[2012] NSWCA 308
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523
[2014] SASC 86
Borebor v Keane (2013) 11 ASTLR 96
[2013] VSC 35
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190
[2007] SASC 327
Burke v Burke (No 2) (2015) 13 ASTLR 313
Source
Original judgment source is linked above.
Catchwords
[2012] NSWCA 308
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523[2014] SASC 86
Borebor v Keane (2013) 11 ASTLR 96[2013] VSC 35
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190[2007] SASC 327
Burke v Burke (No 2) (2015) 13 ASTLR 313[2015] NSWCA 195
Carey v Robson (No 2) [2009] NSWSC 1199
Chapple v Wilcox (2014) 87 NSWLR 646[2007] WASCA 235Diver v Neal (2009) 2 ASTLR 89[2009] NSWCA 54
Estate Pascale [2016] NSWSC 443
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635[2010] VSCA 195
Freeman v Jaques [2006] 1 Qd R 318[1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grant v RobertsSmith v SmithRoberts v SmithCurtis v Smith [2019] NSWSC 843
Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep)
Hampson v Hampson (2010) 5 ASTLR 116[2017] UKSC 17
In re Allen (Deceased)[2017] NSWCA 327
McCosker v McCosker (1957) 97 CLR 566
[1957] HCA 82
McKenzie v Topp [2004] VSC 90
Morris v Smoel [2014] VSC 32
Page v Page (2017) 16 ASTLR 331
[2017] NSWCA 141
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
[1962] HCA 19
Purnell v Tindale [2020] NSWSC 746
R (M) v Slough Borough Council [2008] 1 WLR 1808
[2008] UKHL 52
Re Coventry (deceased) [1979] 3 All ER 815
Sam Wardy v Gordon Salier
William Wardy v Gordon Salier
Palffy v Rogan (2013) 85 NSWLR 253
[2013] NSWSC 522
Spata v Tumino (2018) 95 NSWLR 706
[2018] NSWCA 17
Steinmetz v Shannon (2019) 99 NSWLR 687
[2019] NSWCA 114
Stern v Sekers
[2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431
Judgment (19 paragraphs)
[1]
22] NZLR 218
Kay v Archbold [2008] NSWSC 254
Koellner v Spicer [2019] NSWSC 1571
Lodin v Lodin [2018] HCASL 84
Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McKenzie v Topp [2004] VSC 90
Morris v Smoel [2014] VSC 32
Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Purnell v Tindale [2020] NSWSC 746
R (M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Re Coventry (deceased) [1979] 3 All ER 815
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Wilcox v Wilcox [2012] NSWSC 1138
Yee v Yee [2017] NSWCA 305
Texts Cited: "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5
Category: Principal judgment
Parties: Kristi Cooper (Plaintiff)
Lynda Atkin (first Defendant)
Andrew Helgesen (second Defendant)
Vanessa Nyassi (third Defendant)
Representation: Counsel:
L Clarke (Plaintiff)
J A Trebeck (Defendant)
HIS HONOUR: These ruinous, and recriminatory, proceedings concern the estate of Terence Helgesen (the deceased) who died on 18 November 2018 and the claim, by Kristi Cooper, the step-child of the deceased, for a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. The Act 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.
(A claim also made in the Summons, which was, in substance, an application for a mandatory injunction requiring the Defendant to recover property of the estate was not pressed at the hearing.)
Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties and family members, after introduction, by the name used by the family members.
The only Defendant named in the Summons filed on 15 November 2018 was Lynda Atkin, the deceased's sister, who is the sole executrix named in his last Will dated 29 January 2016. However, in an amended Summons, filed on 24 April 2019, Andrew Helgesen and Vanessa Nyassi, were added as Defendants. They are the only children of the deceased. Each received $30,000, distributed after the death of the deceased, and prior to the commencement of these proceedings, out of the deceased's estate.
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. Section 79 of the Act provides that the Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that on, or as a result of, a distribution of the deceased person's estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
[4]
Background Facts
It is next convenient to set out some background facts that I consider were not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.
The deceased was born in July 1938, in Lincolnshire, a county in eastern England, and he died in November 2017, in Port Macquarie, New South Wales, aged 79 years. His sister, Lynda, was born in September 1948.
The deceased married Shirley Plater in 1960 and there were two children of their marriage, being Andrew, who was born in May 1966, and Vanessa, who was born in December 1972. The marriage of the deceased and Shirley ended with a divorce order made in about 1985.
The deceased lived in the United Kingdom but in 1984 visited Australia where he met Kristi's mother, Diane Holmes. Kristi described their meeting and initial relationship as a "whirlwind romance". Shortly after, the deceased returned to England to finalise his affairs.
The deceased and Diane married in February 1986 and remained married until Diane's death in August 2015, almost 30 years later. There were no children of their marriage.
In 1988, the deceased and Diane moved from North Narrabeen to live in Port Macquarie, a coastal town located on the mid-North Coast of New South Wales. They lived there for the remainder of their lives together. In September 1993, they purchased, as joint tenants, land at Clearwater Crescent, Port Macquarie for $70,000, upon which they built a home. They sold this property in 2010 for $392,500, less vendor allowances. After the payment of real estate agent's commission, rates, legal costs of the sale, and a debt ($99,737) to St George Bank, they purchased a leasehold unit in an RSL retirement facility for $207,900. The balance of the proceeds of sale that they received was about $59,000.
Diane ceased working outside the home shortly after her marriage to the deceased. The deceased continued working, as he had done whilst living in England, as a FIFO (fly-in fly-out) worker in the Persian Gulf, until he retired in 2002.
In early 1996, Diane's mother, Eileen Florence Mary Holmes, moved to Port Macquarie. She had been living in a home in Dulwich Hill, which she sold in January 1996 for $205,000. Kristi admits that she received $70,000 from the proceeds of sale, as did Diane.
[5]
The nature and value of the estate
I have taken what follows from a Joint Schedule of Assets, Liabilities and Costs, provided by the parties pursuant to a direction of the Court, which was tendered, amended, and marked as Exhibit JS1, as well as from the discussion about the nature and value of the estate at the commencement of the hearing.
As at the date of death, the deceased's estate was said to consist of property with a total value of $205,428. (I have omitted, and shall continue, to omit any reference to cents. This may explain any apparent arithmetical miscalculations.) The liabilities at the date of death were said to total $7,869.
As at 4 March 2020, the estate consisted almost entirely of cash. An amount was held in a controlled monies account ($90,937) and an amount in the trust account of Lynda's solicitors ($6,593), making a total amount of $97,531. The remaining liabilities, other than the costs of the proceedings, were said to total ($5,489). Thus, the net value of the actual estate, at the date of hearing, was said to be $92,042.
The amounts retained, naturally, did not include the amount of $60,000, which was distributed, equally, to Andrew and Vanessa in May 2018. Nor did it include the amount of Lynda's costs and disbursements said to have been paid out of the estate ($37,301): Tcpt, p 6(28-30). Had all of those amounts not been distributed or paid, the value of the estate, without taking into account the costs of the proceedings, would have been $189,343. If one left out of the calculations, the amounts distributed to Andrew and Vanessa, the gross estate would be about $129,343: Tcpt, p 7(23) - p 8(22).
The estate was of very small value at the date of the deceased's death. It had been of greater value before his death but it appears that almost $100,000 was repaid to the St George Bank to satisfy a debt. Lynda did not know precisely how that debt had been incurred but she believed that the deceased and Diane may have had a reverse mortgage: Tcpt, p 60(37-39).
Lynda confirmed that she would not seek any commission, or percentage, for her pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).
[6]
The Costs of the Proceedings
Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be carefully considered.
In Foley v Ellis [2008] NSWCA 288, Basten JA wrote, at [10]:
"... To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'."
Parties, however, 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: Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA, Habersberger AJA); Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value: Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].
Paragraph 24 of Practice Note SC Eq 7, states that "orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000".
In the present case, the Court made every effort to have the parties resolve the proceedings before significant costs were incurred. As early as 8 March 2019, the Court conducted a judicial settlement conference. (Then, the estimate of Kristi's costs, calculated on the ordinary basis, was $16,000 and the estimate of Lynda's costs, calculated on the indemnity basis, was $22,000.) Even then, the proportion of costs was relatively high.
The legal representatives agreed that the case should be concluded within one day rather than two days, and that is what occurred. Neither Andrew, Vanessa, nor Sasha was required for cross-examination as they would have had to travel from the United Kingdom: Tcpt, p 23(49) - p 24(8). In that regard, this assisted in reducing costs.
[7]
The relationship between Kristi and the deceased
It is clear from the evidence that Kristi and the deceased did not have a close relationship. Kristi acknowledged as much in her first affidavit when she wrote that she "did not have a strong relationship with [the deceased]". She said that she was frightened of him. Her counsel described the relationship as "tense at times". I tend to think that this is an understatement.
Kristi submitted that whilst she attended university between 1989 - 1994 and 2000 - 2005, and at other times, she was dependent on Diane and the deceased for physical, financial and emotional support. Whilst it is likely that she was dependent on Diane for support, I tend to the view, based upon all of the evidence, that any dependency on the deceased was partial, financial only, and limited to the extent that he and Diane would pool their resources. I shall return to this topic later in these reasons.
Kristi accepted that there had been no visits to Port Macquarie between about 2001 and 2011, although she said that Diane would come to visit her in Sydney: Tcpt, p 32(03-15). (For part of this period, Kristi lived overseas, when she was studying at Cambridge, and then Oxford, University.)
There were several occasions, whilst Kristi was in Port Macquarie, when the police were called to a domestic disturbance, and on at least one of these occasions, the deceased was arrested and charged with having assaulted Kristi. On two occasions, first in December 1999, the police were called but "no formal action" was taken. Some two weeks later, in January 2000, the deceased was charged with assault and "actual resist/hinder/assault officer": Affidavit, Kristi Cooper, 13 November 2018 at p 29-30 par 62, Annexure "E".
For a period of about three or four months in 2011, Kristi lived in the small home unit in the aged care facility with the deceased and Diane. However, during this period, again, there was conflict between him and Kristi. On 29 March 2011, Kristi called the police, telling them that the deceased had an undiagnosed mental health condition. She said that she had no fears, and wanted police to "have a word with him". Police recorded a "long seated animosity" between the deceased and Kristi "festering recently due to their close proximity (i.e. their unit is quite small)": Affidavit, Kristi Cooper, 13 November 2018 at p 34 par 62, Annexure "E".
[8]
Relationship of the deceased with the beneficiaries named in the Will
Andrew, in an affidavit affirmed on 13 May 2019, recalls:
"a happy childhood. My father provided a good standard of living for our family, being my mother…and my sister, Vanessa.
I have always been close to my father. I never fell out with him my whole life. His advice was second to none."
Vanessa, in her affidavit affirmed on 13 May 2019, gave evidence that she "was very close with my father even though my parents divorced in 1985". It is not necessary to otherwise repeat her affidavit evidence about the seven different occasions she travelled to Australia and stayed with the deceased and Diane. The closeness of their relationship is demonstrated by the fact that after Diane died, Vanessa, upon her return to the United Kingdom, would speak to the deceased "every Monday".
I am satisfied that the deceased had a close and loving relationship with each of Andrew and Vanessa. I have previously identified the contact that each had with the deceased. No evidence to the contrary was advanced.
[9]
Conduct of Kristi after the death of the deceased
It is also necessary to refer to Kristi's conduct after the death of the deceased. There are a series of emails that demonstrate the strength of her conviction to maintain a claim against the estate of the deceased. Some of the emails do her no credit.
It is convenient to set out the content of those emails below that form part of Exhibit KC1.
In an email to Lynda's solicitor, on 1 March 2018 with the subject line "Estate of Terence Helgesen d. November 2017", Kristi wrote:
"Dear Ms Cooper,
I am the deceased's step-daughter. At your earliest convenience, would you please forward in the above matter to me a copy of the deceased's;
1) Death Certificate
2) Will
3) a 2018 valuation of the Estate.
I also seek an inventory of the household goods of 30/9 Boundary Street, Port Macquarie. I would appreciate a response from your clients as to what your clients have done with my mother's and grandparents' belongings and effects, and where they are after your clients emptied the house.
I place you on notice that your clients have converted my goods, being artworks, souvenirs and other possessions of mine that were with my mother for safekeeping. It is a great pity that your clients could not choose to be kind in their disposal of my family's things and papers and effects, but you and your clients can inform me to the best of their knowledge where things have gone and we can attempt to rectify the damage done which I view as an act of cruelty on the part of your clients.
Please confirm receipt of this email.
If you would prefer a formal letter please advise.
I presume you are still acting for the deceased's sister et al. If this is not the case please advise me accordingly as soon as possible.
Regards,
Kristi Cooper."
Lynda's solicitor, in a reply to Kristi's email, wrote, inter alia:
"As you are not a beneficiary to the Estate, you do not have any prima facie right to receive the documentation that you seek and the Executor is under no obligation to provide this documentation to you.
With respect to the personal items that your believe belong to you, please identify them precisely so that we may properly enquire as to whether or not they were still within Mr Helgesen's possession or control at the date of his death.
We will be in contact with you once we hear from the executor."
A further response was made to Kristi's email, on 6 April 2018:
"…[The Executor] has authorised us to send you a copy of the Will of the late Terence Helgesen together with his Death Certificate.
There is no Inventory of Property as such as there has been no requirement to apply for a Grant of Probate as the estate is small.
In relation to the items belonging to your family which you have previously inquired about, we advise that neither the executor nor ourselves have these items.
We wish you well."
[10]
Situation in life of Kristi
Kristi commenced studying at the University of Sydney for a Bachelor of Arts in 1989, which degree she completed in 1994. She commenced studying for a Bachelor of Laws in 2000, which degree she completed in 2005. Whilst studying at the University of Sydney, she supported herself by waitressing and doing market research for a company.
In 2007, she completed a Master of Philosophy in Criminological Research at Jesus College, Cambridge University and in October 2008, she transferred to Oxford University and studied for her doctorate, until she returned for Diane's funeral in August 2015.
Recently, Kristi has been advised by Oxford University that her Doctoral status has been withdrawn as she did not confirm her enrolment status or apply to defer her studies. She is considering an appeal of that decision.
Kristi does not appear to have assets of any value, except for a savings account ($8,000) and superannuation fund ($5,569). Her liabilities exceed her assets, and her expenses exceed her income. She is in receipt of Newstart allowance as well other supplementary financial assistance, including a mobility allowance (in total $800 per fortnight). She sets out her expenditure which is said to total $772 per week. She has debts of $101,755. (She adds that she has a contingent liability of $30,604 to her former solicitors.)
In her affidavit affirmed 29 January 2020, Kristi states that she is a single person "currently residing in a Legacy aged care village at Port Macquarie". She is unemployed. Her last period of employment was for six-months between June 2018 and February 2019, as a Senior Electorate Officer, for the Queensland Government. She has applied for numerous positions since that time, the most recent of which was as an Associate Lecturer at the Australian National University, for which she was, ultimately, unsuccessful: Tcpt, p 39(20) - 41(44).
In the same affidavit, Kristi attributes her difficulties in obtaining employment to:
"(a) [her] ongoing health issues, including the scheduling of two major surgical procedures with the attendant lengthy periods of rehabilitation; and
(b) the subsequent effects particularly mobility and inability to walk any distance or to stand for lengthy periods; and
(c) the limited opportunities for employment in a regional town such as Port Macquarie which is largely a manual labour…and Retail Services economy; and
(d) [her lack of] a Driver's Licence…"
[11]
Kristi's medical condition
Dr Marion Lynn, Kristi's General Practitioner, in a letter to the Faculty of Law at Oxford University dated 1 October 2018 requesting consideration in reinstating Kristi's candidature, notes that Kristi had undergone a bilateral knee replacement, of her left knee in May 2016, and again in May 2017, of her right knee. Following both operations, Kristi needed "post-operative care and rehabilitation…[and]…strong morphine type medication for chronic pain."
In December 2017, Kristi suffered a pulmonary embolism, again necessitating treatment. That diagnosis was confirmed by a Ventilation Perfusion Scan in February 2018, and with further testing in June of that year.
Following a review at the Gladstone Hospital Haematology Clinic, in October 2018, a letter to Kristi's then General Practitioner, Dr Carol Webster records that although the "precipitants are a little unclear, [her condition] may possibly have been attributed to the surgery some months earlier." That surgery, being the total knee replacement surgery of both knees.
A report to Dr Webster from Dr Jock Simpson, Consultant Haematologist, notes, in terms of medical history, that Kristi has suffered from pneumonia, osteoarthritis, depression, pyelonephritis and hypertension.
As at June 2019:
"…Other symptoms of concern for her include dizziness, nausea, and profound lethargy. She dates the lethargy to her time in Qld, worse on her return.
Kristi's breathlessness has improved. She reports a symptom of sensation of forgetting to (sic) breath.
Kristi is an ex-smoker, quitting 4 years ago, after a 10pack year history. She is a non-drinker…She is in social housing at present, and is frustrated that her health is limiting her ability to support herself."
A Patient Health Summary records that, as at 28 January 2020, Kristi takes a number of medications daily to treat her medical conditions.
[12]
The situation in life of Andrew
Andrew is self-employed as an internet sales person. He is married with five children, aged between about 19 years and 4 years. One of his children is autistic and suffers from Attention Deficit Hyperactivity Disorder.
Andrew in his first affidavit affirmed 13 May 2019, stated that he earned about £15,000 per annum and received about £2,400 per month by way of government assistance for his family. His wife does not work outside the home.
Andrew and his wife own a home (£125,000) subject to a mortgage (£110,000). He has a car (£12,000), subject to a loan. He has credit card debts (£2,300), and "an additional loan" (£3,000).
He acknowledged receipt of $30,000 by way of interim distribution from the estate, which amount he said he used "to pay off some debts and to buy a car".
In an affidavit affirmed on 24 January 2020, he stated that "my personal circumstances are substantially the same". He added that all of his children "live at home and are in full time education". His wife works with him.
[13]
The situation in life of Vanessa
In her first affidavit affirmed on 13 May 2019, Vanessa disclosed that she then worked as a kitchen shift leader at a delicatessen in Lincoln, in the United Kingdom. She owns no real estate and lives in rented accommodation with her two sons. Her daughter, Sasha, was then at University, living in Edinburgh, Scotland. Vanessa has a 2003 model car worth £500. She has no savings. She has a credit card debt of £3,205.
Vanessa's income from working was £2,130 per month and she receives £843 per month "child tax and working tax credit". Her expenses total £2,146.
Vanessa acknowledged the receipt of $30,000 by way of interim distribution from the deceased's estate which amount she "used to pay for a flight for my sons and I (sic) to Australia so that we could collect my father's ashes and scatter them on Lighthouse Beach…". She used the balance to pay off her credit card debt.
In her affidavit of 24 January 2020, Vanessa stated that her "financial circumstances are largely the same … except I no longer have the 2003 [car]. I have purchased a new vehicle on finance" (repayable over 5 years at £167 per month).
[14]
The situation in life of Sasha
In her affidavit affirmed on 13 May 2019, Sasha stated that she is a full time University student. She receives a student loan but otherwise has no income. Her expenses for rent, utilities and general living amount to £223 per month. She estimates that when she completes her studies, in 2022, the amount of her student loan will be £71,800 excluding interest.
In her affidavit affirmed on 23 January 2020, Sasha confirmed her calculation of the student loan and added that she also had a "maintenance loan" of £8,944 per year for four years. She said that she used the amount received as the maintenance loan to pay her rent (£600 per month), bills (£90 per month) and food and other necessities (£150 per month). She confirmed that she has no assets.
[15]
The Statutory Scheme
Next, I shall discuss the statutory scheme that is relevant to the facts of the case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions on their application.
The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility. There are six categories of persons by, or on whose behalf, an application may be made.
Relevantly, in this case, Kristi relies upon the category of eligibility referred to in s 57(1)(e) of the Act, namely that she is a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.
There was no dispute about Kristi's eligibility. However, it was only during her university vacations that Kristi visited, and stayed with, Diane and the deceased in Port Macquarie. The only other relevant period of her being a member of the household, was for a period of about three months in 2011. It is, however, to be remembered that the Act does not state any requisite period of time during which an applicant must be a member of the household of which the deceased was a member.
Very little was written about Kristi's dependency on the deceased. It is not suggested, however, that she was wholly dependent upon the deceased. At the most, it was partial financial dependency, as I have set out above.
However, as stated by Payne JA, in Spata v Tumino (2018) 95 NSWLR 706 at 720 [72]; [2018] NSWCA 17 at 720, [72], "[a] finding of being 'wholly or partly dependent' does not itself give rise to a statutory obligation to make provision from the deceased person's estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step".
Where an applicant falls within the definition of eligible person within s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b). In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person.
[16]
Some Additional Principles
Accepting that no two cases will be exactly alike, because each case necessarily turns on its own unique combination of facts, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases decided under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:
"Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added:
"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30-31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]-[274] (Ward J).
[17]
Qualifications on "Principles"
As long ago as 1980, in White v Barron (1980) 144 CLR 431 at 440 [8]; [1980] HCA 14, at [8], Stephen J wrote:
"[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [117]), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the Court's discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any constraints on the Court's discretionary power, which is left largely unfettered. I do not intend that what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act permits it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. Every case is different and must be decided on its own facts and it is in the detail that the answer to the proper application of the Act is to be discovered: Golosky v Golosky [1993] NSWCA 111 at 10 (Kirby P).
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329; [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); in Yee v Yee at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and recently, by White JA, in Steinmetz v Shannon, at [37]. The qualifications must be remembered.
[18]
Determination
As stated, there is no dispute that Kristi is an eligible person. She commenced the proceedings within time. I have found that there are factors which warrant the making of her application. I turn then to whether an order for provision out of the deceased's estate as the Court considers ought be made for her, which requires the Court to be satisfied that, at the time when the Court is considering the application, adequate provision for Kristi's proper maintenance, education or advancement in life has not been made by the deceased's Will.
As is obvious, there was no provision made for Kristi in the deceased's Will. However, this does not, automatically, mean that she will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her or him in the deceased's Will.
As stated above, claims for a family provision order present particular difficulties where the estate is so small and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.
Furthermore, even a finding that Kristi was partially dependent on the deceased does not itself give rise to a statutory obligation to make provision for her. The question whether there are factors which warrant the making of the application is different to the question of whether she was, at any particular time, wholly or partly dependent upon the deceased, and also different from the further question which arises under s 59(1)(c) of the Act whether adequate provision for her proper maintenance or advancement in life has not been made by the deceased's will: Page v Page [2017] NSWCA 141 at [38].
On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson (2010) 5 ASTLR 116, at [80]; [2010] NSWCA 359, at [80]:
"The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
[19]
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: 30 June 2020
There is no suggestion that the distributed funds were held on trust, but it is clear that the distribution resulted in property of the deceased becoming held by another person. Andrew and Vanessa were joined because Kristi sought a notional estate order in respect of the distribution. They are the persons whose interests would be adversely affected by the making of a notional estate order in favour of Kristi if such an order were made.
At the commencement of the hearing, the Court referred counsel to s 89(2) of the Act, which provides that the Court must not designate as notional estate property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99 of the Act, to allow costs to be paid as ordered, or both. It was accepted that there would be sufficient money in the actual estate to provide for Kristi (if a family provision order were to be made) and for the costs of the proceedings (if any costs order is made). This is not to say that the fact that each of Andrew and Vanessa has received a distribution is not otherwise relevant is the proceedings.
Although in the Summons and in the amended Summons, Kristi had sought "interim relief", at the commencement of the hearing, it was accepted that neither of the orders sought under that heading was pressed: Tcpt, 16 March 2020, p 3(03-06). Thus, the only relief sought by her, at the hearing, was a family provision order and an order for her costs of the proceedings.
As the deceased died with a Will, the operation of the intestacy rules does not apply. It is only necessary, hereafter, to refer to the Will of the deceased. It was accepted that under the deceased's Will, Kristi does not receive any share of the deceased's estate.
Lynda had not applied for Probate of the deceased's Will as "it was not required by any of the asset holders". At the commencement of the hearing, it was common ground that it may be necessary for there to be an order made under s 91 of the Act, which applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted. Then, the Court could, if it were satisfied that it was proper to do so, grant administration in respect of the estate of the deceased person or deceased transferee to any person the Court considers appropriate for the purposes only of permitting the application concerned to be dealt with: Tcpt, p 9(35-38).
It was common ground between the parties that such an order would be made only if it were held that Kristi was entitled to an order for provision out of the estate of the deceased.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. The language of the relevant section is expressive of the person's status, as well as her, or his, relationship to the deceased. The category of eligibility upon which Kristi relied was s 57(1)(e) of the Act, namely, that she was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member.
The Defendants accepted that Kristi is an eligible person as a partly dependent member of the household of which the deceased person was a member (for a short period of time): Tcpt, p 10(01-08).
There was no dispute that Kristi commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
Section 59 of the Act, relevantly, provides that in the case of a person who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57, the eligible person will have to establish that having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application. It will be necessary to return to this topic later in these reasons as counsel for the Defendants submitted that there were no factors which warranted the making of Kristi's application: Tcpt, p 10(10-15).
If eligibility and factors warranting the making of the application are established, the Court, at the time when it is considering the application, must determine whether adequate provision for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased. It is only if so satisfied, that the Court may then make such order for provision out of the estate of the deceased person as it thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
There was also dispute about these matters, as counsel for the Defendants submitted that the amended Summons should be dismissed with costs.
Eileen died in 2005.
(It had been with Eileen that Diane and Kristi had lived following the breakdown of Diane's first marriage. Kristi lived at the Dulwich Hill property from the age of 6 months to 16 years and then lived there, "on and off", until she was 32 years of age.)
There is unchallenged evidence that despite the geographical distance between them and the deceased, each of Andrew and Vanessa kept in contact with the deceased. For example, Andrew gave evidence that he visited Australia on five different occasions, the first being at Christmas 1995, and then again in 2000, 2006, 2008 and 2009. Vanessa travelled to Australia in late 1985, when she first met Diane. She returned for a period of five weeks in July 1988, then again, this time for one year, in 1997, again, for about one month in July 2000, and again, this time for about three weeks in March/April 2001, and again for the same period in May/June 2006. Her last visit, for about three weeks, was in August 2016, shortly after Diane's death. Sasha came to Australia for about three weeks each in 2000, 2001, 2006, 2015 and 2016.
Lynda, her husband and their minor son immigrated to Australia in August 1991. After their arrival in Australia, they lived with the deceased and Diane for two and one half months. Thereafter, they continued to live in Port Macquarie until 1994, when they moved to Sydney. Whilst in Port Macquarie, they had frequent contact with the deceased and Diane, with whom they got on well. After they left Port Macquarie, they maintained regular contact with both the deceased and Diane.
Diane had been married to Victor Cooper, and Kristi is the only child of their marriage. Their marriage ended on a date not disclosed in the evidence. Kristi was born in March 1963 and is now 57 years old.
Diane's Personal Resume, dated November 1978, a copy of which is annexed to Kristi's first affidavit affirmed on 13 November 2018, reveals that Diane was born in about 1935; she attended High School having completed the Leaving Certificate; she then attended, for 8 years, as a scholarship student, the Conservatorium of Music; she had been an opera singer, and other musical entertainer, between 1959 and 1971; she had a brief concert tour in Sweden in 1976; she had completed a course for Training Managers at the Australian Institute of Management and a Marketing Course at John P Young & Associates; and that between 1971 and 1978, she had worked with Helena Rubinstein Pty Limited as the National Training and Public Relations Manager.
Kristi stated that she lived with Diane and the deceased "in the 1980's before [she] went overseas. At this time, they were renting a property in North Narrabeen in Sydney". She would have, at that time, been an adult. Kristi gave evidence that she left to go overseas in about 1986.
Diane made a Will dated 6 July 2012 in which, in the events that happened, she left the whole of her estate to the deceased, save for a "silver belt" left to Kristi.
There is evidence, given by Lynda, that in a letter dated 11 September 2015, to the deceased's lawyers, Kristi's solicitors (Armstrong Legal), wrote stating that "it is our client's intention to lodge a claim upon the estate pursuant to family provision legislation". In addition, in response to a request made in the letter for details of the "assets and liabilities of the estate as well as any superannuation, life insurance, or any known potential notional estate such as jointly held property and bank accounts", the deceased's lawyers responded, by letter dated 22 September 2015, enclosing a copy of bank account statements at the date of death ($9,000) and a valuation of a villa that Diane shared with the deceased ($160,000 to $180,000). The letter also disclosed that the deceased had instructed that Diane "gave your client $80,000 some years ago, being part of the funds that [Diane] had inherited from her mother".
(I note that Kristi disputed the figure of $80,000, saying that she and Diane had each received $70,000 in about 1994 or 1995.)
Kristi did not, ultimately, commence any proceedings for a family provision order in respect of Diane's estate.
Lynda gave evidence that "[a]fter the death of [Diane] on 6 August 2015, [Kristi] was given the opportunity to access the Deceased's residence and allowed to take those personal possessions of her mother that she wished to take. [Kristi] removed four big boxes of documents and personal items belonging to her mother." Lynda then went on to identify some of the items taken, which included "[a] cutlery set, frame containing trinkets, 4 prints, 4 photo albums, bag of coins, bag containing pens, old watches, cufflinks, some costume jewellery, camera, photo frame, box containing eyeglass and pen, camel, opera booklet, glass tankard, 6 sherry glasses, 6 wine glasses, 5 tumblers, 1 glass bowl, 2 Nao [porcelain] ducks and 1 Nao swan, 2 Nao ladies".
As earlier stated, the deceased left a Will dated 29 January 2016. In that Will, so far as is relevant, he revoked all former Wills and testamentary dispositions (Clause 1); appointed Lynda as the sole executrix and trustee of the Will (Clause 3); and gave the whole of his estate, after payment of debts, funeral and testamentary expenses, as to 40 per cent, to each of Andrew and Vanessa, and as to 10 per cent to his granddaughter, Sasha Cara Hate (Vanessa's daughter), and 10 per cent "to be divided between such of my grandsons as are living at the date of my death and [who] attain the age of 18 years and if more than one as tenants in common in equal shares".
Lynda identified seven grandsons living at the date of the deceased's death, and Andrew, Vanessa and Sasha as the beneficiaries. In a subsequent affidavit, the names and ages of the grandchildren are stated. All but one of the grandchildren is a person under a legal incapacity (a minor). Their ages range from almost 19 years to about 4 years.
The deceased had made an earlier Will, in July 2012, in which he had left the whole of his estate to Diane, but in the event that she did not survive him for a period of not less than 30 days, to Kristi, Andrew and Vanessa, each as to 30 per cent, and as to the balance (10 per cent) to "such of my grandchildren as are the direct issue of the above beneficiaries as survive me and if more than one as tenants in common in equal shares".
Kristi gave evidence that during her studies to obtain her first university degree she had lived for part of the time in the Dulwich Hill home of her grandmother, Eileen. She lived there between about 1989 and about 1991, after which time she moved to "a little garage flat" in Stanmore: Tcpt, p 27(26-49). She then moved to other rented accommodation in Elizabeth Bay: Tcpt, p 28(24-30). She then purchased a property in Potts Point in about mid-1996, into which she moved shortly thereafter. She lived there until she sold it, in about 2003, for $277,500, less repayment of a mortgage of about $40,000, before she finished a law degree.
Kristi stated that she visited Diane and the deceased in Port Macquarie, whilst she was at University, usually twice a year, during the mid-semester break, and also during the University's Christmas vacation. She ceased visiting Port Macquarie in about 2001. After about 1995 or 1996, she usually visited when the deceased was working and away from the Port Macquarie home: Tcpt, pp 30(12-28), 31(19-22). I shall return to other aspects of Kristi's evidence later in these reasons.
Mr S M Barry, the solicitor retained by Kristi, came to be her solicitor on 5 December 2019. Prior to that time, Kristi had been represented by Cunningham Legal, with which firm she had a conditional costs agreement which provided that the firm was only entitled to receive payment of its legal costs from her "in the event that she obtained a successful outcome". That term was defined as "a financial settlement including by way of negotiation, mediation or court process". That firm had rendered a tax invoice to Kristi for their fees, in the amount of $17,257. They also notified her that the total of the costs and disbursements payable by her, in the event of a successful outcome, would be $13,347, of which $9,652 was for counsel's fees.
There is no evidence that there was an uplift fee included in the costs and disbursements that were payable by Kristi.
Mr Barry also stated that his firm had not entered a conditional costs agreement with Kristi. However, in submissions, it was noted that her "cost agreement with her counsel is a conditional agreement".
As at 29 January 2020, Kristi's costs, calculated on the indemnity basis, totalled $15,670, making the total amount of her costs, calculated on the indemnity basis, $47,649. Mr Barry estimated her costs, calculated on the ordinary basis, up to 29 January 2020 to be $30,972. He then estimated Kristi's future costs, calculated on the indemnity basis, to be $33,745, and on the ordinary basis, to be $21,934.
It follows that the total amount for Kristi's costs, calculated on the ordinary basis, was $52,906, and if calculated on the indemnity basis, to be $81,394. Bearing in mind the value of the deceased's estate, a question of proportionality would obviously arise.
A small amount for disbursements ($5,119) has been paid by Kristi: Tcpt, p 8 (01-04).
Despite what has been written above, in the written submissions, counsel for Kristi noted that "[u]ltimately however, if the plaintiff's claim is not successful, she will not be required to pay her costs or disbursements".
Ms E W Cooper, the solicitor for the Defendants, in an affidavit affirmed on 29 January 2020, estimated that their costs, to that date, calculated on the indemnity basis, inclusive of GST, were $39,833, and the estimate of future costs, would be $16,250. Future costs, after the conclusion of the hearing, for distribution of the estate, were estimated to be $750. It follows that the total of the Defendants' costs is $56,083 (with the additional $750 for administration expenses following the hearing).
Ms Cooper's affidavit of costs did not reveal that $37,301 had been paid out of the estate. That amount, however, was revealed in the Joint Schedule (Exhibit JS1). It follows that the balance of the costs of the proceedings left to be paid would be $18,782 (plus $750).
It followed, in the event that the costs of the proceedings were ordered to be paid out of the estate and notional estate of the deceased, that the net distributable estate and notional estate, out of which any order for additional provision for the Plaintiff could be made, would be about $71,742 (based upon the gross value of the estate).
That over $109,000 in estimated costs has been incurred by the parties, in an estate with a maximum gross value at the date of death of about $205,000 demonstrates that the parties were not really concerned about what might be able to be achieved in the proceedings. (The Court has lamented this lack of concern in many other family provision cases where the estate is so small.)
In Forsyth v Sinclair (No 2), the Victorian Court of Appeal wrote, at [27]:
"We consider that it is a matter of concern that in many family provision cases the amount available for distribution amongst the competing beneficiaries is significantly reduced by legal costs. Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate. Every effort should be made to resolve the dispute before the costs get out of proportion. However, it takes two to settle a dispute and unless sensible offers of settlement are made in a form which can be referred to subsequently, it is very difficult for the Court to allocate responsibility for the dispute not settling. All that can be done is to conclude that where costs have been incurred unreasonably, as here, they must be borne personally." (Omitting citation)
Ward CJ in Eq in Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, wrote, at [172]-[174]:
"… There is an understandable concern that costs incurred in proceedings of this kind not be disproportionate to the nature of the proceedings and the size of the estate (see for example the recognition by Basten JA in Page v Page [2017] NSWCA 141 at [20], in the context of the family provision jurisdiction, of the need not to encourage litigation where costs often reach a high proportion of the value of the estate; and his Honour's concern expressed in Harris v Harris [2018] NSWCA 334 … (at [18]) that what his Honour regarded as the Court's 'willingness to entertain comparatively expensive litigation of this sort' might well have encouraged the pursuit of such claims). It is no secret that the Family Provision List judge pays close attention to the control of costs, particularly in small estates, for that reason."
Counsel for Kristi acknowledged, in written submissions, that:
"In Koellner v Spicer [2019] NSWSC 1571 Hallen J said at [47]:
The Court, on many occasions, has emphasised the necessity for parties to bear in mind the proportionality of costs, the importance of making appropriate settlement offers, and that if one wishes, or both wish, to adopt an approach that may have the effect of reducing the value of the estate, then they should not proceed on the basis that all of the costs and disbursements will necessarily be borne by the estate: Geoghegan v Szelid [2011] NSWSC 1440 at [21]-[24].
It is recognised, and accepted by the plaintiff's representatives, if the plaintiff is successful in her claim, that the Court will have no choice other than to cap costs.
In Detheridge v Detheridge [2019] NSWSC 183 Slattery J wrote at [174]:
"And it is well settled that the Court can make orders for capping costs in family provision cases, based on the express powers conferred under Uniform Civil Procedure Rules 2005 ("UCPR"), Pt 42.4(1) and the Civil Procedure Act 2005: see Nudd v Mannix [2009] NSWCA 327 ("Nudd"), (at [26] and [27]); and Baychek v Baychek [2010] NSWSC 987 ("Baychek"), (at [17]). The discretion to cap costs in family provision cases is exercised in other jurisdictions: see, for example, Sweaney & Anor v Bailie [2017] QDC 295; Askew v Askew [2015] NSWSC 192 ("Askew"), (at 126); Sergi (bnf Solowiej) v Sergi [2012] WASC 18 (at [51]); DW v RW (No 2) [2013] QDC 189; Cangia v Cangia [2008] VSC 455."
Counsel for the Defendants did not deal with the question of costs in the written submissions, other than to note "the costs of the litigation are grossly disproportionate to the size of the estate" and that "given that the plaintiff resides in Port Macquarie and the defendant's solicitor practices in that town, it is a pity that the proceedings were not commenced in the District Court at Port Macquarie, resulting in a substantial saving of costs".
Counsel for the parties agreed that the Court could not deal with the question of costs as part of these reasons. There had been offers served that may be "potentially" relevant to that issue: Tcpt, p 21(17-40).
Following these reasons being published, I shall allow the parties an opportunity to see if agreement can be reached on the question of costs. If not, then further costs will likely be incurred. One can only hope that this will not happen.
Kristi told the police officers that her stay in the Port Macquarie unit was "a temporary arrangement" as she was returning to the United Kingdom in about 5 weeks' time; that she did not want to apply for an apprehended violence order; and that she did not want to pursue any formal criminal action. It appears that no further action was taken by the police, at the time, as the COPS reports notes that Kristi refused to provide a statement "corroborating evidence to support her claims" and that both parties had agreed to be "civil towards each other for the intermediate period".
An agreed bundle of medical records, tendered, without objection, as Exhibit JS2, reveal that this incident had taken place on the evening of the day after the deceased had been discharged following a two day admission to Port Macquarie Base Hospital, where he had undergone a psychiatric examination, where no mental illness was diagnosed.
Progress notes made following an assessment of the deceased, both alone and in Diane's presence, during his inpatient care were particularly revealing: Exhibit JS2, pp 11 - 12:
"He has never got on - his wife daughter [Kristi] [and] hadn't spoken t[o] her at all for 15 years prior to [Kristi] coming to stay…in their small retirement unit in late January 2011. It is her presence which seems t[o] have changed the dynamics in the home [and] increased the tension enormously leading to the current crisis.
[Kristi] was apparently studying at Oxford Uni in England, but developed… labyrinthitis, so required treat[men]t t[o] physically recuperate and flew back to live [with] her mother. Plan is for her to fly back t[o] UK in early May. It was very unclear why she 'couldn't' leave her mother's house earlier than this in view of the domestic situation, but both Diane [and] Terry reiterated she couldn't possibly leave as she had no money.
Diane was clear that she didn't feel Terry's behaviour had changed as a consequence of…his recent [increase] in alcohol consumption. -
She had never felt physically threatened by him [and] they had never contemplated separation.
Despite many efforts to talk about, what sounds to be, a dire situation at home, they could not think of a solution [and] either failed to provide one or accept the same situation would have t[o] continue
There is no evidence of mental illness in [the deceased] (organic or function) - but longstanding personality issues involving his explosive temper.
I explained that although I recognised the situation at home as extremely undesirable, I did not feel it was a psychiatric issue or … amenable to treatment.
Any treatment would have to be psychotherapeutic and would depend on [the deceased's] strong motivation t[o] change, which he did not appear t[o] have." (emphasis in original).
A number of entries reveal that Kristi made multiple telephone inquiries whilst the deceased was an inpatient. Notes of one telephone conversation with a social worker, at page 16 of Exhibit JS2, in particular, detail that Kristi reported:
"she feels that it is ill-advised to [discharge patient]. Reports that [patient's] mental health issues have not been taken seriously. I told her that he has been [reviewed] by mental health and long term [management] will be through that or the psychology team. [Kristi] advised there is a long [history] of violence. I told [Kristi] to contact the police if she feels unsafe. She advised she wouldn't. I offered [Kristi] contact numbers of Women Refuge Outreach and Mental Health After hour service. [Kristi] declined. I offered to bring her concerns to the attention of medical team. Team unavailable…[Kristi] declined offer of information to be posted out."
A note of a telephone call Kristi made to nursing staff, at page 13 of Exhibit JS2, records:
"…[Kristi]…concerned regarding domestic violence issues [at patient's] home with his wife. [Kristi] also stated [patient] was for ACAT [Aged Care Assessment Team] assessment…regarding patient being admitted to hospital. [Kristi] has also asked we not mention to [patient] or his wife that she called with this info."
A further entry, at page 10 of Exhibit JS2, written prior to the deceased's discharge from hospital, reads:
"[Phone call] with [Diane]…to ascertain risk if [the deceased] was to be discharged. [Diane] stated she had no concerns for her safety. She did indicate her daughter and her [husband] had issues and her [husband] had been aggressive towards [Kristy] - however he acknowledged this and wanted to apologise to her for this. [Diane] was relieved to hear that [the deceased] would have assessment by this afternoon before being discharged. Will be given feedback on outcome."
Another entry, at page 17 of Exhibit JS2, reads:
"The main recent factor exacerbating the situation is the arrival of wife's daughter (48) in Jan…Daughter [and] Terry have never seen eye to eye [and] hadn't talked for 15 years up to her recent arrival. The atmosphere in the house since January appears dire."
On 11 April 2011, Kristi telephoned the police after a further incident in which the deceased is alleged to have yelled at Kristi in regards to the way she was cleaning a frying pan. The COPS entry records that the deceased took hold of Kristi, by the arm, and pushed her against a wall. Kristi is noted to have struck the deceased to the head with a box of Glad Wrap. When the Police attended on that occasion, the deceased was charged with common assault and a provisional interim apprehended violence order was issued.
Kristi gave evidence about an AVO being obtained in 2011 against the deceased, following which the deceased was required to leave the home that he shared with Diane.
It is difficult to accept all of Kristi's evidence about the conduct of the deceased when it is recorded that Diane related, in the same consultation, that she had never felt physically threatened by the deceased and that they had never contemplated separation.
Lynda says, and I accept, that the deceased and Diane had remained in regular telephone contact whilst the deceased was not living with Diane. I also accept that following Kristi's return to the United Kingdom on about 5 May 2011, Diane telephoned the deceased, who was then staying with Lynda, and he returned to Port Macquarie to live with her.
Andrew, who was not cross-examined, describes the deceased as "kind and loving" who adored Diane: Affidavit, Andrew Helgesen, 13 May 2019 at par 32(55)-(56). Vanessa, who, also, was not cross-examined, and who visited the deceased seven times between 1985 and 2016, states that she did not recall any violence or abuse in the marriage between the deceased and her mother, nor did she know of any violence or abuse by the deceased towards any other family member: Affidavit, Vanessa Nyassi, 13 May 2019 at pars 6, 44(45).
Police records reveal that there was "continuing conflict between the [deceased] and the stepdaughter, Kristi". That there was "continuing" conflict was a matter disputed by Kristi. I do not accept her evidence that there was no long-seated animosity between her and the deceased.
Kristi's denial is also inconsistent with her own evidence of planning visits to see Diane whilst the deceased was working abroad. Indeed, she said that stopped visiting Port Macquarie when the deceased stopped travelling overseas for work in about 2002. By way of another example, I point to Kristi's letter, in 2012, to Diane, in which she wrote "I don't (sic) what the attraction is for you with these unstable and childish men you get involved with, but I do hope this is a habit you grow out of one of these days". Finally, there is the fact that when she returned to Australia, for Diane's funeral, Kristi did not stay with the deceased.
In this regard, I am of the view that in her evidence, Kristi was endeavouring to sugar-coat the nature of her relationship with the deceased. Despite her initial denials, ultimately, she accepted that there had been continuing conflict between them, although she maintained that it had not started as early as 1992.
Kristi's denial is also inconsistent with the statements made by her, immediately following that denial, being that "I was concerned about my mother" and her view that the deceased was a violent, abusive, controlling, and destructive man: Tcpt, p 34(43) - p 35(27). She maintained that the conflict that did exist had not been "generated" by her: Tcpt, p 36(21-34).
Kristi left Australia in May 2011 and did not return until shortly after Diane died in August 2015, when she attended her mother's funeral. The last time she saw the deceased was in September 2015 when she attended the Port Macquarie home to collect her, and some of Diane's, belongings.
Lynda was present at the time. She described Kristi's manner as being "disrespectful" of the deceased's position as Diane's husband of 30 years. Lynda also denied that Kristi was there for only 30 minutes, stating that Kristi had been there for about three hours and that she had removed four boxes of items from the unit. I accept her evidence on these topics.
Furthermore, whilst in Australia, as stated, Kristi consulted solicitors about making a claim for a family provision order out of Diane's estate: Tcpt, p 39(08-18).
Finally, in re-examination, Kristi asserted that she "desperately always" wished to have a relationship with the deceased. This seems inconsistent with other evidence, and with the events following the death of Diane in August 2015. I do not accept her evidence. There is no evidence at all that she maintained any form of contact with the deceased after September 2015, that being the last occasion that she saw the deceased. Indeed, in clarifying her evidence, Kristi confirmed that between 2000 and 2010, during part of which period she was living overseas, she did not see the deceased; then, there was a period between January and March 2011, when she lived with Diane and the deceased in their Port Macquarie retirement unit; then in May 2011, she lived overseas and, as mentioned above, did not return until September 2015, for Diane's funeral, during which time, she saw the deceased three times (including at the funeral); and then did not see him again. She gave evidence that the deceased did not want to see her: Tcpt, p 50(24) - 52(10).
Whilst Kristi may have felt hurt, and, perhaps, even regret, about her relationship with the deceased, her assertions that there was no animosity between them and that she did not feel any resentment towards him, or did not dislike him, is inconsistent with the evidence overall.
I tend to the view, supported by Vanessa's statement in her affidavit affirmed on 24 January 2020, that the deceased "did not like the Plaintiff very much", and that the feeling may very well have been mutual.
I accept, however, that my conclusions regarding the relationship between Kristi and the deceased is not solely determinative of the result of the proceedings.
Later that evening, in a further email, with the subject line "Estate of Helgesen - Notice of Family Provision", Kristi attached a letter, marked as Exhibit A in the proceedings, that reads:
"…Please be advised that I am seeking legal advice regarding a Family Provision claim in the Estate of Terence HELGESEN.
1. I seek an undertaking from your client's that they will not disperse or distribute the Estate.
2. Regarding the property of the Estate already disperse (sic) by your clients, I seek your clients' undertaking that they will contact all purchasers immediately and withdraw their instructions to sell.
…
3. I seek your client's undertaking that they will contact any other persons to whom they have distributed and/or dispersed the Estate to return this property to the Estate.
4. I advise that items of my property as still missing.
…
I await your clients' Inventory of the Estate." (emphasis in original)
Kristi wrote a further email on 23 March 2018, again seeking a response to that letter.
On 15 May 2018, Kristi wrote to Lynda:
"Where are my Japanese woodblocks? Where is my mother's jewellery and Nanna's jewellery? Where are my great-grandfather's ship papers that are irreplaceable? Where are Mum's photographs? Where are the family papers?"
As a foreword to that email, Kristi wrote yet another email to Lynda:
"Hello Thieves
See earlier messages below. I will keep sending it until I receive a response."
Perhaps, the following email dated 20 May 2018 depicts the view that Kristi held:
"Lynda,
It is clear to me now your brother was a pathetic human being. I think there is something very wrong with you too.
You need to answer my questions and return my property. In other words, you need to speak with me.
Don't lie to yourself thinking that you are in any position of control because you are not. And you shouldn't deceive yourself that you are in some way avenging your brother. You are not.
All you are in fact doing and displaying is how fundamentally undecent and common you are, which is a position of social impotence, just like your brother's, and this is small, squalid and sad, just as he way.
I am ashamed to know you because of how you have behaved. Nonetheless, you need to tell me what I ask and we have to communicate, however distasteful this may be."
In another series of emails, sent a couple of minutes after each other on 22 May 2018 to Lynda, Kristi wrote:
"Lynda
You need to respond to my queries and to my emails. You can't hide from what you … have done and you are accountable.
…
Accountable, accountable, accountable for your actions.
…
No place to hide.
…
No place to hide."
In a further email to Lynda (and Lynda's daughter, Helen), on 26 May 2018, Kristi wrote:
"Well Lynda, and/or Helen, I have tried everything to provoke and/or convince you to open a dialogue with me but you steadfastly refuse. You have my email address, you have my telephone number, yet nothing - no conciliatory or other advances made for the hurt and offence you have caused me. I really do not know how you and Bill and Andrew H and Vanessa H etc. can live with yourselves given how kind my side of the family was t all of you. None of you would have anything if it wasn't for the goodwill and sacrifices made on your behalf by my poor deluded mother. You would all still be stuck in Sheffield or whatever ghastly English town you lived in and Bill would still be out of work and you would have nothing: no nice house built in Faulconbridge, no education for Helen and David, no big cars, no Probus Club for you and Bill, nothing. Despite all of this, you can't bring yourself to admit what Terence was, or to discuss his and your actions with me, so I must surmise that you don't in fact know how to live nor how to live with yourselves. That a cat appears to have all your tongues is a fair indication to me that you are in fact ashamed of yourselves but do not have the emotional wherewithal to process your shallowness and mendacity. Add to this the way your brother and you behaved in Mum's death, I really can see now what you have always been - the scales have fallen from my eyes, so to speak, and you are revealed. Today, I will leave matters at tis, knowing that you know in your hearts, if you have them, that are complete and utter bounders, and remind you that these things never go unpunished in the broader scheme of life. I forecast that nothing from this point forwards will have any profit for you because what you have wrongly done will return to you tenfold, and what you have wrongly taken will turn to dust. Adieu, Kristi."
I note that Lynda did not reply to any of those emails.
In terms of her present and likely future needs, Kristi states that she has no independent transport; she needs to use a mobility scooter; she unsuccessfully applied for assistance under the National Disability Insurance Scheme in 2019, a decision in respect of which she has appealed to the Administrative Appeals Tribunal (currently, awaiting hearing); she has not had a dental consultation since 2014, and the disability household cleaning assistance she receives will expire shortly.
I am satisfied that she has some "needs" which she is unable to meet from her current resources.
In Graziani v Graziani (Supreme Court (NSW), 20 February 1987, unrep), Cohen J, in dealing with an application by stepchildren under the former Act, wrote, at [8] - [10]:
"There is nothing in the section to indicate what is meant by "factors", or how far the Court has to take the matter in order to warrant the making of the application ....
... In order to look at the factors which warrant an application in the case of a plaintiff who establishes that he or she is an eligible person under par (d) of the definition, it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild of perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally.
If a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all of the other circumstances show that there may have been a moral duty on the part of that testator to provide for the plaintiff then there are factors which would warrant the making of the application. The presence of only some of these factors, or of others which have not been listed might also justify the Court's coming to the same opinion. The potential for inclusion in that part of the definition of 'eligible person' as is contained in par (d) is enormous. The range of persons who may be admitted is very great and it includes not only stepchildren but also parents, brothers and sisters, temporary foster children and many others who may have formed part of the household and for a period have been partly dependent upon the deceased. Accordingly it seems to me that those who were raised as part of the family as stepchildren would have less difficulty in establishing factors which warrant their application than would those at the other end of the spectrum who may have been members of the family for only a brief period and with only limited dependence."
More recently, McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305, wrote at [111] - [112]:
"…Within the first category (s 57(1)(a) - (c)) are persons generally 'regarded as natural objects of testamentary recognition', such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support.
Those falling within the second category (s 57(1)(d) - (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are 'potentially appropriate objects of testamentary recognition, depending upon their circumstances'. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question." (Footnotes omitted)
The Act does not specify the "factors which warrant the making of the application". As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138, at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".
In Lodin v Lodin (2017) 16 ASTLR 576 at 603-604 [126]-[129]; [2017] NSWCA 327, Sackville AJA (with whom Basten and White JJA agreed), at [126]-[129], (although in the context of a claim by a former spouse) set out a number of propositions which I paraphrase:
1. Care must be taken not to impose rigid constraints on the circumstances that might constitute factors which warrant the applicant making an application for family provision from the estate.
2. The factors must demonstrate that the deceased had a social, domestic or moral obligation to make testamentary provision for the applicant.
3. The position is unlikely to be different even if the estate is relatively large. Something more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition.
4. What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward.
5. A significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant.
An application for special leave to the High Court to appeal the decision of the Court of Appeal was dismissed as it would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal: Lodin v Lodin [2018] HCASL 84.
Sackville AJA, in Spata v Tumino at 732 [139], also affirmed that:
"A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order."
Finally, I should note that in Page v Page (2017) 16 ASTLR 331 at 340 [38]; [2017] NSWCA 141, Leeming JA stated, at [38], that:
"An order for provision may only be made if (a) as a former member of the same household, the appellant establishes that he was 'at any particular time, wholly or partly dependent upon the deceased' and (b) that 'having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application': s 57(1)(e)(i) and s 59(1)(b). These are both 'jurisdictional' questions, in the sense that the application must be dismissed unless both questions are answered favourably to the claimant. However, they are different from one another. They are also different from the further question which arises under s 59(1)(c), which must also be answered favourably before an order for family provision is made." (emphasis in original)
Counsel for Kristi submitted that there were three factors which warranted the making of her application. The first was the "contribution made by the plaintiff's parent to the building up of the deceased's estate". The second was the fact that in the 2012 Will of the deceased, Kristi was one of the beneficiaries, with the deceased's own children, named. The third was that Kristi had not made a claim on her mother's estate at the time of her death in August 2015.
Importantly, counsel did not submit that there were features of their relationship that could be said to create a social, domestic, or moral, obligation on the deceased to make testamentary provision for Kristi.
Diane's financial contribution to the building up of the deceased's estate was not really explored in the evidence. It appears to have included the period when she received a pension, which, presumably, was used with the deceased's income, or subsequently, pension, to contribute to the household finances. There may have also been a contribution made following receipt of some money from her own mother that Diane contributed to household finances, although this was not the subject of evidence.
Despite the lack of investigation on this topic, and the inability to come to an accurate assessment of the relative value of her contribution, I accept that Diane made some financial contribution, and a significant non-financial contribution, to the welfare of the deceased. Lynda accepted, in her affidavit affirmed on 10 May 2020, that Diane's relationship with the deceased was a close and loving one, stating that her brother "idolised her". In cross-examination, Lynda also accepted that Diane had made a financial contribution: Tcpt, p 59(09-28). It was, however, only the deceased who engaged in paid employment for the whole of their marriage.
It must also be accepted that the contribution of a spouse, who does not engage in paid work outside the matrimonial home, to the welfare of the family, should be recognised as not insignificant.
It should not be forgotten that Kristi received some financial benefits from Diane, which, otherwise, might have been able to be contributed to the matrimonial assets and which may have avoided the borrowing that had to be repaid following the death of the deceased.
The matters that have been raised are, of course, contributions by Diane, not contributions by Kristi.
Although it is borderline, particularly considering what was written in Graziani v Graziani quoted above, I am satisfied that the deceased having inherited the interest of Diane as a joint tenant of the home in which they had lived is a factor which warrants the making of her application.
A further factor, namely that Kristi was named as a beneficiary in an earlier Will of the deceased, also warrants the making of her application. I am satisfied that there are authorities that consider the significance of recognition in a will for the purposes of s 59(1)(b) of the Act: Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 at [31] (Basten JA, Allsop P and Ipp JA agreeing); Estate Pascale [2016] NSWSC 443 at [29] (Lindsay J); Dannawi v Dannaway [2019] NSWSC 1287 at [103] (Slattery J); Purnell v Tindale [2020] NSWSC 746 at [260] (Henry J). At least at the time the deceased made that Will, he regarded Kristi as a natural object of testamentary bounty.
I do not accept, however, that standing aside following the death of Diane and not seeking provision out of Diane's estate is such a factor in the circumstances of this case. Based upon the evidence, that Diane left the whole of her estate to her husband of many years, is hardly surprising, particularly in circumstances where her estate, and potential notional estate, was of small value. In this regard, the cases relied upon by Kristi's counsel may be distinguished. Kristi would be highly unlikely to have succeeded in any such application for provision.
Then, if eligibility and, as is necessary in this case, factors warranting the making of the application are found, as previously stated, the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the deceased's Will, in relation to the estate of the deceased, or both: s 59(1)(c). It is only if the Court is satisfied that the provision is inadequate, that consideration is then given to whether to make a family provision order: s 59(2).
Relevantly, other than by reference to the provision made in the deceased's Will, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, made is inadequate for the applicant's proper maintenance, education 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, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed by the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant.
As noted by Basten JA in Foley v Ellis at [3], the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J said that the assessment of what provision is proper involves "an intuitive assessment".
Under s 59(1)(c) of the Act, the time at which the Court gives its consideration to the question is the time when the Court is considering the application. Under s 59(2) of the Act, the Court has regard to the facts known to the court at the time the order is made.
"Provision" is not defined by the Act, but it was noted in Diver v Neal, at 97, [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 at 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72], [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (with whom McTiernan J agreed) at 19, pointed out that the words "adequate" and "proper" are always relative, and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration:
"The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) wrote, at 502:
"… the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards ..."
In Vigolo v Bostin (2005) 221 CLR 191 at 228 [114]; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote:
"… the use of the word 'proper' … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here … The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283-284 [123]; [2013] NSWSC 522, wrote, at [123]:
"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
In Ilott v The Blue Cross [2018] AC 545 at 564-565 [14]-[15]; [2017] UKSC 17, a claim by an estranged adult daughter under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) c 63, Lord Hughes JSC (with whom Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Clarke of Stone-Cum-Ebony, Lord Wilson and Lord Sumption JJSC agreed), in defining "maintenance", wrote:
"The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or everything which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living … The summary of Browne-Wilkinson J in In re Dennis, decd [1981] 2 All ER 140, 145-146 is helpful and has often been cited with approval:
'… in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.'
…
The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust … As Browne-Wilkinson J envisaged (obiter) in In re Dennis (above) there is no reason why the provision of housing should not be maintenance in some cases; families have for generations provided for the maintenance of relatives, and indeed for others such as former employees, by housing them …"
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or the absence, of "needs" which an applicant cannot meet from his, or her, own resources will always be highly relevant, and quite often decisive, as the statutory formulation, and therefore, the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for her or his proper maintenance, education and advancement in life: Singer v Berghouse at 227 (Gaudron J, albeit her Honour was in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]-[297] (Robb J).
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA (as his Honour then was) wrote:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 at 10-11 per Bryson J.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other: see Hunter (at 575) per Kirby P.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc: see Singer (at 227) per Gaudron J. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial resources and financial needs: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (M) v Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]:
"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at [41], David J added:
"'Need' is not so synonymous with 'want' such that the two are interchangeable."
However, no narrow view of what is encompassed by the concept of "need" is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1, Bryson J (as his Honour then was) commented, at 8, that "[i]t does not seem possible to give a complete or exhaustive statement of the concept".
As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
Section 60 of the Act provides:
(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(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,
(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,
(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,
(e) if the applicant is cohabiting with another person - the financial circumstances of the 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,
(g) the age of the applicant when the application is being considered,
(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,
(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,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(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,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(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.
It can be seen that s 60(2) of the Act enumerates 15 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 at [37], as a "multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646 at 649 [7]; [2014] NSWCA 392 at [7], Basten JA wrote:
"Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The Act does not provide guidance as to the relative weighting of each factor. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based.
Furthermore, the section does not say how the matters listed are to be used to determine the matters identified in s 60(1) of the Act. Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1) of the Act, those matters are not identical.
A reference to some of the matters in s 60(2) of the Act not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1) of the Act.
Leaving aside the question of eligibility, the matters referred to in s 60(2) of the Act may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2) of the Act, attention is drawn to matters that may have existed at, or subsequent to, the deceased's death.
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales at 19, commented upon the consideration that was to be given to the deceased's wishes:
"The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs, but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that:
"Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As has been written by White JA in Sgro v Thompson [2017] NSWCA 326, at [86]:
"I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
This passage confirms that the Act is to be applied according to its terms, and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA in Steinmetz v Shannon (2019) 99 NSWLR 687 at 708; [2019] NSWCA 114 at [97]:
"The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom."
Section 61 of the Act permits the Court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person's estate), but who has not made an application. However, the Court may disregard any such interests only if (a) notice of the application, and of the Court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case. In this case, I do not propose to disregard the interests of Andrew and Vanessa, each of whom is a chosen object of testamentary bounty. Very little is known about the relationship of each of the grandchildren and the deceased. Sasha deposed in her affidavit, affirmed on 13 May 2019, that her relationship with her grandfather was close "even though there was a large physical distance" between them. Each of the beneficiaries is a chosen object of testamentary bounty and thus, the Court is not permitted to disregard his or her interests.
Section 65(1) of the Act requires the family provision order to specify:
(a) the person or persons for whom provision is to be made, and
(b) the amount and nature of the provision, and
(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and
(d) any conditions, restrictions or limitations imposed by the Court.
An order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit": s 65(2) of the Act. If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.
The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will: s 63 of the Act.
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Any family provision order under the Act will take effect in this case, unless the Court otherwise orders, as if the provision was made in a codicil to the will of the deceased: s 72(1) of the Act.
In relation to the claim of a stepchild, I have earlier referred to Graziani v Graziani, in which Cohen J discussed what he considered to be relevant considerations. Keane JA (as his Honour then was and with whom the other members of the Queensland Court of Appeal agreed) in Freeman v Jaques [2006] 1 Qd R 318, at 322 [29]; [2005] QCA 423, at [29], referring to the evaluative balancing of relevant considerations, wrote:
"The more exiguous and distant the familial relationship between the deceased and a claimant, the greater must be the need of the claimant for maintenance or support if it is to give rise to the obligation, postulated of a wise and just stepmother, to make adequate provision for the proper maintenance or support of the claimant. Similarly, the greater the extent to which a step-parent's estate reflects her own contributions and efforts, the greater must be the need in the claimant for maintenance or support if a stepmother is to be regarded as subject to a moral claim to make adequate provision for proper maintenance and support."
In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson at [67] (White JA, McColl and Payne JA agreeing).
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202-203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).
In a small estate, as this one is, it is important to remember what Salmond J said in In re Allen (Deceased); Allen v Manchester [1922] NZLR 218, at 221:
"Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims."
In Goodchild v James (1994) 13 WAR 229 at 239, Ipp J (as his Honour then was) was called upon to consider a claim by an adult son on a small estate. His Honour:
"I turn now to the issue of what provision would be adequate for the provision for the proper maintenance, support and advancement in life of the Plaintiff. In the light of the size of the deceased's estate, the remarks made in Triplett v Triplett are applicable. I there observed:
'The case falls into the class described by Salmond J in Re Allen Deceased; Allen v Manchester … No question arises in such a case as to the general scope and limits of the duty of the testator to make provision for the maintenance of his widow and children, for his duty in these circumstances is merely to do the best that he can and to distribute resources with justice between his dependants in proportion to the deserts and necessities.'
The court is required to determine whether 'proper' maintenance has been provided and proper maintenance may in some circumstances be less than adequate maintenance for the testator may not have possessed enough assets to satisfy all the claims on his bounty."
Whilst fully contested applications in small estates should be discouraged, because, as in this case, the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision be made from a small estate: Morris v Smoel [2014] VSC 32, at [68] (McMillan J). The Act does not differentiate, in its terms, depending upon the size of the estate, and the Court must still consider all the relevant circumstances before a decision is made: Re Coventry (deceased) [1979] 3 All ER 815, at 820 (Buckley, Geoffrey Lane and Goff LJJ).
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.
In Foley v Ellis at [88], Sackville AJA (Beazley and Basten JJA agreeing), noted that Singer v Berghouse:
"… strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act."
I have described the nature of the relationship above and note that the deceased and Kristi were not close. Indeed, there was hardly any contact for many years prior to the deceased's death and, on the occasions that there was (namely, after 2000), it was because of exigencies, such as Kristi needing a place to stay until she moved overseas, and following the death of Diane, when she returned for Diane's funeral. Even prior to 2000, there was very little relationship between them either, Kristi only choosing to visit Port Macquarie when the deceased was working overseas. Their relationship was nothing like that of natural parent and child. All of the evidence suggests that it was superficial and tenuous.
It is not a case in which the Court can see that one, or both, of them, sought out contact with the other and endeavoured to have a relationship with him/her. No effort to keep in contact with, or to strengthen the relationship, was made by either the deceased or Kristi. It is not difficult to reach the conclusion that Kristi was the deceased's stepchild in name only.
When she did return for Diane's funeral, Kristi did not stay with the deceased. One might think that had there been a closer relationship between them, she would have stayed with him, and that he would have wanted her to do that, so that each could provide comfort and support to the other. In this regard, I contrast the conduct of Vanessa, who did return for Diane's funeral and provided some comfort and support to the deceased.
Kristi maintained that it was the deceased's character and conduct that caused their relationship to be as it was. I do not accept that assertion, although the evidence does suggest that in 2011, his conduct contributed to the events that occurred. As I put to counsel during submissions, overall, I formed the view that "they didn't like each other, and she didn't like him as much as he didn't like her, although, perhaps, she wasn't as aggressive or violent towards him as he was to her": Tcpt, p 70(47) - p 71(05). (In this regard, the events being spoken about are in March 2011 and are referred to in the Police reports and also in some medical records.)
I have also considered the position of Kristi abstaining, ultimately, from making a claim for provision out of Diane's estate. As I have earlier written, I do not give any weight to this fact as her prospects of success in relation to any such claim, particularly in respect of jointly held property which passed by survivorship, was likely to be negligible.
I accept that Kristi's financial resources are such that she has very little by way of assets. In part, however, this is due to her personal choices. She has, for example, chosen to attempt to obtain higher education, with the consequence that she has not worked as a lawyer, although she would be eligible to apply for (a restricted) practising certificate: Tcpt, p 39(23) - p 40(11). In addition, she has chosen to obtain those higher qualifications overseas rather than in Australia. In any event, even if there are needs which Kristi is unable to meet from her own resources, the issue to be determined is whether the disposition of the deceased's estate was not such as to make adequate provision for her proper maintenance and advancement in life.
The Court is required to make, and I have made, an assessment of Kristi's financial position, the size and nature of the deceased's estate, the relationship between Kristi and the deceased, and the competing claim of the beneficiaries, two of whom are the deceased's children, and the others who are grandchildren, who are the chosen objects of his bounty, and the circumstances and needs of both Kristi and each of the beneficiaries so far as they are known: see, for example, McCosker v McCosker (1957) 97 CLR 566 at 571 - 572; [1957] HCA 82 (Dixon CJ; Williams J and Kitto JJ); Singer v Berghouse at 210 (Mason CJ, Deane J and McHugh J); Vigolo v Bostin at [16], [75], [112] (Callinan and Heydon JJ); and Tobin v Ezekiel [2012] NSWCA 285 at [70], Meagher JA (Basten JA and Campbell JA agreeing). I have also taken into account that the deceased made a previous Will, in 2012, in which Kristi was one of the substitute beneficiaries in the event of Diane having predeceased the deceased.
Having considered those matters, Kristi has not satisfied the Court that adequate provision for her proper maintenance, education or advancement in life has not been made by the Will of the deceased. Importantly, this is not a case where there was a close relationship, that is one which might be properly described as parent and child, or where she was brought up as a permanent member of the deceased's family, or where she was ever a full-time member, as a child of the deceased's family. The evidence does not suggest that she was supported by the deceased, to any significant extent, educationally, or emotionally. On reviewing, particularly, the medical, evidence, that she was the daughter of his wife, led the deceased to simply acquiesce to Kristi's presence in their home, for those relevant periods.
Even if I am wrong in that conclusion, I would not, as a matter of discretion, make an order for provision out of the deceased's estate. In this regard, I have had regard to, amongst other things, the tiny value of the deceased's estate, the relationship between Kristi and the deceased, which, for many years prior to his death was virtually non-existent, as well as the relationship between the deceased, and his own children, each of whom has a significant legitimate claim upon the deceased's bounty. The deceased's grandchildren are the chosen objects of the deceased's bounty and their claims, as such, cannot be disregarded.
Furthermore, it is clear from what has been written that Kristi made no contribution to the deceased's welfare, or to his estate, financially or non-financially. I have referred to her assertion of a contribution, by reason of a family inheritance, that passed to Diane. Such contributions are not those made by Kristi. Because she has relied upon these contributions, I also take into account that Kristi received a capital sum, from Diane, during her lifetime, being part of the inheritance that Diane had received from her mother.
Kristi, in her affidavit affirmed on 13 November 2018, describes the testamentary obligation of the deceased as "a responsibility to me because of a promise he made to my mother". The nature of the alleged promise, or when it was made, is not identified. In any event, it was neither a promise made to Kristi, nor one upon which she acted.
It follows that the proceedings should be dismissed and I so order. I shall allow the parties seven days to see if agreement to end this self-defeating litigation can be reached on the question of costs, failing which written submissions on costs can be made within ten days thereafter by the parties and the Court can consider, and determine, that issue on the papers.