Dighton v Norwood

Supreme Court of NSW|2024-02-28|Before: Pike J

Introduction

By summons filed on 4 August 2023, the plaintiff, Pamela Elizabeth Dighton (Pamela), seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) (Act) that further provision be made for her maintenance, education and advancement in life out of the estate and/or notional estate of her late husband, Daryl George Dighton (Daryl).
Without intending any disrespect, I will refer to the principal persons in these reasons by their given names as they share a common surname.
The proceedings were heard by me on 27 and 28 February 2024. Mr L Hammond appeared for the plaintiff and Mr N Bilinsky for the defendant.
For the reasons set out below, further provision should be made in favour of Pamela and the parties should bring in orders to give effect to these reasons.

The Facts

I set out below the facts that I find for the purposes of determining these proceedings. Where those facts were in dispute, I identify the dispute and determine it.

Daryl's will

Daryl left a will dated 25 August 2010 (Will). Probate of the Will was granted to the defendant, Daryl's sister, Beverly Elizabeth Norwood, on 12 April 2023 by the Supreme Court of Victoria. Re-seal of the probate was granted to the defendant on 14 July 2023 by the Supreme Court of New South Wales.
Under the terms of the Will: 1. 50% of Daryl's interest in Waratah Road is left to Pamela absolutely i.e. a 40% interest (clause (a)). 2. Daryl's remaining 50% interest in his share of Waratah Road is dealt with as follows: … (b) my remaining Fifty Percent (50%) interest in the said real property to permit my said wife PAMELA DIGHTON to have the use and occupation thereof during her life, she paying all rates, taxes and other outgoings (not of a capital nature), premiums for such fire and other insurances as my Trustee thinks proper and keeping the same in a reasonable state of repair and I DIRECT that upon her death or remarriage or my wife no longer wishing to remain living at the said real property then and in that event my said real property shall fall into and form part of my residuary estate. The residue of the estate is to be divided equally between Daryl's children, Leah and Bryce.
In addition to his estate at the date of death, Daryl held superannuation with CBUS Super in an amount of $165,293.70. This superannuation was paid directly to Bryce and Leah who each received the sum of $68,802.85 after tax.

Estimate of the assets of the estate

In an affidavit affirmed by the defendant dated 9 February 2024, the then up to date estimate of the gross value of the assets of the estate were set out. I have set out the estimates in the table at paragraph [31] below.
At the hearing both parties tendered up to date market appraisals for the various properties: 1. For the property in Dunlop Street, Yarrawonga, VIC (Dunlop Street Property), the appraisal tendered for the defendant put forward a price range of $480,000 to $520,000. 2. For Waratah Road, the defendant tendered two appraisals, one estimating a price range of $1 million to $1.05 million, the other estimating a range of $1.25 million to $1.35 million. 3. For Waratah Road, the appraisal tendered by the plaintiff estimated a range of $900,000 to $950,000. 4. For the Sturt Street Property, the appraisal tendered by the plaintiff estimated a range of $310,000 to $325,000. 5. For the property in Coghill Street, the appraisal tendered by the plaintiff estimated a range of $360,000 to $380,000.
In relation to Waratah Road - the principal asset of value - there is thus a large range between $900,000 to $950,000 on the low end to $1.25 million to $1.35 million at the high end.
The asset position of the estate may be summarised as follows (the bold entries reflecting the range of values based on the up to date market appraisals tendered at the hearing): Description Estimated or known value Waratah Road Property $832,000.00 (estate holds 80% interest) $720,000 - $1,080,000 Sturt Street Property $240,000.00 $310,000 - $352,000 Property in Coghill Street, Yarrawonga $315,000.00 $360,000 - $380,000 Jayco Caravan $70,000.00 Holden Colorado $30,000.00 Porsche $5,000.00 Yamaha Scooter $2,000.00 2006 Express Van $5,000.00 Hargraves Solicitors Trust Account $19,640.95 Total $1,518,640.95 $1,521,640.95 to $1,943,640.95

The presently known (unpaid) liabilities of the estate as well as future anticipated liabilities, as at 9 February 2024 are: Description Estimated or known value Hargraves Solicitors costs in respect to the Application for Probate in Victoria (inc GST & Disbursements) $2,288.70 Hargraves Solicitors costs in respect to the Application for grant of reseal in NSW (inc GST & Disbursements) $3,923.00 Hargraves Solicitors costs in respect to the Administration of the Estate (inc GST & Disbursements) $15,000.00 Hargraves Solicitors acting for the Executor in relation to family provision claim up to and including mediation $28,600.00 Various costs for utilities and registration and transfer fees on properties $5,000.00 Estimated legal costs of Hargraves Solicitors up to the conclusion of the final hearing (inc GST) $33,000.00 Estate disbursements for travel and accommodation relevant to mediation (for solicitor, John Gorman, and executor) $2,200.00 Estimated fee for counsel up to the conclusion of the matter $27,500.00 Total $117,511.70

Accordingly, on the pre-hearing affidavit evidence, the present estimate of the net distributable estate (including the defendant's estimated costs of the proceedings) is approximately $1,401,129.25. Taking into account the updated market appraisals tendered at the hearing (summarised in the table above) the range of values is $1,404,129.25 to $1,826,129.25, the mid-point being $1,615,129.25. If Pamela's estimated legal costs on the ordinary basis are included (which I have summarised below) the figures are reduced by approximately $107,000.

Pamela's current assets and circumstances

As set out above, Pamela was born on February 1958 and is currently 66 years of age. She is retired.
She has the following assets: Asset Estimated value $208,000.00 Waratah Road (20% value as tenant in common) $185,000.00 $180,000 - $270,000 $445,000.00 Dunlop Street Property $400,000.00 $480,000 - $520,000 Toyota Corolla 2014 $12,000.00 $10,000.00 Bank accounts $16,000.00 $1,950.00 Total $681,000.00 [lower range uses lowest values in all four columns ($180,000+$480,000+$10,000+$1,950), highest range uses highest values in all four ($270,000+$520,000+$12,000+$16,000)] $596,950.00 $671,950.00 - $818,000

The first set of plain text figures in the above table are from Pamela's affidavit of 1 August 2023. The second set of figures in italics are the updated figures set out in Pamela's affidavit of 16 February 2024. The third set of figures in bold for the two properties set out the range of estimated values from the appraisals tendered at the hearing. Taking the upper range of these appraisals would increase Pamela's estimated asset value to $818,000 (otherwise using current values). Using a mid-point of the property valuation range would be $744,975. Using the low range property valuations would be $671,950.
In addition, Pamela has superannuation to the value of $196,565 as at 19 June 2023. As at 7 February 2024, the value was $179,185. As at 27 February 2024, the agreed value was $180,930, which reflected the current value of the assets held rather than any additional contributions made by Pamela.
She currently has no liabilities.
The evidence does not establish when Pamela sold her property in Grimshaw Street, Bundoora or bought the Dunlop Street Property, although Pamela gave evidence that she bought Dunlop Street Property at Daryl's encouragement, since he wanted somewhere else that would accommodate the caravan which could be housed at the back of the property. She chose the Dunlop Street Property because of this fact rather than for any appeal as a potential home for her.
Pamela says that it is not suitable for her to live at the Dunlop Street Property, as it is currently tenanted, and she relies on the rent on the property as her sole income. It is also said to be too small to accommodate her furniture and chattels. Further, Pamela believes that there is a considerable amount of crime in the neighbourhood and so she would be concerned about her safety living there alone.
Pamela was not cross-examined on this evidence in relation to the Dunlop Street Property.
Pamela's net monthly income as at 1 August 2023 was about $1,339 and as at 16 February 2024 is $1,498, which consists entirely of the net rent for the Dunlop Street Property. She estimated her monthly expenses to total $1,660 as at 1 August 2023 and $3,639.89 as at 16 February 2024.
During cross-examination of Pamela regarding the increase in her estimated monthly expenses, it was suggested to her that a number of the expense items had been inflated and did not genuinely reflect her actual monthly expenses.
In other respects, for example regarding the legal fees, the effect of the cross-examination was that the expenses were one-off items as opposed to the regular expenses that would be incurred into the foreseeable future. There were also items, such as a new ride-on lawn mower, which had been included and although being genuine expenses, are not likely to be incurred again for several years. I do not think that Pamela was being dishonest in any way in updating her monthly expenses. She gave evidence in cross-examination that she had prepared the updated list by looking at her bank statements.
Bearing in mind these matters and the difficulty of extrapolating from what is essentially a snapshot of a brief period in time, I proceed on the basis that Pamela's monthly expenditure is likely to be in the order of about $2,500.
Pamela has a number of health issues that she is managing including; ongoing pain from a broken ankle in about 2015, bursitis and tendonitis of the shoulder rotor cuff, anxiety and PTSD, fibromyalgia and osteopenia, chronic feet issues and GERD and reflux.
She takes a range of medication from time to time and manages her health conditions with periodic cortisone injections and in consultation with her general practitioner, appropriate medication. She attends a rheumatologist and a podiatrist periodically.
She deposes her desire to stay living at Waratah Road and also her need to secure accommodation with the flexibility to be able to move from Waratah Road to alternate accommodation, should she need to, if Waratah Road becomes unsuitable as she gets older. Pamela was not cross-examined to suggest she had any intention of moving from Waratah Road.
Shortly prior to the hearing Pamela filed a further affidavit on 16 February 2024 in which she deposed, amongst other things, of the need to carry out certain works to Waratah Road, being: 1. Fencing in the sum of $30,442.50. A quotation from Nomad Fencing was tendered. Pamela was cross-examined about the need for new fences. She gave evidence that the perimeter fences were currently in a state of disrepair and she wanted the fences repaired so that she could potentially agist small animals on the property, although she frankly conceded that she had not investigated this idea further. She also referred to having lots of kangaroos as the main reason for the fences falling down. 2. Plumbing in the approximate amount of $10,000 (no further detail was provided as to what plumbing work was required to be carried out). Pamela was not cross-examined about this. 3. Pest control for rabbits in the estimated sum of $20,900. A quotation from Boyers Bobcat and Excavator Hire was tendered. Pamela was cross-examined on the extent of the rabbit problem at Waratah Road and gave evidence that there is currently a plague.
Pamela was also cross-examined in relation to certain proceedings apparently commenced by Daryl in Victoria against his former employers as a result of exposure to asbestos during his term of employment. A letter from Maurice Blackburn Lawyers to the defendant was tendered in evidence and Pamela admitted she received a similar letter recently. Given the uncertainty in relation to these proceedings, I find that they are of little present relevance. Whilst I accept that it is possible that the proceedings may give rise to some payment to Pamela in the future if they are pursued, there was no evidence as to the date or amount of the payment. It was also not clear whether pursuing the proceedings may expose Pamela to a risk of adverse costs which may bear on whether she wishes to continue with the proceedings.
Counsel for the defendant also suggested that, when she turns 67 next year, Pamela would likely qualify for a part pension. A printout from Services Australia setting out the assets test for the pension was tendered. I was also advised orally that if Pamela had assets of $550,000, she would receive a fortnightly pension of $351.95. Counsel for Pamela disputed whether Pamela would qualify for a part pension given her assets in addition to her residence. I regard it as too uncertain whether Pamela will qualify to take this possibility into account.

The situation of the other eligible persons

It is not disputed that there are only two other eligible persons, being Bryce and Leah. Each put forward affidavit evidence in support of their competing claims and were cross-examined.
Each gave evidence of a close relationship with their father and the assistance which their father provided to each of them during their lives to date. This included helping each of Leah and Bryce in relation to the purchase of their first car, allowing them to live rent free with him, helping them financially when they needed money and offering his real property as security for each when they purchased property themselves.
Bryce was born in September 1986 and is currently 37 years of age. He is married with three young children. His gross income was $110,003 for the year ended 30 June 2023. His wife's gross income was $34,396 for the year ended 30 June 2022.
Bryce and his wife own a residential property jointly at Society Vista, Donnybrook, VIC, which Bryce estimates is worth approximately $975,000 and has a mortgage on it for $541,870.44 as at 4 September 2023. Counsel for Pamela tendered an appraisal of the property which stated that the current market value was in the range of $1,000,000 to $1,100,000.
They also own an investment property at Sandover Street, Doreen, VIC, which Bryce estimates is worth approximately $650,000 and has a mortgage on it of $186,296.96 as at 17 November 2023.
The Doreen property is currently occupied by Bryce's parents-in-law, who pay $360 a week in rent. In cross-examination, Bryce admitted that these rental payments were not recorded as income and that the money received as rent was effectively ploughed back into the property to pay for outgoings and its upkeep.
Two of Bryce's children have medical issues. His eldest child has recently been diagnosed with ADD, ADHD and has difficulties with reading and writing. He requires ongoing appointments and medication. His second child has speech problems and has had to have her tonsils and adenoids removed, as well as nose surgery, to help her with her breathing and speech.
In cross-examination, it also emerged that Bryce and his wife run complementary businesses though companies. One company, owned by Bryce's wife, sells solar panels and a separate company, owned by Bryce, is responsible for the installation of these solar panels. The balance of the bank accounts for each of the two companies - accessed by Bryce in the witness box - was $26,869.75 and $9,132.72.
In addition Bryce gave evidence in cross-examination that: 1. The current balance of two personal bank accounts - one in his own name and one held jointly with his wife - were $2,861.08 and $95,498.91 with this latter account including the superannuation payment received from Daryl's estate. 2. Either through their businesses or personally, Bryce and his wife own five vehicles including an Audi Q7, although no estimate of value was provided. 3. Bryce has superannuation of approximately $20,000 and his wife of approximately $50,000.
Leah was born in March 1985 and is currently 38 years of age. She is married and her husband is 45 years of age.
In her affidavit evidence, Leah deposed that she is currently employed as a WorkSafe Inspector on a net income of $76,987.34 per annum. Her husband is a Vice School Principal earning a net income of $129,017.20 per annum. Together they own a residential property worth approximately $935,000, with debt on the property as at 3 November 2023 of $710,118.82.
Leah also has a Higher Education Loan Program debt of $46,396.20.
More up to date and complete information was provided by Leah in cross-examination. That further information may be summarised as follows: 1. Leah's husband has recently changed jobs at the start of the new school year. He is still employed as a Vice Principal, but his annual gross salary is now $270,000 per annum and he is employed on a five year contract. 2. The combined gross annual salary of Leah and her husband is thus slightly under $350,000. 3. Leah inserted an estimated value of $935,000 for her residence in her most recent affidavit because this was close to what she paid for it in late 2021, although she admitted she was not qualified to express a view as to its current value. An appraisal was tendered by counsel for the plaintiff that estimated the property to be valued at between $1,000,000 to $1,100,000 million. 4. Leah's husband has recently purchased a Subaru motor vehicle that was provided to him by his previous employer under a novated lease. No estimated value of this vehicle was provided. 5. Leah's superannuation is currently valued at $126,569.20 as at 30 June 2023. A printout was tendered confirming this.
In re-examination, Leah gave evidence that she would like to start a family and is currently undergoing IVF treatment, without success.

The Deceased's testamentary intentions

Some evidence was adduced by both parties at the hearing as to statements made by Daryl proximate to his death as to his testamentary intentions.
On the one hand, Pamela relied on affidavits sworn by Kevin Dighton (Daryl's brother) and Kevin's wife Sue Dighton. Kevin deposed to a discussion with Daryl at Daryl's house in Mulwala in or about September 2022, in which words to the following effect were said: Daryl: I'm thinking about changing my will. Would you be the executor for me? Kevin: No worries. Not much can be taken from this conversation in the absence of any indication by Daryl about how he was proposing to change his Will.
Sue deposed to a conversation with Daryl at the Blue Dolphin Caravan Park in Yeppoon, Queensland in words to the following effect: Sue: It's about time you woke up to yourself and were nicer to Pam at home like you are when you are away. Daryl: Yeah, I've been thinking a lot about things like that. When I get home, I'm going to change my will because it's not fair to Pam.
Sue was cross-examined on this conversation but was adamant that the conversation occurred. She also gave quite plausible evidence as to what led up to and succeeded the conversation. I accept her evidence.
On the other hand, Leah gave evidence to the following effect: 1. Daryl told Bryce and Leah consistently throughout their adult lives that it was his intention that they would inherit his property and that these conversations became more common after his health scare in 2014. 2. The night before Daryl passed away, Daryl called Leah again and during this conversation Daryl said to her words to the effect: If Pam contests my will, I want you to promise me you will put up a fight, don't roll over, I have set it up the way I want.
Leah was cross-examined on this last conversation and she maintained her position that the words were said to her by her father. I accept her evidence.
The effect of this evidence appears to be that as at August 2022, Daryl was contemplating changing his Will to be more generous to Pamela (exactly in what way is not clear) whereas shortly prior to his death, he was not contemplating changing his Will.
I do not see this evidence as being overly determinative in the resolution of the present case. Daryl did not change his Will.

Estimated legal fees

Each party provided an estimate of legal fees that each had incurred or would incur.
For Pamela, her solicitor gave evidence that costs to date on an indemnity basis are $68,200, and estimated to be $54,560 on the ordinary basis.
The estimate of further costs to the end of the hearing on an indemnity basis was $66,000 and on the ordinary basis was $52,800.
Pamela paid $2,000 into her solicitor's trust account, of which $1,700 was used to pay the filing fee.
Pamela's solicitor also agreed in cross-examination that he was retained on a conditional basis such that Pamela is not liable to pay him legal fees other than in the event of a successful outcome in the case.
The defendant's solicitor estimated the defendant's unbilled costs and disbursements of the proceedings, up to the conclusion of the final hearing to be approximately $117,511.70, calculated on the indemnity basis.
In light of these matters, it appeared to be common ground that it will be necessary for the estate to sell one property to pay the legal fees. This is certainly the case if both parties' fees are to be paid from the estate. It is also highly likely even if only the defendant's costs are to be paid.

Overview of the parties' contentions

Pamela's counsel placed reliance on decisions such as Sarant v Sarant [2020] NSWSC 1686 (Sarant v Sarant) and Clarke v Clarke & Anor [2022] NSWSC 1721 (Clarke v Clarke) at [136], where Hallen J discussed the authorities relevant to claims by a widow. Submissions were also advanced against each of the relevant matters in s 60(2) of the Act, pointing out that the jurisdiction is not solely needs based, but by reason of some of the factors specified in s 60(2), plainly also contributions based. The jurisdiction is also not limited to maintenance, but extends to advancement in life, which encompasses improvement and enhancement of the claimant's position.
It was contended that the combined effect of these matters supports the granting of relief to Pamela for further provision from Daryl's estate that is adequate and proper in all the circumstances of the case.
On the primary case advanced for Pamela, adequate and proper provision equates to the transfer of Waratah Road to Pamela, together with a modest capital sum to supplement her superannuation and income for the contingencies in life and to assist her into the future, in the range of $100,000 to $150,000.
A fallback position was also advanced that proper provision is for a modest capital sum as well as the transfer of Waratah Road to her, with a charge on title in favour of Daryl's estate to the value of 10% to 20% of the net proceeds of sale, without any interest payable on that sum since the residuary beneficiaries would be likely to benefit from the capital appreciation in the property. In support of this position Pamela relied on Sarant v Sarant at [366].
The defendant's counsel contended that no further provision for Pamela should be ordered. Reliance was placed on the Court's reluctance to interfere with the freedom of testamentary intention, it being contended that Daryl's Will showed a proper consideration of the moral claims on his bounty from his wife and his children. To order the further provision contended for by Pamela would subvert Daryl's intentions.
A fallback position was also advanced - namely that Pamela should only receive a modest sum of no more than $100,000 - as an additional lump sum to augment her assets, but that there should also be a charge on title in favour of Daryl's estate for the quantum advanced. It was also contended that any ongoing obligation of the estate to contribute to capital improvements, as provided by clause (b) of the Will, should be removed.

Relevant legal principles

The relevant principles are well understood.
There is no issue in the present case that Pamela is an eligible person or that the application was filed within time.
Two issues otherwise arise: 1. Whether Daryl made inadequate provision for Pamela's proper maintenance, education and advancement in life? (s 59(1)(c) of the Act) 2. If the provision made was inadequate, what provision, if any, should be made for Pamela from the available estate or notional estate of Daryl? (s 59(1)(c) and (2) of the Act)
In setting out these two issues I am conscious of the debate in the authorities as to the ongoing relevance, if any, of the two stage approach set out in Singer v Berghouse (1994) 181 CLR 201. I do not misunderstand the nature of the first stage of the inquiry: see Sgro v Thompson [2017] NSWCA 326 at [68]ff per White JA (McColl and Payne JJA agreeing).
The time at which the Court gives its consideration to these matters is the time when the Court is considering the application.
The terms "adequate" and "proper" are not defined in the Act and the determination of what represents adequate and proper provision for a plaintiff is not something arrived at by the application of inflexible rules. "Adequate" is concerned with the quantum, whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Deveraux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 (Deveraux-Warnes v Hall (No 3)) at [72] and [77] per Buss JA.
Neither are the words "maintenance" and "advancement in life" defined in the Act. In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at [115], said in relation to the words "maintenance", "support" and "advancement": [115] The next of the indications is the expression, in comprehensive language, of the sorts of provision that the court may order, that is, provision by way of maintenance, support, education or advancement. "Maintenance" may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. "Support" similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote "advancement" would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education. Significantly, and not inappropriately, one of the forms in which the appellant sought to put his case here was as a claim for advancement. That the idea of a "moral claim" may have been introduced as an aid to judicial deliberation before it was enacted that claims could be made upon intestate estates, does not, in our opinion render it less relevant or useful now that such claims may be made. In principle, there is no reason why effect should not be given to a moral claim upon the estate of an intestate estate in the same way as it would have been, had the deceased left a duly attested will.
Whilst the statutory formula referred to in s 59 makes no reference to "need" but rather refers to "adequate provision for the proper maintenance, education or advancement in life", whether the applicant has a "need" is a relevant factor. It is an element in determining whether "adequate" provision has been made for the "proper maintenance, education and advancement in life" of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] per Tobias JA (with whom Beazley and Hodgson JJA agreed).
In Devereaux-Warnes v Hall (No 3) at [81]-[84], Buss JA said: [81] The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227. [82] 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11. [83] The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575. [84] Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47].
Section 60(2) of the Act provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which the Court does take these matters into consideration, if at all, will depend upon the circumstances of each particular case.
Section 60(2) provides as follows: (2) The following matters may be considered by the Court - (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
In Sarant v Sarant, Hallen J collated and summarised relevant principles and authorities for a claim by a spouse at [240]ff. At [241], Hallen J stated that the following principles are useful to remember: (a) A spouse, particularly of a long marriage, has a primary right to be considered by the deceased, but the extent that he, or she should provide for that spouse is to be governed by his, or her, needs, both at present, and in the foreseeable future and also the needs of any competing claimants. (b) The capacity of the spouse, himself, or herself, to provide for those needs must also be considered. (c) The general duty of the deceased to the spouse, to the extent to which her, or his, assets permit her, or him, to do so, is to ensure that the spouse is secure in the matrimonial home, to ensure that he or she has an income sufficient to permit him or her to live in the style to which the spouse is accustomed, and to provide the spouse with a fund to enable her to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free the mind of the spouse from any reasonable fear of any insufficiency as he, or she, grows older and his, or her, health and strength fail: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 47 (Sheller JA, Handley JA agreeing). See also Brereton JA in Steinmetz v Shannon at [101], citing Powell J in Elliott v Elliott (Supreme Court (NSW), 18 May 1984, unrep), which decision was affirmed by Glass JA (with whom Kirby P and McHugh JA agreed) in Elliott v Elliott (Court of Appeal (NSW), 24 April 1986, unrep). (d) Concern as to the capacity of the spouse to maintain himself, or herself, independently, and autonomously, may also bear upon the notion of what is proper provision: Richard v AXA Trustees Ltd [2000] VSC 341 at [31] (EIs J). (e) Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where he, or she, is the master, or mistress, of his, or her, own life, and in which, for the remainder of his, or her, life, she is not beholden to beneficiaries: Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep) at 29. (f) Greater weight may be given to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 at [63] (Hodgson JA, Young CJ in Eq and Palmer J agreeing); In the Matter of the will of G.G. Sitch (deceased) [2005] VSC 308 at [109] (Gillard J); Sellers v Scrivenger [2010] VSC 320 at [68] (Daly AsJ).
Hallen J also set out a more detailed set of "principles" in Clarke v Clarke at [136] and observed in [137], these "principles" should not be elevated into inflexible rules of law. The "principles" are subject, always, to the consideration of the highly individual circumstances of each case being decided, including the value of the estate, any competing claims, the applicant's conduct and the applicant's relationship with the deceased.
Given the multi-faceted evaluative judgment or intuitive assessment involved, which must necessarily have regard to all relevant circumstances, it is clear: 1. that the provision of a capital asset to an applicant may, incidentally, enable her or him, in due course, to pass that asset to others contrary to the wishes of the deceased, is not determinative of the propriety of such provision: see Salmon v Blackford [1997] NSWCA 274 at [6]; and 2. that adequate provision by a deceased person does not require the deceased to ensure that an eligible person must be provided for to such a level that his or her available assets are not reduced in consequence of the death and should not be obliged to re-arrange or re-organise his or her available assets: see Marinis v Jeweller [2000] NSWCA 282 at [26].
I am also mindful of the relevance of a deceased's intentions. It is clear that s 58 of the Act does interfere with the freedom of testamentary disposition, and if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life, provision must be made: see Steinmetz v Shannon (2019) 99 NSWLR 687 (Steinmetz v Shannon) at [52] per White JA, [96] per Brereton JA. A court will not interfere with the testator's will if it merely considers that it would have made a different will, but only if the testator's discretion has in some way miscarried. This will have importance where a testator, faced with multiple obligations and an estate insufficient to meet them all in full, has had to make the difficult judgment as to which will be satisfied and to what extent: see Steinmetz v Shannon at [89]-[90] per Brereton JA.
Freedom of disposition is one of the matters factored into the assessment called for in s 59. It is factored in by a recognition that in appropriate cases, deference should be given the testator's better position in making an assessment as to what provision for proper maintenance and advancement in life is adequate: Steinmetz v Shannon at [56] per White JA.

Consideration of relevant s 60(2) matters

I set out below my findings in relation to the relevant matters set out in s 60(2) of the Act: (a) Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship.
I have set out above the relationship between Pamela and Daryl. They met in 1991 and thereafter had a relationship lasting 31 years until Daryl's death in late 2022. The first 16 years were as a de-facto couple and the next 15 as a married couple. It was a loving and committed relationship. (b) The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate.
Daryl and Pamela maintained separate bank accounts throughout their entire relationship. They shared the daily living expenses. Each purchased property during their relationship in their own names, using their own money. Where each contributed to the purchase price - such as the purchase of Waratah Road - the respective contributions were reflected in the shares in which the interest in the property were held as tenants in common.
The prenuptial agreement (in fact executed after the marriage) also exhibited a clear intention that each of Daryl and Pamela wanted to keep their own assets separate from the other.
Daryl provided Pamela with accommodation at Waratah Road - their marital home - in which she held only a 20% interest.
By clauses (a) and (b) of the Will, Daryl also recognised an obligation to provide Pamela with secure accommodation at Waratah Road after his passing.
Given the extent of their relationship as a couple, including being a married couple for many years, Daryl had a clear obligation, and a responsibility, to provide for her out of his estate.
Whilst Daryl had no statutory or common law obligation to either of his children, as each was a married adult who was financially independent, it is to be expected that, if it was able to be done, he would provide for each of his children out of his estate. Daryl obviously recognised this, as each is a chosen object of his testamentary bounty.
Each of Leah and Bryce gave evidence of their relationship with their father, which appears to have been loving and close, and of the considerable support, both financial and otherwise, which Daryl gave to each of them prior to his death. (c) The nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and any liabilities or charges to which the estate is subject, as in existence when the application is being considered.
I have set out above the asset position in relation to the estate, where a range of values were provided in evidence in relation to the three pieces of real property that comprise the bulk of the value of the estate. As such, the net estimated value of the estate is in the order of $1.5 million (assuming the costs of both parties are paid by the estate).
In addition, it was not in dispute that Daryl had superannuation in the sum of $165,293.70 which had been split equally and paid to each of Leah and Bryce - $68,802.85 each. (d) The financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate.
I have set out above the respective financial positions of Pamela, Leah and Bryce.
Pamela is retired and her only present and likely future source of income is rent from the Dunlop Street Property, approximately $1,400 per month. She has virtually no savings. She owns 60% of Waratah Road and 100% of the Dunlop Street Property. She has superannuation of approximately $180,000. She has ongoing expenses of approximately $2,500 per month. Whilst there is a possibility that she may receive a part pension when she turns 67 years of age, the prospect of this is too uncertain to be taken into account.
Leah and Bryce, whilst they have some considerable debt, are in a healthy financial position for their respective ages. (e) If the applicant is cohabiting with another person - the financial circumstances of the other person.
Pamela is not cohabiting with any other person, so this matter is irrelevant. (f) Any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated.
Pamela has a range of medical issues, as summarised above. They require ongoing medical treatment at a not inconsiderable cost. None of these conditions are thought to be life threatening and as such it is reasonable to expect that Pamela will live to the current average life span of a female in Australia, being 85.4 years of age.
Leah and Bryce appear to be in good health for their age although two of Bryce's three children have some medical issues. (g) The age of the applicant when the application is being considered.
Pamela was born in February 1958 and is now 66 years of age. (h) Any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant.
Pamela and Daryl contributed approximately an equal amount to the financing of their life together. She contributed $64,000 towards the cost of purchasing Waratah Road and this is reflected in her 20% interest as a tenant in common in the property.
Pamela and Daryl also shared the cooking to some extent. Pamela alone did the washing, gardening and weeding. In the last five years of their relationship, Pamela mowed the lawns. She also did most of the internal housework and cleaning.
Daryl experienced a number of health issues which I have summarised above. Pamela supported him throughout all of these health issues and accompanied him to most of his medical appointments.
Pamela has also been maintaining Waratah Road and Daryl's other properties without any assistance from his estate since Daryl's death. (j) Any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate.
Daryl provided Pamela with secure accommodation at Waratah Road since at least 2004 and he shared the living costs of their lives together throughout the entirety of their relationship.
By his Will, Daryl has sought to continue to provide secure accommodation to Pamela at Waratah Road until either her death, her re-marriage or her desiring to no longer live at Waratah Road. Pamela is required to pay all rates taxes and outgoings (not of a capital nature) and to keep the property in a reasonable state of repair. There was a dispute as to the scope of this obligation in clause (b) of the Will, and any consequent obligation of the estate. At present it appears that Pamela is paying for all outgoings in relation to Waratah Road. (k) Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
The Will was made in 2010, and is summarised above. Prior to then as summarised above, in 2007, shortly after their marriage, Pamela and Daryl entered into a binding financial agreement which stated that Pamela and Daryl wished to keep their pre-marital assets separate from each other.
By the terms of his Will, Daryl obviously had moved away from the position which pertained as at the time of the binding financial agreement, because Daryl was prepared to give to Pamela half of his interest in Waratah Road.
As set out above, both Pamela and the defendant sought to rely upon testamentary statements by Daryl shortly prior to his death. I do not regard these as of much assistance in the resolution of the present case as they point in opposite directions. (l) Whether the applicant was being maintained wholly or partly, by the deceased person before the deceased person's death and, if the Court thinks it relevant, the extent to which and the basis on which the deceased person did so.
I have set out the position in this regard in relation to matter (b) above. (m) Whether any other person is liable to support the applicant.
There is no other person liable to support Pamela. As set out above, I regard the prospect of a part pension being received by Pamela as too uncertain to be taken into account on the present application. (n) The character and conduct of the applicant before and after the date of death of the deceased person.
It was not in dispute that Pamela provided the care and commitment of a loving spouse throughout the entirety of their relationship and since Daryl's death she has maintained his properties.

Matters (n) to (p)

These are not relevant in the present case.

Consideration

Having carefully considered the submissions of the parties, the relevant legal principles and, most importantly, the facts of the present case which I have set out above, I have reached the decision that Daryl did not make adequate provision for Pamela's proper maintenance, education and advancement in life.
Having regard to the facts as they exist at the time of the application, a wise and just testator in the position of Daryl would have made greater provision than Daryl did in the Will.
The starting point is that Pamela is currently 66 years of age and is retired. She has limited to no prospects of earning substantial regular income beyond the rent that she receives from the Dunlop Street Property. She was in a loving and committed relationship with Daryl for approximately 31 years, 16 years in a de-facto relationship and 15 years as a married couple. She has a strong moral claim on his bounty.
Pamela resides at Waratah Road and wishes to remain there for the rest of her life if she is able to. It was her home with Daryl for a substantial part of their married life. It was not suggested that her desire to remain at Waratah Road was other than reasonable.
Daryl was obviously desirous of Pamela remaining at Waratah Road for as long as she wished as he sought to provide for this in the Will. The difficulty for Pamela, looked at, as it is required to be, at the present time, is that Pamela does not have sufficient income to pay for the outgoings on Waratah Road or its upkeep, and to otherwise maintain a reasonable standard of living. Her cash savings have diminished to virtually nil in recent times. To remain living at Waratah Road, she would need to immediately sell the Dunlop Street Property, or now draw on her superannuation, or, perhaps less likely, seek to raise funds against the security of Dunlop Street Property.
Having regard to the nature of their relationship (including the assets which Pamela brought to the relationship), her contribution to it, and prevailing community standards, it is not appropriate that Pamela be required to sell or seek to borrow against the Dunlop Street Property or to draw down on her superannuation now to enable her to remain at Waratah Road and otherwise live her life.
Whilst I accept that each of Leah and Bryce also have a claim on Daryl's bounty, it is not, in my judgment, as strong as that of Pamela. Each of Leah and Bryce received considerable benefits from Daryl during his lifetime, and even if further provision is made out of the estate in favour of Pamela, Leah and Bryce will still benefit considerably from the estate. Each has also received one half of Daryl's superannuation. Whilst each has some considerable debt, they are each in quite a secure financial position for their stage in life.
A wise and just testator in the position of Daryl, having regard to the circumstances as they exist today, would have made greater provision for Pamela so as to augment her assets to make her more secure than she is at present so as to be able to keep living at Waratah Road.
I turn now to consider what further provision should be made.
Pamela's primary position was that the entirety of Waratah Road should be transferred to her, together with a modest capital sum to supplement her superannuation and income for the contingencies in life in the range of $100,000 to $150,000. Her fallback position was that, in addition to the provision sought as part of her primary case, there should be a charge on title in favour of Daryl's estate to the value of 10% to 20% of the net proceeds of sale.
The defendant's position was that Pamela should only receive a modest sum - no more than $100,000 to augment her assets - but there should also be a charge on title in favour of Daryl's estate for the quantum advanced.
The likely net distributable assets of the estate - taking the mid-point of the valuations set out in the market appraisals tendered at the hearing and proceeding on the assumption that the plaintiff's costs are paid on the ordinary basis and the defendant's costs on the indemnity basis - is approximately $1,615,129.25. Having regard to the current shortfall of Pamela's income in meeting her regular expenses, and the repairs which Pamela has presently identified as being necessary to be made to Waratah Road, but similarly taking into account that Pamela has available to her the superannuation which she has, and also making allowances for the ordinary vicissitudes of life, an appropriate lump sum, in my view, is $150,000.
In awarding this lump sum, I take into account the fact that, given the size of Waratah Road, it is likely that at some stage Pamela will no longer wish, or will no longer be able, to reside at that property and will need to move elsewhere. At this time, Waratah Road will be sold and Pamela will have available to her the funds that she will receive from that sale (including further capital appreciation), together with her other assets which will include the Dunlop Street Property and her remaining superannuation.
I am also conscious that, in awarding a lump sum to Pamela, there is the possibility, given her present health, although not currently foreseen, that she may die prior to the entire lump sum being exhausted with the remainder then passing to her children and that this could be said to be contrary to Daryl's intentions. It is, however, only one factor that I have balanced alongside other considerations.
I do not regard the transfer of the entirety of Waratah Road as proper further provision. I do not regard it as likely that, in the event that Pamela no longer wishes to reside at Waratah Road, she will have to resort to legal proceedings under s 66G of the Conveyancing Act 1919 (NSW) to sell her interest in Waratah Road if it remains jointly owned with the defendant. There is no reason why the defendant, as an independent trustee, would not be desirous of Waratah Road being sold so as to enable the administration to be finalised.
The provision of a further lump sum maintains the integrity of the structure set out in the Will, namely to allow Pamela to remain residing at Waratah Road for as long as she so wishes.
I have given consideration as to whether I should impose a charge on Daryl's estate, either for a fixed percentage of the sale proceeds, or for the amount of the lump sum that I propose to award. I do not propose, in the circumstances of the case, to impose any such charge.
In my view, it is appropriate that any obligation on the estate to pay for capital improvements to Waratah Road, as set out in clause (b) of the Will, be removed. The very reason for my grant of further provision as a lump sum is to enable Pamela to maintain Waratah Road. Providing for a lump sum and removing any obligation of the estate to contribution to the maintenance or upkeep of Waratah Road also provides a complete break between Pamela and the estate and thus removes at least the possibility of the need for further dealings between Pamela and the estate in circumstances where it appeared to be common ground that there had been a breakdown in the relationship between Pamela and some of Daryl's family (namely the defendant, Leah and Bryce).
The lump sum further provision will obviously come out the residuary estate. In order for the lump sum to be paid to Pamela, together with legal costs to be paid, one of the properties of the estate, other than Waratah Road, will need to be sold. I do not propose to set out in these reasons the means by which the lump sum should be paid but rather, I am prepared to provide the parties a short period to seek to agree those matters.

Costs and orders

In circumstances where I propose to order further provision to the plaintiff, my preliminary view is that the plaintiff's costs should be paid out of the estate on the ordinary basis and the defendant's costs should be paid on the indemnity basis.
I propose to stand the proceedings over for a period so as to enable the parties to seek to agree orders to give effect to these reasons for judgment.
The orders of the Court are: 1. Adjourn the proceedings to 9.30 am on 11 April 2024 or such other time as may be arranged with my Associate. 2. Direct the parties to confer and to seek to agree on orders to give effect to these reasons for judgment, and to deal with costs. 3. No later than 24 hours before the adjourned hearing, the parties are to submit proposed orders for the purpose set out in order (2) above.

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: 28 March 2024

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