SS 59 and 60 of the Succession Act
29The precise approach to be taken to s 59 and s 60 of the Act has engendered much judicial attention in this Division since Andrew v Andrew [2012] NSWCA 308 ("Andrew") given Basten JA's view that the approach taken by the High Court in Singer v Berghouse (1994) 181 CLR 201 is not binding on the Court of Appeal because it was dealing with differently worded provisions in the former legislation, a view which was not shared by Barett JA in Andrew, who cited a unanimous decision of the Court of Appeal in Keep v Bourke [2012] NSWCA 64 in support of his view that Singer v Berghouse and Vigolo v Bostin (2005) 221 CLR 191 applied to ss 59 and 60 of the Act. The recent decisions are collected in Dodds v Dodds [2013] NSWSC 1933 per Hallen J to which should be added the view of Bergin CJ in Eq in In the Estate of the late Anthony Marras [2014] NSWSC 915 at [15]. In the present case the deceased made no provision for her adult son, the plaintiff, and I doubt whether the "two stage/one stage" debate is really of any significance here (and I note that Allsop P who formed the majority with Basten JA in Andrew did not actually express a concluded view on the point rather describing it as "an analytical question of little consequence").
30There is however a more significant question in respect of Andrew which is relevant to the task which the Court must perform in applications of this kind.
31To understand the point I need to refer first to Ford v Simes [2009] NSWCA 351 in which Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed, said:
[70] ... The present case is distinguishable from those cases relied upon by the appellant in that this was a unilateral abandonment of a father for 14 years from when he was aged 76 until he died at aged 90 with a single abusive encounter in that period.
[71] It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales [1962] HCA 19; (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.
[72] It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years.
32In Andrew at first instance ([2011] NSWSC 115) at 74 Hallen As J (as his Honour then was) referred the passage from Ford v Simes at [71]. Allsop P noted that the trial judge had referred to Ford v Simes and:
[18] ... Appears to have approached the matter by recognising a species of legal right ("the entitlement") of the testator to make no provision if love and support are withheld "unjustifiably" over a period of many years. This is to concentrate or distil a complex life-long relationship into encapsulated rights of testamentary power and the need of the claimant to justify her conduct. To the extent that it is derived from Pontifical Society v Scales it is the impermissible formation of principle or rule from a particular factual assessment of circumstances by reference to human and societal values. Even accepting it as an approach, like Basten JA, its fulfilment in this case is more than doubtful.
[19] That is not to say that in conducting the assessments in ss 59(1) and (2) estrangement, the reasons therefore, an absence of love, hostility, resentment, and carelessness of the hopes and wishes of another are not all apposite matters for consideration. That enquiry should not, however, be structured or approached by reference to justification in order to displace a testamentary "entitlement" or right in respect of an adult child.
33Basten JA also allowed the appeal rejecting the notion that what had been said in Ford v Simes could be considered as either a factor in specific circumstances "or a principal [sic] of general application" (at [54]).
34Basten JA expressed doubt, at [52], as to whether the daughter's conduct had been so reprehensible as to substantially disentitle her by reducing her share to a nominal sum, notwithstanding her financial needs, and at [57] said:
"Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant".
35Mr Wilson contended that Andrew effectively changes the law in relation to the Court's approach from that which earlier applied and which I summarised, correctly, it was agreed, in Goldberg v Landerer [2010] NSWSC 1431 at [29] to [40] in respect of the earlier legislation. He submitted, that it would be only the most egregious conduct of a child of the deceased (such as murder) (see T63.09-14) that would deprive even an adult child of a right to have his or her needs taken into account by a Court and to have an appropriate provision made in his or her favour where it is established that he or she is impecunious or of very limited financial means. I am unable to accept that proposition for reasons which I shall explain.
36Basten JA did not, as did Allsop P (and Barrett JA) make reference to the need for judges to take into account community standards in assessing what provision should be made. Allsop P put is this way:
"[16] If I may respectfully paraphrase Sheller JA in Fraser at 46, the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made. This, Sheller JA said, referring to Mahoney JA in Kearns v Ellis (New South Wales Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unreported), involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering the application and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This is another consideration which makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court".
and Barrett JA put it this way:
"[95] Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that "community expectations" play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA):
So long as he complies with community expectations and what is sometimes called 'moral duty', the deceased is able to leave his property as he wishes.
[96] In Evans v Levy, the same judge said (with the concurrence of Campbell JA and Sackville AJA):
It was open to the primary judge to form a judgment that the nature of the continuing relationship was not such that it created a moral duty on the deceased to provide for the appellant or that the community would have expected him to do so.
[97] Particularly since the decision of the High Court in Vigolo v Bostin (above), however, concepts of "moral duty" must be approached with considerable care: see Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1 at [25]. But the clear need for the court, in addressing the first-stage question, to recognise community expectations is undiminished. The task is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is and must be the court itself": Kearns v Ellis (unreported, NSWCA, 5 December 1984, BC8400149 at 8 per Mahoney JA)".
37Although Barrett JA was in the minority, having regard to what Allsop P said and to the earlier Court of Appeal authorities, I think I must regard what Allsop P said at [16] and the cases to which Barrett JA referred at [94]-[97] as still applicable to the task at hand.
38As noted in Goldberg at [39] the Court of Appeal has accepted that the FPA was an intrusion into the freedom of testators to leave property to whomever they wish and that:
(1) the Court should accept that testators are, in certain circumstances, entitled to make no provision for children, particularly in the case of "children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": see Ford at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed; and
(2) the Court should not seek to remake the will, but only alter it to the extent that adequate provision is to made for the eligible person: see Alexander v Jansson [2010] NSWCA 176 at [20] per Brereton J (with whom Basten JA and Handley AJA agreed), citing Re Fulop (1987) 8 NSWLR 679 and Stewart v McDougall (unreported, Supreme Court of New South Wales, Young J, 19 November 1987). In a passage in Walker v Walker [1996] NSWSC 188 (approved in Palmer at [111]), Young J (as his Honour then was) said:
"I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at p 19."
39In my view whatever subtle change may have been introduced by the Succession Act the views expressed by the Court of Appeal and set out above are as equally applicable to the Succession Act, and more importantly, neither Allsop P nor Barrett JA in Andrew said anything to suggest that these earlier cases were wrongly decided or not relevant, and if Basten JA did so it was inferentially and without expressly saying so.
40Neither Allsop P nor Basten JA described what had been said in Ford v Simes as wrong. It might well be said that Basten JA was implicitly critical of what had been said in Ford v Simes but Allsop P said this:
[17] In my view, the learned primary judge introduced a consideration that does not lie within the words or purpose of the relevant provisions. The notion expressed by the primary judge at [149] that the Act should be administered in a way to "maintain the integrity of the process", if elevated to an operative principle, does not find its source in the Act. Of course, as Dixon CJ said in Pontifical Society v Scales at 19 and as Bergin CJ in Eq said in Ford v Simes at [71], there may well be cases where a testator is entirely justified in making no provision for an adult child. To express the matter, however, as an operative consideration as "maintaining the integrity of the system" would be to deflect consideration from the circumstances of the case at hand and the application of the words of the statute. I do not read Bergin CJ in Eq in Ford v Simes at [71] as doing more than emphasising the evaluative choice made in that case, or introducing any principle of entitlement or right of the parent and justification by the offspring.
41I think that the majority in Andrew are to be taken as rejecting the notion that the Court should start with a "principle" that a testator is free to provide nothing for an adult child. Whether or nor that conclusion is inconsistent with earlier authority is really a matter for the Court of Appeal to itself decide - since Andrew is the latest case on the topic I think I am bound to accept that I must not treat the statute as containing any such principle. As Allsop P makes clear that that approach does not make absence of love, hostility, resentment and carelessness of the hopes and wishes of another as inappropriate for consideration.
42I do not accept that Andrew stands for the preposition that all that is required for an adult child to have a provision made in his or her favour is to prove the relationship and the fact of need for financial assistance. That proposition is inconsistent with Dolman v Parker [2005] NSWCA 361 and regard should also be had to what was said in Vigolo v Bostin (2005) 221 CLR 191 at [13]-[25] per Gleeson CJ, and Callinan and Heydon JJ at [113]-[121].
43I approach the matter on the basis that I must address the following questions:
(1)Is the plaintiff an eligible person?
(2)If the answer to (1) is yes do (d), (e) or (f) apply?
(3)As at the present time has adequate provision for the proper maintenance education or advancement in life of the plaintiff been made by the will, but viewing the situation as at the date of the hearing not the date of the will or the date of the testator's death.
(4)If the answer to (1) and (3) is yes ((2) is not relevant) ought the Court make a family provision order? And if so, in what amount?
44In considering question (4) I can take into account the matters in s 60(2)(a)-(p) in forming a view, and in considering the significance of 60(2)(j) and (m) I must bear in mind the caution directed by Andrew.
45The answer to (1) is yes and the answer to (2) is no. Since no provision was made for the plaintiff I shall answer question (3) "No" and deal with the first factual issue identified earlier as arising under the fourth question.
46I shall deal in the following paragraphs with each of the matters referred to in s 60 (2)(a)-(p).
(a)The plaintiff is the son of the deceased and the answer to 24 is yes. Until 1991 the plaintiff had a normal loving relationship with his mother.
(b)The deceased had no obligations or responsibilities to the plaintiff.
(c)The estate has a net value of approximately $1.3 million.
(d)The plaintiff does not own his own home (and nor does his wife). He has no superannuation. He and his wife were made bankrupt in 2010 following the collapse of a bed and breakfast establishment with him owing $465,000. He was discharged from bankruptcy in 2013. I accept that the plaintiff is not working full time and although I think that Mr Ellison's cross-examination exposed the possibility of the plaintiff earning casual income he is 69 years of age and I do not think he ought be deprived of any provision merely because he is not working (other than in a limited capacity for a small nursery business that he and his wife operate).
(e)The plaintiff is married and his wife's financial circumstances are no better than his it would appear from his evidence.
(f)The plaintiff was in 1989 diagnosed with depression and from which he continues to suffer. As Mr Ellison pointed out he has had the condition for many years and it has not prevented him from working. His wife suffers from bipolar disorder.
(g)The plaintiff is 69.
(h)The plaintiff gave no evidence of having contributed anything to the estate of the deceased or her welfare save that he paid her $50 a week for a period of time in 1989 after separation from Christine and before his marriage to Anne in return for which the deceased essentially provided him full board. He did take his mother to see his father at Aldersgate Nursing Home where the father was, in his later years, residing until his death in 1990.
(i)No provision has been made to the plaintiff by the deceased whilst she was alive.
(j)I have set out the clearly expressed intention of the deceased.
(k)The plaintiff was not in any way being maintained by the deceased before her death
(l)No other person is liable to support the plaintiff other than the Commonwealth Government which it does by providing a pension to the plaintiff and his wife.
(m)I shall deal separately below with the character and conduct of the plaintiff.
(n)There was an attempt on the part of the plaintiff, at least in Mr Wilson's cross-examination, to suggest that it was Alan who had come between the plaintiff and the deceased, which I shall also deal with below.
(o)The plaintiff is not of Aboriginal or Torres Strait heritage.
(p)Any other matter. I also regard it as relevant to have regard to the extensive care and support that the defendant and Diana gave to their mother in stark contrast to the plaintiff and the very positive relationship they had with her throughout their lives. I think it is of some, albeit limited, relevance that the deceased gave a legacy of $100,00 to the plaintiff's son.
47I regard (a)-(e), (i) and (l) as of assistance to the plaintiff's case, (g), (h), (j), (m) and (p) as detrimental to the plaintiff's case and (f), (k), (n) and (o) as matters irrelevant in these circumstances or of no assistance to the plaintiff.
48I proceed on the basis that the plaintiff has limited financial means. I also proceed on the basis that if a provision of the kind sought by the plaintiff were made for the plaintiff the defendant and his sister would still be quite comfortable. It was agreed by the estate that if any provision were to be made out of the estate Stephen's legacy would not be affected.
49Mr Wilson, in dealing with the cause of the estrangement made the following points:
(1)That when the plaintiff told the defendant that he was not inviting any o the family including the deceased to his wedding to Anne it was misinterpreted by the family.
(2)That there was a misunderstanding between the plaintiff and the deceased at the bowling club. Mr Wilson put it this way:
"He thought mum had turned her back on him, she felt he's left without speaking to her and it went on a false premise. And in the middle of it, his brother Alan Burke, saying to mum his brother says he wants to start a new life and he is really putting us all behind him" (T57.36).
(3)The deceased should not have sat back and waited for the plaintiff to contact her.
(4)He tried to reconcile with his mother three years before her death, by contacting the nursing home for the purpose of seeking to foster a relationship with his mother (see T57-59).
50I note that the plaintiff did not really explain why he had cut himself off from the family - it is possible that he was hurt that the family were fond of Christine or not encouraging of his decision to marry Anne so soon after his divorce but if I am able to infer that either or both of those matters are the reason it does not lead to the conclusion that the deceased or his siblings were "at fault" and therefore must take some responsibility for the estrangement, as Mr Wilson submitted.
51I do not accept the contention that what was said by the plaintiff was misinterpreted and nor do I accept as a cause of the rift that the deceased, or the family, shunned the plaintiff as the plaintiff seemed to suggest in the passage set out at 25.
52I agree that the plaintiff may have wrongly inferred that his mother was snubbing him at the Club but it appears that that incident was only a part of the problem which included a declared intention of the plaintiff to lead a separate life without his blood relatives (and not just his mother). He already decided not to invite the deceased to his wedding and had what he describes as a difficult conversation with his mother when he rang from Greece and there was already a withdrawal on his part at the wake and the Christmas dinner. In my view the plaintiff's expressed desire to live a life without the deceased of his family members, and his acceptance of the proposition that he shunned the family including his mother, coupled with his complete lack of contact with her and his siblings makes the Club incident of far less significance than it might have been.
53I do not think that any criticism can be levelled at the deceased for "holding back" or not initiating contact. There is evidence that she sought to ascertain the cause of the plaintiff's apparent ill feeling or dissatisfaction with her and that he would not reveal to her the cause. Nor would he reveal the cause to the defendant. The fact that the plaintiff did not attend his son David's funeral was seen as a significant matter by the deceased and the fact that he had no contact even with Diana, with whom on no view of the matter he had any basis for grievance is likely to have reinforced the view that the plaintiff had decided to cut himself off from all of his relatives for reasons that involved no conduct calling for criticism on their part.
54There was an attempt, at least through the cross-examination, to lay blame on the defendant for having "warned the plaintiff off" from contacting the nursing home. The defendant's view, shared by Diana, was that the plaintiff's contact was distressing to their mother. Their perception was that the plaintiff's only concern was that he was facing bankruptcy and wanted to find out if his mother was still alive because he anticipated some benefit under the will. The plaintiff has not persuaded me that their perception was wrong. I think that the defendant and Diana were entitled to take the view that they did and I infer that the deceased was of the same view and upset that the only time her son enquired of her well being (without actually seeking to speak to her) was when he was in financial difficulty. I do not accept Mr Wilson's contention that the evidence supports the conclusion that the plaintiff attempted a reconciliation with the deceased (or any member of the family except his son Stephen).
55Insofar as Mr Wilson, through cross-examination of the defendant and submissions, sought to criticise the defendant for having asked the plaintiff to apologise to his mother after the Club incident I do not agree that the criticism is justified. The defendant understood that his mother was aggrieved by the some aspect of the plaintiff's conduct and sought to encourage the plaintiff to repair that damage. I do not think the defendant or the deceased had appreciated how serious the plaintiff was in his declaration that he wished to have a new life. I do no accept the plaintiff's evidence that the plaintiff said the words which the plaintiff attributed to him and which I have set out at 23 above, not only because the defendant denies it and I have no reason to doubt his veracity unlike the plaintiff, but because it seems highly unlikely that the defendant would have raised such a matter at that time given his mother's good health.
56The evidence demonstrates that the deceased's view that the plaintiff had decided he wanted nothing to do with her or the rest of the family is made out. No rational cause has been identified other than a desire to create a new life without his family as a part of it.
57In my view the deceased was entitled, notwithstanding the fact that the plaintiff was her son, to regard him as a person undeserving of any benefit from her estate whatever his financial circumstances at the time of his application. Having regard to the approach required by Court of Appeal authorities referred to in [36] above, I do not think that members of the community would regard such a view by the deceased as not right or as inappropriate even were the deceased to be aware that her son had fallen on hard times following the failure of his business. Accordingly, notwithstanding the poor financial circumstances and taking all matters favourable to him into account including the size of the estate I think no provision ought be made out of the estate for him.
58I should note that this morning counsel, quite properly and aware that I was intending to hand down judgment this afternoon, jointly drew my attention to the recent decision of Black J in Raiola v Raiola [2014] NSWSC 967 in which his Honour refused to make a provision to an adult son and daughter having regard to a number of matters including inadequacy in the evidence of one of the claimants, as to her present financial position, the state of a property and other matters: see [51]. Mr Wilson SC indicated that if I intended to dismiss the summons on the basis of Raiola he would like an opportunity to make submissions. I have reached my conclusion as to the outcome of the case without reliance on Raiola.