Crawford v Munden; In the Estate of Angel

The facts

1. Most of the critical factual matters were in issue between the parties. However, it is neither practicable nor necessary to set out in detail every competing argument raised by them. Attention is given to those which the Court considers dispositive. Where any reference is made to findings on contentious matters, they are cross-referenced to that part of the judgment where reasons for the finding are given. To the extent that any other facts set out below were not agreed by the parties, I am satisfied they could not be sensibly disputed.

Janet - the Will and the Estate

1. Janet was born in Sydney in 1937. She had three sisters and a brother - Lois, Lurline, Christine and Alec. Lurline is Lisa's mother. The Court accepts that throughout her life, Janet maintained a close relationship with her siblings.
2. Janet married John "Jimmy" Crawford in 1959. In the early 1960s they moved to Brisbane, where Glenn was born in February 1962. He was to be the only child of the marriage. The family returned to Sydney in or around 1967, before moving back to Zillmere, Brisbane in around 1972.
3. Janet and Jimmy separated in 1978, following which Janet came back to Sydney. From this time to about 1998, Janet worked at the Lady Davidson Hospital at Turramurra in various roles. For most of this period, Janet lived in the hospital's female staff quarters.
4. In 1992, Janet married her second husband, Bob Angel. They moved to Tuncurry to retire in around 1998. In the following year, Bob died suddenly. There were no children of Janet and Bob's marriage.
5. In or around August 2017, Janet was diagnosed with terminal pancreatic cancer. She died on 7 June 2018.
6. All parties accepted (as does the Court) that throughout her life Janet suffered from mental health issues. However, the extent and impact of these issues was a point of serious contention in the proceedings. The Court has no doubt these issues presented Janet (and those around her) with difficulties and challenges from time to time. There were occasions when Janet underwent treatment for her mental health issues, including ECT ("shock therapy") at Concord Hospital in 1978 and The Northside Clinic in 2000. However, for the reasons set out in paragraphs [107] and following below, the Court is satisfied that Janet remained independent, capable of looking after herself and responsible for managing her own affairs until the few months before her death.
7. In the Will, Janet devised the whole of the Estate to Lisa after payment of debts and expenses. There was no dispute that two earlier wills (made in June 2000 and April 2002; see paragraphs [28] and [38] below) had been validly revoked, or that the Will had been validly executed. Probate of the Will was granted on 7 January 2019 to the Mundens as co-executors.
8. At the time of the hearing, there was some contest between the parties as to the size of the Estate deposed to by the Mundens, which Glenn submitted did not adequately take into account the value of household contents from the sale of Janet's property in Grafton and pieces from her jewellery collection. The discrepancy was said to be in the order of around $100,000. For the reasons set out in paragraphs [128] and following below, the Court is satisfied that the size of the Estate as at the time of the hearing was approximately $632,000, with outstanding liabilities of approximately $38,057.50.
9. On the estimate of a three-day hearing, Glenn's legal costs and disbursements were $90,000 (GST inc) on the indemnity basis and $70,000 (GST inc) on the ordinary basis. The Mundens' legal costs and disbursements were estimated at $88,000 (GST inc) on the indemnity basis.

Relationship between Glenn and Janet before 26 February 2002

1. Glenn was the only child of Janet and Jimmy. It was not disputed by the parties that in his early years, Glenn had a loving relationship with his mother.
2. Glenn was about 16 years old when Janet and Jimmy separated in 1978. Although Glenn stayed with Jimmy (to whom he became apprenticed as a house painter, and later moved with to Tweed Heads), Glenn remained close to his mother. In or around 1982, Janet went and stayed with Glenn in Hawaii, when Glenn was returning from an overseas trip.
3. From about 1983 to 1985, Glenn was self-employed and operated his own house painting business (the "Painting Business"). In about 1985, Glenn returned to Sydney and started work at the Lady Davidson Hospital as a dishwasher, where Janet was still living and working (see paragraph [12] above). Janet assisted Glenn in acquiring the job. Glenn lived in the hospital's male staff quarters.
4. In November 1987, Glenn married his wife, Annmaree. Janet attended the wedding.
5. Glenn and Annmaree both then continued to work at the Lady Davidson Hospital (where Janet was also still living and working) until around 1989, when they moved to Currumbin on the Gold Coast. Glenn returned to self-employed work again in the Painting Business.
6. Although there was a dispute in the evidence as to the frequency and duration of Janet's trips to Currumbin, I am satisfied that Janet did visit Glenn and Annmaree over the years. Moreover, it was accepted that Janet was both an involved and doting grandmother to Glenn and Annmaree's children in their early years. Amanda was born in January 1990, Mark in October 1993 and Matthew in December 1994. For convenience and where appropriate, I will refer to Glenn, Annmaree and their children collectively as the "Crawford family".
7. In 1999, the Crawford family moved to Grafton in New South Wales, where they bought their home at XXX North Street (the "Crawford Property"). To understand subsequent events, it is important to note that the Crawford Property extended across two blocks, running from North Street in the south (front street access) to Riverdale Court in the north (rear street access). This was distinct from all other neighbouring properties which, as single blocks, had frontage to only either of North Street or Riverdale Court.
8. For the reasons set out in paragraph [123] below, the Court finds that at some time in or around 1999, an argument occurred between Glenn and Janet. At the time, Janet had travelled from Tuncurry to visit the Crawford family in Grafton. There is insufficient evidence for the Court to make any specific findings about the argument beyond that it happened. However, the Court is satisfied, on the balance of probabilities, that the argument resulted in Glenn throwing Janet's belongings from the Crawford Property and in Janet returning to Tuncurry.
9. Following Bob's death in September 1999 (see paragraph [13] above), Janet remained in Tuncurry. The extent of support provided to Janet by the Crawford family following Bob's death was disputed, and again the evidence before the Court is not sufficient to make any conclusive findings. It was accepted however by Glenn that he (Glenn) and Bob did not get along, and that no member of the Crawford family attended Bob's funeral. The parties also accepted that following Bob's death, Janet experienced a major depressive episode for which she was admitted to The Northside Clinic in St Leonards, Sydney. Janet was discharged on 20 June 2000 into the care of her brother Alec and his wife, Frances.
10. Shortly after her discharge from The Northside Clinic, Janet made a will on 30 June 2000 (the "2000 Will"). Under the 2000 Will, Janet appointed Glenn as executor and distributed her Estate between Glenn and his three children in equal shares. This appears to be what might be termed a partial testamentary distancing of Glenn by Janet.
11. It was common ground that a decision was ultimately made for Janet to move to Grafton in order to be closer to Glenn and the grandchildren, and in April 2001 Janet purchased a property at XX Riverdale Court (the "Riverdale Court Property"). The Riverdale Court Property was about five doors away from the Crawford Property's rear access (see paragraph [25] above), with the walk between the two properties taking no longer than 5 minutes (if not less).
12. There was a dispute between the parties as to the nature of the relationship between Janet and the Crawford family following her move to Grafton. Glenn said that they frequently saw each other at their respective houses for lunches, dinners and coffees, that they went on holidays together and that Janet was heavily involved with the grandchildren's sporting and school lives. Glenn described their relationship as being "good", subject to what he termed as "normal mother-son arguments". No further explanation was offered as to what was meant by this.
13. For the reasons set out in paragraph [123], the Court finds that although Janet and the Crawford family did maintain a relationship during this period and there were no doubt happy times, it cannot sensibly be disputed that the relationship was at other times seriously strained. There was evident tension in particular between Janet and Glenn's wife, Annmaree. Further, the Court accepts there were occasions when Janet's mental health issues presented challenges for the family, with Glenn stating he was "embarrassed" by his mother's behaviour. Again, no further explanation was offered as to what was meant by this or how it impacted his relationship with Janet. However, I am satisfied the relationship was sufficiently tested to the extent Janet told extended family and friends that she questioned her decision to move to Grafton.

The Incident on 26 February 2002

1. On 25 February 2002 Glenn turned 40. To celebrate the milestone birthday, the Crawford family organised a dinner to be held that evening at their house.
2. While it was common ground that the Crawford family and Annmaree's parents attended the dinner, a key matter of contention between the parties was whether or not Janet had also been invited. Based on the evidence before the Court and the Court's findings on Glenn's credibility as a witness (see paragraphs [99] to [104] and [115] to [120] below), the Court is satisfied, on the balance of probabilities, that Janet was not invited to the birthday dinner. The evidence does not allow the Court to make a finding as to who was responsible for the decision not to invite Janet as between Glenn and Annmaree (or both of them). However, the Court does infer from the facts that it was a party for Glenn at his home and that Glenn either took, or acquiesced in, the decision not to invite Janet. Subsequent references in this judgment to such a decision are intended also to refer to the alternative finding that Glenn acquiesced in that decision, a decision presumably taken or encouraged by Annmaree (a presumption based on references such as those set out in paragraph [123] below to there having been difficulties between Janet and Annmaree).
3. At some point the next day (26 February 2002), Janet came around to the Crawford Property. The parties agreed that Janet was upset and angry, saying words to Glenn to the effect of "I was not invited to the birthday party". It was also accepted that Janet's behaviour was significantly agitated and that she directed her anger towards Annmaree, at whom she shouted and slapped on the cheek. Glenn sought to restrain his mother and escorted her to the rear gate of the Crawford Property, forcing her to leave.
4. Despite the contrasting narratives, there can be no doubt that this event, which I respectfully refer to for convenience as the "Incident", was a very emotional occasion. Words were said and actions undertaken that were deeply hurtful to all parties involved. So much is made patently clear when it is understood, and the parties accept, that following the Incident Glenn and Janet became estranged from each other effective immediately.

Events following the Incident

1. It was Glenn's evidence that the Incident resulted in him "cutting off" contact with his mother. By his own admission, Glenn made no attempt to reconnect or reconcile with Janet until 28 February 2018, nearly 16 years later to the day.
2. The Court accepts that almost immediately following the Incident, Janet listed the Riverdale Court Property for sale. The parties agreed (and the Court finds) that because the settlement took place on 9 May 2002, it was inherently likely that the property was sold on or around late March 2002 (assuming the standard 6 week settlement period). The speed with which this occurred is consistent with both the fact that Janet was already questioning her decision to move to Grafton (see paragraphs [31] above and [123(3)] below) and the decisive impact of the Incident.
3. Janet also changed her will. Pursuant to the new will dated 29 April 2002 (the "2002 Will"), Janet appointed the Mundens as co-executors and left the residuary estate to be shared equally between the three grandchildren. In contrast to the 2000 Will, Glenn was removed as executor and no provision was made for him, with the 2002 Will containing this clause: "7. I have made no provision for my son GLEN (sic) CRAWFORD as we have not been getting on for some time and notwithstanding many gifts I have given him totalling in excess of $40,000.00."
4. Glenn disputed Janet's assertion that he had been provided with "many gifts". He said that he had never received any financial assistance from his mother, let alone gifts in excess of $40,000. There is insufficient evidence for the Court to be satisfied whether or not Janet had in fact given Glenn such gifts. However, nothing turns on it because even if she had, the amount is not large enough to have made any difference to the outcome which the Court has reached in these proceedings, including as to quantum.
5. Following the sale of the Riverdale Court Property, Janet returned to Sydney where she lived for a time with members of her extended family, including her sister Lurline (Lisa's mother). Using funds borrowed from her sister Lois, in May 2002 Janet bought and moved into a unit in North Ryde.
6. The Court accepts the Mundens' evidence that notwithstanding the state of affairs between Janet and Glenn following the Incident, Janet continued to send birthday and Christmas cards with money (cheques) to the grandchildren. The Court further accepts it as likely that the cheques were presented (which Glenn denied), but that none of the cards were acknowledged. Nevertheless, it is apparent Janet persisted in her attempts to re-establish contact with the Crawford family.
7. In or around December 2004, Janet attended a school Christmas Concert in Grafton in which her grandson Matthew was participating. Based on the evidence before the Court (and the Court's findings on Glenn's credibility as a witness; see paragraphs [99] and following below), it is not possible for the Court to reach a state of actual satisfaction on the balance of probabilities as to the exact events which took place. However, the parties agreed that the Crawford family were unaware of Janet's intention to attend the concert and that absent a possible interaction between Janet and Matthew (Matthew not giving evidence in these proceedings), there was no communication between Janet and the Crawford family. Glenn's affidavit evidence was that neither he nor Annmaree attempted to speak to Janet and they remained in their own seats.
8. In or around early 2005, Janet again attempted to initiate contact by attending a dance eisteddfod in which Amanda was competing. Janet had travelled from Sydney to Grafton with her sister Lurline, but was told to leave by Annmaree (Glenn not being present on this occasion). For the same reasons set out in the preceding paragraph, it is again not possible to determine the exact events which took place. However, I am satisfied that Janet's presence at the concert was met with hostility on the part of Annmaree and that Janet was told in no uncertain terms that she was not welcome and should leave.
9. Notwithstanding the tenor of the foregoing events, in or about 2009 Amanda (the eldest of the grandchildren and aged around 19 years at the time) re-established contact with Janet. Although there was a dispute in the evidence as to the circumstances of the contact and timing of events, and noting that Amanda was not called to give evidence, I am satisfied that this contact influenced Janet's decision to move back to Grafton in an effort to be closer to Glenn and the other grandchildren. Janet subsequently sold her unit in North Ryde and purchased a house at X Jordan Close in Grafton (the "Jordan Close Property"), approximately 2 kilometres from the Crawford Property.
10. It was an unfortunate reality that despite her return to Grafton, at no point did Janet re-establish contact with Glenn. Janet and Amanda maintained a good relationship for a period, during which the Court is satisfied Janet spent money on Amanda and purchased her gifts, including a second-hand car to the value of around $25,000. Amanda also stayed at the Jordan Close Property when Janet went overseas. However, at some stage this relationship too broke down. Although there was no evidence before the Court as to when this occurred, I am satisfied on the balance of probabilities it was before 16 August 2012 (see paragraph [50] below).
11. The Court accepts that from this point, the situation between Janet and the Crawford family again returned to a state of complete estrangement, with Janet again expressing to extended family and friends her regret at moving back to Grafton.

Relationship between Janet and the Mundens

1. Although Janet stayed in Grafton and continued to reside at the Jordan Close Property, she regularly returned to Sydney to visit extended family and to attend special occasions. On these occasions, she would generally stay in a spare bedroom at the Mundens' house in Gordon (which was set up for her visits and where she permanently left personal items).
2. The Court accepts that Janet had always maintained a relationship with her extended family, including Lisa. Lisa regularly saw her aunt (Janet) from when she was about 12 years of age. Further, the Court accepts that from or around 1999 following the death of Bob, and particularly from around the time of Janet's return to Grafton in 2009, Janet formed a close and loving relationship with Lisa.
3. It is clear that over the years, Janet and Lisa were in frequent contact and provided each other with emotional support. Moreover, there can be doubt that Janet placed considerable trust in the Mundens, having appointed them her joint powers of attorney from 2001 and co-executors of the 2002 Will. The Court accepts as a matter of actual persuasion that Janet grew to view Lisa and her two daughters, Alex and Michaela, as "the family she never had".
4. On 16 August 2012 Janet revoked the 2002 Will and made the Will. The Will removed any provision for Amanda, Matthew and Mark and appears to mark a complete severance between Janet and the Crawford family. Instead, Janet left the balance of her Estate entirely to Lisa for her own use and benefit absolutely. In the event Lisa predeceased Janet, the residuary Estate was left to Lisa's daughters in equal shares. Again, the Will included a clause in the same terms as the 2000 Will (see paragraph [38] above): "[6] I have made no provision for my Son GLEN (sic) CRAWFORD as we have not been getting on for some time notwithstanding the many gifts I have given him totalling in excess of $40,000.00"
5. At the same time, Janet renewed her Power of Attorney, again appointing the Mundens as her enduring joint powers of attorney. A decision was also made by Janet to appoint Lisa and another niece, Leanne Maskell, as her enduring guardians. However, the Court accepts that the appointment of enduring guardian was only accepted by Lisa and then not until 26 February 2018 (see paragraph [55] below).

Janet's deteriorating health and events following her death

1. In or around August 2017, Janet was diagnosed with terminal pancreatic cancer and underwent treatment in Sydney. Lisa attended all medical appointments with Janet as her niece, support person and enduring guardian (although this last capacity was not yet effective, see paragraph [55] below).
2. During periods of hospitalisation, Lisa acted as Janet's responsible next of kin and visited her almost daily. In between admissions, Janet was cared for by the Mundens and again stayed in the spare bedroom at their house. Glenn was not told of his mother's diagnosis at this time. The Court accepts that it was Janet's stated wish that Glenn not be contacted.
3. Janet was discharged from hospital on 22 September 2017, following which she returned to Grafton to get her affairs in order. Shortly before Christmas, Janet told Lisa she was ready to return to Sydney and said words to the effect of "I don't want to stay in Grafton any longer". Lisa booked and paid for an airline ticket, with Janet arriving back in Sydney on 19 December 2017. She celebrated her 80th birthday on Christmas Day.
4. Janet was re-admitted to hospital on 2 January 2018. Due to her deteriorating mental health, Janet was subsequently transferred to the mental health care unit at Greenwich Hospital. Over the next 6 months, Janet was transferred a number of times back to hospital as she became medically unwell, before eventually being admitted to the palliative care unit at Greenwich Hospital. Again, the Court accepts that throughout this period, Lisa acted as Janet's responsible next of kin, liaising with medical specialists, attending appointments and visiting her regularly. On 26 February 2018, Lisa's appointment as Janet's enduring guardian took effect.
5. I accept Lisa's evidence that it was Janet's wish that Glenn not be informed about his mother's terminal illness. However, I also accept Lisa's evidence that over the course of January and February 2018, Lisa actively consulted with hospital staff and members of Janet's medical team in relation to whether or not Glenn should be contacted, against Janet's wishes, in light of Janet's steadily deteriorating health.
6. On 28 February 2018, a telephone call was made to Glenn by a social worker at Greenwich Hospital, during which Glenn was informed for the first time that Janet had terminal pancreatic cancer. At the time of the call, Glenn was finishing a work job at Schofields, on the outskirts of Sydney. Glenn visited Janet the next day and stayed for about two hours.
7. The Mundens do not take issue with Glenn's evidence that on this occasion, Janet was happy to see Glenn and said words to him to the effect of "I wish things had turned out differently". However, the Court accepts that Janet's views (including her testamentary intentions) towards Glenn and his family did not change following this contact.
8. Glenn made no subsequent attempts to contact Janet on his own initiative. However, on 19 May 2018 Glenn received a further telephone call from a social worker at Greenwich Hospital, who told him that Janet would "not last too much longer".
9. A day or two later, Glenn drove from Grafton to Sydney to visit Janet. On this occasion, he was accompanied by Amanda and her partner. The three visited Janet and stayed for around three hours. Again, the Mundens do not dispute that Janet was pleased to see Glenn and Amanda, or that she likely expressed regret (as alleged by Glenn) at the estrangement between them. However, the Court also accepts that Janet's views (including her testamentary intentions) did not change and that, following this visit, neither Glenn nor any other member of the Crawford family made further contact with Janet, in person or otherwise.
10. On 7 June 2018, Glenn was informed by a social worker at Greenwich Hospital that Janet had died that morning.
11. On 15 June 2019, Janet's funeral took place at North Ryde in Sydney. There was a dispute in the evidence as to whether Glenn was excluded by the Mundens from Janet's funeral arrangements. It was Glenn's evidence that he was "ignored" and "treated as an outsider" by the extended family. However, as will be apparent, nothing turns on this other than Glenn's credit. It was common ground that Glenn did not arrange his mother's funeral, nor did he make any further enquiries in relation to it.
12. Glenn attended the funeral alone. Neither Annmaree nor any of his children accompanied him. In line with the Court's findings on Glenn's credibility as a witness (see paragraphs [99] and following below), the Court accepts that Glenn spoke with members of Janet's extended family at the funeral and wake, including the Mundens.

Glenn's financial and material circumstances

1. Glenn is currently 58 years of age. As I have already recorded, he married his wife Annmaree in 1987 and together they have three children. At the time of the hearing, Amanda, Mark and Matthew were aged 30, 26 and 25 respectively.
2. Glenn continues to reside with Annmaree at the Crawford Property. The children no longer live there, although there was some dispute over the extent Glenn and Annmaree continue to support them. For the reasons set out in paragraphs [144] and [145] below, the Court is satisfied that Glenn and Annmaree continue to provide financial support only to their youngest child, Matthew.
3. In an updating affidavit filed in these proceedings on 4 June 2020, Glenn deposed to the following assets: 1. Crawford Property valued at approximately $575,000 (the property being owned outright); 2. Home contents at the Grafton Property valued at approximately $50,000; 3. $200,000 term deposit held with National Australia Bank ("NAB"); 4. Motor vehicle valued at approximately $46,000; 5. Caravan valued at approximately $45,000; 6. Boat valued at approximately $40,000; 7. His Painting Business (including plant, equipment, tools and goodwill) valued at approximately $5,000; and 8. Cash at bank (NAB) valued at $13,829.41.
4. With the exception of those items identified at (1), (2) and (8) in the preceding paragraph (which were held jointly in equal shares with Annmaree), all the above assets are in Glenn's name alone.
5. Glenn's updating affidavit evidence records liabilities of approximately $29,581.42, comprising a car loan, credit card debt, utility rates associated with the Crawford Property and accounts held in relation to the Painting Business. The credit card debt and utility rate liabilities are held equally with Annmaree.
6. In addition to the shared assets and liabilities identified above, Annmaree's financial position as at 4 June 2020 also included assets of approximately $121,317.29, incorporating superannuation valued at $54,170.16.
7. Glenn has been self-employed since 1989, with the only source of income deposed to being what he derives through his Painting Business. This income is variable and he has no superannuation. Based on his income for the previous 3 financial years, Glenn estimated his current gross monthly income as $1,820.91. Annmaree continues to maintain both a part-time and casual job, for which her combined gross monthly income is $3,620.73. Accordingly, their joint gross monthly income is estimated at around $5,441.64 (being around $65,000 per annum).
8. Both Glenn and Annmaree contended that, due to the nature of their current jobs, they will both need to retire within the next 4 years.
9. It was Glenn's evidence that he and Annmaree's monthly expenditure of approximately $5,420.50 was effectively paid for by Annmaree and that any surplus was nominal. Glenn said that he has not been in a position to accumulate significant savings and acknowledged that, "to a significant extent", his current assets result from an inheritance of $330,000 from his late paternal grandmother, Joyce Crawford, in 2017.
10. Glenn described his present financial needs as, first and foremost, to pay off his liabilities. As to his future financial needs, Glenn expressed a desire to undertake renovations to the Crawford Property, estimated at around $30,000 (T48:33-49) and to continue to provide for his children. He and Annmaree would also like to retire to the coast to a place such as Pottsville or Kingscliff, with suitable properties said to range from $700,000 to $1,695,000 (depending on the location). Finally, Glenn deposed to the need for a sum of money to cover the contingencies of life, particularly in light of Annmaree's and his likely retirement within the next 4 years.
11. For the reasons set out in paragraphs [135] and following below, while the Court acknowledges there may be legitimate future financial needs, based on copies of bank statements in evidence and Glenn's testimony, the Court also finds that at the time of the hearing, Glenn and Annmaree's current financial circumstances were that their income exceeded their expenditure. However, the evidence is not sufficiently detailed to enable a precise finding as to by how much.

Findings as to credit

1. It was indicative of the extent of the estrangement between Glenn and Janet (and, in turn, Glenn's estrangement from Janet's extended family, including the Mundens) that there was little on which the parties agreed. The proceedings involved contrasting versions of events on almost every fact in issue. Given the lack of contemporaneous documentation on certain critical issues and heavy reliance on indirect evidence, the Court has had to consider the credit of Glenn, Lisa and, to a lesser extent, Mark.

Legal principles as to credit

1. I considered the principles applicable to findings of credit in Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964 at [464] - [473]. Those ten principles may be briefly summarised as follows.
2. First, at the forefront of the Court's approach has been the oft cited statement of McLelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318-319: "Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712."
3. Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123: "48. Under s 140(2) of the Evidence Act 1995 (Cth), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account: • the nature of the cause of action or defence; • the nature of the subject matter of the proceeding; and • the gravity of the matters alleged. When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342."
4. Third, there is the statutory successor of the rule in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 in s 140 of the Evidence Act 1995 (NSW): "140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -- (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged."
5. Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest.
6. Fifth, evidence of independent witnesses, i.e. persons who have no reason to be partisan, may be decisive in resolving the conflicting evidence of interested parties.
7. Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness' evidence in its entirety. This approach was expressed by O'Loughlin J in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084: "118. Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions. … 121. A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected."
8. Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings: "155. There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. 156. Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]."
9. Eighth, disbelieving a witness that "X" was the case does not mean that "not X" has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694; [1975] HCA 63 (citations inserted): "…The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 C.LR. 230, at p. 241; Hobbs v. Tinling (C.T.) & Co. Ltd. [1929] 2 K.B. 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail (1906) 2 C.L.R. 684, at p. 698; Malzy v. Eichholz [1916] 2 K.B. 308, at p. 321; Ex parte Bear; Re Jones (1945) 46 S.R. (N.S.W.) 126, at p. 128), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King (1924) 34 C.L.R. 153, at p. 158; Tripodi v. The Queen (1961) 104 C.L.R. 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell [1961] W.A.R. 103, at p. 109."
10. Ninth, the way evidence should be treated where that evidence is not the subject of cross-examination when cross-examination was required, was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619: "111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5]."
11. Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. The evidence in the case at bar has many similarities to the family dispute considered by Robb J in Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said: "187. The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations."

Submissions on Glenn's credibility

1. On behalf of the Mundens, Mr Barham submitted that Glenn was a deeply unreliable and unsatisfactory witness whose recollection of events simply could not be trusted. The submissions made by Mr Barham in respect of Glenn's credibility can be summarised in three points.
2. First, Mr Barham contended that Glenn was tactical in the way he presented aspects of his affidavit evidence to the Court, having a tendency to either exaggerate this evidence or put it in a deliberately equivocal manner. A number of examples were advanced: 1. Glenn had attempted to make it sound like Janet and he had lived together in the staff quarters at the Lady Davidson Hospital when they worked there between 1985 and 1989, when in fact females and males lived in separate staff quarters (T54:27-31). 2. Glenn's evidence was initially that he had "carried" Janet out to the Crawford Property's back gate following the Incident, however he later conceded in cross-examination that he had used his arms to "assist" or "direct" Janet to leave and that her feet hadn't left the ground, asserting that it meant "the same thing to me" (T93:44-94:15). 3. It only became apparent in cross-examination that Glenn had not in fact been present at the dance eisteddfod in early 2005 (see paragraph [43] above), so that his account of events was all based on the uncorroborated hearsay evidence of others (T102:33-103:8, T104:1-8). 4. In respect of his asserted financial circumstances, Glenn had not disclosed the actual amount he inherited from his paternal grandmother's estate in 2017 (being $330,000) as he "never thought it was important" (T61:7-8), nor the $160,000 each of his children had also received from her estate as he "[didn't] see what that's got to do with anything" (T62:8-10).
3. Second, it was submitted that there were a number of inconsistencies in critical parts of Glenn's evidence that the Court should not accept. Mr Barham challenged the plausibility of Glenn's characterisation that Janet's "manic depression" included her physical abuse of him as a child and that she would "throw [him] around the room when she got angry", considered against Glenn's later evidence that he was happy for Janet to babysit his children and that he would not have let her done so if she was physically and verbally abusive (T50:31-35, T51:14-16). As another example, Mr Barham also questioned the plausibility of Glenn's evidence that the grandchildren were at home at the time of the Incident and eyewitnesses to the event, given it was also Glenn's evidence that the Incident occurred at 10am on a Tuesday (it being unchallenged that it was a school day).
4. Third, Mr Barham referred to a number of occasions where Glenn failed to make concessions where it was clearly appropriate. For example, Glenn was resolute in his evidence that he did not speak to either of the Mundens at Janet's funeral (T122:47-123:7). It was Mr Barham's submission that this position could not be sensibly maintained in the face of the documentary record, notably: 1. A text message from Mark to Glenn, sent during a conversation the two had at the wake on 15 June 2018 (Mark had sent a message to Glenn's phone so that he had Mark's number, after Glenn said he didn't know how to save new contacts); and 2. An email Lisa sent 3 days after the funeral to a social worker from Greenwich Hospital, confirming that Glenn had attended his mother's funeral: "…Just wanted to let you know that Glenn attended Janet's funeral on Friday. He was greeted with warmth, care and kindness by all of the extended family. It was lovely to see him there after not having any contact for 40 years. He helped carry Janet's body out to the hearse and we were able to show him where Janet's ashes will be placed. He attended the wake where he was able to catch up with everyone. …"
5. Mr Barham's submission was that the cumulative effect of the above matters was that contrary to Glenn's contention that he had a fair memory (T52:35-36), the Court should be satisfied that Glenn's recollection of events was poor and could not be trusted. This was in contrast to the Mundens, particularly Lisa who had "a very, very good memory" like "a steel trap" (T278:44-45). As such, Mr Barham said that the Mundens version of disputed events should be preferred.

Submissions on the Mundens' credibility

1. Mr Grant submitted for Glenn that it was the Mundens who were the unreliable witnesses and whose evidence was not to be preferred over that of Glenn. The submissions made by Mr Grant can be summarised in four points.
2. First, Mr Grant questioned the reliability of Lisa's recollection of events occurring when she was only a child. As an example, Mr Grant challenged Lisa's evidence that in about 1976 (when Lisa was aged 10 years) she went on a holiday with her mother and other members of the extended family to Zillmere, where they all stayed in the two-bedroom property Janet, Jimmy and Glenn then resided in. This version of events was denied by Glenn. It was Mr Grant's contention that for much about which Lisa purported to depose regarding the early years, Lisa was either not there or she was a very young child (T243:24-28).
3. Second, and following from the preceding paragraph, Mr Grant submitted it was common ground that the Mundens were not present at many of the critical events in issue, such as the Incident, the Christmas concert in 2004 and the dance eisteddfod in 2005. Referring specifically to the Incident, Mr Grant again questioned the reliability of their version of events in circumstances where the Mundens had not called any witness who was there, and so had "put on no affidavit or no evidence about the [I]ncident" (T247:27-32).
4. Third, it was contended that it was Lisa who demonstrated a tendency to exaggerate her evidence. Mr Grant challenged the plausibility of Lisa's evidence that Janet had sent "numerous letters" apologising to the Crawford family "shortly" after the Incident, suggesting it was not physically possible to send numerous letters in a short period of time (T166:50-167:9).
5. Finally, particular emphasis was placed on the fact there had not been "full and frank" disclosure by the Mundens in the inventory of the Estate's assets. As co-executors of the Estate, Mr Grant contended not only had the Mundens failed to disclose Janet's jewellery collection at first instance, but following Glenn's identification of it in his first affidavit sworn 9 May 2019, they had caused considerable delay in its eventual disclosure. This conduct was to be considered in light of both Lisa and Mark's concessions that they were aware of jewellery belonging to Janet when they packed up the Jordan Close Property following Janet's death (T173:23-25, 35-48; T210:30-37). Further, Mr Grant took strong issue with the Mundens' submission that the value of Janet's household contents was only $8,000, in circumstances where the insurance policy Janet had taken out revealed the contents were insured for the sum of $92,224 (and where, following Janet's death, the Mundens had subsequently taken out a new policy insuring the contents for the same sum). The inference to be drawn was that the Mundens were neither reliable nor truthful witnesses.

Conclusions on credit

1. The Court rejects Mr Grant's submissions on the Mundens' credibility. Having observed both Lisa and Mark in the witness box, I am satisfied that each gave their evidence in a confident and frank manner. They both appeared to be doing their best to assist the Court. With respect to Lisa, I formed the impression that she was articulate, composed and capable of recalling her evidence with convincing precision. The Court accepts each of the Mundens as a reliable, truthful witness whose evidence is to be preferred over that of Glenn, where that evidence was in conflict.
2. In contrast to Glenn (see the next paragraph), the Mundens did not seek to embellish their evidence during cross-examination and made concessions where appropriate. Both Lisa and Mark acknowledged the delay in disclosing the existence of jewellery in Janet's estate. I accept Mark's frank admission that he left prime carriage of the administration of the Estate to Lisa (T222:27-33) and Lisa's concession that the jewellery should have been disclosed in the original inventory of property prepared (T173:27-29). Further, I accept Lisa's candid evidence that the failure to disclose the jewellery was "a total error" on her part, as illustrated in this exchange (T180:40-42; T181:6-17): "HIS HONOUR Q. Madam what explanation if any can you proffer to the Court as to why the jewellery was not referred to in your earlier affidavit? A. It was just a total error on my, my part. It was just a total error. … Q: Is there any reason for [the delay in disclosing the jewellery]? A. You know the jewellery to me didn't, you know there was just a small amount of jewellery. It was her personal jewellery and you know I didn't feel that it - you know it was very personal to Janet and I didn't feel it had much value. Q. But you had no doubt that it was hers? A. Yeah. Q. You had no doubt that you had an obligation to disclose in the inventory of property as an executor all of the property that you're aware of? A. Yeah, that's an error on my part."
3. The impression I formed of Glenn was that he was an unsatisfactory witness whose recollection simply could not be accepted as reliable unless inherently likely, against interest or supported by contemporaneous documentary evidence. There are three reasons for the Court's conclusion.
4. First, there were occasions where I had no doubt that Glenn was either exaggerating his evidence or being intentionally evasive in his testimony to the Court. This was particularly so on occasions where the facts were uncomfortable for him or did not support his version of events. I accept the examples put forward by Mr Barham in this respect, as set out in paragraph [88] above. A further example was Glenn's attempts to explain he was excluded from his mother's funeral arrangements by the Mundens, but his later concession that he didn't in fact make any attempt to be included in part of those arrangements (T122:1-43). The following exchange during cross-examination is also illustrative of the equivocal manner in which Glenn presented his evidence (T94:31-95:37): "[MR BARHAM] Q. You say the children were badly shaken by [the Incident], do you? A. Yes, I do. … Q. You say that Amanda wouldn't sleep in her bedroom alone for two years afterwards? A. That's right. Q. Is that true? A. That's true. … Q. So where did Amanda sleep for the next two years? A. Upstairs. Q. Where? A. In the, in the bedroom. Q. What bedroom? A. She shared it with one of the boys. Q. Which boy? A. The oldest. Q. You're struggling, aren't you? A. No. Q. All right, so what if any arrangements do you say you made in respect of Amanda sleeping upstairs? A. She slept on a mattress. Q. What mattress? A. A mattress that we had. Q. So what, on the floor or something? A. On the floor. Q. So for two years Amanda slept with a mattress on the floor in one of the rooms upstairs? A. Yeah. Q. Even though she was, what, presumably going into puberty? A. Yes, that's right. Q. 12 to 14 she's on a mattress on the floor in her brother's bedroom? A. Yeah. Q. Which brother? A. The, the oldest one. Q. Right, who is that? A. Mark."
5. Second, there were a number of occasions where Glenn failed to make concessions or accept propositions put to him which were clearly appropriate. Most illustrative of this was Glenn's evidence that he did not speak to the Mundens at Janet's funeral, a position he resolutely maintained even in the face of the contemporaneous documentary record of Mark's text message and Lisa's email correspondence (see paragraph [90] above).
6. A further example was Glenn's resistance to accept the proposition that statements in his affidavit asserting "I heard no further from (or about) Mum until the telephone call on 28 February 2018" were not true. Even accepting it was Glenn's evidence that he himself made no enquiries about his mother's welfare in the 16 year period (T115:45-47), the proposition put to him by Mr Barham could not be sensibly disputed, as the following exchange during cross-examination demonstrates (T115:1-43): "[MR BARHAM] Q. I suggest to you that so far as contact with your mother went you received… a letter of apology. A. No I didn't. Q. She went to a concert in 2004 or-- A. Yeah. Q. Christmas concert 2004? A. Yeah. Q. You saw her at the Christmas concert, didn't you? A. Christmas concert, yes. Q. She went to an eisteddfod-- A. Yes. Q. -in 2005 probably? A. Yeah probably. Q. You heard about your mother from… [Annmaree]? A. Yes Q. You knew about the car [Janet bought for Amanda]? A. Yeah I knew about the car. Q. You knew that she'd stayed with - Amanda had stayed with your mother? A. At her house? Q. Yes. A. Yeah. … Q. … You knew that Amanda stayed at your mother's house when your mother went overseas? A. Yes. Q. So you knew all that about your mother, didn't you? A. Yeah."
7. Finally, much of Glenn's evidence went against what one could only accept as the inherently likely version of events. On his own admission Glenn had not seen Janet for 16 years prior to her death, but purported to recall an itemised list of her jewellery collection for the purpose of the Estate inventory. For similar reasons, Glenn's evidence that he spoke to several members of his extended family at Janet's funeral and wake, but not to the Mundens (who by all accounts were largely responsible for its organisation), cannot be sensibly maintained. I am fortified in this conclusion when considering both the Mundens' evidence, as well as the documentary record that clearly demonstrates Glenn's interaction with the Mundens on this occasion (see paragraph [90] above).
8. Accordingly, where there is a conflict in the evidence, I will not accept Glenn's evidence unless it accords with the probabilities, is against interest or is supported by contemporaneous documents.

Contentious matters

1. Following the findings as to credit set out above, it is convenient next to set out my conclusions on the factual matters in dispute: 1. The impact of Janet's mental health issues 2. The particulars of the Incident 3. The nature and extent of the estrangement between Janet and Glenn 4. The value of the Estate 5. Glenn's current and future financial circumstances
2. By reference to the uncontested facts and what was inherently likely, informed by the Court's findings on Glenn's reliability as a witness, the Court is satisfied, on the balance of probabilities, of what follows and finds accordingly.

Janet's mental health

1. As has been set out above, the parties accepted (as does the Court) that throughout her life Janet suffered from mental health issues. However, the extent and impact of these issues was a point of serious contention in the proceedings, there being a dispute as to whether Janet suffered from "classic" depression (as contended by the Mundens) as opposed to "manic" depression or bipolar disorder (as contended by Glenn).
2. The Court was not asked to make definitive diagnostic findings on Janet's mental health, with the parties correctly conceding that there was no expert evidence before me to permit a finding either way. Mr Grant submitted that the distinction of whether it was depression, manic depression or bipolar should not matter (T234:44-49). However, notwithstanding this, it became readily apparent that the characterisation of Janet's mental health remained contested insofar as it influenced the Court's findings on the particulars of the Incident, the nature and effect of Glenn and Janet's estrangement and Janet's testamentary intentions. Accordingly, to the extent the evidence permits, it has become necessary to set out some findings on this matter.
3. It was Glenn's evidence that throughout her life, Janet had suffered from "manic depression" (now more commonly known as bipolar disorder) and that, at times, it was quite severe. Glenn referred to his mother's "manic episodes" where she would shout and scream at others and would became irrational, as well as occasions where Janet would physically abuse him as a child, "throwing him around the room". Although Mr Grant conceded there were no medical records in evidence that showed a diagnosis of manic depression or bipolar disorder, it was Glenn's own evidence that when he was around 10 years, Janet had said to him words to the effect of "I have problems with my head, I have manic depression". Reference was also made to an alleged incident in Grafton shortly after Janet's move there in 2001, when she was invited over to the Crawford Property for dinner but spent the entire evening sitting downstairs on the floor in the corner of Amanda's bedroom in the dark.
4. In contending that Janet's mental health issues were something more than "classic" depression, it was Glenn's case that Janet's mental health explained much of her conduct that was relevant to the key issues in the proceedings. For example, in addition to her behaviour at the Incident, selling the Riverdale Court Property within a month of the Incident, changing her will within two months of the Incident and then leaving Grafton were all said to be consistent with her mental health issues (T231:50-232:3). The inferences to be drawn from this submission were that Janet's mental health: first, was the initial cause of the estrangement with Glenn; second, provided a rational explanation for Glenn's behaviour in "cutting off" contact with his mother; and third, took the "sting" out of the estrangement (T238:33-41). In all circumstances, Janet's mental health was said to provide critical context in the Court's determination of whether or not Janet had made adequate provision for Glenn in her Will.
5. On behalf of the Mundens, Mr Barham accepted it was common ground that Janet had received treatment and medical attention over the years with respect to her mental health. However, Mr Barham submitted that the medical evidence made it clear that Janet had only ever been diagnosed with "major depression" and, notwithstanding the challenges this presented at times, that Janet was "no dill" (T9:36-37). Particular reference was made to the medical records in evidence of Dr Sian Ong, the consultant psychiatrist whom Janet saw between 2000 and 2003. Mr Barham emphasised correspondence from Dr Ong dated 22 July 2003, which observed (emphasis added): "…[Janet] is now back in Sydney following a major falling out with her only son in Grafton after a series of conflicts with her daughter-in-law. These are complex family dynamics and she has virtually lost [contact] with her son for a year. Her son has been reluctant to respond to her attempts at reconciliation. However, apart from mild irritability and sadness on her predicament she is not significantly depressed. She appears reactive, animated and there is no evidence of disordered thought processes. She has been eating and sleeping well. Her energy levels are adequate and she plays golf regularly."
6. In the absence of evidence to the contrary Mr Barham submitted that at all relevant times Janet was independent, capable of looking after herself and responsible for managing her own affairs, urging the Court to resist making the inferences invited by Mr Grant.
7. The Court accepts Mr Barham's submission. The evidence is simply not sufficient to make any findings correlated to a particular diagnosis of "classic" depression as opposed to "manic" depression. Further, Mr Grant acknowledged there were no medical records in evidence that showed a diagnosis of neither manic depression nor bipolar disorder, or - taken further - what impact such diagnosis would have on Janet's behaviour. For the reasons set out in paragraph [99] and following above, in the absence of a documentary record the Court cannot (and does not) accept Glenn's recollection of his mother's mental health.
8. This is to be contrasted with the evidence of Dr Ong in June 2003 that following Janet's return to Sydney after the Incident, Janet was "not significantly depressed" and "there is no evidence of disordered thought process". Even bearing in mind earlier evidence of Dr Ong in June 2001 that "I have advised [Janet] not to make any major life decisions just yet", there was no suggestion that either the sale of the Riverdale Court Property or execution of the Will were irrational or somehow invalid. Based on the evidence before the Court, there is nothing to indicate that Janet was unclear in her thinking, suffered any incapacity or that her mental health compromised her behaviour (including her testamentary intentions) in any way. The Court is not satisfied that Janet's mental health issues were responsible for her behaviour or provide an explanation that exonerates Glenn in the way for which his counsel contended in relation to the Incident and its aftermath.

The particulars of the Incident

1. The Court finds that Janet was not invited to Glenn's 40th birthday dinner on 25 February 2002 and that the version of events regarding the Incident as related by the Mundens (being their evidence of what they were told by Janet) is what, on the balance of probabilities, transpired. As set out in paragraph [33] above, Glenn either took, or acquiesced in, the decision not to invite Janet. For the reasons set out in paragraphs [99] to [104] above, I reject Glenn's recollection of the Incident.
2. There are two further reasons why the Court does not accept Glenn's version of events.
3. First, the narrative where Janet was invited but "just didn't turn up on the night" fails to accord with the probabilities. The evidence given by Glenn in cross-examination was that he tried to ring Janet twice to ascertain her whereabouts, but that at no point in the evening did either he or any other member of the Crawford family physically go round to her house to check (despite her living only 5 doors away).
4. It was Glenn's evidence that following her move to Grafton, he would see Janet seven or eight times a week (T69:6-7), that Janet would participate in family events (T70:35-37) and that, prior to the Incident, he "had a good, warm, close and loving relationship with [Janet] for most of her life". Accepting this for present purposes at face value, and assuming that Janet was expected because she had been invited, I find it unbelievable that when Janet failed to answer the phone not once but twice on the night of Glenn's birthday dinner, no one went the short distance to check whether she was alright. Further, there was no suggestion that any subsequent attempt to contact Janet had been made the following morning before she turned up at the Crawford Property.
5. Second, there was a real question as to whether a Jones v Dunkel inference should be drawn from the fact that notwithstanding Glenn's evidence that the grandchildren were all eyewitnesses to the Incident, none were called to give evidence in the proceedings. It was Glenn's evidence that the Incident took place around 10am on 26 February 2002 and it was both accepted this was a Tuesday and left unchallenged in the evidence that it was a school day. Notwithstanding Glenn later stated he was unsure of the exact time of day, Mr Barham submitted in the circumstances the Court could not accept Glenn's uncorroborated evidence that the grandchildren were present. Accordingly, Mr Barham contended that the unexplained failure of Glenn to call members of his family to address this ambiguity would not have assisted Glenn.
6. I accept Mr Barham's submission that the unexplained failure to call the grandchildren to elucidate the matter meant the Court can (and does) draw the inference more strongly that the grandchildren were not present and, for that reason, the grandchildren's uncalled evidence could not have assisted Glenn and that his uncorroborated evidence is not to be accepted.

The nature and extent of Janet and Glenn's estrangement

1. There was no dispute that Janet and Glenn had become estranged following the Incident up until shortly before Janet's death. What remained in issue was the cause of that estrangement and how responsibility for it, if any, was to be attributed as between Glenn and Janet.
2. In light of the Court's findings on the two preceding issues, taken together with the Court's finding of Glenn as an unreliable witness, I reject Mr Grant's submission that the estrangement was in fact initiated by Janet acting violently at the Incident, as a result of her mental health issues (T239:19-30). Moreover, the Court is satisfied that Glenn's behaviour - beginning at least with him deciding not to invite Janet to his birthday dinner - was the cause of the estrangement that ensued for the next 16 years and rejects Glenn's submission that there was an equal amount of stubbornness on both sides. The Court also accepts both the Mundens' submissions that the "wheels started to come off" in Glenn and Janet's relationship before the Incident and that Janet's attempts at reconciliation over the years were rebuffed by Glenn. There are five reasons for these findings.
3. First, Glenn's case that his relationship with his mother was "good" for the first 40 years of his life and that the Incident marked the first deterioration in their relationship is not borne out in the chronology of evidence before the Court: 1. The Court accepts, on the balance of probabilities, Lisa's evidence that Janet had told her of a prior incident occurring in or around 1999, which resulted in Glenn throwing Janet's belongings from the Crawford Property, forcing Janet to return to Tuncurry and further worsening the relations between Glenn and Janet's second husband, Bob. The inherent likelihood of this incident occurring is supported by the fact Glenn did not attend Bob's funeral and he did not visit Janet during her admission to The Northside Clinic shortly after (see the next paragraph). 2. In her affidavit evidence, Frances Armour (Janet's sister-in-law) recalled making a telephone call to Glenn following Janet's admission to The Northside Clinic in May 2000, after Bob's sudden death. Frances advised Glenn that Janet was "not very well at all", to which Glenn said words to the effect of "I won't be coming down and my mother will never see my children again". Glenn denied this conversation and Frances' evidence could not be tested, because she had died prior to the hearing. However, it was left unchallenged that Glenn had not visited Janet during this period and, even after discounting Frances' evidence because it could not be tested, I accept it as consistent with the broader pattern of the evidence culminating in (as the Court has found) Glenn not inviting Janet to his 40th birthday dinner. 3. Despite Janet subsequently moving to Grafton in April 2001 to be closer to the Crawford family, correspondence from Dr Ong to Janet's GP in Grafton dated only 2 months later (June 2001) indicated there were already problems: "…[Janet] is largely stable on Effexor-XR 150mg dose but is uncertain about the Grafton living situation. I have advised her not to make any major life decisions just yet." Although Dr Ong does not elucidate what the issues were, the Court is satisfied, on the balance of probabilities, that this was at least partly in reference to deteriorating relations with Glenn for two reasons. First, Glenn gave evidence in cross-examination that prior to the Incident, he and Janet experienced "normal mother/son arguments" (T64:35-37) and gave examples of two specific arguments Janet had with both Annmaree (T69:15-38) and himself (T70:6-33) in Grafton. Second, Glenn accepted the proposition put to him in cross-examination that the Incident was the "straw that broke the camel's back" (T96:37-39). The fact Glenn's response to the Incident was the cumulative effect of prior events or pre-existing tensions leading up to it is also reflected in further correspondence from Dr Ong. After seeing Janet following her return to Sydney after the Incident, Dr Ong observed in 2003 that (emphasis added); "She is now back in Sydney following a major falling out with her only son in Grafton after a series of conflicts with her daughter-in-law."
4. Second, the Court's finding that Glenn's behaviour was the cause of the ongoing estrangement is supported by Glenn's frank admission that the Incident resulted in him immediately "cutting off" contact with Janet (T96:34-35). While the Incident was undoubtedly confronting, an immediate and permanent rupture is an unlikely outcome if the Incident had been a completely unforeseen and unique event in a hitherto harmonious family relationship. I am fortified in this conclusion when considering Glenn's further evidence that despite various interactions with Janet in the years following (see paragraphs [41] to [44] above), he did not make a single inquiry about his mother's welfare (T114:23-30, T115:45-47) or attempt, on his own initiative, to reconnect with her (T116:17-23).
5. Third, I do not accept Glenn's submission that at no time between the Incident and 28 February 2018 (when he was first contacted by the hospital social worker) did Janet ever contact him or make any attempt to reconcile. This is inconsistent with the Court's findings in the preceding paragraph. The evidence of Helen Packwood and Maria Rowlands (two of Janet's friends who I accept as reliable witnesses with no interest in the outcome) also corroborates the Mundens' case that Janet often spoke of her attempts to apologise to Glenn and her desire for reconciliation.
6. Fourth, I reject Mr Grant's submission that Janet's subsequent attempts to reconnect with the grandchildren were not relevant to the Court's consideration of Glenn's relationship with Janet (T318:35-38, 45-49, T319:26-31). By his own admission, Glenn took no steps to reconnect with his mother until 28 February 2018. There can be no doubt that, faced with such resistance, Janet's only option was to rebuild a relationship through the grandchildren.
7. Fifth, Mr Grant contended that evidence of Janet's desire to rekindle a relationship with Glenn and her sadness that this reconciliation had not occurred could only be taken so far. It was emphasised that there was "no evidence whatsoever" before the Court that Janet ever took "any actual steps" (T257:17-27). Again, I reject this submission. It cannot be maintained in light of those matters set out in paragraphs [41] to [44] above, most notably Janet's act of moving back to Grafton in 2009 to be closer to Glenn and the grandchildren.

Value of the Estate

1. At the time of the hearing, the Mundens (in their capacity as co-executors of the Will) disclosed the value of Janet's gross distributable Estate as approximately $632,000, with outstanding liabilities of approximately $38,057.50. After making allowance for the parties' respective estimated legal costs and disbursements (see paragraph [18] above), the net distributable Estate was valued at approximately $435,942.50.
2. In disputing this figure, Glenn submitted the Mundens had failed to adequately take into account the value of household contents from the Jordan Close Property or pieces from Janet's jewellery collection. The discrepancy was said to be in the order of around $100,000, comprising: 1. Household contents of $92,224, based on the insured amount under a Home Insurance Policy for the Jordan Close Property taken out by both Janet and later the Mundens, but for which the Mundens had only disclosed $8,000; and 2. Jewellery of $12,965, based on an expert appraisal (Mr G Pellicano of Robert Alan Fine Jewellers dated 2 July 2020) tendered by the Mundens, but for which the Mundens had only disclosed a value of $7,750.
3. The Court does not accept that submission and finds the net distributable value of the Estate to be $435,942.50. As I put to Mr Grant during the course of argument, his submission was predicated on the fallacy that the value of an estate should be calculated on the insured (or replacement) value of some or all of its assets, as opposed to the resale (or market) value.
4. Judicial notice can be taken of the substantial difference between the two valuation methods. The insured value is generally a reflection of how much it would cost to replace an item with a new one. It is not the value of the property itself, but what a new item like that piece, at current prices and with equal utility, would cost. So much is evident in the jewellery appraisal provided by Mr Pellicano, which stated: "Above appraisal is for the purpose of insurance only. For the purpose of resale vendor can only expect to resell items approximately one-third to one-quarter. This may vary a value as items are second-hand."
5. Bearing the above in mind, there are two reasons why Glenn's submission fails.
6. First, although the insurance (or replacement) value of an asset may be a relevant consideration for the purpose of assessing a party's financial circumstances under s 60(2) of the Act, it is well settled that, for the purpose of preparing an inventory of property for a deceased's estate under s 81A of the Probate and Administration Act 1898 (NSW), the "estimated or known value" provided is the resale (or market) value of the asset as at the date of the deceased's death. Adoption of fair market value as the relevant cost base has necessary and important implications for capital gains tax purposes. Although tax liability was not something I was required to consider in the case at bar, the error in Glenn's submission becomes apparent when those principles are considered.
7. Second, there was no utility in the asset valuation contended for by Glenn. Taking the household contents as an example, it was accepted that these items had since been distributed. As put to Mr Grant in closing submissions, even if the Court were to take the insured figure of $92,224 as applicable, Glenn's case failed to sufficiently address what impact, if any, this had. On Glenn's submission, there was a shortfall in value of $84,224 for the household contents. Rather than bringing the shortfall in as notional estate, Mr Grant submitted the higher value would merely affect the quantum of any order of provision the Court may make in Glenn's favour (T260:19-23). Put another way, rather than increasing the actual value of the Estate, the Court's consideration of the insurance value would simply operate to increase Glenn's portion of the net Estate deposed to by the Mundens. However, in failing to address where the additional value comes from, Glenn's submission also fails to persuade the Court as to why there is any entitlement to a larger provision out of the Estate.

Glenn's current and future financial circumstances

1. Glenn deposed to a very modest income through his Painting Business with no accumulated "significant savings" and no superannuation. His monthly income was said to be insufficient to cover expenses, most being effectively paid for by Annmaree and with any shortfall allegedly being financed from cash savings, including the inheritance Glenn received from his late paternal grandmother (T263:6-7, 17-18).
2. On behalf of the Mundens, Mr Barham contended that the current financial circumstances of Glenn and Annmaree were in fact much better than those disclosed. There were five reasons put forward to demonstrate this.
3. First, although Glenn acknowledged in his affidavit evidence that, "to a significant extent" his current assets resulted from an inheritance from his late paternal grandmother in 2017, he failed to disclose the amount of that inheritance. As set out in paragraph [88(4)] above, it was only later made apparent in cross-examination that the amount was $330,000.
4. Second, it was contended that Glenn's income was higher than that disclosed as his evidence that he had never done "cash jobs" in his Painting Business was inconsistent with other evidence before the Court. Maria Rowlands gave evidence that Glenn had painted the inside of her house in or around 2012 or 2013, for which she paid cash. Although Glenn conceded he had done a job for Ms Rowlands, he stated he had "no recollection" of being paid cash (T154:4-6) and no evidence of payment was put in reply. Mr Barham argued Glenn's evidence that he had never received cash for any job was also implausible when considered against his other evidence that he charged $25-$30 an hour for jobs in Grafton and that he worked 48 weeks a year, give or take. On the assumption Glenn worked a standard 40 hour week, applying those numbers to the income disclosed was said, on Mr Barham's calculations, to equate to Glenn only charging $7.55/hour (FY2017), $8.78/hour (FY2018) and $8.68/hour (FY2019) (T303:45-304:2).
5. Third, Glenn contended that he and Annmaree's joint monthly income only just covered their monthly expenditure. Further it was Glenn's evidence that he had been unable to accumulate "significant savings", with Mr Grant submitting Glenn and Annmaree were running down what cash savings they had to meet current expenses (T264:37-40). Against this submission, Mr Barham referred to a number of bank account statements in evidence, including a NAB personal account in Annmaree's name. This account opened with a nil balance on 27 June 2017 but had accumulated to a closing balance of $7,668.50 on 30 June 2018, $19,825.20 on 28 June 2019 and $34,976.31 on 4 June 2020. Mr Barham also drew attention to a number of expenses to support the proposition that Glenn and Annmaree were "quite comfortable" financially (T144:33), such as a road-trip to Western Australia between October and December 2018. In response, Glenn conceded they "were doing alright" (T144:34).
6. Fourth, it was Glenn's evidence that as at 4 June 2019 he had already paid $44,520.52 in legal costs and disbursements, increasing to a total of $51,329.52 by 7 July 2020. However only one payment of $2,280 made from Annmaree's personal account to Glenn's solicitors on 6 December 2019 for "Court Costs" (a hearing allocation fee) was recorded in the evidence. Following a review, Mr Grant conceded this was the only payment for legal costs identified from Annmaree's NAB personal account but stressed that other bank accounts had not been considered. Mr Barham contended that Glenn had failed to put a case in reply, referring to the fact no evidence of other accounts was adduced and Glenn's own testimony that he was "not sure" from which account the solicitors' payments had been made (T148:21-22).
7. Finally, it was Glenn's case that he and Annmaree made monthly payments of $300 to each of Amanda and Matthew to assist with mortgage repayments and rental payments, respectively. Mr Barham submitted this too was not supported by the bank statements in evidence. Only payments to Matthew were identified, and even then Mr Barham contended the evidence was equivocal. On the calculations advanced by Mr Barham, between April 2018 and December 2019 average payments of $289 were made. However, there was no regularity to the payments in frequency or amount, with Glenn acknowledging he was not responsible for them and had only been told that certain payments were ones made to Matthew (T152:15-28). Further, Mr Barham emphasised that Glenn had failed to disclose that his children also each received a $160,000 inheritance from his late paternal grandmother in 2017.
8. In closing submissions, Mr Grant conceded that Glenn and Annmaree were "relevantly asset rich and comfortable" but that this was due to Glenn's inheritance, which had effectively doubled their net wealth (T262:33-34, 268:41). Mr Grant emphasised that not all bank accounts were in evidence, which necessarily limited any finding the Court could make as to whether Glenn and Annmaree's income in fact exceeded their expenses. Further, it was contended that both Glenn and Annmaree generated small incomes and that both would be without any income in the relatively near future.
9. The Court is satisfied that while there may be legitimate future financial needs, based on the evidence before the Court, Glenn and Annmaree's current financial circumstances are comfortable and stable with their income exceeding their expenses. There was no dispute that they own the Crawford Property unencumbered. I also accept Mr Barham's submission that Mr Grant advanced no case in reply to support his contention that Glenn and Annmaree were running down their savings. In the absence of such explanation and considered against Glenn's admission that they "were doing alright", the evidence supports a finding that their combined bank balance has continued to grow and that they are more than just making ends meet.
10. As to the support they provide their children, I am only satisfied of financial payments to Matthew. Having reviewed the bank statements in evidence, it is clear there is no consistency in frequency or quantum. Glenn acknowledged no direct debit payment had been set up. The following payments made to Matthew from Annmaree's personal account in 2019 demonstrate as much: Date To Account Description Amount 14 January 2019 n/a ("Internet Transfer") Baby $270 1 March 2019 "Ml Crawford" Mum $200 12 March 2019 "Ml Crawford" Rent $200 18 March 2019 "Ml Crawford" Mum $200 26 March 2019 "Ml Crawford" Rent $200 3 June 2019 "Ml Crawford" Rent $200 19 August 2019 "Ml Crawford" Mumma $300 7 November 2019 "Ml Crawford" Mum $450 20 December 2019 "Ml Crawford" Birthday mum $200

1. Moreover, to the extent it may be relevant, based on the above I am satisfied that the evidence only supports a finding of around $200 a month in financial support given to Matthew. This is particularly considering it was Glenn's evidence that the financial support was to assist Matthew with rental repayments, and each "Rent" transfer in evidence was for $200.

The law

1. Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if the Court is satisfied as to certain matters. In the case at bar, there was no dispute that as Janet's only child, Glenn was an eligible person pursuant to s 57(1)(c) of the Act and thereby satisfied s 59(1)(a) of the Act. The only matter for determination was whether, having regard to all the circumstances of the case (most notably the estrangement), adequate provision for Glenn's proper maintenance, education or advancement in life had been made by the Will (s 59(1)(c)) and, if not, what provision ought be ordered to achieve this (s 59(2)).
2. The legal principles relevant to the Court's determination of Glenn's application were not in dispute by the parties and may be briefly outlined.

Adequate provision

1. As expressed recently by Lindsay J in Re Estate Luce; Turch v Tripolone [2020] NSWSC 117 ("Turch v Tripolone") at [22], the concepts of "adequate" and "proper" embedded in s 59(1)(c) of the Act are fact-specific, construed by reference to the circumstances of the particular case and bearing in mind as a relevant consideration what the testator regarded as "superior claims or preferable dispositions": Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19; [1962] HCA 19.
2. However, the Act provides no criteria or norms by which the Court must determine whether the provision in question, if any, constitutes inadequate provision for the proper maintenance or advancement in life of the applicant: Page v Hull-Moody [2020] NSWSC 411 ("Page v Hull-Moody") at [124]. In that judgment, Hallen J summarised from [126] onwards the recent authorities relevant to resolving that question. I respectfully adopt that summary, drawing particular attention to the following (citations inserted): "145. Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191 at [122]; [2005] HCA 11, 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. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined."
3. In circumstances where the Court is satisfied, at the time when considering the application, that adequate provision has not been made by the will of the deceased, it then determines whether to make an order for provision and what provision ought to be made. In Turch v Tripolone, Lindsay J outlined, and I respectfully adopt, the Court's approach to making an order for provision pursuant to s 59(2) of the Act: "23. In approaching the question for which section 59(2) of the Succession Act provides, the Court must endeavour to place itself in the position of the deceased, and to consider what she ought to have done in all the circumstances of the case, in light of facts now known, treating her as wise and just rather than fond and foolish (In Re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479; Scales Case (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the criteria set out in section 60 of the Act so far as they may be material. Whether the Court should make an order for family provision relief (and, if so, the nature and extent of any relief granted) are questions to be addressed in the context of the matters identified in section 60(2) of the Act as potentially material. 24. A deliberate scheme of testamentary dispositions by a capable testator is entitled to respect: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thompson [2017] NSWCA 326 at [1]-[2] and [83]-[87]. … 25. In each case the criteria for which the Succession Act provides must be applied to the facts of the particular case without resort to normative generalisations."
4. Turning then to those matters enumerated in s 60(2) of the Act that the Court may have regard to, relevant to the current proceedings, these matters include: "(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, … (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, … (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, …"
5. None of the matters in s 60(2) is more, or less, important than any other. The matters taken into account, and the weight of each, will depend on the facts of the particular case. Ultimately, it is for the Court to determine what weight should be given to the various factors, including the importance of testamentary freedom (on which the Act imposes a limited fetter). As White JA (McColl and Payne JJA agreeing) said in Sgro v Thompson [2017] NSWCA 326: "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."

Provision for an adult child

1. Hallen J in Page v Hull-Moody said (and I respectfully adopt) at [176]: "(a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "…ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]-[110]; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). (c) Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). (d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. (e) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M). (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2."

Estrangement

1. The position in relation to estrangement between the deceased and an applicant for provision was recently examined by Hallen J in Nielsen v Kongspark [2019] NSWSC 1821, where his Honour set out the general principles to be considered. Again, I respectfully adopt and set out that part of his Honour's reasons: "233. It is necessary to set out some other general principles which should be remembered: "(a) The word "estrangement" does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88]-[94]; Foley v Ellis at [102]. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: "…the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act." (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognized by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574-575, per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in "normal" parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. 234. In Andrew v Andrew, Basten JA endorsed what I had written about estrangement, much of which is set out above, as follows: "As explained by the primary judge, the term 'estrangement', which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience." 235. His Honour added, at [49, [53] and [57]: "The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. … Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of 'love and support' from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant."
2. His Honour then went on to address what appeared to be an emerging view within the profession that the decision of the majority in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 had changed the law in relation to the Court's approach to determining cases in circumstances where there had been an estrangement. Referring to the decision of Rein J in Burke v Burke [2014] NSWSC 1015, that view suggested it was only the most egregious conduct of a child of the deceased (such as murder) that would deprive an adult child of any benefit from the estate in circumstances. In expressly rejecting that view (if it existed), Hallen J stated "[t]here are simply too many cases of high authority… that identify the importance of freedom of testation and the entitlement of a testator or testatrix, in certain circumstances, to make no provision for his, or her, child" (at [237]).

Submissions on behalf of Glenn

1. It was Glenn's case that the Court should be satisfied pursuant to s 59(1)(c) of the Act that, at the time of considering the application, the Will did not make adequate provision for his proper maintenance, education or advancement in life. Accordingly, it was contended that the Court should exercise its discretion under s 59(2) to make such order for provision for Glenn out of the Estate. In his closing oral submissions, Mr Grant took the Court through each of the s 60(2) factors said to be applicable to the case at bar and which supported this conclusion. With no disrespect to the detailed way in which they were put, Mr Grant's submissions can be summarised in the following four points.
2. First, Mr Grant emphasised the general principles concerning estrangement in family provision applications. These have been set out in paragraph [154] above, however of particular relevance to the current proceedings, Mr Grant stressed that: 1. A state of estrangement (or even hostility) between a testator and a claimant does not terminate the obligation of the testator to provide for the applicant: Foley v Ellis [2008] NSWCA 288 ("Foley v Ellis") at [101]; 2. Estrangement is simply a factor for the Court to take into consideration: Burke v Burke [2015] NSWCA 195 at [93], [95] and [103]; and 3. There is no rule that, irrespective of an applicant's need, the size of estate and the existence or absence of other claims on the estate, the applicant is not entitled to "ample" provision if estranged from the deceased. The Act requires close attention to the facts of individual cases: Underwood v Gaudron [2014] NSWSC 1055 ("Underwood v Gaudron") at [231(c)]. 4. Where an applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered: Wheatley v Wheatley [2006] NSWCA 262 at [22]; Foley v Ellis at [102]; Underwood v Gaudron at [231(h)].
3. Bearing these principles in mind, Mr Grant submitted that the estrangement should not be characterised as the result of Glenn's actions. Significant emphasis was placed on the role Janet's mental health issues played in triggering the initial falling out (see paragraph [110] above), and in such circumstances the estrangement was said to be "understandable" (T269:20-21, 25-26). Moreover, the prolonged estrangement came to be as a result of both Janet and Glenn being equally stubborn, with such behaviour in effect neutralising or "cancelling out" the other's actions (T241:34-38, T269:21-22).
4. Mr Grant further cautioned that care ought to be taken not to "oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other". In this regard, Mr Grant submitted it was of importance that although Lisa had informed other extended family members of Janet's terminal diagnosis and kept them updated, she did not inform Glenn at any stage. It was contended that had Glenn known his mother was terminally ill, he would have re-established contact sooner. In any event, the ultimate submission put forward by Mr Grant was that the Court would be satisfied that when Glenn did visit Janet in hospital, there was a reconciliation in the end.
5. Second, Mr Grant stressed the Court could not overlook that Glenn was an only child and that he and Janet had a "very good relationship" for the first 40 years of Glenn's life. On several occasions Mr Grant asked the Court to consider that "actions speak louder than words", with the ultimate test of their relationship said to be Janet's decision to move to Grafton in 2001 and buy a property just 5 doors from the Crawford Property.
6. Third, it was submitted that the Court should approach the testamentary wishes set out in the Will with caution. Although not going so far as to submit that Janet did not know or understand the contents of either the 2002 Will or the Will, Mr Grant contended that the following clause appearing in each was simply factually incorrect: "I have made no provision for my son Glen (sic) Crawford as we have not been getting on for some time and notwithstanding many gifts I have given him totalling in excess of $40,000."
7. Regarding the Will specifically, Mr Grant submitted the Court "would not be too concerned" about the clause as it had simply been repeated from the 2002 Will without amendment, there being a reasonable inference it was a "copy and paste job" from 10 years earlier. In favour of this submission was the fact the Will incorrectly recorded Janet's address as the Riverdale Court Property, it being unchallenged that as at the date the Will was executed in 2012, she had not lived there in just over 10 years. Accordingly, taking the 2002 Will as the reference point together with Glenn's case that the Incident was the first deterioration in his relationship with Janet, the proposition that "we have not been getting on for some time" was said to be simply incorrect. Further, Glenn also denied the proposition he had ever received any gifts from Janet, let alone in excess of $40,000. All these matters combined, Mr Grant submitted the Court should place less weight on the contents of the disputed clause than it might do so in another case (T228:35-40).
8. With respect to testamentary intentions, Mr Grant submitted a further relevant consideration was the fact Glenn did not receive anything from his late father's estate. Mr Grant referred to an alleged conversation between Glenn and Janet at the Riverdale Court Property (prior to the Incident), in which Janet told Glenn she would not be like his father, Jimmy, and would leave Glenn her Estate when she died.
9. Fourth, reference was made to the character and conduct of Lisa. Mr Grant accepted it was true that Lisa had given great assistance "in the last 6 months or so" of Janet's life and that, as a beneficiary of an estate, she did not have to justify or otherwise demonstrate entitlement to her legacy. However, it was again bought to the Court's attention that Lisa had not made "full and frank" disclosure of the Estate inventory (see paragraphs [96] and [129] above), that Lisa had not told Glenn about Janet's terminal diagnosis (paragraph [159] above) and that Lisa had not put her own financial and material circumstances in issue. These matters were said to tend against any perceived obligation of the Court to ensure a large provision from the Estate was made to Lisa.
10. In the event the Court was satisfied the case warranted the exercise of its discretion under s 59(2) of the Act to order provision from the Estate, Glenn contended adequate provision would be in the amount of $450,000. Mr Grant acknowledged that any amount awarded would only provide assistance, and would not replicate Glenn's current income or provide for retirement. However, it was contended that Glenn's demonstrated need for financial security in the future (particularly in light of his imminent retirement) was an important consideration giving rise to an increased call on the Estate: Page v Hull-Moody at [176(e)].

Submissions on behalf of the Mundens

1. The Mundens accepted that Glenn is an eligible person pursuant to s 57(1)(e) of the Act as Janet's only child. However it was their submission that the facts of the case clearly demonstrated that, in all the circumstances, adequate provision was in fact what Janet had made in the Will - no provision at all. Mr Barham similarly drew attention to each of the s 60(2) factors said to be in support of the Mundens case. Again, with no disrespect to the careful way in which these submissions were made, they can be summarised in the following five points.
2. First, in resolving the question of why Janet did not leave anything to Glenn in her Will, Mr Barham submitted the estrangement was a critical issue in the proceedings. For the same reasons set out in paragraphs [123] to [127] above, the Mundens contended the Court should be satisfied that Glenn was primarily responsible for the prolonged estrangement. Mr Barham emphasised that there was a period of over 16 years in which Glenn had no voluntary contact with his mother and made no enquiries as to her welfare, with the only contact being at the instigation of Janet or on her behalf. Except for two late visits in 2018 shortly before her death, Mr Barham submitted that the evidence clearly demonstrated that Janet had been "excluded" by Glenn (T12:36-39) and that this was "one of the worst cases of estrangement" (T274:27-28).
3. Second, the Mundens challenged Glenn's assertion that he had enjoyed a "very good relationship" with Janet prior to the Incident (as to which see paragraph [123] above). Mr Barham also looked to Glenn's character and conduct following the Incident, referring to the general principle stated by Hallen J on several occasions that: "The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]". See, for example Underwood v Gaudron at [231(g)], Sreckovic v Sreckovic [2018] NSWSC 1597 at [150] and most recently Keaton v Gumulak [2020] NSWSC 943 at [232].
4. In addition to the matters set out in the paragraph [123] above, Mr Barham drew the Court's attention to the following examples in demonstrating the poor state of the relationship said to persist between Glenn and Janet: 1. the contemporaneous documentary evidence of Dr Ong, who observed in 2003 that the breakdown in Glenn and Janet's relationship was "following a series of conflicts" (emphasis added). 2. Glenn's rejection of Janet's attempts to reconcile, such as her attendance at the 2004 Christmas concert and 2005 dance eisteddfod (see paragraphs [41] to [43] above); 3. despite Janet returning to Grafton in October 2009 and only living about 2 kilometres away from the Crawford Property until she permanently returned to Sydney in December 2017, Janet missed every milestone event in the lives of Glenn and the grandchildren; and 4. the fact Janet felt she couldn't speak to Glenn about her terminal diagnosis. Even when Glenn was eventually informed by the hospital, it was Mr Barham's submission that Glenn "devoted an extraordinarily small amount of time" to Janet in her final months. Mr Barham described Glenn's evidence that he only saw his mother twice before her death as "callous behaviour", contending that Janet no doubt took exception to this treatment.
5. Third, for the reasons already set out in paragraphs [136] to [141] above, Mr Barham contended the financial circumstances of Glenn (and Annmaree) did not warrant the making of an order for provision. Mr Barham emphasised that they had no mortgage, minimal debt and, in contrast to Glenn's submission that he and Annmaree's retirement was imminent, contended there were no disclosed health issues preventing future work for either of them.
6. Fourth, Glenn had identified no circumstances which warranted the Court disturbing the testamentary freedom of Janet. Mr Barham submitted that in both the 2002 Will and the Will, Janet clearly expressed that she did not wish to make provision for Glenn. Further, there was said to be no reason for the Court to doubt Janet had in fact made gifts to Glenn totalling in excess of $40,000 (according to Lisa these included a new garage at the Crawford Property, a new ute or caravan and a family computer). In any event, Mr Barham also referred to the evidence of the Mundens and Janet's late sister-in-law, Frances Armour, that Janet had told them she did not wish to make provision for Glenn in her Will and that Glenn's two visits to the hospital in her last months did not change anything.
7. Finally, and following from the preceding paragraph, Mr Barham contrasted Glenn's relationship with his mother to that of Janet's relationship with the Mundens. The Mundens, particularly Lisa, had a long and ongoing relationship with Janet, with their home like a second home for Janet over many years. Mr Barham submitted there could be no doubt that the Mundens truly loved Janet and cared for her, particularly towards the end of her life (see paragraphs [52] to [56] above), or that the affection was reciprocated on Janet's part. This was said to be illustrated most patently by Mark's evidence that Janet referred to Lisa and their daughters as "the daughter and family I never had".
8. Against the possibility that the Court took the view that there was nevertheless a moral obligation upon Janet to provide for Glenn, then Mr Barham submitted that in all of the circumstances (including the small size of the Estate), Glenn should only be awarded a very small proportion. When pressed on an amount, Mr Barham contended $30,000 (being the amount Glenn said he required for desired renovations at the Crawford Property; see T48:33-49).

Consideration - estrangement

1. Because it was so central to the parties' arguments, it is convenient first to deal with the impact of the estrangement between Glenn and Janet on Glenn's case. The estrangement is relevant at both stages of the Court's inquiry under the Act: whether adequate provision has not been made by the Will for Glenn and, if so, what provision should be made. At the first stage, this is the result of the statutory test being "adequate provision for the proper maintenance…" (emphasis added) so that not merely financial considerations are taken into account. At the second stage, it is a salient matter going to Glenn's character and conduct pursuant to s 60(2)(m) of the Act.
2. Bearing in mind the authorities referred to in paragraphs [154] and [155] above, the Court has concluded that for the purposes of either stage of the inquiry the estrangement, while tragic and serious, was not of a kind that in and of itself extinguishes Glenn's moral claim to be the object of his mother's testamentary bounty. The 16 year estrangement was Glenn's fault, he rebuffed Janet's attempts at reconciliation and, by his own admission, he made no attempt to reach out to her. However, a number of features that could be seen as exacerbating the seriousness of the estrangement are absent. These include that 16 years, while long, do not represent a very great proportion of their lives together; their prior relationship had been good; and the estrangement from Glenn's side was a passive one - it was not characterised by frequent rancour or positive acts of harassment of Janet.
3. As the authorities point out, cases of estrangement are fact specific in what is already a deeply fact specific jurisdiction. In noting the points of distinction in the preceding paragraph I am not to be taken as suggesting that any of those matters, individually or together, would be necessary or sufficient to cause the Court to conclude, or to exercise its discretion, to the effect that an applicant was disentitled to any relief at all. In some cases those features may warrant such a result, in others they may not. It is a matter of assessing all of the facts. The point for present purposes is that the absence of such features is the reason why I have concluded that the estrangement is not a complete answer to Glenn's claim. On the other hand, I am also satisfied that Glenn's moral claim is materially reduced by his responsibility for the estrangement such that what he might otherwise have received under the Act must be reduced.

Consideration - has adequate provision not been made?

1. In making no provision for Glenn, the Will did not make adequate provision for Glenn's proper maintenance or advancement in life. It is true that Glenn's financial and personal circumstances are relatively good (in his own right and with Annmaree). He owns his own home without encumbrance, has few debts and, while he has no superannuation, he has a term deposit of $200,000. He has no health problems and can work. However, he is Janet's only child, has limited earning capacity and will likely retire in a few years. While he has few specific needs, as her only child he would be regarded as the natural object of her testamentary bounty. To have left him nothing is not to have recognised his moral claim on the Estate, even when, as I have explained above, the estrangement is taken into account. The Court's discretion to make a family provision order in favour of Glenn has therefore been enlivened.

Consideration - what provision ought to be ordered?

1. Before coming to the effect of the estrangement, I shall set out the other matters I have taken into account in arriving at an amount for provision (in no particular order of importance): 1. For the majority of their lives together, Glenn and Janet enjoyed a good mother son relationship. 2. While she has not put her financial or material circumstances in issue, this does not mean the Court ignores Lisa, although the fact she has not done so is of itself a relevant matter. However, so too is the fact that Lisa has a strong moral claim to benefit from the Estate. Her daughter-like relationship with Janet was longstanding and close. It reached its sad apotheosis in the care Lisa gave Janet during the latter's terminal illness which included, to Lisa's credit, grappling with the morally complex decision of informing Glenn of Janet's condition over Janet's objections. 3. A net distributable estate of (in round figures) $436,000 is not large, especially when there is more than one person with a moral claim on the Estate. 4. As I have already noted in paragraph [177] above, Glenn's financial and personal circumstances are relatively good (in his own right and with Annmaree). Glenn owns his own home without encumbrance, has few debts and, while he has no superannuation, he has a term deposit of $200,000. He has no health problems and can work. By his own admission, he and Annmaree have been "doing alright". They are able to meet their daily expenses and appear in fact to be accumulating a modest surplus. However, it is also relevant that Glenn has limited earning capacity and will likely retire in a few years. 5. Janet's history of will making shows she had a clearly conceived wish to remove the Crawford family from her testamentary intentions in favour of the Mundens. She had strong, rational reasons for doing so. While recognising that the Act is a statutory incursion into Janet's freedom of testation, that freedom is entitled to respect as part of the matrix of the matters considered by the Court. It is, however, only one of many factors and is not decisive of the outcome.
2. Taking all of the foregoing matters into account, and setting aside for the moment the impact of the estrangement, I have concluded that Janet as a wise and just testator would have recognised that she had an obligation to two people: her only biological child, Glenn, and someone who had over many years come to assume the position of a daughter, Lisa. Given the size of the Estate, and the respective moral claims of Glenn and Lisa (but not forgetting that Lisa has not put her circumstances in issue), I approach the question of provision for Glenn on the basis that an equal division of the Estate would result in the provision that ought to be made for him because this is an example of a case where an adult child without significant financial or physical challenges should receive an amount for the future vicissitudes of life.
3. In the ordinary course this would result in an order for provision for Glenn of $218,000. However, in the exercise of the Court's discretion, the reduction in Glenn's moral claim by reason of the nature of the estrangement and his responsibility for it is to be reflected in a reduction of slightly less than one third from what he might otherwise have received. The Court therefore concludes that provision ought to be made for Glenn's maintenance and advancement in life in the sum of $150,000.

Conclusion

1. The parties will be given an opportunity to bring in short minutes to give effect to these reasons and, if there is no agreement, to make submissions as to costs.

Amendments 22 October 2020 - coversheet - formatting correction. 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: 22 October 2020