Clarke v Clarke & Anor

(No 2) [2012] NSWSC 35 Hertzberg v Hertzberg [2003] NSWCA 311 Ibrahim v Nasr [2021] NSWSC 1321 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Johnson v Wright [2012] NSWSC 87 Kay v Archbold [2008] NSWSC 254 Langtry v Campbell (7 March 1991, Powell J, unreported) Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 Milillo v Konnecke [2009] NSWCA 109 Moore v Moore (NSWCA, 16 May 1984, unreported) Morris v Smoel [2014] VSC 32 Neil v Jacovou [2011] NSWSC 87 North v Daniel [2021] NSWSC 828 O'Leary v O'Leary & Eccles [2010] NSWSC 1347 O'Loughlin v O'Loughlin [2003] NSWCA 99 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Pogorelic v Banovich [2007] WASC 45 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Coventry (Deceased) [1979] 3 All ER 815 Re Crewe, Crewe v Corbett [1956] NZLR 315 Re Schlink; Keane v Corns [2020] VSC 180 Re Stojanovska; Stojevski v Stojevski [2020] VSC 702 Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 Salmon v Blackford [1997] NSWCA 274 Sellers v Scrivenger [2010] VSC 320 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Szypica v O'Beirne [2013] NSWSC 297 Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 Walker v Walker (NSWSC, 17 May 1996, unrep) Welsh v Mulcock [1924] NZLR 673 Wilcox v Wilcox [2012] NSWSC 1138 Yee v Yee [2017] NSWCA 305 Texts Cited: Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) Category: Principal judgment Parties: Robyn Lorraine Clarke (Plaintiff) Todd Raymond Clarke (first Defendant) Michelle Anne Clarke (second Defendant) Representation: Counsel: M Maconachie (Plaintiff) G Rich (Defendants)

Solicitors: Maher Legal (Plaintiff) Stacks Law Firm (Defendants) File Number(s): 2021/322128 Publication restriction: Nil

Introduction

1. These are proceedings to be decided under Chapter 3 of the Succession Act 2006 (NSW) (the Act), which applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. This type of legislation has been described as having been "enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded": Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [2] (Gleeson CJ).
2. By Summons filed on 12 November 2021, the Plaintiff, Robyn Lorraine Clarke, seeks a family provision order, that is an order made by the Court, under Chapter 3 of the Act, in relation to the estate, or notional estate, of a deceased person, to provide for the maintenance, education, or advancement in life of the eligible person, from that estate and for her costs of the proceedings. The order sought is for provision additional to, or in lieu of, that provided for her by the Will of her husband, Mervyn John Clarke (the deceased).
3. The deceased died on 16 April 2021 leaving property in New South Wales.
4. The deceased made a duly executed Will on 17 April 2019, Probate of which was granted, by this Court, on 30 November 2021, to the Defendants, Todd Raymond Clarke and Michelle Anne Clarke. (The Plaintiff was also an executor named in the deceased's Will, but she renounced Probate.) They are the deceased's only children by a prior marriage.
5. I shall refer to the parties, where necessary, after introduction, by her, or his, given name, for clarity, and convenience, and without intending to convey undue familiarity or disrespect.
6. There can be little doubt, principally based upon the affidavit and oral evidence of each of the parties, and acknowledged by each of them, that she, and they, bear some resentment, and some animosity, towards the other. (Todd stated that he no longer held any resentment as he has effectively "moved on": Tcpt, 30 November 2022, p 38(40-47). Even accepting that he has done so, he acknowledged that, for some time, he had harboured resentment towards Robyn. The resentment held was, perhaps, demonstrated in Robyn's evidence of part of Todd's speech at her and the deceased's wedding reception, when he said, "She wasn't welcome in the family, but I suppose now she is" (Affidavit, Robyn Lorraine Clarke, 7 February 2022 at [29]), which statement he said he did not recall making.)

Some formal uncontested matters

1. Robyn's application was made not later than 12 months after the date of the death of the deceased person, so it was made within the time prescribed by the Act: s 58(2) of the Act.
2. 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. As a person who was the spouse of the deceased at the time of his death, Robyn is an eligible person within s 57(1)(a) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased.
3. As the deceased left a Will that dealt with all of his property, there is no scope for the operation of the rules of intestacy, so that it is only necessary, hereafter, to refer to the Will of the deceased.
4. A family provision order may be made in relation to property that is not part of the deceased's estate but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5). "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. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. In this case, the parties do not seek any order designating property as notional estate of the deceased.
5. The only eligible persons, other than Robyn, are Todd and Michelle, who are, now adult, children of the deceased. Neither has made a claim for a family provision order. Each is a beneficiary named in the deceased's Will, and each has filed evidence of his, and her, relationship, respectively, with the deceased and his, and her, financial and material circumstances. I shall refer to the situation in life of each of them, later in these reasons.
6. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though he, or she, 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 his, or her, competing claim, respectively, as a chosen object of the deceased's testamentary bounty.
7. On this topic, what was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46], by Kelly J, should be remembered: "There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his will. (Omitting citations)

The deceased's testamentary intentions

1. There was no evidence that the deceased had made any other Will, including one in which Robyn would be more generously provided for than she was in the Will which was the subject of the grant of Probate. At the outset of the hearing, the Court asked whether any enquiries had been made going to whether the deceased had made any prior wills, with the response that there were no other known Wills: Tcpt, 30 November 2022, p 2(6-10). Thus, the only documentary evidence of the testamentary intentions of the deceased was his last Will, to the contents of which reference will be made.
2. Nor was there evidence that the deceased's instructions for, and the execution of, the Will were rushed because of exigencies then facing him, or that when he made the Will, he was in extremis.
3. Robyn stated that she and the deceased did not regularly discuss his testamentary intentions. She did hear him say that "Robbie will always have somewhere to live" and "she'll always have a roof over her head." However, in cross-examination, she was asked questions about her knowledge of the deceased's testamentary intentions. She agreed that she had known about the deceased's intentions concerning his Will, as they had attended, together, upon the solicitor to give instructions in relation to Wills; that they had been together when the instructions were given to the solicitor; and that they had attended, together, on a second occasion, a few months later, when each of the Wills was reviewed and signed: Tcpt, 30 November 2022, p 16(4-50).
4. (Robyn did not disclose the contents of any Will she had made during her relationship, or marriage, with the deceased, and what, if any, provision, she had made for him in the Will she gave instructions for, and then signed, at the time the deceased had signed his Will.)
5. Robyn also accepted that they had discussed the contents of the deceased's Will, although she asserted that there had been a dispute about his Will. She acknowledged that there had been no conversations about any such dispute referred to in any of her affidavits and that she had not, otherwise, given evidence of any such dispute in her affidavits: Tcpt, 30 November 2022, p 17(1-39).
6. She was not asked any questions, in re-examination, about her reasons for failing to disclose that matter in her affidavits, or about the nature of the alleged dispute.

The deceased's Will

1. The deceased's Will was professionally drawn and duly executed. In that Will, the deceased, relevantly: 1. Revoked all former Wills and testamentary acts (Clause 1). 2. Made a bequest of a boat to Michelle and Todd (Clause 3). 3. Made a bequest of any motor vehicle, caravan, furniture, and any money in any bank or financial institution to Robyn (Clause 4). 4. Provided a right of occupation in his property located at Eames Avenue, North Haven, ("the North Haven property"), (described in the Will as "the home") to Robyn, for as long as she wished, or until she ceased to live therein permanently, or failed to pay the rates, taxes and insurance premiums thereon, and to keep it in repair, or if it was required to be sold to repay the loan to the Commonwealth Bank of Australia (Clause 5). 5. Directed that if Robyn no longer wished, or had ceased, to live in the North Haven property, then, at her written request, or if it was required to be sold to repay the loan, it was to be sold and the net proceeds of sale, were to be distributed, in equal shares, to Robyn, Todd and Michelle: (Clauses 5 and 6). 6. He left the residue of the estate, after payment of debts, funeral and testamentary expenses, to be divided, equally, between Robyn, Michelle and Todd (Clause 7).

The nature and value of the deceased's estate

1. It is necessary to assess the value of a deceased's estate as at the date of death and as at the date of the hearing. On 1 November 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule which contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of hearing; 3. the estimated costs and expenses of any property that is to be sold or that has been sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
2. In accordance with the direction, the parties provided a Schedule, dated 18 November 2022, a copy of which was tendered, without objection, at the commencement of the hearing, and marked as Ex JS1. I have taken what follows from the Schedule, and from discussions with counsel during the course of the hearing. (I shall omit, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
3. At the date of death, the deceased's actual estate was estimated to have a gross value of $590,009. The estate was said to consist of the North Haven property ($540,000), monies in bank ($9), a boat, with trailer and motor ($10,000) and a car, which Robyn asserted, and which Todd and Michelle disputed, she owned jointly with the deceased ($40,000). The liabilities of the estate, at the date of death, were said to be the debt, secured by mortgage, registered over the North Haven property ($60,450) and unpaid administration costs ($8,000): Tcpt, 30 November 2022, p 2(35-45). It follows that the value of the net estate, at the date of death, was $521,559.
4. At the date of the Schedule, the estimate of the gross estate was $660,009. The estate was said to consist of the North Haven property ($650,000), money in bank ($9), and the boat, with trailer and motor ($10,000). The liabilities of the estate, at the date of the Schedule, other than the costs of the proceedings, were said to be the amount secured by the mortgage registered over the North Haven property ($65,437), the unpaid administration costs ($8,000) and the costs and expenses of sale of the North Haven property (approximately $23,300).

Costs of the Proceedings

1. 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.
2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, be paid out of the estate. The value of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual orders.
3. Every effort was made, by the Court, to encourage the parties to resolve the proceedings. A judicial settlement conference, in lieu of a mediation, was conducted on 3 March 2022, at which the Court reminded the parties of what has been written in many cases, by other judges, and by me, in the context of a claim for a family provision order, that they 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: 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]; North v Daniel [2021] NSWSC 828 at [82].
4. In addition, the legal representatives, probably unnecessarily, were requested to ensure that the party each represented, was encouraged to compromise, was informed of the desirability of compromise, and that each of them was made fully cognisant of the hard realities of costs when considering whether to continue the litigation: Bassett v Bassett [2021] NSWCA 320 at [34]-[35] (Bell P, Leeming and Payne JJA).

Background Facts

1. It is next convenient to set out some background facts that are not the subject of any dispute between the parties. Despite the large number of affidavits (11), most of these facts are largely uncontroversial. To the extent that any are in dispute, what follows should be regarded as the findings of the Court. These facts, at least, are to be considered, with others, in reaching the decision to which I have come.
2. The deceased, at the time of his death, was 82 years old.
3. The deceased was first married to Hazel Grace Clarke in October 1962. She died, in June 1995, at the age of 53 years.
4. There were two children of the deceased's marriage to Hazel. Michelle was born in April 1963 and will be 60 years old on her next birthday. Todd was born in March 1965 and will be 58 years old on his next birthday. Each gave evidence that he, and she, grew up in a happy, stable, and loving family environment.
5. The deceased worked in the construction industry as a Project Manager and would often be away from home, other than on weekends.
6. Very little evidence was provided by Robyn about her life before she met the deceased. Robyn was born in October 1947 and is, currently, 75 years old. She was married, but her marriage ended in divorce on a date not disclosed in the evidence. There were two children of the marriage, both of whom are now adults: Tcpt, 30 November 2022, p 20(26-39). Neither of her children played any role in the proceedings.
7. Robyn was at the date of the hearing retired from paid employment. She described her previous occupation as being that of "an office worker": Tcpt, 30 November 2022, p 14(19-20), although she also said that she had worked in a retirement village.
8. The deceased received the North Haven property, as a gift from his mother in December 1991, some four years before the commencement of his relationship with Robyn. After their relationship commenced, Robyn and the deceased would stay there at different times.
9. The deceased and Robyn commenced a relationship in October 1995, and they were married to each other on 23 September 2004. Robyn said that the relationship began slowly, and the process of coming to live together was a gradual one, with each of them living at her, and his, own residence, although they would often stay at the home of the other. She also asserted that she moved into the North Haven property on a full-time basis in about 1999. She recollected that she moved there shortly after she had attended the funeral of the deceased's brother. It was then an old fishing shack that was quite run down. Over time, the Plaintiff and the deceased renovated the North Haven property.

The broad outline of submissions

1. The principal questions for the Court to determine are: 1. Whether, at the time when the Court is considering the application, adequate provision for Robyn's proper maintenance or advancement in life has not been made by the deceased's Will: s 59(1)(c) of the Act? 2. If so, what, if any, order for provision out of the estate of the deceased ought to be made for her maintenance or advancement in life, having regard to the facts known to the Court at the time the order is made: s 59(2) of the Act? 3. What costs order, if any, should be made?
2. In summary, counsel for Robyn, initially, submitted in writing: "34. The Deceased owed a moral duty to Robyn to provide for her after his death. The Deceased's will did not adequately provide for Robyn. 35. Further provision is required in order to adequately provide for Robyn. Transfer of the Property to Robyn would enable Robyn to be housed. She would then be able to refinance so as to discharge the current mortgage and pay reasonable costs of these proceedings. Given Robyn's contributions to the Deceased in terms of both loving support and financial means, transfer of the Property to her would be appropriate."
3. Thus, the provision that Robyn has continued to seek is, in the events that have happened, the whole of the proceeds of sale of the North Haven property owned by the deceased. During her evidence and the oral submissions of counsel, I formed the impression that her claim was incapable of modification. Indeed, she gave the somewhat implausible, and surprising, evidence that assuming the North Haven property had to be sold, she had not thought about what she might do and that she had not found out what it might cost to buy a house.
4. Furthermore, during her oral evidence, Robyn seemed to maintain what seemed to be an unrealistic view that, despite her, apparently unsuccessful, attempts to do so prior to the hearing, she may still be able to obtain a reverse mortgage, from a third party, that would yield a sufficient sum to enable her to pay all of the expenses and costs that were required to be paid. She asserted in cross-examination that she had not agreed to the sale of the North Haven property: Tcpt, 30 November 2022, p 6(36)-7(17); 18(14-21); 21(8-36).
5. In final submissions, her counsel submitted that "the plaintiff readily accepts that she hasn't inspected properties of the type that, in my submission, are appropriate for her because of the uncertainty of what was happening": Tcpt, 30 November 2022, p 41(10-13). When pressed, he submitted that "the evidence of what she actually needs is a place that she can own, as she's always owned". (Presumably, counsel meant "like that she had lived in" since she had never owned any share of the North Haven property and the deceased made clear that she would not do so on his death.)

The Statutory Scheme

1. There was really no dispute about the legal principles that apply. However, for the benefit of the parties, I shall discuss the principles.
2. The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person. As stated, there is no dispute about her eligibility.
3. Then, as Robyn has established eligibility, the Court must next determine, relevantly, whether adequate provision for her proper maintenance, education and advancement in life has not been made by the will of the deceased (s 59(1)(c)). It is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. Thus, the Court has a discretionary power to interfere with a testamentary disposition if satisfied that the requirements set out in s 59 of the Act have been met.
4. Relevantly, in this case, other than by reference to the provision made in the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance or advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, on the one hand, and to the requirement, in this case, for maintenance and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.
5. In Grey v Harrison [1997] 2 VR 359, Callaway JA observed, at 366-367: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

Applicable Legal Principles

1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.
2. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, in relation to the former Act, that it is not appropriate to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong felt, by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.
3. Windeyer J in Blore v Lang (1960) 104 CLR 124 at 137; [1960] HCA 73, commented: "The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case."
4. In Cooper v Dungan (1976) 50 ALJR 539; (1976) 9 ALR 93, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".
5. Callaway JA (Tadgell and Charles JJA agreeing) in Grey v Harrison at 366 observed about testamentary freedom: "… it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s. [59, Succession Act] the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. …"

Additional Facts

1. I next set out the additional facts that I am satisfied are either not in dispute, or that have been established by the evidence. I do so by reference to s 60(2) of the Act.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. The relationship between Robyn and the deceased was that of wife and husband. At the time of the deceased's death, they had been married for over 16 years, but their relationship, otherwise spanned approximately 25 years. There were no children of their marriage.
2. I am satisfied that their relationship was close and loving. They lived together in the North Haven property for about 18 years. The relationship between them appears to have been one of love, affection, mutual dependence and support. Indeed, there were no submissions to the contrary and no cross-examination of Robyn to suggest otherwise.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. Disregarding any obligation, or responsibility, arising as a result of their relationship as spouses, the deceased, on death, did not have any legal, or financial, obligation to Robyn, imposed upon him by statute or common law. However, as set out above, after a marriage of this duration, one could not but conclude that he had both an obligation, and a responsibility, to provide for her out of his estate. This he recognised in the Will that he made.
2. Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased, on death, did not have any legal, or financial, obligation to either of his children, each of whom is an adult, imposed upon him by statute or common law. It is clear that each was financially independent, for many years, before the death of the deceased.
3. Yet, an obligation, or responsibility, to make adequate provision for children, if able to be done, may be recognised in the case of a child of the deceased. In any event, each is a chosen object of the deceased's testamentary bounty and a person recognised by him.
4. Todd gave evidence that he had a close and loving relationship with the deceased. In 1995, his mother passed away from liver cancer. She was 53 years old, and Todd was, then, 30 years old.
5. Todd stated that from 1995 until his death, he had constant interaction with the deceased. They would communicate weekly by telephone, discussing how each was and their mutual interests in greyhounds and horseracing. Todd and the deceased part owned a racehorse, which Todd trained. They would also go to race meetings together.
6. When Todd moved from Sydney to Dunbogan in 2004, he lived only 10-15 minutes away from the deceased. In 2004, when the deceased married Robyn, Todd was the deceased's best man.
7. In addition, the deceased and Todd would frequently go fishing together on one of the deceased's boats. The deceased would also go over to the caravan park at which Todd worked and help with maintenance. They would help each other out when they could.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. I have dealt with this earlier in this judgment. The value of the deceased's estate is modest.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

1. Robyn gave evidence that her assets and liabilities are as follows: Assets Description Estimated value Subaru Forrester 2020 $32,000 Cash in bank $ 6,010 Personal effects and furniture $ 5,000 Total assets $43,010 Liabilities Nil $ 0 TOTAL $43,010

1. She also gave evidence that her monthly expenditure is as follows: Description Amount Home and utilities $ 580 Insurance and financial $ 412 Groceries $ 780 Personal and medical $ 202 Entertainment and eating out $ 137 Transport and auto $ 80 TOTAL $2,191

1. She has a gross monthly income of $2,224, derived from a Centrelink pension. There is a modest surplus of about $34 per month.
2. Robyn's financial circumstances are modest. It appears that as the North Haven property must be sold, she will have no home, little cash and other property with a total value of less than $50,000. At the age of 75, she has no real earning capacity.
3. There was a failure by Robyn to provide precise evidence of the costs of alternative accommodation which she had considered. Although she provided some evidence of the cost of available properties in the North Haven area, in her affidavit of 19 March 2022, these properties do not help the determination of the case as most were either too expensive, were located in a caravan park, or were not adequate and proper in all the circumstances: Tcpt, 30 November 2022, p 43(39-50).
4. In her affidavit of 27 October 2022, Robyn provided additional references to other properties, that were available for sale in the North Haven area. Each of these properties was simply too expensive, bearing in mind the available estate out of which provision could be made for her.
5. She also stated in her affidavit of 27 October 2022 that she had not included any properties for sale that were located in caravan parks as she had never lived in a caravan park, and her experience when staying in a cabin or in a caravan park, or residential village, was that she has not felt comfortable when doing so.
6. In her affidavit made on 19 March 2022, Robyn gave evidence of her borrowing capacity, based on information she had obtained from the Commonwealth Bank. She stated that her borrowing capacity was $54,000, which would require repayments of $299 per month, based on an interest rate of 2.99% per annum.
7. Todd gave evidence of alternative accommodation that may be suitable by way of a guide as to the costs of such accommodation. In his affidavit, affirmed 9 May 2022, Todd indicated that he had conducted research regarding available properties in the Laurieton and Port Macquarie areas. His searches had revealed the following properties: 1. One-bedroom properties in Parklands Retirement Village, Port Macquarie, which were between $151,000-$163,000. These units are serviced apartments which provide meals, cleaning, electricity and water, for the cost of $1,400 each month. 2. A one-bedroom property in Governor's Retirement Resort, Port Macquarie, which was $205,000. This unit was also a serviced apartment which provides meals, cleaning, electricity and water, for the cost of $1,100 each month. 3. Two-bedroom relocatable homes in Riverside Village, Port Macquarie, which were between $215,000-$235,000. These properties also require a weekly site fee of $175 to be paid. 4. A two-bedroom relocatable home in Melaleuca Village, Port Macquarie, which was $239,000. This property also requires a weekly site fee of $151 to be paid. 5. A two-bedroom relocatable home in Brigadoon Caravan Park, North Haven, which was $229,000. This property also required a weekly site fee of $150 to be paid. 6. A one-bedroom relocatable home in Haven Village, Laurieton, which was $178,500. This property also required a weekly site fee of $140 to be paid.

1. Todd accepted, in cross-examination, that he had received the deceased's boat and his fishing gear, which he had taken from the North Haven property.
2. Todd gave evidence that his monthly expenditure is as follows: Description Amount Mortgage payments $3,177 Council rates $ 195 House insurance $ 208 Car registration $ 67 Car insurance $ 43 Motor vehicle running and service costs $ 400 Mobile telephone $ 50 Pay TV $ 130 Electricity $ 180 Food and groceries $ 500 Cigarettes, drinks and alcohol $ 390 Paying off personal loan $ 280 TOTAL $5,620

1. Todd is currently employed as a delivery truck driver by Dorvik Steel, where he has been employed for seven years. His current gross monthly income is approximately $4,597. Stephanie is currently employed as an accounts' administrator at Dorvik Steel. Her gross monthly income is approximately $4,368.
2. Michelle gave evidence (updated orally) that she has the following assets and liabilities: Assets Description Value Telarah property $550,000 2000 Holden Statesman $ 5,000 Bank account $ 2 (approx.) Superannuation $ 41,308 Liabilities Description Value Mortgage $134,485 Personal loan from CBA $ 6,641 TOTAL $455,184

1. Michelle stated that her monthly expenditure is as follows: Description Amount Mortgage repayments $ 943 Council rates and water rates $ 349 House and contents insurance $ 141 Car registration and third-party insurance $ 72 Car insurance - comprehensive $ 51 Motor vehicle running costs $ 240 Mobile telephone $ 70 Electricity $ 70 Food and groceries $ 650 Health insurance $ 225 Personal loan repayments $ 390 Gifts $ 16 TOTAL $3,217

1. Michelle is currently unemployed and is on Centrelink payments. Her current gross monthly income is approximately $1,276.60. She uses all her unemployment benefits, except for about $80, in covering house payments and repayments of her personal loan. Her partner, Dave contributes the rest.
2. She had been employed as a part time traffic controller between 1997 and 2020 but had been unemployed since February 2020. Since then, she had not even obtained any casual work. She had not looked for other work: Tcpt, 30 November 2022, p 26(37)-27(4).
3. Michelle has been in a relationship with Dave for approximately 22 years. They do not have any children.
4. Dave is currently employed as a truck driver. His current gross monthly income is approximately $6,000, and he contributes approximately $942 per month to the mortgage repayments. He also contributes to the cost of groceries and living expenses.
5. Michelle gave evidence that she lives week to week. She has no formal qualifications and limited assets. She stated that she would like to have a lump sum to enable her to meet the usual unexpected expenses that always occur in life, particularly to meet her living expenses and to meet her future expenses.
6. Her current car is a 2000 Holden Statesman, and she believes that it will not last another five years. She would like a new car or a good second-hand car that is reliable, estimating this to cost approximately $25,000-35,000.
7. Michelle's house is in need of repairs and maintenance. Her house was built in the 1950s and it either needs to be demolished and rebuilt, or it requires full renovation inside and out. The house is falling down as nothing has been done to the house since 1995. She gave evidence that the roof leaks and needs replacing. When it rains, she needs to put a bucket in the hallway as water comes through the ceiling. The weatherboards on the outside of the house are also starting to fall off and need replacing. There are holes on the outside of the house and inside the house.
8. Michelle also gave evidence that she would like to have new furniture as she and Dave are using the same furniture that was in the house when her mother and the deceased owned it. She also requires a new bed as it is very old.
9. She gave further evidence that she has not had a holiday since 1990, and that she may need a hernia operation in the near future. She would like to have funds available to pay out her mortgage and her personal loan.

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

1. Whilst Robyn had been cohabiting with one of her sons, Rodney, because his property was flooded, he has now moved out of the North Haven property and is living nearby, in rental accommodation. Otherwise, she is not cohabiting with any other person.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. Robyn has Type 2 diabetes and in examination described herself as a "troubled diabetic", which she explained meant that her doctors were having difficulty controlling her diabetes due to her high stress levels. Additionally, recently she suffered shingles, allegedly also as a result of stress. Hopefully, the stress from which she suffers will be relieved upon the conclusion of the hearing.
2. On 10 April 2022, she fractured her pelvis and was immobile for eight weeks. She was able to stay at the North Haven property during this period, with assistance from Rodney, and a physiotherapist, who attended upon her for treatment. She had her meals delivered by Meals on Wheels. Neither Rodney nor the physiotherapist gave evidence in the proceedings.
3. At the hearing, Robyn described herself as "very upset" and "a little unwell today": Tcpt, 30 November 2022, p 14(35-37). Despite the health conditions from which she suffers, she rejected the proposition that she should move into retirement, or assisted living, accommodation, because "I'm quite capable of looking after myself": Tcpt, 30 November 2022, p 19(18-19).

(g) the age of the applicant when the application is being considered

1. As stated earlier, at the date of hearing, Robyn was 75 years old.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

1. There were financial contributions which Robyn highlighted in her affidavits. In October 2001, she sold her property in Hamilton for $205,000. She received $86,860 of the proceeds of sale. She asserted that she deposited the whole of that amount into a joint Commonwealth Bank Account that she held with the deceased. She asserted that they used the whole of the amount to renovate the kitchen at the North Haven property.
2. Whilst it is possible that they did so, it seems somewhat unlikely that the whole of the amount was used for that purpose. She also gave evidence that the funds had been used by her and the deceased.
3. In February 2010, she deposited the funds which she received upon termination of her employment (about $9,000), into the joint Commonwealth Bank Account with the deceased. Finally, she said that had deposited into the joint account an amount of $46,000 (deposited over the course of three years) comprising her superannuation and an amount of $24,254 which she received from the sale of shares she held in NIB in 2016.
4. In addition, Robyn stated that she made financial contributions to the deceased's estate by making payments for insurance and rates of the North Haven property, as well as the use of shared funds for the costs associated with the renovations and improvements. She said that she assisted in contributing her manual labour to the renovations and repairs of the North Haven property over many years.
5. Robyn noted that since 2002, she was the sole income earner in their household. If that evidence was intended to mean that she had paid all of the household, and other expenses, that evidence seems implausible.
6. Michelle disputed that Robyn was the sole income earner. She recalled that the deceased was still working in 2002, and that when he retired in 2003, he had approximately $400,000 in superannuation.
7. Robyn also did not dispute that the deceased had also received an inheritance from his mother of $60,000 which was used to renovate the North Haven property: Tcpt, 30 November 2022, p 15(12-14).

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. I have referred to the provision made for Robyn in the Will of the deceased. I have also referred to the contributions made by the deceased.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. I have already dealt with this aspect earlier in these reasons.

(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

1. The deceased and Robyn appear to have pooled their income in order to live. Robyn provided evidence of several purchases she and the deceased made, including a motor vehicle (Subaru Outback) which was purchased in August 1999, an investment property purchased in October 1999, another investment property purchased in April 2004, and another motor vehicle (Toyota Landcruiser) and caravan in 2008.
2. I have otherwise dealt with this aspect earlier.

(l) whether any other person is liable to support the applicant

1. Apart from the Commonwealth government's responsibility to continue to provide her with a pension, there is no other person with a liability to support Robyn.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. I am satisfied that there is nothing in Robyn's character and conduct which impacts upon the provision that ought to be made for her out of the estate of the deceased.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. I am satisfied that there is nothing in Todd's or Michelle's character and conduct which impacts upon his, and her, competing claim on the bounty of the deceased.

(o) any relevant Aboriginal or Torres Strait Islander customary law,

1. This factor was not relevant in these proceedings.

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

1. I am unaware of any other matter that is relevant that has not been dealt with in these reasons. Merely because specific reference has not been made to facts previously identified should not lead to the conclusion that they have not been fully considered.

Determination

1. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below.
2. When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased and consider what he ought to have done, and in this case, actually did, in all the circumstances of the case. The Court treats the deceased as a wise and just, rather than as a fond and foolish, testator: Bosch v Perpetual Trustee Co Ltd; Pontifical Society for the Propagation of the Faith v Scales at 19-20 (Dixon CJ).
3. Effectively, subject to costs, the testamentary scheme of the deceased provides Robyn with one-third of the proceeds of sale of the North Haven property. On present estimates, her share will be less than $150,000. Upon its sale, she will have no place to live.
4. Judged by quantum and looked at through the prism of her own financial resources and needs, adequate provision for Robyn's proper maintenance or advancement in life should be seen as not having been made by the Will of the deceased. As stated above, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
5. The Court also must have regard to the modest value of the deceased's estate and the competing claims of Todd and Michelle, as other chosen objects, of the deceased's bounty, even though each had been financially independent of, and living away from, the deceased for many years prior to his death.
6. I am also mindful of the terms of the deceased's Will in which limited provision, in relation to the North Haven property, was made for her and the legitimate expectations that Robyn must have had in circumstances where she was present, with the deceased, when he gave instructions for, and later executed, his last Will. Respect should be given to the assessment of the deceased who not only gave due consideration to the claims on his estate, but also informed, at least Robyn and Michelle, of his intentions in relation to the distribution of the estate.
7. I am acutely conscious of the fact that Robyn advanced little relevant evidence of the costs of acquiring property, bearing in mind the net value of the deceased's estate, which suited her needs. Nor was there evidence of stamp duty costs, legal expenses on purchase, or removalist costs. Thus, the calculation of the costs of providing for her "needs", was, effectively, unarticulated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022