $200,000) and an order for costs, noting that the plaintiff’s estimate of his costs was $146,600 on the indemnity basis and $132,032 on the ordinary basis (including a percentage uplift under a conditional costs retainer agreement).

18. In final submissions that claim was moderated even further to a claim for provision in the sum of $115,000 with costs (both party-party and solicitor-client costs) capped at $100,000, still leaving the defendant to bear his own costs of the proceedings.

19. The effect of the plaintiff’s claim (however formulated), if successful, would be that the defendant would be forced either to sell the property (on which he and his family now live), draw down heavily on his superannuation or borrow a substantial amount of money, for the benefit of the plaintiff, which would impose an economic burden upon him as he approaches retirement. It could, incidentally, also impede his plan to renovate the principal residence on the property to make it habitable.

20. In advancing the plaintiff’s case, counsel submitted that an order for provision (plus an order for costs) in favour of the plaintiff would not impose on the defendant or the defendant’s family an unreasonable burden because both the defendant and his wife are in paid employment (as a fork lift driver and a printing assistant respectively) and they could modify their lifestyle to reduce their living expenses. At the same time, he acknowledged that whatever provision might be made for the plaintiff, it would not provide him with ownership of a residence.

21. Adopting the standard of a “just and wise” testator (by reference to the judgment of the Privy Council in Bosch’s Case [1938] AC 463 at 478, applied in Scales Case (1962) 107 CLR 9 at 20) counsel submitted, in effect, that the dictates of justice and wisdom required that provision be made for the plaintiff (with whom the deceased had a second-order relationship, at best) even if it carried as a consequence the imposition of an onerous economic burden on the defendant (with whom the deceased enjoyed a life-long first-order relationship) and the family of the defendant. All this in circumstances in which, in my assessment, the plaintiff exaggerated any claim he may have had on the bounty of the deceased.

22. He claims to have been a dependent member of the deceased’s household for more than a decade, with a room of his own, when he was, in truth, essentially a guest sleeping in a spare room from time to time, without any form of stipend from the deceased, but welcome as a grandson and, as such, made the recipient of casual financial assistance by way of occasional gifts.

23. Incidentally, a disturbing feature of the plaintiff’s case is a refusal to accept the moral legitimacy of the defendant’s marriage of a “Filipino bride after years of a bachelor’s life”. This manifested itself in both the evidence of the plaintiff and in cross examination of the defendant and his wife, though disclaimed when exposed to view. A narrative of the plaintiff’s version of events, recorded in a medical report dated 31 July 2024 provided to the plaintiff’s solicitors by his GP Dr Ng, records an expectation on the part of the plaintiff that he and his siblings would inherit their father’s half of the deceased’s estate; his fear that the arrival of the defendant’s Filipino bride on the scene would deprive him of his inheritance; and his anger arising from what he perceived to be a betrayal of him by the defendant, if not also the deceased.

24. The plaintiff’s “dog whistle” criticism of the relationship between the defendant and his family is, perhaps, best answered by the deceased’s complete acceptance of them as members of his family living at close quarters with him, his facilitation of construction of the granny flat and his execution of a will that expressly recognised as beneficiaries “the two children of [the defendant’s] wife”.

25. The plaintiff was so unfamiliar with the relationship between the defendant and the defendant’s wife that (although he claimed, over the defendant’s protests, to have sponsored the wife’s entry into Australia) he deposed that the defendant had travelled to the Philippines to marry his wife shortly before she moved to Australia. The fact is their marriage occurred in Parramatta shortly after the defendant’s then fiancée and children arrived in Australia to live. His initial reaction to the defendant’s proposal to team up with the woman who became his wife was that the woman was merely a “gold digger” seeking to exploit the defendant. That assessment of her appears, in retrospect, to have been a projection of himself, rather than a fair characterisation of her.

26. The plaintiff appears to have had an expectation, he suggests on the basis of conversations with the deceased, that he would derive an inheritance from a notional one half of the deceased’s estate attributed to his deceased father or that the deceased would fund the construction on the Property of a “granny flat” for him. That expectation is not corroborated by independent evidence. Nor has the plaintiff asserted any proprietary estoppel or other claim against the deceased’s estate.

FAMILY RELATIONSHIPS

The Deceased’s Family Setting

27. The deceased was born in May 1936. He was married once only, to Shirley Hughes, when he was aged 21 years. She predeceased him in or about 1988.

28. He was the epitome of a working class man from the western suburbs of Sydney. He was born in Campsie; married in Fairfield; lived at Liverpool for many years; died there at home; and left instructions for his burial in a pre-paid burial plot with Shirley at Mitchinbury.

29. His last will testifies to his close bond to Shirley in its direction that he be buried with her. Long after her death the room the plaintiff claims as his “bedroom” in the deceased’s family home was known (for example, to the plaintiff's sister Cherie) as “Nan’s old sewing room”.

30. The deceased was known to friends and neighbours as “Wal”. Near neighbours of many years (Albert Ronald Tumeth and Warren Joseph Oldfield) have testified to a good friendship with Wal. Neither observed the plaintiff as an occupant of, or a frequent visitor to, Wal’s home.

31. In the long years following Shirley's death, the deceased lived a quiet life of retirement at home, having retired as a sheet metal worker and enjoyed his local pub (the Collingwood Hotel, Liverpool) as a social hub.

32. A friend who he met when she had a part time job there (Marilynne Coe) testified to his generosity of spirit. That spirit appears to have been on display in his engagement from time to time with the plaintiff and in his acceptance into his home, and his life generally, of the defendant’s wife and children.

The Deceased’s Immediate Family

33. There were two children of the marriage between the deceased and Shirley:

(a) a son, Michael (the father of the plaintiff), born in December 1956, who died in August 2015 aged 58 years; and (b) a son, Peter (the defendant), born in July 1960 and now aged nearly 65 years.

The Plaintiff’s Branch of the Family

34. Michael had two children by Jennifer Roberts (with whom he had a long standing de facto relationship before they married in 1981):

(a) a son, Mitchell (the plaintiff) born in January 1980 and now aged 45 years; and (b) a daughter, Cherie, born in August 1982 and now aged 44 years.

35. The relationship between Michael and Jennifer came to an end in 1983 when, as the plaintiff and Cherie remember it, Jennifer abandoned them.

36. Michael commenced a de facto relationship with Geraldine Keeley in about 1985. Geraldine brought to the relationship a 10 year old son from a previous relationship.

37. Michael and Geraldine had two children together (half siblings of the plaintiff):

(a) a daughter, Jessica, born in March 1990 and now aged 35 years; and (b) a daughter, Sophie, born in January 1995 and now aged 30 years.

38. The plaintiff’s evidence is that when he attained his majority he abandoned his birth name (Mitchell Norman Cradduck) and assumed the name “Calvin Broadus” by which name he evidently prefers to be known.

39. The evidence does not address the reasons why the plaintiff changed his name but no exception appears to have been taken by any person (including the deceased) that he did so.

40. The plaintiff has two children of his own (by a partner, Nicole, from whom he is separated):

(a) a daughter, Madison, born in June 2004, and now aged 21 years; and (b) a son, Ryder, born in November 2010 and now aged 14 years.

The Defendant’s Branch of the Family

41. The defendant met his wife, Novalyn, through a mutual friend in Malaysia in June 2015. Born a Filipina, she was then working in Malaysia. A year later she obtained a tourist visa and travelled to Australia for three months for the purpose of meeting the deceased. She arrived in Australia in April 2018 together with her two children from a previous relationship (Lei Jen and José Carlo) with the intention of entering into marriage with the defendant. She has since become an Australian citizen.

42. Novalyn was born in March 1985 and is presently aged 40 years. She has tertiary qualifications. Since November 2022 she has been employed as a printing assistant for Insignia Factory Pty Ltd, at premises in Preston, and operates a print section on her own. A reference from her employer describes her as a hardworking, reliable and valuable employee.

43. Her daughter Lei Jen (now treated by the defendant as his own daughter) was born in January 2004. She is now aged 21 years and is currently enrolled in a Bachelor of Business degree at university.

44. Novalyn’s son, José Carlo, was born in November 2007 and is now aged 17 years. He is in his final year at high school.

45. Novalyn does not know the present whereabouts of the children’s birth father, but assumes he lives in the Philippines. He has not provided financial support for either Lei Jen or José Carlo.

46. The defendant and Novalyn were married in Parramatta in June 2018. Novalyn assumed the defendant’s surname upon marriage. As a married couple, they lived in the deceased’s family home with him. A son, Ethan, was born to them in March 2019. He is presently aged six years.

47. The defendant, Novalyn and the children have a stable family relationship. The defendant took the step of legally adopting José (who now bears his surname) so as to better protect the boy during his minority. As Lei Jen has attained her majority a formal adoption order in respect of her has not been obtained but, as the defendant deposed, she is free to use his surname should she wish to do so.

48. With the exception of about six months he spent living in the United States of America in 1985, the defendant has lived on the deceased’s property since 1977. Throughout that time, until the deceased’s death he and his father saw one another every day and enjoyed an adult relationship akin to that of brothers and shared a common life.

THE PROPERTY

49. What I have described generically as the deceased’s “family home” should, perhaps, be described more accurately as a residential property now comprising a principal residence building (the original home) standing at the front of the property and, located behind it, another residence (nominally a large “granny flat”) purpose built in 2018-2019 to accommodate the defendant, his wife and their children.

50. The principal residence is a three bedroom house which, the defendant says, is presently inhabitable because it requires extensive renovations. Absent those renovations it is not suitable for letting out to a tenant and, in any event, the defendant proposes that, once renovations are effected, he will live in that house with his wife and youngest child, allowing the two older children to live in the granny flat.

51. The need for renovations arises from the age of the house and the presence of asbestos cladding which led the defendant, after the death of the deceased, to “pull out” the bathroom and the kitchen in the commencement of renovation work put on hold because of these proceedings.

52. When Novalyn first encountered the house in 2016 one room was allocated to the deceased as a bedroom. Another was allocated to the defendant as a bedroom. The third was designated the deceased’s reading room, formerly Shirley’s sewing room.

53. It is, perhaps, best viewed as a “spare room”. That is how the deceased described it to his friend Marilynne Coe when he offered it to her as temporary accommodation, when she was in need of accommodation, in early 2008.

54. She was familiar with the room because, at an earlier time, she had viewed it when supervising a carpet cleaning exercise she organised for the deceased. At that time, she has deposed, there was no evidence that a person was living in the room. There were no clothes, shoes or personal items on show. There was a bed and mattress, but no sheets.

55. That description is consistent with other descriptions of that particular room.

56. The plaintiff’s sister, Cherie, describes the room as containing a “sofa bed”, as does the plaintiff’s daughter Madison. She described it as a seat that would fold out as a bed. It was accompanied by a separate mattress which, when used, was laid on the floor and, when not being used, was stood up against a wall.

57. Madison identified the “spare room” as her father’s room because that is where she and her brother Ryder had “sleepovers” with her father at the deceased’s home when she was a young child. On those occasions she noticed a clothing rack in the same room as the sofa bed with clothes of her father hung on it.

58. When Novalyn first encountered the room she described it as equipped with two bookcases, a tiny couch (which may have been the sofa bed) and various items such as an ironing board.

59. The plaintiff stayed at the deceased’s home only from time to time, and never lived there permanently. His attendance there was more in the character of a casual visitor, a guest, with a family connection. The room objectively bore the character of a “spare room” rather than the plaintiff’s “bedroom”. It was, on the evidence, never dedicated as his room in any way similar to the bedrooms dedicated to the deceased and the defendant. It was available for use by other visitors and for general use.

60. When Novalyn arrived with Lei Jen and José Carlo in April 2018 to co-habit with the defendant and the deceased the house was not big enough to accommodate all them comfortably, particularly with Ethan on the way.

61. It is a measure of the closeness of the relationship between the defendant and the deceased that they co-funded the construction of the secondary residence (notionally approved as a “granny flat”) to accommodate the defendant, Novalyn and their young family.

62. The defendant (and, I infer, the deceased also) spent a large amount of his savings on construction of the new building without any thought, or concern, about the state of the title to the property, which was in the name of the deceased only. Father and son appear to have been at ease simply to have the new building built, facilitating their common communal interest.

THE PATTERN OF THE PLAINTIFF’S LIFE

63. Whatever the merits of the plaintiff’s claim for a family provision order, it is plain that he has experienced a hard life, some of it imposed upon him by circumstance, some of it self-inflicted.

64. His mother abandoned him as a young child and, he says, rejected his attempt at reconciliation with her as an adult.

65. His father (Michael) was an alcoholic who re-partnered with an alcoholic. He, in time, developed a drinking problem of his own.

66. He says that, as a young boy, he was raped by his stepbrother and a friend of his stepbrother. This experience, he says, prompted an attempt at suicide in 1998 and placement in a psychiatric ward for two weeks. A year or so later, in late 1999, he again attempted suicide and was in a psychiatric ward for another two weeks or so.

67. In 2002 he was involved in a car accident in which he suffered severe injuries which left him hospitalised for a long time. He was charged with negligent driving and lost his license for 18 months. The evidence is entirely silent as to whether or not he pursued a claim for compensation for his injuries but, from the silence, I infer not.

68. His relationship with the mother of his two children appears always to have been, and remains, tempestuous. They remain on good terms but accept that they cannot live together amicably, as their daughter Madison has testified.

69. The plaintiff has not worked since the time of his 2002 car accident. He has been the recipient of Centrelink benefits since that time. He has been on a disability support pension since July 2008.

70. He says that in 2015 he was diagnosed as suffering from schizophrenia. His GP of 20 years (Dr Robert Ng), in a report dated 31 July 2024 which overreaches a medical opinion into the realm of advocacy based upon what he appears to have been told by the plaintiff, attributes to the plaintiff “mental health issues … related to significant trauma when he was young”. The plaintiff says that Dr Ng has been treating him for, among other things, anxiety, bipolar disorder, schizophrenia and insomnia.

71. Whether related to his mental health issues or not, the plaintiff concedes that from 2005 to 2015 he was charged with assault around six to seven times and pled guilty every time. Those charges, he says, resulted from fights he had on the street or road rage incidents. He received good behaviour bonds or was ordered to do community service for these offences.

72. On 17 December 2021 the incident occurred that led to the plaintiff being charged with an assault on the defendant and his subjection to an apprehended domestic violence order.

73. The plaintiff’s affidavit affirmed on 2 October 2024 includes the following paragraph:

“In late 2022, my girlfriend at the time …, wrongly accused me of assaulting her. I was arrested and my bail was refused. The police withdrew the charges after six weeks and released me as … admitted that the assault allegations were not true”.

74. In summary, the plaintiff has generally lived the unsettled life of a drifter, moving between different places of residence. He has, nevertheless, leased premises on his own account. Although he used the deceased’s address on some documents he conceded that that was only one of a number of addresses he had from time to time used.

75. The fact that the plaintiff has experienced a hard life may be deserving of sympathy, but it cannot, of itself, justify the making of a family provision order affecting the estate, or notional estate, of the deceased, to whom no blame can attach for the plaintiff’s misfortune in life.

THE PLAINTIFF’S “ELIGIBILITY” TO MAKE A FAMILY PROVISION CLAIM: SUCCESSION ACT, SECTION 57(1)(e)

76. To succeed on his application for a family provision order, the plaintiff must satisfy the Court, inter alia, that he is an “eligible person” within the meaning of section 57(1) to apply for such an order: Succession Act, section 59(1)(a).

77. The plaintiff claims to be an “eligible person” within the meaning of section 57(1)(e), which identifies such a person in the following terms:

“(e) A person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person, or was, at that particular time or at any other time, a member of the household of which the deceased person was a member.”

78. The real question for determination by the Court in the application of section 57(1)(e) in these proceedings is whether the plaintiff was “at any particular time, wholly or partly dependent” on the deceased within the meaning of section 57(1)(e)(i).

79. That is because there is no dispute that the plaintiff is a grandchild of the deceased, that status carrying with it no need for the plaintiff to satisfy the Court that he was a “member of the household” of the deceased within the meaning of section 57(1)(e)(ii).

80. The standing of a grandchild to apply for a family provision order depends upon proof that he or she was, at a particular time, “wholly or partly dependent on the deceased person”. The fact of “dependency” might be informed by whether or not the grandchild was, at some time, “a member of the household” of the deceased, but proof of membership of the deceased’s household is not enough. What is required is proof of a relationship of dependency.

81. In Re Estate Bohar; Bockos v Bohar [2021] NSWSC 1177 I canvassed authorities on the meaning of dependency in the context of section 57(1)(e)(i) and adopted the following general observations of Hallen AsJ in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [52]:

“[52] The [Succession] Act contains no definition of the words ‘dependent on’. In general, the word ‘dependent’ connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.”

82. Those observations remain helpful in dealing with a family provision claim by an adult grandchild.

83. Despite the absence of any need to canvass the question of membership of the household of the deceased, both parties focused more overt attention on that question than on the question of dependency.

84. The forensic imperative of that approach on the part of the plaintiff may have been to bolster his claim to dependency by emphasis on membership of the household in circumstances in which the plaintiff was never in receipt of a regular allowance (or a “stipend”, as counsel for the plaintiff put it) but only received casual financial assistance from the deceased from time to time (even if it was generous, such as when, he says, on two separate occasions, the deceased gave him funds to buy a car).

85. From the plaintiff’s perspective, his claim to membership of the household of the deceased also informs his case on each of section 59(1)(b), 59(1)(c) and 59(2) of the Succession Act, as well as his claim that “special circumstances” (within the meaning of section 88) can be found in support of an order that the estate property distributed to the defendant can be designated as notional estate in his favour.

86. So, was the plaintiff ever a member of the household of the deceased?

87. Taking into account observations made by Hallen J in Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [35]-[51] and by Henry J in Purnell v Tindal**e [2020] NSWSC 746 at [159]-[162], Kunc J made the following observations in Lester v Lester; In the Estate of Dulcie Brown [2020] NSWSC 958 at [150]-[152], which I adopt:

“[150] Neither the word “household”, nor the phrase “member of the household”, are defined in the Act. The words must be given their natural and ordinary meaning in the context in which they appear. I respectfully adopt the observation made by Hallen J in Russell at [38] that the word “household” may be contrasted with the word “house”, with the former having an abstract meaning (as opposed to denoting something physical).

[151] The Oxford English Dictionary defines “household” as “the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc)”. Being a “member of the household” is therefore predicated upon the collective notion of persons “living together” in the same home. Each individual forms a part of and participates, to a substantial degree, in the general life of that household: Benney v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep) at 22, referring to the Full Court of the Supreme Court of Canada’s decision in Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577. Underscored by a sense of unity, intimacy and shared experience, it is evidently the characteristics and dimension of the domestic relation that make it a household: Russell [39].

[152] The concept of being a member of a household thus requires a degree of continuity and permanency of mutual living arrangements: Kingsland v McIndoe [1989] VR 273, per Gobbo J, as cited in Russell at [42]. As observed by Henry J in Purnell v Tindale at [161], the point at which a living arrangement becomes a household is one of degree and it is entirely possible for a person to be a member of two households.”

88. I add, as Henry J observed in Purnell v Tindale [2020] NSWSC 746 at [160], that it is not sufficient for “membership of a household” that a person visit premises on a regular basis without regularly staying overnight.

89. The plaintiff says emphatically that he was a member of the deceased’s household. He claims to have lived with the deceased “from 2003 until late 2015 or early 2016”.

90. The starting point is a period of convalescence in the deceased’s home after release from hospital in recovery from the injuries suffered in his 2002 car accident. The ending point is the prospective arrival on the scene of the defendant’s then fiancée, now wife, Novalyn, in 2015-2016.

91. In between those time posts, the key factor in the plaintiff’s case is his claim to “ownership” of the third bedroom in the deceased’s house, coupled with what was (until December 2021, if not earlier), a genial relationship with the deceased and the defendant in an all-male environment.

92. The plaintiff claims, also, to have attended to routine domestic chores (including cooking, cleaning, maintenance and lawn mowing), and driving the deceased to medical appointments and shopping, as indicators of his membership of the household.

93. On the plaintiff’s case, the fact that he had a transient lifestyle and maintained rental accommodation elsewhere does not, necessarily, mean that he was not a member of the deceased’s household. The multiplicity of his residential connections is, perhaps, confirmed by the fact that the deceased’s address was only one of the addresses he used in dealing with third parties.

94. The plaintiff’s case draws support from each of his sister, Cherie, and his daughter, Madison, both of whom observed that, when they were in attendance, the plaintiff occupied “Nan’s old sewing room” and slept on the sofa bed. Madison, in particular, recalls having enjoyed “sleepovers” at “Pops’s home”.

95. Cherie adds to the picture by her observation that “we had a lot of family dinners at the Collingwood Hotel”. That observation perhaps provides an insight into the convivial picture the plaintiff presented of his relationship with the deceased.

96. Although there is no suggestion in the evidence that the deceased himself had a drinking problem, his connection with the pub may have had a social influence on the drinking habits of his sons and the plaintiff, each of whom at one time or another did drink too much. On the plaintiff’s evidence, his father Michael was an alcoholic. The plaintiff himself was perhaps overly fond of a drink. The defendant, one time, before his marriage, lost his license for drink-driving offences.

97. The plaintiff’s proposition that he was a member of the deceased’s household is hotly contested by the defendant, whose evidence is supported by the observations of his wife (Novalyn), the deceased’s brother (Brian), the deceased’s friend from the Collingwood Hotel (Marilynne Coe) and two close, long-standing neighbours (Warren Joseph Oldfield and Albert Ronald Tumeth). Each of the defendant’s supporting witnesses had ample opportunity to observe the occupants of the deceased’s home. To their observation, the only occupants were the deceased and the defendant, not the plaintiff.

98. Marilynne Coe met the deceased when she had a part time job there and he was a patron of the hotel.

99. The affidavit affirmed by her on 4 November 2024 contains the following paragraphs:

“[5] Wally [the deceased] was my first customer at the hotel. Over time, Wally and I developed a very close friendship which continued until his death.

[6] After I finished working at the Collingwood Hotel in 1995 our friendship continued. I visited Wally at his home [at the Property] on a regular basis.

[7] My memory of this is that I visited him once or twice a month and I would catch up with him on a Friday or Saturday afternoon for drinks at the Collingwood Hotel.

[8] During the period from 2003 to 2016 I did not see any evidence when I visited Wally that his grandson [the plaintiff] was living with him. The only other person who I saw at [the Property] was his son [the defendant] who lived with Wally.

[9] Wally never mentioned to me that his grandson was living with him or indeed that his grandson had been involved in a motor vehicle accident.

[10] On one occasion I asked Wally if he saw his grandchildren much. His reply was, ‘Very rarely did I [see] them’. If I recall correctly, ‘usually at Christmas only or on other special occasions’.

[11] During this period, I hired a carpet cleaning machine from Kennards to clean my carpets at home. I asked Wally, ‘do you want me to come around and clean your carpets?’ and he said, ‘yes’.

[12] During the carpet cleaning exercise, I noticed that the spare room had a bed and mattress only but no sheets. There was no evidence that a person was living in the room. There was no clothing, shoes or personal items on show.

…

[15] Wally and I had a conversation about money during our friendship. I said to him, ‘I hope you are not keeping any money ‘under the mattress’ as some elderly people do’. Wally replied, ‘certainly not, all my money is in the Bank’.

[16] On one occasion I took him to his Bank in Liverpool as he wanted to withdraw money from his account to pay some bills.”

100. None of the defendant’s supporting witnesses other than Novalyn was cross-examined.

101. The evidence of Marilynne Coe, in particular, is inconsistent with the plaintiff’s evidence that he maintained a presence in the deceased’s house and that the deceased habitually kept at home large amounts of cash from which he, from time to time, provided financial assistance to the plaintiff.

102. On the whole of the evidence, I cannot be satisfied that the plaintiff was ever a member of the deceased’s household. He may have been a welcome visitor until his altercation with the defendant on 17 December 2021 but he never held an established position as a member of the household. Until the arrival of Novalyn and her children, membership of the household was confined to the deceased and the defendant. The fact that the plaintiff may, from time to time, have occupied the spare room as his individual space did not deprive it of the status of the deceased’s spare room or elevate him beyond the status of a casual guest.

103. In my assessment, the plaintiff’s claim to membership of the deceased’s household adds nothing to his claim to have been financially and emotionally dependent on the deceased for the purpose of the Succession Act, section 57(1)(e)(i).

104. With Kunc J in Lester v Lester; In the Estate of Dulcie Brown [2020] NSWSC 958 at [143], I adopt the following observations of Henry J in Purnell v Tindale [2020] NSWSC 746 at [153]-[156]:

“[153] The question of whether a person is wholly or partially dependent on another is a question of fact: Spata v Tumino [2018] NSWCA 17 at [68].

[154] In its ordinary sense, dependency means the condition of depending on something or someone for what is needed. The whole relationship must be considered to determine whether there is dependency, considering past events and future possibilities: Ball v Newey (1988) 13 NSWLR 489 at 491, cited with approval in Spata v Tumino [2018] NSWCA 17 at [68] and [78] (Payne JA).

[155] Dependency is not limited to purely financial or material matters, although it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough: Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347; Skinner v Frappell [2008] NSWCA 296 at [85].

[156] Reliance on someone for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence: Spata v Tumino [2018] NSWCA 17 at [82]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109]-[111].”

105. In my opinion, the plaintiff was never, at any particular time, wholly or partly dependent on the deceased. On one view, the closest he comes to such a finding is his convalescence at the home of the deceased for about a month after he left hospital following his car accident.

106. From the time of his accident he received Centrelink benefits. He did not receive any form of regular allowance from the deceased even if, from time to time, he received financial assistance by way of casual gifts.

107. The evidence upon which the plaintiff relies in support of his claim of dependency amounts, in summary, to evidence that he “lived with Pop between “around August 2003” and “late 2015 or early 2016”; that whenever he was “short on money” he would ask Pop for “some money” and Pop would “always” give him cash from a large store of cash estimated to be “about $100,000” (allegedly) held in his bedroom; that Pop paid for all groceries and gave him money for fuel “when he needed it”; that Pop cooked for him and he cooked for Pop; that in 2009 Pop gifted him $14,000 to buy a car, from cash held by Pop in his bedroom; that in 2014 Pop gifted him $15,000 to buy a car, again in cash from his bedroom; that, having moved out of Pop’s house in late 2015 (at the insistence of the defendant) anticipating the arrival of the defendant’s family, he stayed in Pop’s house for two weeks in 2017; and, in his early years, Pop gave him love, attention, protection and advice and provided him with a “safe place” when “life at home was difficult”.

108. In my opinion, even if accepted this evidence falls short of proof of (financial or emotional) dependency on the deceased. In large measure it suffers from the same deficiencies as the plaintiff’s claim to have been a member of the deceased’s household throughout the years between 2003 and 2016 or thereabouts. It suffers also from very substantial doubt about whether the deceased ever kept a large amount of cash in his bedroom, contrary to what the deceased said to Ms Coe and the evidence of the defendant. That the deceased provided financial assistance to the plaintiff from time to time on a casual basis may be accepted, but that can be accounted for simply on the basis that the plaintiff was a grandson without a finding of “dependency”. The plaintiff’s transient life, and the relationships he maintained outside any relationship with the deceased, point away from any dependence upon the deceased.

109. The plaintiff was never “wholly dependent” on the deceased. The hospitality shown to the plaintiff and the casual financial assistance given to him by the deceased, in my opinion, were not “more than minimal” so as to qualify as “partial dependency” within the meaning of the Succession Act, section 57(1)(e)(i): McKenzie v Baddeley [1991] NSWCA 197 at [4]; Alexander v Jansson [2010] NSWCA 176 at [13]; Chisak v Presot [2022] NSWCA 100 at [47].

110. I accept that section 57(1)(e)(i) should be given a liberal construction; that a finding of dependency is a gateway for the Court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent’s estate (section 59(1)(b)) and, if so, whether provision ought to be ordered (section 59(1)(c)); and that the degree of dependence for a particular period of time may be relevant to those issues.

111. But, if section 57(1)(e) is to be effective as a “gateway” (as described by White JA in Chisak v Presot [2022] NSWCA 100 at [57]) it must have some content and be assessed on the whole of the evidence in the particular, fact-sensitive circumstances of each case. That the deceased was hospitable and even generous towards the plaintiff as a grandchild does not carry with it a finding that the plaintiff was “wholly or partly dependent” on the deceased.

112. I am not satisfied that the evidence establishes that the plaintiff is an “eligible person” within the meaning of section 57(1)(e) of the Succession Act with the consequence that, I am not satisfied of the jurisdictional requirement of section 59(1)(a) for the making of a family provision order in favour of the plaintiff.

113. That determination, of itself, requires that the plaintiff’s summons be dismissed.

RESIDUAL ISSUES

114. Against the possibility that I am in error in not finding that the plaintiff is an “eligible person”, I make the following observations about residual issues.

115. In my opinion, there are no “factors warranting” the plaintiff’s application for a family provision order within the meaning of the Succession Act, section 59(1)(b).

116. Conventionally, “factors warranting” are taken to be factors which, when added to facts which render the plaintiff an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased: Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Chur**ton v Christian (1988) 13 NSWLR 241.

117. The headnote to the report of the Court of Appeal’s judgment in Chapple v Wilcox (2014) 87 NSWLR 646 encapsulates statements of principle relevant to the current proceedings:

“(1) When determining whether a family provision order under the Succession Act 2006, is to be made to override the express wishes of a testator the Court is to have regard to perceived prevailing community standards or expectations of what is right and appropriate. Those standards are to be ascertained according to the circumstances of the particular case. These include the size and nature of the estate, the claimant’s financial position, and the circumstances and needs of other claimants with legitimate claims to the estate. …

(2) Under prevailing community standards a grandparent has no responsibility to make provision under a will for a grandchild. No family provision order is appropriate unless there are factors other than the grandparent/grandchild relationship positively indicating such responsibility. These may include special closeness going beyond the affection naturally occurring between grandparents and grandchildren. …”

118. Viewed in the context of the claims on the bounty of the deceased by the defendant (and, incidentally, the family of the defendant), I am not satisfied that the plaintiff can properly be regarded as a natural object of testamentary recognition by the deceased beyond that given to him, as a default beneficiary, in the will of the deceased.

119. In my opinion, upon a consideration of section 59(1)(c) of the Act, the deceased was under no duty to make provision for the plaintiff in competition with the claims made on his bounty by the defendant and, through the defendant, the defendant’s family. As a “general rule” (upon an assessment of community standards that inform considerations of wisdom and justice) a grandparent does not have a responsibility to make provision for a grandchild, particularly an adult grandchild (Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113], explained and applied in Chapple v Wilcox (2014) 87 NSWLR 646 at [17]-[21] and [65]-[67]) and, although the “general rule” is not to be elevated to a rule of law or discretion or otherwise treated as a gloss on the statute, the facts of the present proceedings lend themselves to the conclusion that the deceased had no responsibility to make provision for the plaintiff, albeit that the plaintiff has had a hard life. The deceased’s judgement in the execution of his last will should be respected, informed as he was of the plaintiff’s personal circumstances and the claims of others on his bounty.

120. Upon a consideration of whether an order should be made for designation of property as notional estate, I would not have been inclined to make such an order having regard to the importance of not interfering with the reasonable expectations of the defendant in relation to the property, and the justice and merits of the competing claims of the plaintiff and the defendant, not regarding the plaintiff’s impecuniosity, disability or straitened circumstances as sufficiently “special” to warrant the imposition of a substantial economic burden on the defendant and his family.

121. Had I determined that the plaintiff is an eligible person, that there are factors warranting his application for a family provision order and that some provision ought to have been made for him out of the estate or notional state of the deceased, I would have made an order under section 58(2) for an extension of the time within which the plaintiff’s application could be made, bearing in mind that the application for an extension of time was not strenuously opposed and the defendant did not identify prejudice associated with an extension of time.

122. In ordering that the summons be dismissed, I am conscious that the plaintiff is impecunious and, rightly or wrongly, had an expectation that he would receive an inheritance from the deceased. I am equally conscious, however, of a need to respect the considered judgement of the deceased embodied in his last will with knowledge of the personal circumstances of the plaintiff and those of the defendant and the defendant’s family.

123. In my opinion, on the whole of the evidence before the Court and taking into account community standards about succession to property within an extended family, the deceased’s will not only reflects his considered testamentary intention but also accords with what a just and wise testator in his position would have done. He was under no legal, moral or social obligation to make a testamentary provision for the plaintiff at the expense of the defendant (and, incidentally, the family of the defendant) with whom he was living in close community within a settled family environment.

124. The will did not ignore the plaintiff’s interests but subordinated any claim the plaintiff may have had on his estate to the interests of the defendant (who had a clear claim on his bounty) and treated the plaintiff no differently from other grandchildren, including the children of the defendant.

125. The misfortune the plaintiff has experienced in life cannot be laid at the feet of the deceased or, without establishing the statutory criteria for a family provision order, used as justification for the making of such an order.

CONCLUSION

126. Subject to allowing the parties an opportunity to make submissions about costs, I propose to order that the plaintiff’s summons be dismissed with costs. Prima facie, costs follow the event: Chapple v Wilcox (2014) 87 NSWLR 646 at [25]-[27], [119]-[123] and [136]-[143].

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Addendum

On publication of these reasons for judgment counsel for the defendant announced his instructions that the defendant seeks no order for costs of the proceedings. Accordingly the only order made to give effect to the reasons for judgment is that the summons be dismissed.