Curtis v Curtis

Court of Appeal (NSW)|2024-05-08|Before: Leeming JA, Mitchelmore JA, Elkaim AJ

Background

Without conveying either disrespect or informality, I shall refer to members of the Curtis family by their given names.

Applicable law

Grandchildren who "at any particular time" have been "wholly or partly dependent" upon the deceased have been "eligible persons" in whose favour a family provision order may be made since the enactment of the Family Provision Act 1982 (NSW), in accordance with the recommendations of the New South Wales Law Reform Commission: see the Commission's Report 28 (1977) - Testator's Family Maintenance and Guardianship of Infants Act 1916, para 2.6.26. The current definition is found in s 57(1)(e) of the Succession Act: 57 Eligible persons (cf FPA 6 (1), definition of "eligible person") (1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person - … (e) a person - (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member …
The total or partial dependency of a child upon a grandparent may be established notwithstanding the child remaining dependent upon either or both parents. More than a minimal period of time is required; leaving a child in the care of grandparents overnight is not sufficient: Alexander v Jansson [2010] NSWCA 176 at [13]; Chisak v Presot [2022] NSWCA 100 at [47], [56]. A claimant either does or does not satisfy the requirement of dependency, such that appellate review is on the correctness standard, as opposed to the review of discretionary decisions: Spata v Tumino [2018] NSWCA 17 at [53]-[54]; Sun v Chapman [2022] NSWCA 132 at [8]-[11] and [189].
The power to make family provision orders is conferred by s 59. It is not enough for a grandchild to establish merely that he or she was at some particular time wholly or partly dependent upon the deceased and that inadequate provision has been made for the grandchild under the will. At the forefront of the trial and of the appeal was the additional requirement in s 59(1)(b) that Blake and Brock persuade the Court that there are "factors which warrant" making orders for family provision in their favour: 59 When family provision order may be made (cf FPA 7-9) (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that - (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
Eligible persons divide into two classes: the lawful and de facto spouses and children mentioned in s 57(1)(a), (b) and (c), who are generally "regarded as natural objects of testamentary recognition", and those in s 57(1)(d), (e) or (f), who, without more, are not generally so regarded. This Court observed in Yee v Yee [2017] NSWCA 305 at [112] of this latter class that: Those falling within the second category (s 57(1)(d) - (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are "potentially appropriate objects of testamentary recognition, depending upon their circumstances". In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question.
In Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681, McLelland J said of the requirement to show factors warranting the making of an application that they were factors which, when added to facts which render the applicant an eligible person, gave him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. That approach was endorsed by this Court shortly thereafter in Churton v Christian (1988) 13 NSWLR 241 at 252; [1988] NSWCA 23 and has regularly been followed subsequently: see for example Lodin v Lodin [2017] NSWCA 327 at [1], [5] and [106]-[107] and Sun v Chapman [2022] NSWCA 132 at [1], [119] and [193]. The requirement was explained by Payne JA (with whom Macfarlan JA at [1] and Sackville AJA at [153] agreed) in Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [97]: Consistently with the decision in Re Fulop, the starting point for applying s 59(1)(b) of the Succession Act is that an eligible person such as an adult stepchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. In order to satisfy s 59(1)(b), John must therefore establish that there are circumstances that justify regarding him as a natural object of testamentary recognition by Gina. Those circumstances must go beyond the bare fact of the familial relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant: Lodin at [114] (per Sackville AJA); Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [13]-[15] (per Basten JA).
Helpful guidelines for claims made by grandchildren were formulated in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113]: (a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. (b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. (c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. (d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. (e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. (f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.
The foregoing are not rules of law, but provide useful assistance in applying the statute. They have been approved by this Court, as a "useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply 'the feeling and judgment of fair and reasonable members of the community' in cases of the present kind": Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [67], see also at [21] and [150].
It was accepted that Blake and Brock were grandchildren of the deceased. Everything else was in issue. Accordingly, before making any order for family provision, the primary judge was required to be satisfied of each of the following: 1. whether the grandchildren were at any particular time wholly or partly dependent upon the deceased; 2. having regard to all the circumstances of the case, whether there were factors warranting the making of the application, and 3. whether adequate provision for the proper maintenance, education or advancement in life of the grandchildren had not been made in the deceased's will.
The parties framed their submissions and the primary judge framed his reasons accordingly.

Overview of the relationship between Barry and Blake and Brock

In light of the submissions advanced on appeal, I shall shortly give a full summary of the reasons of the primary judge because, as will become apparent, a major complaint by Peter is what is absent from his Honour's reasons. In order to put those reasons in context, it is convenient first to provide an overview of Blake's and Brock's case.
Blake's and Brock's case was summarised in this Court by their counsel as follows: The boys would stay with the grandparents or the grandfather when it was their time to see their father. And when he had formed new relationships, and was living with [Sharron], the boys would still go to the grandfather's house, and he would look after them while Darran was living at another property, but Darran would come and visit the boys at the grandparents' house. Once Darran was diagnosed with bowel cancer, the boys' evidence is that the care from their grandfather increased. And when Darran was unwell, he would cook them dinner, he would do the parental duties of like "before you go to bed, clean your teeth, go to the toilet", and those sorts of issues. As Darran's illness progressed, the deceased again stepped in and took more of a parental role, we submit. And when he was dying in hospital, the deceased was responsible, and Victoria did as well, but the deceased was responsible for taking the boys to see their dad. So we say on the issue of dependency, that not only did the grandfather provide a place where they could nurture their relationship with their father after the separation, but he also stepped in as a parental role when his son was unable to care for the boys because of his illness. He was also an important stalwart. These were young teenage boys when their dad died.
Save for the fact that Blake and Brock were not "young teenage boys" when their father died (they were aged 17 and 20), that peroration fairly summarises the case put forward by Blake and Brock and Victoria.
In October 1988 when Blake was born, Barry was 53. Blake was around 3 or 4 when the relationship between his parents broke down, around 15 when his father Darran was diagnosed with cancer in 2003, and 20 when he died in 2008.
Blake gave evidence that "as a young child (from around the age of 3 until 8) we lived with my mother and predominantly spent daytime with my father", and that "from around the age of 8, we increased our time with Dad, and lived with our mother during the week and our father on alternate weekends". He said that between 1998 to 2006, when his father was in ill health, "on the days that we lived with Dad, we lived at Grandad's house". He said that Barry would "provide our meals, make sure we were clean and brushed our teeth". He said that after Darran died, Blake "became even closer to Grandad, and he became more of a father figure to me".
In 2011, Blake (then aged around 23) said that "Grandad offered for me to come and live with him. I ended up living with him for close to one year". He said that "as I grew older and had children of my own, I continued to visit Grandad on a weekly basis and he remained an integral part of my life. I would take my children to visit him, and we would often go out for lunch or dinner or play down by the creek".
Thus, in his early years Blake was cared for mostly by Victoria, with assistance from Darran. But there was nothing to suggest that, before his father became ill, Blake was dependent upon Barry. Likewise, for the purposes of establishing whole or partial dependency, one may put to one side Blake's claim that he lived with Barry in 2011, for "close to one year". At that time Blake was in his early twenties. Blake was an adult perfectly capable of taking care of himself, and it was not suggested that he was an adult grandchild with a claim of financial dependency; cf Morrison v Carruthers [2010] NSWSC 430 at [8]-[13]. The critical period of time for the purpose of dependency was Blake's teenage years from 1998 - 2006, when Blake said that he lived with Barry while Darran was unwell. During almost all of that time Barry was a widower (Elaine died in 1999).
Brock's evidence was to similar effect, save that he was three years younger, and that he said that after Darran started seeing Sharron, he did not stay overnight at his father's house, but instead would go and stay at Barry's house. He said "when I was around 14, my father separated from Sharron and moved back in with Grandad at Quays Drive. As a young teenager I would spend weeks at a time living with my father and Grandad. During these years, my father was very sick. Grandad would drive us to the hospital to visit him and try and keep our spirits high". He said: My father passed away when I was 17 years old. This was an extremely difficult time and Grandad was an amazing emotional support person. Grandad made an effort to get us out of the house and take us fishing, to keep our mind off everything.
In the period when their father Darran was diagnosed with cancer and ultimately died, 2003-2008, Brock was aged 12-17, while Blake was aged 15-20.
Blake's and Brock's mother Victoria made an affidavit and was cross-examined. She accepted that she had a "very fractured" relationship with Rodney. In her affidavit she had said that while pregnant with Blake in 1988, Barry and Elaine had sold their home and were building another and in the meantime lived in the same home as Darran and her, and that Rodney (who was then 18) "became unmanageable", "had a constantly rude demeanour", "did not take any steps to assist around the house" and "We had to ask him to move out". Victoria maintained that Rodney "controlled" his father: Rodney's always had control. Rodney's his son. I am his dead son's ex-wife and they are his grandsons but that doesn't mean we didn't love him and that we didn't care for him. My children lost their father and I made sure and they made sure they had an incredible and beautiful and loving relationship with their grandfather. We didn't have a relationship with Rodney. We didn't live with, as a family, with Rodney and his family but we had our own person, loving and respectful relationship with Grandpa.
With that overview in mind, I turn to the reasons given by the primary judge for upholding Blake's and Brock's claims.

Reasons of the primary judge

The primary judge reserved his decision after a three day trial occupying 18, 19 and 20 September 2023 and delivered judgment promptly, on 28 September 2023. The reasons are short, having regard to the quantity of conflicting testimonial and documentary evidence. They occupy 112 short paragraphs over 22 pages. Paragraphs 1-19 describe the Curtis family, the estate and the three wills executed by Barry. The balance comprises sections on dependency (ten pages at [20]-[74]), factors warranting (slightly more than three pages at [75]-[91]) and whether adequate provision had been made (four pages at [92]-[109]). There are no separate sections where findings of primary fact are made. Instead, findings and, more often, commentary falling short of actual findings of fact, are found while the primary judge recited the evidence and expressed his conclusions on the issues of dependence, factors warranting and adequate provision.
The primary judge correctly observed that (a) dependency was the subject of much judicial comment, (b) each case turned on its own facts, and (c) dependency presents a "lowish bar" or a "relatively low" test. After references to Chisak v Presot [2022] NSWCA 100, his Honour said at [24]: The starting point for dependency in this case is the separation of the plaintiffs' parents in 1992. Rodney asserted that following this event his family had little to do with the plaintiffs. They were a separate family. I do not accept that assertion. It is, I think, part of Rodney's overall intent to create different families in which his father had minimal contact with Darran's children.
The last sentence can only be read as an evaluation that Rodney's evidence was, to say the least, unreliable insofar as it presented a separation of Barry from Blake and Brock. At this stage in the reasons, nothing had been said by his Honour of Rodney's evidence and the aspects found to be unreliable. The statement must be understood as anticipatory of conclusions subsequently expressed for reasons subsequently given concerning evidence yet to be summarised or analysed. It is perhaps unclear whether the sentence bears its ordinary meaning, of a conscious attempt by a witness to give distorted evidence, as opposed to a statement that a witness' evidence was merely unreliable. I would accept Peter's submission that to the extent that the seriously adverse finding of conscious tailoring of evidence was made, it should not have been made, in the absence of it having been squarely put to him: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [67]. But in light of the more serious and fundamental failings in the process of fact-finding, it is unnecessary to pause to consider precisely the import of what was said at [24].
The primary judge addressed the position of Blake and Brock separately, introducing this at [25]: The details of the asserted dependency are given in the respective affidavits of Blake and Brock. I do not intend to recite all of the detail, but rather to refer to the more controversial elements which were the subject of attack or, at least, comment.

Blake

Blake's evidence, and the conclusion reached by his Honour, occupy [26]-[31]. The primary judge referred to Blake's unchallenged evidence that "I have always had a close and loving relationship with my Grandad", and explained the separation of Blake's parents when he was three years old and the fact that Blake began to spend more time with his father when he was around eight years old. The primary judge said that "[Blake] states that his father was in poor health from 1998, but this was probably some years later, the diagnosis of cancer being made in 2003", and added that "once his father became ill, he would spend longer periods at the deceased's home". The primary judge reproduced Blake's evidence that: We spent a lot of time together in the house and out in the yard, as well as fishing and doing other activities as a family. During this time, Dad was working as a chef and would often travel for work for an extended period. If Dad was away, Brock and I would still reside with Grandad on weekends regardless of whether Dad was away. … Grandad would provide our meals, make sure we were clean, brushed our teeth, and all the usual things a parent does for a child.
His Honour referred to the cross-examination that Blake would not have required this level of monitoring, for example brushing his teeth, but added that "that does not mean that supervision was unnecessary, in particular for activities like going to bed at certain times". His Honour then observed at [29]: I think the weekends spent with the deceased are an important element of dependency. This is not a case of recreational weekends being spent with a grandfather. This was the deceased stepping in to care for the plaintiffs while their father was working.
After referring to the relatively small inheritance each child received from Darran's estate, his Honour reached his conclusion on this issue at [31]: The defendant submitted that Blake residing in the deceased's house in 2011 did not amount to dependency because he paid board and was expected to help about the house. This submission ignores the fact that the board was substantially less than a market rent and involved an "invitation" on the part of the deceased, to allow Blake to live in the house. Of itself this is nowhere near dependency but taken together with their relationship since Blake was a child, which involved periods staying with the deceased, seeking and receiving his advice and participating, if only infrequently, in events such as Christmas, then I think dependency for Blake has been established.
That seeming conclusion was reached without referring to most of the evidence that tended against it. However, the primary judge made a second finding of dependency, this time after addressing other aspects of Blake's evidence on dependency, as well as the testimonial evidence which pointed in the other direction. At [39] he made a finding of "the general honesty" of Blake and Brock. At [46] he said: Another submission against Blake was the suggestion that he had been asked to leave the deceased's home after he had been living there for a period. Blake said that he had been asked to leave in order for a carer to move in. Rodney said that no carer had ever moved in, and that, at the relevant time, the deceased had not needed a carer. It is difficult to resolve this issue because I frankly have doubts about the reliability of both Blake and Rodney on the point. Neither side thought it appropriate to put the deceased's medical records for the relevant time before the Court.
After mentioning the evidence of two neighbours (Messrs Lusted and Formaggin) to which I shall return, his Honour turned to the evidence of Rodney at [67] and said: Rodney refers to the period when Blake stayed with the deceased in about 2011. He places the period at about three months, rather than the 11 months or so referred to by Blake. Rodney says that during this period the deceased often said that Blake "did nothing around the house to assist." He says that after some weeks the deceased asked him (Rodney) to request Blake move out. Blake reluctantly did so. Rodney says that he believes Blake resented being told to move out leading to some six years of no contact between Blake and the deceased.
His Honour then concluded at [73]-[74]: While there were unquestionably some errors in the evidence of the plaintiffs, in particular concerning dates, I nevertheless accept their evidence as to their relationship with their grandfather. I prefer this evidence to that of Rodney to the extent that his evidence tends to minimise the relationship. Ultimately, I accept that Brock and Blake were dependent upon the deceased, at least partly, but to an extent that qualifies them as eligible persons to bring their claim.

Brock

The primary judge addressed Brock's evidence at [32]-[38]. His Honour placed weight on the following evidence: According to Brock, he began spending more time with his father, in particular overnight stays, when he was about six years of age. He stated: "My Grandad was instrumental in us being able to live with my dad. He was caring for my father and was also looking after us. Sometimes my father was very sick, and it fell to my Grandad to do the things that a parent does for the child. He feed (sic) me, made sure we were clean and had clean clothes. He made sure we went to bed on time and brushed our teeth. Grandad had two spare bedrooms at his home. My father permanently moved into the first room, and Blake and I used to live in the room next door when we were in his care … We would stay with my father and Grandad at xxxxx xxxxx every other weekend. During that weekend, Grandad was constantly taking us out to go fishing or to swim down by the creek." Accepting that there were occasions when the deceased stayed with a Mr Tony Brennan, the above description given by Brock has all the attributes of children being in the care of, and dependent upon, their grandfather, albeit for short periods of time. Perhaps most significantly, the deceased was filling a gap in the plaintiffs' upbringing which Darran was not providing.
The primary judge summarised Brock's evidence that when he was 11 or 12, he and Blake would stay overnight with Barry, as opposed to their father, because Sharron was "not supportive" of Darran spending time with his sons. His Honour reproduced Brock's evidence that: Grandad did everything for me and my brother when we stayed at his house as Dad was not there. My father would come once or twice a month and we would all hang out together at Grandad's place, to avoid Sharron.
Around three years later, when Brock was 14 and Darran had separated from Sharron, the primary judge reproduced at [35] Brock's evidence that: As a young teenager, I would spend weeks at a time living with my father and Grandad. During these years, my father was very sick. Grandad would drive us to the hospital to visit him and try and keep our spirits high. My father passed away when I was 17 years old. This was an extremely difficult time and Grandad was an amazing emotional support person. Grandad made an effort to get us out of the house and take us fishing, to keep our mind off everything.
The primary judge referred to an incident when Brock rescued a friend who had been bitten by a shark, but who died while being ministered to, and for which Brock received an award, and disregarded the executor's submission that it was relevant that there was no evidence that Barry had attended the award ceremony. The primary judge concluded that in Brock's adult years his relationship with his grandfather continued, by regular visits when Brock was living in Lismore after 2014, and by spending time with him when he was hospitalised and staying at the home and performing some work there.
Unlike his Honour's treatment of the evidence of Blake, the primary judge did not at this point make a finding of dependency, but then addressed some of the conflicting evidence and the cross-examination. The primary judge stated that aside from establishing that some dates were wrong, "otherwise little was achieved by the cross-examination": at [40]. He referred to a non-disclosure by Brock of rent he was receiving from a co-tenant, but said that his Honour suspected that this was "more a feature of him not having paid careful attention to the figures rather than a deliberate intention to deceive": at [44]. He referred to Brock never having filed a tax return, stated that this did not reflect well upon him, but on the basis that he had always had tax deducted from his wages, concluded that the result was that he had been deprived of tax refunds and was probably worse off.
His Honour then addressed a submission that Rodney had breached his fiduciary duty to Barry when transferring funds from his bank account, finding that the transactions were "distinctly suspicious" but ultimately concluding at [54] that "notwithstanding my suspicions", he was unable to conclude that Rodney had acted either in breach of his fiduciary duties or without the express permission of his father.
At [55]-[60] the primary judge addressed Peter's evidence, dividing it into his administration of the estate and his observations about Barry's household. The primary judge said at [55]: [In relation to the administration of the estate] I had the distinct impression that the defendant had little appreciation of his obligations and had probably been guided by his solicitors. He seemed unaware, or perhaps unconcerned, about the use of estate funds by Rodney and his understanding of the various figures seemed distinctly basic.
The relevance of that observation is unclear. At [56], the primary judge said that in relation to his observations on Barry's household, "I generally accept his evidence", save for a single qualification which concerned the amount of time Peter stayed with Barry. His affidavit attested to his spending three to four weeks while recovering from back surgery in 2003, and a couple of weeks after cataract surgery in 2015 and 2016, a further three weeks after a ruptured disc in 2017, and so on. In his cross-examination, he appeared to say that he spent an average of 30 weeks a year. Of this the primary judge said: When he was cross-examined about his estimates of time he spent in the deceased's household, and was asked, by me, to give an average, after a period of evasive answers, his estimate rocketed to an average of 30 weeks per year. His affidavit evidence comes nowhere near this amount. It is important evidence which one might have expected to have been included in his affidavit. I reject that evidence entirely. I prefer his original evidence which probably, at best allows for an average of a week or two per year. I should add that in final submissions counsel for the defendant very properly disavowed the assertion of 30 weeks per annum, submitting that the defendant had perhaps fallen prey to the anxiety of being under cross-examination and receiving a question from me.
This appears to be a misunderstanding by the witness confusing an annual average with the total number of weeks he stayed with Barry. The affidavit evidence, which the primary judge preferred, was that, between 1981 and 2022, Peter had approximately 35 medical procedures during most of which he would stay with Barry "while I recovered for varying periods of up to six weeks at a time". I shall return below to summarising Peter's evidence, which is conspicuous by its near complete absence from the reasons for judgment.
Rodney's evidence was addressed at [61]-[72]. The primary judge commenced at [61]: Turning to Rodney, the burden of his evidence was that following Darran's separation from Victoria, there was also a separation of the families within the Curtis family umbrella. He even seemed to suggest that Darran had little or no relationship with his own children and that he had a stronger relationship with Rodney's son. I reject that assertion. I find it consistent with Rodney's apparent overriding intent to paint a picture of alienation between the deceased and Rodney's family, so as to defeat the plaintiffs' claim.
In order to justify that conclusion, his Honour pointed to exchanges of text messages between Rodney and Blake in 2020 and 2021, when Blake was endeavouring to assist his grandfather, and when Rodney sent birthday greetings to Blake.
At [63], his Honour said: In his first affidavit Rodney recounts his family history. He says that he is the younger of two brothers and that his "recollection of my childhood was a very happy one. Mum and Dad were supportive loving parents." Presumably, he is referring to the attitude of his parents to both himself and his brother. It would therefore seem incongruous that in later life the deceased would have little affection for his grandchildren.
The primary judge summarised Rodney's evidence that after Darran and Victoria separated, they saw very little of Blake and Brock, not attending family Christmases until they were grown. Rodney disputed Blake's statement that he had spent 11 months with Barry in 2011, saying it was 3 months, during which he "did nothing around the house to assist", following which Barry asked Rodney to ask Blake to move out, which he did, and which according to Rodney led to some six years of no contact between Blake and Barry. His Honour reproduced Rodney's evidence that Brock's relationship with Barry was "non-existent until Dad became older and eventually became ill."
At [69]-[72] the primary judge referred to a concession made by Rodney concerning the sale of a business when Barry was reliant on assistance to conclude that: I think Rodney's initial statement, as recorded in his affidavit, is an indication of his effort to present himself as the principal, if not only, subject of his father's affections. My observation in the preceding paragraph is an indication of my overall conclusion that Rodney, through his evidence, was intent on defeating the plaintiffs' claims in order to secure the maximum benefit from the estate for himself.
The overall conclusion, based on a preference of the evidence of Blake and Brock, was that both were at least partly dependent upon Barry.

Factors warranting

The primary judge concluded that s 59(1)(b) was made out for reasons given at [75]-[90]. His Honour commenced with the executor's submission that it was necessary for Blake and Brock to show more than merely that they were eligible, that they had shown no more than an archetypal grandfather/grandson relationship, and indeed one in which there were notable absences: "For example, there was no evidence of financial assistance, no evidence that the deceased held himself out to third parties as the grandfather of the plaintiffs, advice to the plaintiffs was limited, the deceased never attended any "occasions" linked to the plaintiffs (such as sporting events or graduations), the deceased never had holidays with the plaintiffs and there was little to no relationship with the deceased's siblings (Peter and Wendy)."
The primary judge then said: Each of the above points is valid, but each can be met by the nature of the relationship that did exist. As I have already mentioned, the deceased was an apparently independent and private man, perhaps not given to the "typical" relationship that sometimes exists between a grandchild and a grandparent.
Addressing the last point first, the primary judge said that there was almost no evidence concerning Wendy, and thus it was difficult to know why there was little contact between her and Blake and Brock, while any lack of contact with Peter was "probably more at [Peter's] instigation than the plaintiffs".
Most of this section was directed to the executor's submission that a "critical point" against Blake and Brock was the absence of any testamentary recognition, advanced by reference to what was said in Estate of Awad [2023] NSWSC 765 at [67] and Shymko v Lach [2022] NSWSC 1096 at [820].
There followed an important passage in the reasoning (and indeed, it occupies 8 of the 16 paragraphs devoted to this issue which, in light of ground 2 of the appeal, warrant reproduction in full): 81 The deceased had made two previous wills. Neither of them mentions the plaintiffs. I've already described above the contents of the earlier wills. 82 The plaintiffs countered the absence of testamentary recognition with their evidence of "testamentary" intention. 83 Blake recounted this conversation with the deceased when he was installing some health aides at the deceased's home to assist with mobility issues: "Grandad: There is probably no point to this, I am not going to live for ever. Blake: Do you need anything, have you got a will? Grandad: I have been talking to your mum about this, we have made an appointment to see a lawyer to update it. You will be taken care of; Rodney will take care of you both." 84 There is perhaps some inconsistency between the suggestion of a change to the will and reliance being placed on Rodney. On the other hand, the reliance on Rodney is consistent with the will not being changed because Rodney would "take care" of the plaintiffs. 85 Brock stated: "When I was younger, especially after my father's passing, Grandad would frequently make comments to the effect of 'you will always be looked after'. As Grandad got older, he would make comments to the effect of 'I am not going to live for ever, Rodney will take care of you when I am not around.'" 86 The suggestion that Rodney would act in the interests of the plaintiffs is also evident in the affidavit of Victoria, who stated: "He got out a copy of his 2009 will which benefited Rodney and Rodney's only son. He said words to the effect of 'Rodney will make sure Darran's children get something'[.]" 87 The consistent message of reliance on Rodney is clearly contrary to Rodney's understanding of his father's wishes. Rodney has made it clear he has no intention whatsoever of assisting the plaintiffs. 88 The real point however, is that the important factor of an absence of testamentary intention is met, and I think defeated by the statements by the deceased that, rather than the deceased changing his will, Rodney would "do the right thing".
This is, incidentally, the only time in which any aspect of Victoria's evidence was mentioned.
The primary judge identified one other matter on which he placed reliance: Another factor that I think is important is that following the death of Darran the link between the deceased and the plaintiffs filled the gap created by Darran's absence. In other words, there can be no doubt that Darran would have established a testamentary intention to be a beneficiary under his father's will, a status that, in his absence, was assumed by his children.
The primary judge observed that the matters which led to the finding of dependency could also be taken into account in determining whether factors warranted the making of an application, and concluded: Taken together with the deceased's statements about the role to be played by Rodney, I am satisfied that there are factors warranting provision for the plaintiffs.

Adequate provision

At [91]-[105] the primary judge summarised the financial positions of Blake and Brock. Both had moderate incomes (of the order of $54,000 and $57,000 per annum), substantially less than the average weekly earnings. Brydee also has a salary. Neither owns real property. His Honour also summarised the financial position of Rodney, who is much wealthier, and expressed "sceptic[ism] about the veracity of Rodney's figures". His Honour concluded at [105] by reference to the matters to which he was authorised by s 60 to have regard: In reaching my conclusions I have specifically taken into account the following: (1) Subsection 60(2)(a): I have made comments about the relationship between the plaintiffs and the deceased, which I think establish a close relationship which was long-standing and enhanced by the death of Darran. (2) Subsection 60(2)(b): the obligations owed by the deceased to the plaintiffs must take into account that they are grandchildren and have a lesser demand on the estate than Rodney who is not only a son but also made significant contributions to his father's welfare. (3) Subsection 60(2)(d): the plaintiffs have limited resources, they will have ongoing needs for their continuing livelihoods and, in the case of Blake, for his children. Again, these needs must be balanced against the needs of Rodney, for reasons already stated. (4) Subsection 60(2)(f): although apparently not an economic threat, Brock suffers from PTSD and, in the nature of that illness, is likely to continue to do so. (5) Subsection 60(2)(h): the plaintiffs did make some contributions to the deceased's welfare and house, but I do not consider them to be other than a minor factor. (6) Subsection 60(2)(j): as discussed above, I think there are distinct examples of testamentary intention, not expressed through inclusion in a will, but rather through an aspiration that Rodney would draw on the estate in aid of the welfare of the plaintiffs.
It was common ground that if provision were to be ordered, it could only be made after the sale of Barry's home. It seems also to have been common ground that the best price would be achieved after rectification work had been undertaken following flood damage. The costs were estimated at $50,000. His Honour said that he did not think it would be appropriate to require Rodney to spend his own money in order for the repairs to be done. His Honour then stated: The result is that the amount that will ultimately be realised by the sale is unknown. I therefore think the best approach is to award each plaintiff a percentage of the proceeds of sale of the property. I think adequate provision for each plaintiff, bearing in mind the obligations owed by the deceased to Rodney, will be achieved by awarding them each 20% of the net proceeds of sale of the house, the balance to be provided to Rodney.
Blake's and Brock's costs, on the ordinary basis, were to be paid out of the estate, while those of Peter were to be paid out of the estate on an indemnity basis.

The grounds of appeal

Peter's notice of appeal challenged most aspects of the reasoning of the primary judge. In large measure, those challenges are made out. In large measure, that is because of a failure by the primary judge to address important aspects of the evidence, and important aspects of the submissions made by Peter in respect of that evidence.
I start with dependency. Grounds 1(a), (b) and (c) of the notice of appeal were as follows: The Court below erred, in the particular respects set out below, in finding that the first respondent ("Blake") and the second respondent ("Brock") were "wholly or partly dependent on the deceased person" within s 57(1)(e)(i) of the Succession Act 2006 (NSW) (the "Act"): a. The Court failed to consider that the deceased had made a new will in February 2009 (two months after the respondents' father's death and immediately following the period in which the deceased had allegedly been caring for the respondents) in which he made no provision for either respondent and left his entire estate to his surviving son, Rodney (and exclusively to Rodney's children in default). b. Notwithstanding that the Court generally accepted his evidence, it failed to give any weight to the appellant's evidence as to the extent of the relationship between the deceased and the respondents. c. The Court dismissed or gave little weight to the evidence of Messrs Formaggin and Lusted who gave unchallenged evidence that the deceased had said on more than one occasion that the respondents rarely visited him and that the deceased never mentioned the respondents to him.
I shall address each of those paragraphs in turn.

Barry's wills - ground 1(a)

The deceased made three wills which were in evidence.
The first, made in August 1978, appointed his wife Elaine as his executrix and left his entire estate to her, and in equal shares to Darran and Rodney if she predeceased him.
The second was made on 5 February 2009. Elaine's death in 1999 did not lead to any change in his 1978 will, which had anticipated that possibility. Plainly the death of his older son Darran in 2008 prompted a new will to be made. At that time, Barry had one surviving son Rodney, and three grandchildren who had just lost their biological father after a struggle with cancer, for whom, on their case, Barry had stepped in to perform a parental role. The February 2009 will was professionally drafted, and appointed his sister Wendy as his primary executrix, and Rodney if that appointment failed. This will left the entirety of the estate to Rodney.
The third will, also professionally drafted, was the will admitted to probate. It was made on 16 April 2021. It appointed as executor Peter, and once again Rodney if that appointment failed. Once again, this will left the entirety of the estate to Rodney. Barry was around 86 when he made that will, but there was a letter from his doctor, and no claim of lack of capacity seems to have been made. There was no point in making such a claim, even if there were a proper basis for one, because the penultimate will made 12 years earlier had also left Barry's entire estate to Rodney.
The 2009 and 2021 wills were prepared by the same firm. Tendered at the trial was a five page document titled "Will Fact Finder" which had been completed in hand when the law firm took instructions for the 2021 will. In a section relating to the testator's family, there appears: 2 children - 1 predeceased Rodney - surviving child & 1 child Left g/c but not including them
It is clear from the layout of the handwritten note that the words "left g/c but not including them" describe the child who had predeceased.
On the final page of the form, in a section headed "Undue Influence" there appears: Rodney attended signing meeting as Barry unable to walk unaided - & I believed no other eligible applicant.
There also appears the name Carolyn Hunt, who was described on the firm's letterhead as a consultant. It is plausible, but not certain, that she was the author of the notes.
"Eligible applicant" is to be understood as reflecting the language of the Succession Act. It is found in a document prepared in a solicitor's office. The author of the note evidently had the existence of surviving grandchildren at the forefront of his or her mind when making it. The inescapable inference is that the author of the note formed the view that the grandchildren were not eligible applicants. That must be because the author was of the view that (a) they were at no time dependent upon Barry, or (b) there were no factors which could warrant an application, or (c) both of those reasons.
At the top of that page is the following handwriting: Age based. But in my view Barry was very clear about instructions. Knew R's family and assets and how he wanted gifted
If there were corresponding notes concerning the 2009 will, they were not tendered.
The appellant submitted that the 2009 will was very important. I agree. At the very time when Barry had lost his older son to cancer, and his older son's own children had lost their father, Barry rewrote his will which had formerly divided his estate equally between his two sons so that it went entirely to Rodney and Rodney's children. Had he not done so, Darran's children would have stood in their father's place and taken half of Barry's estate. (Because Darran died in November 2008, s 41(2) was applicable to the 1978 will (see cl 3(2) of Schedule 1 of the Succession Act) and hence Darran's issue would take the share of Barry's estate given to Darran; see Hay v Aynsley [2013] NSWSC 1689 at [48] and Straughen-Nicholson v Straughen [2019] NSWSC 1389 at [8]-[10].) The deliberate decision to leave the entire estate to Rodney following Darran's death is objective evidence which is very difficult to reconcile with the tenor of Blake's and Brock's evidence that Barry became a substitute father figure for them as Darran ailed and died. On any view, it was necessary to assess the conflicting testimonial evidence adduced at trial against what could be drawn from the 2009 will.
The 2021 will is also important. It confirmed Barry's testamentary intention that his estate be left to Rodney, and not to any of the three adult grandchildren who were Darran's sons. It also casts doubt upon some of the testimonial evidence from Blake, Brock and Victoria.
At no stage did the primary judge engage with the central peculiarity in this case: why did Barry in 2009 change his will so as to leave the entirety of his estate to Rodney if the evidence of Peter and Rodney and Messrs Lusted and Formaggin (as to which see below) was to be rejected, and, in accordance with what was said by Victoria and Blake and Brock, there was a quasi-parental relationship between Barry and Darran's sons - and indeed a relationship brought about by Darran's illness and untimely death? And why, if the quasi-parental relationship between Barry and Darran's sons continued into their early years of manhood, did Barry in 2021 confirm his decision to leave the entirety of his estate to Rodney?
The note accompanying the 2021 will was also important. Plainly the author of the note was not instructed that Barry had performed a parent-like function for the grandchildren when their father was succumbing to cancer. What instructions had in fact been given are unclear. It is easy to see how a couple of sentences, to the effect that his son had divorced his daughter-in-law when the grandchildren were very young and he had had little contact with them thereafter, would suffice. There are other possibilities, including some which are consistent with the case propounded by Blake and Brock at trial that Rodney "controlled" Barry. But this serves only to emphasise the need for assessing the conflicting testimonial evidence against what emerges from the 2021 will, and to make findings of primary fact before reaching ultimate conclusions on whether Blake and Brock had established that they were eligible persons for whom there were factors warranting the making of orders for family provision.
The 2009 and 2021 wills were mentioned by the primary judge in paragraphs describing the chronology, and in one minor respect when dealing with whether adequate provision had been made (in [81] which is reproduced above). But neither was mentioned by the primary judge in the course of assessing the conflicting evidence when dealing with dependency or factors warranting. The absence is remarkable given their centrality and the prominence in the executor's written and oral submissions. Thus in paragraphs 8-10 of the executor's closing written submissions it was said: The deceased made a will on 16 April 2021. He made it in consultation with his solicitors. He made it in circumstances where the solicitors had obtained a letter from his GP as to capacity. The solicitor in taking the will was in no doubt as to his capacity. There is no doubt he considered the applicants' claims based on the solicitors' notes. He made no provision for them, not even as takers in default of Rodney. There is a second item of evidence even more critical, at least on the factual issue of the deceased's relationship with the plaintiffs up until Darran's passing. Darran died on 4 November 2008. The deceased made a new will three months later on 5 February 2009 (CB 111). The only earlier will in evidence is one made in 1978 (CB 108). He made two substantive changes to the 1978 will - he removed Elaine as a beneficiary (she had died in 1999). He removed Darran from the will and left his entire estate to Rodney and to Rodney's children if Rodney predeceased him. He left no gift for the plaintiffs, not even as partial takers in default if Rodney predeceased him. This was just three months after Darran's passing. He had nursed Darran through his final months. The plaintiffs were 20 and 17, barely adults, and left without a father. If the plaintiffs had the relationship with the deceased that they claim, with the extent of contact, residency and dependency that they claim over years beforehand, it is surely inexplicable that the deceased treated the plaintiffs that way in the will. While the deceased might not have been an outwardly affectionate or "loving" man (perhaps not unusually for males of that generation) there is no evidence he was callous or uncaring. Aside from the various close relationships with him claimed by the parties and various witnesses, he assisted with garden maintenance and very frequently visited his neighbour Noel, the evidence being that Noel was disabled. The only realistic alternative to the conclusion that the deceased was a callous or heartless man who consistently and deliberately excluded Darran's sons from testamentary recognition or other acknowledgment of their relationship with him, is that the plaintiffs simply did not have a significant relationship with the deceased and that the evidence of Peter, Rodney, and Messrs Lusted and Formaggin, accurately describes the deceased's relationship with the plaintiffs.
Substantially the same point was made in closing address by Peter's counsel: SIMPSON: Three months after Darran died, he's gone to the solicitor to make a new will, both to remove Elaine and to remove Darran, but not only to remove Darran, to remove Darran's children because if he hadn't changed the will, then by force of the law, if he died, Darran having died, it would have passed onto Darran's children. It could be inferred to exclude Darran's children from the will. That's three months after Darran died. Now, undisputed evidenced that he nursed Darran through his final months. It would've been a terrible experience for him. The plaintiffs were 20 and 17. They were barely adults. They just lost their father. If they had the relationship that they claimed with the deceased at that time, it is absolutely inexplicable, in my submission, that he would go virtually straight after Darran's death to exclude them from his estate. There are two alternatives. He's a callous monster or the evidence that's been given about the extent of the relationship by them is not correct and the evidence of Rodney, Peter, Mr Formaggin and Mr Lusted should be accepted.
Neither of these submissions was mentioned by the primary judge, despite their prominence in Peter's concise written and oral submissions. They went to the heart of the dispute.
The response made by Blake and Brock was to emphasise the suggestions in the reasons of the primary judge that Rodney had controlled Barry, and to point to the same aspect of the solicitor's file note concerning possible undue influence where it was recorded that Rodney attended the execution of the will. Their submissions concluded: The decision was, on the facts, not unreasonable or plainly unjust in such a way that there had been a failure properly to exercise the judicial discretion. House v The King [1936] HCA 40; (1936) 55 CLR 499. The primary judge considered the evidence and gave adequate and proper reasons for his decision. The reasoning of the primary judge was not demonstrative of error.
But it is settled that review of this aspect of the fact-finding process is governed by the correctness standard, rather than an approach governing discretionary decisions. And irrespective of the applicable standard of appellate review, it is also quite plain that the primary judge failed to attend to a prominent submission in Peter's case, and failed to evaluate the testimonial evidence of Blake, Brock and Victoria insofar as it conflicted with the wills. It might have been possible to reconcile the terms of the 2009 and 2021 wills on the bases suggested by the respondents' submissions, but the primary judge did not do so, there was no notice of contention, and it is far from clear that Rodney was sufficiently confronted in cross-examination with the serious allegations that might sustain such a case.
Pausing there, already enough has been said to establish appellable error warranting this Court's intervention: see New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [46]-[47] and Zaya v Damirdjian [2022] NSWCA 203 at [70] and the cases there cited. Critical documents, which cannot readily be reconciled with either the findings made by the primary judge or the ultimate outcome, and which were prominent in the executor's submissions, were not addressed in the course of making findings of fact on the central contested issues, deriving from the conflicting evidence of Blake, Brock and Victoria on the one hand, and Peter, Rodney and Messrs Lusted and Formaggin on the other hand.
It is an "incident of judicial duty for the judge to consider all the evidence in the case": Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA). Further, "[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation": Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34] (Keane JA). The 2009 and 2021 wills and the notes which were prepared in connection with the latter would have been a conventional starting point in seeking to resolve the conflict in the evidence, yet they were ignored.
In Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], Allsop P said: The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved. Here, critical factual enquiries were not embarked upon by the primary judge. Unfortunately, for the reasons given by Campbell JA these deficiencies mean that there must be a new trial.
To the same effect, in Bradley v Matloob [2015] NSWCA 239 at [75], Beech-Jones J said, by reference to Mitchell v Cullingral Pty Ltd, that "the primary judge was obliged to address the 'central controversies put up for resolution by the parties' or 'engage with, or grapple or wrestle with, the cases presented by each party'". In the same decision, agreeing with Beech-Jones J, I added at [17]-[18]: It is well established that where there is a real conflict in the evidence, it is necessary to "engage with, or grapple or wrestle with the cases presented by each party": see for example Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], Coote v Kelly [2013] NSWCA 357 at [39]-[52] and Keith v Gal [2013] NSWCA 339 at [109]-[119]. As was said in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 at [53], the point of the metaphor of "grappling" is that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]. There are two overlapping reasons for this. The first appears from the often quoted statement by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]: "Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried." The second emerges from the opening paragraph of the joint reasons of Mason P, Ipp and Tobias JJA in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [1]: "[J]udges' duties to give reasons are ... designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide basic fairness to the losing party."
The "critical factual enquiries" and the "central controversies" in this case included the reconciliation of Blake's and Brock's testimonial evidence with Barry's 2009 and 2021 wills and the notes made in the solicitor's office when the 2021 will was drafted, all of which pointed against the existence of a relationship in which Blake and Brock were natural objects of testamentary disposition. That did not occur. As is contended in ground 1(a), a critical aspect of the fact-finding process miscarried.

The evidence of Peter which the primary judge accepted - ground 1(b)

Peter gave extensive evidence denying that Blake or Brock had anything like the close relationship with Barry that they claimed. He did so as a brother who had regular, ongoing contact with Barry, including living with him for weeks at a time. As noted above, the primary judge "generally" accepted Peter's evidence as to his observations of Barry's household. Yet his Honour's reasons did not record that evidence, and there is nothing to suggest any process of reconciling it with the evidence of Blake and Brock, whom he also generally found reliable, despite the evidence being antithetical.
Peter said that on the dozens of occasions he stayed with Barry, he had a room known as "Peter's Room". It was filled with his own furniture and belongings, as well as Rodney's toys and clothing that he did not take with him when he left home. Peter also said that he spoke with Barry at least once a week, often three times a week, throughout his lifetime, and that "[a]t no time during any phone call do I recall the Deceased mentioning Blake or Brock visiting him, living with him or assisting him around the house".
It was on that basis that Peter denied the account of the relationship contained in Blake's and Brock's evidence. Paragraphs 36 to 53 of his main affidavit denied essentially all aspects of their accounts of a close relationship with Barry. Peter said that Blake stayed with Barry "not close to one year and was more like two (2) months", that Barry asked Blake to leave after two months and denied that Brock had lived with him.
Peter also gave evidence concerning Victoria. He said that Barry had told him, not long after he had agreed to be the executor to the 2021 will, that Victoria had visited him in hospital, and that Barry told him: Victoria came to the hospital and was hassling me to change my will and include the two boys. She thinks that even though Darran is deceased, his share should go to the boys.
Peter added "[t]he Deceased went on to tell me that she wouldn't leave the hospital and he had to get hospital staff to ask her to leave."
Peter was not cross-examined about that evidence. The primary judge did not address it, save to say that he "generally" accepted Peter's evidence concerning Barry's household. Victoria was cross-examined to the effect that she had been "badgering" Barry about his will, which she denied. The primary judge did not refer to that evidence either. Nor did his Honour refer to Blake's acceptance that to the extent that his affidavit addressed the early years, it "would probably be my mum just jogging my memory", rather than his own recollection.
There is thus a series of unreconciled conflicts in the evidence, for the most part not apparent on the face of the reasons, in part because in relation to Blake and Brock, his Honour said "I do not intend to recite all of the detail", and in part because almost none of the evidence of Peter which the primary judge "generally accepted" was reproduced. It would serve no purpose to indicate all of the unresolved issues. I give two examples, one for each grandson. Each relates to periods in the early adulthood of Blake and Brock, which were relied on primarily to establish that there were factors warranting the making of orders for family provision.
First, Blake said that from around 2011, he stayed with Barry for about a year, and that "[d]uring this period, we were having meals together every day as a family. We took turns cooking meals and cleaning the house. Grandad did not make me pay rent, but I often paid him a small board to help with the costs associated with running the household. Later that year I met my current partner and we moved in together". Peter denied this. Peter said that Barry told him that Blake stayed with him for only around two months, that "he and Blake did not have meals together and in fact that Blake took plates into his room to eat" and that Barry told him that "he had asked Blake to leave after a period of around two (2) months. The Deceased told me that he had gone into my room where Blake was residing to retrieve the plates because there were no plates left in the kitchen. He told me that there were clothes everywhere, the bed was unmade and there were plates everywhere, the Deceased asked Blake to leave". This was put to Blake in cross-examination ("It is actually the case, isn't it, sir, that you were asked to move out of your grandfather's house, weren't you?") following which Blake said that this was "not for any bad reasons", but because Barry was getting a carer to come to live with him, an answer which implicitly accepted that Barry had asked him to leave. Peter was not challenged on his version. The primary judge said that the dispute was difficult to resolve (at [46]) but when noting the dispute mentioned only the evidence of Blake and Rodney, and not the unchallenged evidence of Peter which he said he generally accepted.
Secondly, Brock said in paragraph 30 of his affidavit that on around 1 December 2021 he moved in with Barry, because his landlord was selling his property, and Barry "suggested that I come and live with him. I was able to find a rental relatively quickly, so I moved out after around one month". Peter denied this. He said Barry never made him aware that Brock had moved in, that Barry was unwell that month, that he visited Barry for a period of approximately one week over Christmas, that Brock was not living with Barry at that time, that Brock did not visit him while he was there, and that Barry and Peter went to Rodney's house that year for Christmas with Rodney's family. That conflict was not resolved by the primary judge, who merely said at [38] that Brock "stayed at the house in December 2021, although at this time the deceased was in the nursing home".
Little purpose would be served dealing with the entirety of the evidence of Peter which disputed the accounts of Blake and Brock. The primary judge did not address any of it. Once again, the process of fact-finding has failed, requiring this Court's intervention.

The testimonial evidence of Messrs Lusted and Formaggin - ground 1(c)

The primary judge did address the evidence of the two neighbours, albeit in a single paragraph. His Honour said at [49]: Little weight can be given to some of the witnesses, in particular Mr Formaggin and Mr Lusted. I have no doubt they were honest witnesses doing their best to recall events as they remembered them. However, they were either neighbours and/or close friends who could hardly be said to have had the deceased's home under 24-hour surveillance. In addition, the evidence was to the effect that the deceased was a private and independent man and I have some doubts as to the extent to which he would have exposed any softer side of his nature to his friends.
In order to assess Peter's submission that this was insufficient to address the evidence of those two witnesses, it is necessary to summarise the nature of the evidence which was so succinctly put to one side by the primary judge.
Mr Warren Lusted gave evidence that he had known Barry for 40 years. He said that from 1982 until 1997, he lived on the same street as Barry, and in around 1997, he, his partner and two children moved next door for some three years while they built another house on a nearby street. He said: Until Darran's funeral, sometime in the 2000s, I did not know that Darran had children. Barry had never spoken of them and I had never seen them. I cannot recall ever meeting Darran's sons. I never saw either of them during the time I lived next door to Barry or the years I lived down the street. Barry has never mentioned Darran's sons or his great-grandchildren to me. I did not know Barry had great grandchildren. Throughout the time I knew Barry, we saw each other regularly. I saw Barry frequently on his walks. I would call in at his house and we would sit under his back pergola and have a cup of tea or I would drop prawns or fish off to Barry. Barry would call in at my house and we would fish off my jetty. When I visited Barry, it was always at different hours of the day. I saw Rod and his son there, but I never saw Darran's children. When we lived next door, we would see each other coming out the front of our houses and we'd stop and chat. My children spent a lot of time at Barry's house, he had dogs and they loved playing with his dogs. My children never mentioned any other children being there. There is a lot of glass out the front of Barry's house and you can see into the house from the street. I never saw Darran's children in Barry's house.
Mr Lusted was cross-examined, and confirmed repeatedly that he saw Barry every day.
Mr Formaggin was a close friend who got to know Barry after Elaine died. He said that from 2004 he would visit Barry at his home "at least fortnightly and sometimes more often (except on occasions when either I, or Barry, was travelling or away)". He said that he did not recall Barry's grandchildren residing with him when they were children. He did recall one of Darran's sons staying with Barry for a time, and Barry being "not particularly happy about it". None of his evidence was challenged in a brief cross-examination.
The accounts of Blake and Brock that as young teenagers they stayed for weeks at Barry's home are very difficult to reconcile with Mr Lusted's evidence. It was necessary to evaluate this conflicting evidence, and determine how if at all it might be reconciled, and to the extent it could not be reconciled, to determine which was unreliable. But that task is not greatly advanced by observing that there was no "24 hour surveillance". Nor is much assistance gained by any doubts the primary judge may have had concerning Barry's willingness to expose the "softer side of his nature" to his friends. Neither of those bases for putting to one side the entirety of the evidence of Messrs Lusted and Formaggin attracts the deference that is to be accorded to findings which are apt to have been informed by the presentation of witnesses giving evidence, and, with respect, neither addresses the real question. The real question is how could two men who presented as close friends, one of whom had lived next door for some three years, the other of whom called upon him fortnightly, have had such a different view of the relationship between grandfather and grandsons, and indeed in the case of one of them (Mr Lusted) never have been aware of their existence, if the claims presented by Blake and Brock involving recurring, substantial stays by them with Barry, were accepted. The single paragraph in the reasons of the primary judge does not engage with that issue.
Blake's and Brock's response was to assert that this evidence "simply did not assist the Court with the decisions that it was being asked to decide", and to assert: The Appellant is required to demonstrate that the primary judge's discretion miscarried on the weight that he applied to the evidence. The primary judge's exercise of discretion was not vitiated by error by means of a wrong principle, irrelevance, mistake of fact, failure to take in a material consideration or was unreasonable or unjust. The reasoning of the primary judge was not demonstrative of error.
Peter's appeal is by way of rehearing and this Court is obliged to conduct a real review of the trial: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. Blake's and Brock's reliance on principles apposite to the review of discretionary decisions is inapt. For the reasons already given, the process of finding facts has failed.
A separate difficulty emerges from the segmented approach taken by the primary judge. On the most natural reading of his Honour's reasons, which address the evidence of Messrs Formaggin and Lusted in a single paragraph early in those reasons, it seems that their evidence was sidelined then and there. Even if those reasons for putting their evidence to one side withstood scrutiny, the approach was erroneous. The obligation upon the primary judge was to assess the independent evidence of Messrs Formaggin and Lusted with regard to the whole of the evidence. In Nguyen v Tran [2018] NSWCA 215; (2018) 86 MVR 16 at [54], where a judge had expressed views based on some but not all of the evidence relevant to a particular issue, it was said that: The fact finding exercise which is required to be undertaken by the tribunal of fact, whether that be judge or jury, is not properly approached in that segmented way. The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of their evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case.
Bezer v Bassan [2019] NSWCA 50; (2019) 87 MVR 447 was also a case where it was not possible to make findings on the ultimate issue "based only on a survey of some but not all of the evidence which bore on that issue": at [110]; see also at [140]-[141].
Broadly speaking, what was required was an evaluation of the testimonial evidence of Blake, Brock and Victoria against the substantially unchallenged evidence of Peter, Messrs Lusted and Formaggin, the contested evidence of Rodney, and the documentary evidence in the form of the wills and the hospital and nursing home notes, to the latter of which I shall now turn.

Other documentary evidence

In written and oral submissions, as well as in ground 2(c) of his appeal, Peter drew attention to other contemporaneous documentary evidence bearing upon Barry's relationship with Victoria. At the end of his life, Barry spent time in hospital and in a retirement village. A note made in April 2021 in the hospital records stated: Notified pt. that "Victoria & Blake telephoned & said to say Hi. Victoria also stated that she may come in this afternoon." Pt. replied "OK, hope she doesn't, thank-you".
A progress note from St Andrews Ballina made by a nurse on 25 June 2021 said: Barry requesting not to receive any phone call or visit from his daughter in law, Victoria Curtis, due to family issue.
Similarly, a "Care Plan Report" for Barry from St Andrews Village stated, under "Vital Information": No visits or telephone calls from DIL Victoria Curtis - Barry's request
Victoria was cross-examined about these documents. She denied that they reflected Barry's views of her. Of the first, she maintained that it must have reflected Barry's being too sick and exhausted to see her. Of the second, she said that she had expressed dissatisfaction with the care he was receiving, and that the reason for the note was that "for them to say that didn't - that he didn't want me there would only have been because I was encouraging of him getting better care". She denied that it was because she was badgering him to change his will.
No finding was made concerning these documents and Victoria's evidence. Indeed, the reasons of the primary judge did not mention the documents, nor any aspect of Victoria's evidence at all, save in one respect to which I shall come. But in a case where the testimonial evidence was widely divergent, business records produced contemporaneously by third parties which bore directly on the quality of Barry's relationship with Victoria were apt to be centrally relevant.

Remaining grounds

Grounds 1(d) and (e) challenged other, more minor aspects of the process of fact finding. It is not necessary to address these subgrounds.
Ground 2 challenged the conclusion that there were factors warranting the making of family provision orders. The gravamen of this ground turned on the findings at [83], [85], [86] and [88] reproduced at [59] above. Peter submitted that those findings failed to have regard to the fact that, after allegedly making statements to the effect that "Rodney would 'do the right thing'" by the applicants, (a) Barry changed his will and nonetheless made no provision for Blake or Brock, (b) there was no evidence that Barry asked Peter or Rodney to look after Blake and Brock from the estate, (c) there was evidence to the effect that Victoria was badgering Barry to change his will so as to include Blake and Brock, and (d) Barry's statement to Peter that he wanted him to follow the will. Peter submitted that the primary judge took into account the statements, rather than the subsequent will made in 2021. Peter also submitted that it was wrong for the primary judge to have taken into account as an important factor the fact that Darran would have benefited under Barry's earlier will had he not predeceased him.
At least in large measure, this ground is made out. In light of the above, I can be concise.
First, it was wrong to rely upon Victoria's testimonial evidence about Barry telling her that provision would be made for her sons without attending in any way to the cross-examination of her on this issue, or the contemporaneous documents which came close to compelling the conclusion that Barry had instructed the staff at both the hospital and the nursing home not to permit her to visit or speak with him. That evidence made it improbable that any statement was made to her by Barry that conveyed any assurance that Rodney would provide a benefit to Blake or Brock from his estate. It was also necessary to have regard to the testimonial evidence which the primary judge accepted from Peter that Barry complained about being badgered by her to change his will.
Secondly, it was illogical to rely upon statements attributed by Blake and Brock to the deceased when the deceased subsequently executed a will which left nothing to Blake or Brock.
Thirdly, the fact that, decades earlier, Barry had left half of his estate to Darran in the event that Elaine predeceased him does not say anything about Barry's testamentary intentions in favour of Blake and Brock.
Fourthly, insofar as the primary judge relied on the evidence bearing on dependency, the errors in fact-finding mentioned above carry through here too.
Fifthly, the primary judge reproduced verbatim the statements attributed by Blake and Brock to Barry concerning being looked after by Rodney. It is true that they were not cross-examined on those statements. On the other hand, this was a case where the caution in Watson v Foxman (1995) 49 NSWLR 315 was apposite. A statement that "Rodney will take care of you when I'm not around" does not ineluctably mean that Rodney would provide money or assets to Blake and Brock after Barry's death. A more natural reading of the words of a grandfather to young men whose father had died a decade earlier is that after the grandfather died, Rodney would be an older male to whom they could talk and from whom they could seek advice. "Take care of" does not necessarily mean "give money to"; it extends to the giving of pastoral or emotional care. When the objective facts that Barry made no provision for Blake or Brock in his 2009 or 2021 wills are borne in mind, it is far from clear that one should attach a testamentary intention to Barry's words, accepting that they were said.
Paragraphs 75 and 85 of Blake's and Brock's submissions responded to this ground relatively concisely, in slightly more than a page. None of those submissions detracts from any of the points made in the previous five paragraphs.
Ground 3 of the appeal was that the primary judge erred at [103] in considering Rodney's "needs", as opposed to what was adequate and proper provision for Blake and Brock. Ground 4 complained that adequate provision was determined without regard to what was "proper", without regard to the testamentary wishes in the will, without quantifying Blake's or Brock's needs and without considering the capacity of Rodney to meet his own needs. Ground 5 complained that, after allowing for costs, the effect of the order was that Rodney would receive about half (in fact slightly less than half) of the estate, and Blake and Brock the other half (in fact slightly more than half). Ground 6 challenged some findings adverse to Rodney.
These grounds do not arise. But it may be doubted that it was appropriate to make provision in terms of a percentage of the net proceeds of sale of the home, rather than in a fixed amount. The primary judge made no finding as to the needs of either Brock or Blake, and no finding as to what the net proceeds of sale of the home would be (or indeed when the sale might occur). All this calls into question whether the approach adopted was one which complied with s 59(2). It is one thing to say that a fixed amount of money should be ordered by way of provision because that amount is the provision which "the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"; it is another to say that the amount ought to be a fraction of the net proceeds of a sale when the timing and price and associated costs of that sale are unknown (there is no reason to think that the $50,000 estimate would be accurate). This was the point made by McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96]: to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs.
There may be cases where an approach similar to that adopted by the primary judge will be appropriate. But there were practical difficulties in this case, because the house had been damaged in a flood, and it seemed likely that a better price would be achieved if rectification work were first undertaken, leading to a question as to how the cost of such work should be borne. Even so, it does not follow that allocating 40% of the net proceeds of sale by way of orders for family provision in favour of Blake and Brock was appropriate. An alternative approach in a case such as the present, where the sale of the deceased's home is inevitable, is for the sale to take place before a final order for family provision is made.

A retrial is not necessary

The conclusion in Chapple at [103] is apposite to the present case: It was for the respondent, as plaintiff, to establish an affirmative case for displacement by the court of the testator's clearly stated testamentary wishes. And it was for the judge, having decided that the respondent had discharged that onus, to disclose the process of reasoning by which that decision had been reached. He did not do so. The appraisal of the material before him that the judge should have made pointed decisively against exercise of the discretion in the respondent's favour.
It is difficult for this Court, which did not see Blake or Brock or Victoria or Peter or Messrs Lusted or Formaggin give evidence, to resolve the primary facts so as to determine afresh whether Blake and Brock had established partial dependency, bearing in mind that despite Blake and Brock bearing the onus, the threshold is low. I am sceptical that, in light of all the evidence, they would have discharged the onus of establishing even partial dependency at any point in time, but I shall refrain from expressing a concluded view as to whether this Court could make that finding and thereby avoid a remitter.
But let it be assumed, favourably to Blake and Brock, that they are eligible persons because at some stage in their lives they were partly dependent upon Barry. The onus rests on them to establish that there are factors warranting making an order for family provision, which is to say, factors such that Blake and Brock would be recognised as natural objects of testamentary recognition by Barry.
On the evidence of Peter, which the primary judge accepted, neither Blake nor Brock had anything like a close relationship with Barry. Peter gave evidence, which he was not cross-examined on, and which was accepted by the primary judge, that: Blake and Brock did not have a close relationship with anyone in our family, especially after their mother and father divorced. I understood that after the divorce, they essentially became estranged from our family and even spent little time with Darran.
Similarly, Peter said: I deny the allegation made in paragraphs 9 of Brock's affidavit that Darran and the Deceased were extremely close. I was extremely close with the Deceased and the Deceased did not have a close relationship with Darran, nor Darran's children.
Most of that evidence was limited to evidence of his opinion, but that does not undermine its force.
Finally, Peter said that when Barry was in hospital, and after he had written his 2021 will and after he had complained of Victoria badgering him to change his will, Barry told him "I have written my will and I want you to follow what's in the will".
Once again, that evidence was accepted by the primary judge, and tells against Blake and Brock establishing that there are factors warranting the making of family provision orders in their favour. That conclusion is further supported by the documentary evidence and the evidence of Messrs Lusted and Formaggin. The text messages on which the primary judge relied do not materially detract from this. The primary judge was wrong to state that Blake's evidence about his having a "close and loving relationship" with Barry was unchallenged; it was challenged in Peter's affidavit evidence and it was the gravamen of Blake's cross-examination; the same is true of Brock.
There was conflicting evidence about the care given to Barry by Blake and Brock when they were adults. The primary judge found that when Brock was living in Lismore after 2014, he visited Barry regularly, and that when Barry was hospitalised he visited him, and did some work around the house, staying there for a period in December 2021. The conflicting evidence about the latter is summarised at [102] above. Although the primary judge made no findings about it, Blake said that when he lived with Barry in around 2011, he helped him with vacuuming and cleaning the pool. He said that in 2012 he assisted to replace the roof on Barry's house, although he clarified in cross-examination that the two of them had been "taking some sheets off a roof" and putting a new roof on his house. He said that he and Brock both assisted delivering various aids such as ramps and bathroom aids as Barry's mobility was reduced, and installed them over a number of afternoons, and from time to time brought groceries to him and visited him regularly. Brock denied Rodney's evidence that this occurred on a single afternoon, and recalled three separate instances (the ramp, the bed lift and lounge room items). Rodney said that after 2011 when Blake had ceased living with Barry, he had "virtually no contact" with Barry until around 2017, and that thereafter he would visit occasionally. Rodney described Brock's relationship with Barry "as non-existent until [Barry] became older and eventually became ill".
I shall adopt the approach of the primary judge, which is also the approach which is most favourable to Blake and Brock, and take their evidence at its highest. I shall also proceed on the basis that Barry told Blake and Brock that Rodney would "take care of" them after them after Barry died. Even so, those matters are insufficient to amount to something which would convert them to grandchildren who would be regarded as natural objects of testamentary disposition. Taken at its highest, the assistance provided by Blake and Brock was occasional and limited, while the statements that Rodney would "take care of" them were ambiguous. I am unpersuaded that Blake or Brock has made out anything like a social, domestic or moral obligation upon Barry to leave part of his estate to either of them.
Evidently the primary judge formed an unfavourable view of Rodney. But the question is whether Blake or Brock had made out a case that there were factors warranting disturbing the testamentary wishes of Barry in his will. That question should have been answered in the negative, and it is difficult to avoid the conclusion that the judge's views of Rodney contributed to his Honour's being distracted from the real issues.

Orders

For those reasons, the appeal must be allowed, the orders made by the primary judge set aside, and the proceedings dismissed.
There is no reason of which I am aware to depart from the usual rule that costs should follow the event. However, Blake and Brock should have the benefit of a certificate pursuant to the Suitors' Fund Act 1951 (NSW) in respect of the costs of an appeal brought about by the errors made by the primary judge.
I propose the following orders:
Appeal allowed.
Set aside the orders made on 28 September 2023, and in lieu thereof, order that the summons be dismissed.
Order that the respondents pay the appellant's costs of the appeal and the proceedings below.
Grant the respondents a certificate pursuant to the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.
MITCHELMORE JA: I agree with Leeming JA.
BASTEN AJA: I agree with Leeming JA. 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: 05 June 2024

Suitors' Fund Act 1951(NSW)

Family Provision Act 1982(NSW)

South Wales Jurisdiction: Equity Division Citation: [2023] NSWSC 1164 Date of Decision: 28 September 2023 Before: Elkaim AJ File Number(s): 2022/313246

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant is the executor of the deceased estate of his brother, Mr Barry Curtis. One of the deceased's sons was Mr Darran Curtis. The deceased had three wills - one executed in 1978 which made provision in favour of Darran in the event that Barry's wife predeceased him, another in 2009 which excluded Darran (who died in 2008) and left the estate to his surviving son Rodney, and a final will in 2021 which also left the entirety of his estate to Rodney. The respondents (Blake Curtis and Brock Curtis), who were Darran's two sons, received nothing under Barry's 2021 will and sought provision under Part 3.2 of the Succession Act 2006 (NSW) (the Act). Much of the evidence at trial was conflicting. The respondents and their mother gave evidence that the respondents lived with the deceased and that the deceased had assumed the role of a father-figure to the respondents once Darran was diagnosed with cancer in 2003. That evidence was contested by Rodney who said that Blake lived with the deceased for only three months and that the family saw very little of both respondents. The appellant gave evidence to similar effect. That account was supported by the evidence of two of the deceased's neighbours, one of whom had never seen the respondents. The primary judge made orders under Part 3.2 of the Act granting each respondent 20% of the proceeds of sale of a house, being the deceased estate's only substantial asset. The primary judge accepted Blake's and Brock's evidence over Rodney's because of their "general honesty" and perceived inconsistencies in Rodney's evidence, and found that both respondents were at least "partly dependent" on the deceased for the purposes of section 57(1)(e)(i) of the Act. For similar reasons, the primary judge held that there were "factors which warrant" the making of an application under s 59(1)(b) and that, in light of the respondents' "moderate incomes" and the absence of any benefit under the will, "adequate provision" had not been made, for the purposes of section 59(1)(c). On appeal, the appellant submitted that there were numerous errors in the fact-finding process, including (i) failing to consider the appellant's submission that the deceased had made a new will in 2009 which had the effect that the respondents would receive nothing, (ii) failing to adequately address the appellant's evidence, and (iii) failing to give proper weight to the neighbours' evidence. The Court (Leeming JA, Mitchelmore JA and Basten AJA agreeing), allowing the appeal, held: (1) The primary judge failed to consider the significance of the 2009 will, which removed the possibility that the respondents, as Darran's issue, would receive Darran's share since Darran became a predeceasing beneficiary. That was objective evidence that supported the appellant's account, which was the subject of the appellant's submissions at trial, and a failure to address it constituted appellable error: [69]-[93]. New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47; Zaya v Damirdjian [2022] NSWCA 203 applied (2) The primary judge erred in failing to resolve the apparent conflict between the evidence of the respondents and the evidence of the appellant, which was said to be "generally accepted" even though it contradicted the respondents' account: [94]-[103]. (3) The primary judge erred in putting to one side the evidence of two neighbours who had presented as close friends of the deceased, and in failing to assess their independent evidence with regard to the whole of the evidence before the primary judge: [104]-[114]. (4) The primary judge erred in failing to advert at all to business records produced contemporaneously by third parties which bore directly on the quality of Barry's relationship with the respondents' mother and were therefore apt to be centrally relevant: [115]-[119]. (5) Obiter: It may be doubted that it was appropriate for the primary judge to make provision in terms of a percentage of the net proceeds of sale of the home, rather than in a fixed amount. In any event, the primary judge made no finding as to the respondents' needs and no finding as to what the net proceeds would amount to, which called into question whether the approach complied with section 59(2): [130]. (6) A retrial is not necessary because the material available to the primary judge pointed decisively against conclusions favourable to the respondents. On the evidence, it is doubtful that the respondents had discharged their onus to prove that they were "eligible persons" but, in any event, there were no "factors which warrant" the application: [132]-[142]. Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 applied

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