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File Number(s): 2024/00393168

JUDGMENT

INTRODUCTION

1. Ross McAlastair Fleming (“the deceased") died unexpectedly (drowning in a surfing accident) on 28 October 2023, aged 57 years, leaving a will dated 2 March 2007 probate of which was granted to the defendant (Peter Rau, a first cousin of the deceased) on 20 April 2024.

2. By a summons filed on 23 April 2024 the plaintiff applies for family provision relief under Chapter 3 of the Succession Act 2006 NSW. The plaintiff relies upon both section 57(1)(b) and section 57(1)(e) of the Succession Act 2006 to establish (as she is required by section 59(1)(a) to do) her eligibility to make an application for a family provision order.

THE PLAINTIFF’S STATUS AN “ELIGIBLE PERSON”: Succession Act, sections 57(1)(b) and (e) and 59(1)(a)

3. The defendant concedes that the plaintiff falls within section 57(1)(e) of the Act, but makes no admissions in respect of section 57(1)(b).

De facto Relationship: Succession Act, section 57(1)(b)

4. Section 57(1)(b) recognises as a person eligible to apply to the Court for a family provision order “a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”. The meaning of the expression “de facto relationship” is defined by section 21C of the Interpretation Act 1987 NSW.

5. Uncontroversially, the plaintiff was in a de facto relationship with the deceased from about December 2011 until (on the defendant’s case, but hotly disputed by the plaintiff) shortly before his death.

6. The incontrovertible evidence is that the plaintiff and the deceased, with their 12 year old daughter (Mary-Grace), continued to live together (in co-habitation) in their joint residence (a property in Elanora Heights) at the time of the deceased’s death.

7. The plaintiff’s evidence, which I accept (and is not contradicted), is that she and the deceased continued to sleep in the same bed until the time of his death, not utilising a spare bedroom for separate beds. For Mother’s Day in May 2023 the deceased bought the plaintiff a family photo session with a professional photographer, producing cherished photographs of the plaintiff, the deceased and Mary-Grace. On 9 August 2023 the plaintiff and the deceased attended a local friend’s 40th birthday party, enjoyed each other’s company and posed for a happy photograph together. Shortly before his death (between 27 September 2023 and 13 October 2023 or thereabouts) the deceased, the plaintiff and their daughter (on his initiative) went on a family holiday to Fiji, returning with photographs which depict cordial family relationships between all three. Two days before his death, the deceased took the plaintiff (and Mary-Grace) out to dinner to celebrate her birthday.

8. The plaintiff’s evidence of a close, loving and continuous relationship between herself and the deceased was corroborated by two long time, close friends of the couple, one of whom lives next door as a neighbour and is a surrogate grandmother to Mary-Grace.

9. Evidence adduced against a finding of a de facto relationship “at the time of the deceased’s death” by the deceased’s two children from an earlier relationship (Lachlan and Caitlin) rises no higher than statements allegedly made by the deceased to them (not shared with the plaintiff) to the effect that there were domestic tensions between the plaintiff and the deceased, that he wanted to end his relationship with the plaintiff but was staying in the family home so that he could maintain a close relationship with his daughter, and that he wanted his children to inherent the Elanora Heights property.

10. If any such statements were made, and the deceased did express to his side of the family dissatisfaction with his relationship with the plaintiff, I am nevertheless satisfied that he and the plaintiff continued to live as a couple, in an established de facto relationship, up to the date of the deceased’s untimely death, and that at no time did the deceased ever signal to the plaintiff an intention to terminate their relationship.

11. I am satisfied that the plaintiff has made out her status as an “eligible person” within the meaning of section 57(1)(b).

Dependency Within the Same Household: Succession Act, section 57(1)(e)

12. In any event, as conceded by the defendant, the plaintiff is also an “eligible person” within the meaning of section 57(1)(e) because, throughout the time that she and the deceased co-habited, she was “wholly or partly dependent” on the deceased and “a member of the household of which he was a member”, living together at a unit in Dee Why (between December 2011-2018), for four months in temporary accommodation at “The Time and Tide” pub, (in Cromer) while looking for a new home, and from about July 2018 in their Elanora Heights residence, a family home registered in the name of the deceased and forming a principal asset of his deceased estate.

13. Upon the birth of their daughter, the plaintiff ceased working full-time as a bookkeeper and became a stay-at-home mum for the first two years of their daughter’s life, thereafter returning to paid employment on a part time basis. The plaintiff and the deceased enjoyed a stable family life, the plaintiff carrying her share of ordinary household duties, supporting the deceased in his career and pursuing her own career as family commitments allowed.

14. Throughout their relationship they lived as a couple, shared responsibility for raising their daughter and enjoyed recreational activities common to family life near the beach, and holidaying together in Peru and New Zealand (to meet with family members) and, at the deceased’s suggestion, Fiji.

15. The Elanora Heights property was located by the plaintiff and the deceased in close co-operation and with a shared intention that it would serve as the family home for Mary-Grace and themselves without a limit of time.

“Factors Warranting”: Succession Act, section 59(1)(b)

16. Had the plaintiff’s only qualification as an “eligible person” been defined by section 57(1)(e), it would have been necessary for her to establish (in accordance with section 59(1)(b) of the Succession Act*)* that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making” of her application for a family provision order.

17. On the facts of the case, this is not a significant hurdle. The plaintiff was a natural object of the deceased’s bounty (Re Fulop, deceased (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241), left without provision in his will (executed before the commencement of their relationship and never discussed with her) and, although the deceased made provision for her (in the form of a superannuation death benefit in the sum of $541,508.45, paid to her on 17 July 2024, based on a death benefit nomination made by the deceased on or about 12 September 2018), she was left, two days after her 52nd birthday, without accommodation other than the family home at Elanora Heights, as a single mother of a young child, without any provision made for her in the deceased’s will, and with a more pressing need than formerly to work in paid employment to support Mary-Grace and herself.

18. As it happens, because I am satisfied that the plaintiff is an eligible person by virtue of section 57(1)(b) it is not necessary for her to engage section 59(1)(b). Nevertheless, I am satisfied, for the purpose of section 59(1)(a), that the plaintiff is “an eligible person” by reference to section 57(1)(e) and, by reference to section 59(1)(b), that there are factors warranting her application for a family provision order.

THE PLAINTIFF’S APPLICATION “WITHIN TIME”: Succession Act, section 58(2)

19. The plaintiff’s summons was filed within the period (one year from the date of death) limited by section 58(2) of the Succession Act and, accordingly, no extension of time is required.

THE CORE QUESTIONS: Succession Act, sections 59(1)(c), 59(2) and 60

20. The core questions for the Court’s determination are, first, whether the plaintiff has been left at the present time, by the will of the deceased, without adequate provision for her proper maintenance, education or advancement in life (section 59(1)(c)) and, secondly, if so, what, if any, order “ought” to be made out of the estate of the deceased for her maintenance, education or advancement in life, having regard to the facts known to the Court at the time a family provision order is made (section 59(2)), taking into account the matters set out in section 60 of the Succession Act.

21. In the exercise of its statutory powers in the determination of an application for a family provision order (in particular, subsection 59(1)(c) and subsection 59(2) of the Act), the Court generally endeavours to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating the deceased as wise and just rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Company Limited Trustee Co Ltd [1938] AC 463 at 478-479; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the specific statutory criteria referred to in subsection 60(2) of the Act so far as they may be material: cf, Bassett v Bassett [2021] NSWCA 320 at [171].

22. The concepts of “adequate” and “proper” embedded in section 59 of the Act must be understood as relative to the facts of the particular case*: Scales* Case (1962) 107 CLR 9 at 19.

23. As generally understood, “adequate” is a word concerned with quantum whereas “proper” is a word directed to a standard of maintenance, education and advancement in life. Both words focus attention on the circumstances of the particular case viewed through the perspective of the deceased and contemporary community standards: Tarbes v Taleb [2023] NSWSC 565 at [200]-[202] and [210]-[222].

24. That a plaintiff was left out of the deceased’s will does not, of itself, establish that he or she was left without “adequate provision” for his or her “proper maintenance etc”.

PERSONAL RELATIONSHIPS

25. The deceased was born (in New Zealand) in April 1966. The plaintiff was born (in Peru) in October 1972. The evidence does not disclose the precise dates upon which they respectively made Australia home, save that in cross examination the plaintiff said that she had been in Australia for two years when she met the deceased.

26. The deceased’s death certificate (on which the plaintiff is described as his “de facto” and the Registry of Births, Deaths and Marriages’ informant of the deceased’s death), records his occupation as a “Maintenance Manager”. He often engaged in shift work.

27. The plaintiff qualified in Peru as an accountant. At or about the time she met the deceased she had just completed courses at the University of Technology, Sydney to recognise her Peruvian accounting degree and, before commencing her Certified Practising Accountant programme, she had enrolled in a course at TAFE NSW St George (in Kogarah) to improve her English. Those studies, coupled with her full time employment, limited the time she could spend with the deceased, who was then living at Dee Why, a factor which led to a joint decision that she live with the deceased at Dee Why.

28. The deceased left three children from two familial relationships.

29. He married Kim in about 1995. They were divorced in 2005.

30. There were two children of that marriage:

(a) Lachlan, a son born in January 2000 and now aged 26 years; and (b) Caitlin, a daughter born in November 2002 and now aged 23 years.

31. The deceased and the plaintiff met at a dance lesson in July 2011, commenced a romantic relationship (initiated by the deceased) soon thereafter, and commenced living together in about December 2011, at the townhouse then owned by the deceased in Tor Road, Dee Why.

32. The one child of the relationship between the plaintiff and the deceased was a daughter (the deceased’s third child), Mary-Grace, born in August 2013 and now aged nearly 13 years.

33. The plaintiff’s pregnancy with Mary-Grace was noticed in February 2013 and confirmed in May 2013, as a consequence of which the plaintiff in due course (shortly before the birth of Mary-Grace) gave up her employment as a bookkeeper to concentrate on the role of homemaker, recommencing part-time work when Mary-Grace was two years old and able to start day care. In her affidavits read in these proceedings, she describes her current occupation as that of an accountant, working from home (using “the third bedroom”, allowing for separate bedrooms for herself and Mary-Grace as her home office) and a separate office in Warriewood, employed as an independent contractor.

34. The decision of the plaintiff and the deceased to have a child together was deliberate. Given their ages at the time they commenced their relationship they anticipated that IVF treatment would be necessary, incidentally also because the deceased suffered from Huntington’s Disease and could have been a carrier.

35. As it happened, the plaintiff fell pregnant in advance of any IVF treatment and, in May 2013, a medical examination cleared Mary-Grace (as she became) of any sign of the disease. As confirmed by a medical report dated 2 August 2022, towards the end of his life the deceased exhibited symptoms of the disease earlier latent. A Coroner’s Report on his death found that his Huntingtons disability may have contributed to his drowning death by impeding his ability to swim when thrown from his surfboard.

36. As has been noted, the deceased and his second family (comprising himself, the plaintiff and Mary-Grace) lived together, first, at Dee Why; then briefly in hotel accommodation while transitioning to a new home; and thirdly, in their Elanora Heights residence.

37. For a short time, Lachlan and Caitlin spent time with the deceased, in the company of the plaintiff and Mary-Grace, including time at the Elanora Heights property. That came to an end as a routine occurrence when Lachlan turned 14 years of age. Not unnaturally, he decided he did not want to spend every alternate “access” weekend in his father’s household. Caitlin followed suit. However at one point, when experiencing teenage tensions with her mother (in December 2018), she asked the plaintiff and her father whether she could live with them. They agreed but Caitlin ultimately decided to stay at home with her mother. Something similar happened in April 2022 when Caitlin’s mother was organising new rental accommodation.

38. The plaintiff’s perception is that she had a positive relationship with her stepchildren in the early years of her relationship with the deceased. From her perspective, that is likely to be a fair assessment, limited only by a natural reservation on the part of the stepchildren derived from historical or ongoing tensions between their parents. For their part, in their evidence in these proceedings, Lachlan and Caitlin demonstrated a jaundiced view of the plaintiff and the deceased’s relationship with her. From my observations of her and objective evidence of a close and loving relationship between the plaintiff and the deceased, it would be unsafe to rely on Lachlan and Caitlin’s evidence, coloured as it is by self-interest, continuing disquiet about the breakdown of their parents’ marriage and a deep sense of loss of their father.

39. Towards the end of the deceased’s life, as the older children encountered adolescence, the relationship with the plaintiff became more distant and, by the death of the deceased, strained to breaking point. Whether personal relationships will soften in the wake of these proceedings remains to be seen but, for the present time, they appear to have broken down completely.

40. The children appear to have responded to the unexpected death of their father with a complete lack of empathy for the plaintiff and Mary-Grace in the grief all four might otherwise have shared.

41. In the immediate shock of news of her partner’s death, the plaintiff returned home to the Elanora Heights property only to be confronted by the deceased’s side of the family in a way that reflects that lack of empathy.

42. The unhappy confrontation is described in the affidavit of the plaintiff’s friend and neighbour (under the heading “The Day of Ross’s Death”):

“I was with Cecilia [the plaintiff] when the Police notified her of Ross’s death. I accompanied Cecilia to Northern Beaches Hospital to make the formal identification of Ross. After making the identification, Cecilia was visibly very distressed and shocked. I observed that Cecilia was struggling with her breathing, shaking, and crying. A nurse said to me, ‘we are keeping Cecilia under observation until she was calm enough to return home’.

I waited with Cecilia for a few hours until I was advised by hospital staff that it was safe for Cecilia to return home. I then drove Cecilia to her home and walked in the front door with her. Upon returning to the home, I saw there were numerous people inside the home. I saw Ross’s ex-wife Kim and Ross’s son Lachlan were in the home. I saw that Lachlan was going through Ross’s cupboards. Lachlan then emerged from the bedroom and said, ‘I found the Will’ with the document in his hand.”

43. The same independent witness discounts evidence of Caitlin that her father was planning renovations to the Elanora Heights property with a view to living separately from the plaintiff under the same roof. Her husband, a retired engineer, and the deceased spent time in mid-2021 working on, designing, and drawing up plans for extra rooms that the plaintiff was intending to build under the family home. The deceased at one point told his collaborator that he was building an extra space to use as a bedroom “as a quite place to sleep after a 12 hour night shift, particularly on weekends so Cecilia and Mary-Grace can move around in the house without disturbing … daytime sleep,” and the deponent records that, at about that time, the deceased (in the company of the plaintiff, the deponent and her husband) said that he wanted “to move the laundry and toilet downstairs so that [he could] extend the upstairs kitchen”. These were just some of the deceased’s plans. He was a handyman who evidently enjoyed planning renovations that he could do himself, but only ever hastened slowly.

44. Even if the deceased told Caitlin that he was planning a bedroom downstairs, and suggested to her that it was intended to be a place of refuge for himself (perhaps, in the vernacular a “man cave”) I doubt that he ever seriously intended to live separately from the plaintiff. Objective facts point in the opposite direction. He bestowed love and affection on the plaintiff (and Mary-Grace) until his untimely death.

45. A factor taken into account by the plaintiff and the deceased in their decision to purchase the Elanora Heights property was that it had potential for renovation. It was purchased with the expectation that it would be held as a family home indefinitely; not contemplating the deceased’s untimely death by misadventure.

THE DECEASED’S WILL

46. The deceased’s will (dated 2 March 2007) was executed well before the commencement of his relationship with the plaintiff (in mid-2011) and not, on the evidence, explicitly or unequivocally either affirmed or disclaimed by the deceased during the relationship.

47. In substance, the will provided for the deceased’s estate to be “divided equally amongst such of [his] children as [survived him] and attain twenty five (25) years of age or [marry] under that age”.

48. The estate was left to the deceased’s children by description, not by name. It accommodates the interests of all three of the deceased’s children (none of whom have married), subject to the age contingency.

49. In the event that the deceased’s gift to his children failed, the will provided that his estate be divided equally between his two sisters (Deidre and Alison), residents of New Zealand.

50. With the passage of time Lachlan, having attained the age of 25 years, has a vested interest in the deceased’s estate, subject to any family provision orders that may be made in these proceedings. Caitlin is nearly there, but not quite. Mary-Grace is more than a decade away.

51. The will made no provision for the plaintiff.

52. The defendant contends that the deceased made adequate provision for the plaintiff, not by his will but by his superannuation death benefit nomination in her favour. She, for her part, says that the deceased told her that the superannuation benefit paid to her (in the event, $541,508.45) would fund discharge of the mortgage debt he owed on the Elanora Heights property (in the event, approximately $66,000).

53. At the time of the hearing of these proceedings, the plaintiff retains approximately $435,000 (including accrued interest) of the superannuation death benefit she had received, the balance having been spent on legal costs and living expenses.

THE DECEASED’S ESTATE

54. No part of the estate of the deceased has yet been administered.

55. At the time of the hearing of the proceedings, the net distributable estate of the deceased (after allowing for mortgage repayments on the two estate properties (one, the Elanora Heights property, the other an investment property at Springfield Heights in Queensland), costs associated with the sale of the Queensland property, executor’s commission claimed by the defendant, legal costs associated with these proceedings and capital gains tax on the Queensland property was approximately $2.5-$2.6 million.

56. The defendant has foreshadowed a claim for commission in the sum of $30,000, the merits of which have not been debated.

57. The Elanora Heights property has an agreed estimated value of $2.4 million.

58. At the time of the hearing of the proceedings the Queensland property was the subject of a conditional contract for sale at the price of $830,000, subject to a mortgage debt of about $290,500, the figure of $830,000 taken to be the value of the property.

59. Upon an assumption (contested by the defendant) that a family provision order should be made in favour of the plaintiff, debate centred upon whether the plaintiff should be given ownership of the Elanora Heights property (subject to an allowance in favour of the deceased’s three children) or whether the property should be sold on terms that the plaintiff receive a legacy in lieu of any interest in the property.

60. Upon both sides of the debate a focus for attention was on:

(a) the plaintiff’s perceived need for accommodation for herself and Mary-Grace, preferably (from her perspective) in what she continues to view as the family home at Elanora Heights, or a substitute property in the same vicinity, so that she and Mary-Grace can continue to enjoy their local network of friends and Mary-Grace’s school environment; and (b) the need to respect the scheme of the deceased’s will and the competing needs of Lachlan and Caitlin as young adults making their way in life.

61. In addressing these issues importance attaches to recognition that the plaintiff bears the onus of persuading the Court that an order for provision should be made in her favour and that the beneficiaries of the deceased’s will bear no onus to prove their entitlement to his testamentary bounty.

(IN)ADEQUACY OF PROVISION MADE FOR THE PLAINTIFF: Succession Act, section 59(1)(c)

62. In assessing whether (within the meaning of section 59(1)(c) of the Succession Act) the plaintiff has been left without adequate provision for her proper maintenance, education or advancement in life, viewed as at the present time, I proceed on the basis that the superannuation benefit conferred by the deceased on the plaintiff is to be taken into account as a form of “testamentary provision” for the plaintiff, perhaps (but only debatably so) taken into account by the deceased in not revising his will during the period of his relationship with the plaintiff.

63. Generous though that superannuation benefit may have been, it falls short of what, viewed through the prism of the present time, should reasonably be expected for the proper maintenance, education or advancement in life of the plaintiff as she approaches her 54th birthday with a dependent child and lack of security for accommodation and future income.

64. The plaintiff enjoyed a lengthy de facto relationship with the deceased, cut short by his untimely death, leaving her as a single mother of a young person without security of accommodation or income, and no testamentary provision for the child for another 12 years or so. All this in circumstances in which the plaintiff had exited the paid workforce to play the role of a wife and mother in a stable family environment in which the plaintiff and Mary-Grace enjoyed a secure place of residence and purposive overseas travel.

65. I am satisfied, for the purpose of section 59(1)(c), that the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life.

66. In reaching this conclusion, I take into account the matters listed in section 60(2) of the Succession Act for the Court’s consideration, particularly paragraphs (a)-(e) and (g)-(l). At the risk of repetition, I note that the plaintiff enjoyed a stable family relationship with the deceased, and their daughter, over more than a decade, cut short by an untimely death which left the plaintiff, as a middle aged single mother, to make a way for herself and her daughter without the material and familial support of the deceased that mother and daughter relied, and were dependent, upon.

67. The resources available to the plaintiff for maintenance of herself and Mary-Grace are limited. Her gross monthly income as at December 2025 was $5,600, supplemented by a Family Tax Benefit of $724 per month. Having made inquiries of mortgage brokers, it appears that her capacity (based upon her current income and very basic living expenses) could be no greater than about $150,000 or, at a maximum, between $250,000-$270,000.

68. With a history of mainly part time work (associated with care of Mary-Grace) she has not accumulated superannuation beyond about $58,000. She is left to her own resources to fund Mary-Grace’s education costs and the incidents of ordinary care for a teenager, including an anticipated dental expense (for braces) quoted at approximately $10,000.

69. The plaintiff has no family in Australia to support her. Her birth family live in Peru. Her father died in June 2021.

WHAT (IF ANY) PROVISION SHOULD BE MADE FOR THE PLAINTIFF?: Succession Act, section 59(2)

70. It follows from the nature of the finding of “inadequacy of proper provision” made under section 59(1)(c), that some form of provision “ought to be made” (upon an application of the discretion for which section 59(2) provides) for the maintenance, education or advancement in life of the plaintiff, having regard to the facts known to the Court at the present time.

71. The duration and quality of the plaintiff’s de facto relationship with the deceased, epitomised in a stable family relationship embracing the nurturing of a daughter born to the plaintiff and the deceased, entitles the plaintiff to be treated as the deceased’s widow, as she is in all but name.

72. But for the claims of her stepchildren on the bounty of their father, a convenient measure for the provision that “ought to be made” for her out of the deceased’s estate may be found in the classic judgment of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69G-70A:

“… as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.”

73. Any order for provision made in favour of the plaintiff must stop short of this measure because most of the deceased’s wealth is tied up in the Elanora Heights property and the balance of his estate is insufficient to fund an annuity or a contingency fund, still less to allow substantial provision to be made for the deceased’s three children.

74. The reasonable expectations of the two older children, in particular, set a limit on the quantum of the relief that can, or should, be granted to the plaintiff.

75. Lachlan and Caitlin are young adults with all that entails, with future potential but modest current wealth. Lachlan graduated from Macquarie University in May 2024 with a degree in “IT”. He has obtained full time employment, with an annual salary of about $55,000. He remains living with his mother at home but has a partner (a teacher who lives locally) and they have in contemplation a move towards acquiring their own accommodation. Caitlin has recently moved out and, to that extent at least, is no longer dependent on her mother. In August 2025 she completed a Business Administration course at TAFE (having studied part time while working) and she has aspirations to work in business administration. She currently works for a law firm as an administrative assistant, with an annual salary of about $55,000. The siblings have no specific plans for how they intend to spend their inheritance, prudently awaiting the outcome of these proceedings before setting a budget.

76. For completeness, I note that the evidence is silent as to whether Lachlan and Caitlin have any expectation of an inheritance from their mother or about the terms of the property settlement between the deceased and his ex-wife beyond statements attributed to him by the plaintiff that he often said to her that he had “lost 75% of [his] lifesavings in [his] divorce”. On the other side of the ledger the deceased evidently inherited $200,000 from a parent’s estate which he applied towards purchase of the Elanora heights property. None of these facts have a material bearing upon the evaluative judgment I am called upon to make.

77. Against this, the plaintiff retains sole parental responsibility for Mary-Grace for the next five years or so and, whether Mary-Grace will remain dependent upon her after that time, must await events. If the family home can be retained by the plaintiff in the meantime that may assist mother and child to come to terms with their loss. I do not count it against the plaintiff that she is intent upon paying for Mary-Grace to obtain a private school (Catholic) education after having finished primary school at a local State school. That choice is consistent with her evidence that during the lifetime of the deceased (on 26 August 2023) Mary-Grace was “confirmed”, I infer in the Catholic tradition. The plaintiff’s choice accords with a preference shared with the deceased, discussed with him before his death. His two older children also attended private schools.

78. If, in the fullness of time, the plaintiff’s finances do not stretch to maintaining the Elanora Heights property she nevertheless should have sufficient equity in the property to downsize without significant debt.

79. Mary-Grace’s entitlements under the will of the deceased, as varied by the Court’s family provision orders (by operation of section 72 of the Succession Act) should be accelerated (as are the entitlements of Caitlin) but held on trust for her by the NSW Trustee (accruing both interest and an obligation to pay fees) until she attains the age of 18 years, recognising the power of the NSW Trustee (under section 17 of the NSW Trustee and Guardian Act 2009 NSW) to apply the trust fund held on behalf of Mary-Grace towards her, maintenance, education, advancement or benefit.

80. In my opinion, upon an exercise of the discretion to which section 59(2) of the Succession Act provides, with an adjustment of the interests of the deceased’s three children (pursuant to section 66 of the Act) in pursuit of a just and equitable outcome as between parties affected by the Court’s orders, orders should be made to the following effect:

81. UPON condition that the plaintiff:

(a) pay or bear the burden of the mortgage debt secured on the title to the Elanora Heights property at the time of the deceased’s death (approximately $66,000); (b) pay to Lachlan, the sum of $150,000 in addition to any sum he might otherwise receive as a beneficiary of the estate of the deceased; (c) pay to Caitlin, the sum of $150,000 in addition to any sum she might otherwise receive as a beneficiary of the estate of the deceased; and (d) pay to the NSW Trustee, on trust for Mary-Grace, the sum of $150,000, to be held on trust until she attains the age of 18 years,

2. ORDER that the plaintiff receive, by way of provision out of the estate of the deceased an unencumbered estate in fee simple in the Elanora Heights property.

3. ORDER that the respective interests of Lachlan, Caitlin and Mary-Grace under the will of the deceased vest in them immediately without any limitation by reference to the age of 25 years or marriage.

4. ORDER that any sum to which Mary-Grace might be entitled as a beneficiary of the estate of the deceased beyond the sum of $150,000 payable under order 1(d) be paid to the NSW Trustee, to be held on trust for her, pending her attainment of the age of 18 years.

5. ORDER that the plaintiff’s costs of these proceedings be paid out of the estate of the deceased on the ordinary basis.

6. ORDER that the defendant’s costs of the proceedings be paid out of the estate of the deceased on the indemnity basis.

7. RESERVE to all interested persons liberty to apply for further or consequential relief in the working out of those orders.

8. An incidental feature of this scheme of orders is that, when implemented, the defendant can be free of his executorial duties, not tied to supervision of the trust fund notionally intended for Mary-Grace.

9. Before making final orders I will allow the parties an opportunity to be heard as to the form of orders to be made (including a timetable for implementation of the scheme of payments) and costs.

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