Estate Joyce Bull

EX TEMPORE JUDGMENT (Revised)

1. By a summons filed on 9 July 2024, the plaintiff (an adult son) applies for a family provision order (under Chapter 3 of the Succession Act 2006 NSW) out of the estate of Joyce Bull (“the deceased”) who was born in January 1937 and died on 23 July 2023, aged 86 years.

2. The deceased was pre-deceased by her husband in 1998. She died a widow and a pensioner.

3. There were two children of her marriage:

(a) a son (the plaintiff), born in February 1967 and now aged 58 years; and (b) a daughter (the defendant).

4. The plaintiff married his wife (Nicole) in or about 1995.

5. They have two children:

(a) a daughter, born in 2002 and now aged about 23 years; and (b) a son, born in 2006 and now aged about 19 years

6. The defendant is married to her husband, Lawrence.

7. They have two children:

(a) a disabled son, now aged about 33 years; and (b) a daughter (Erin), born in June 1998 and now aged 27 years.

8. The deceased left a will dated 16 December 2020, probate of which was granted by this court on 18 December 2023 to the defendant, the executor and trustee named in the will.

9. The will of the deceased left her estate:

(a) to the defendant, limited to her household goods, all her jewellery (including watches) and all her personal effects; and (b) as to the residue of her estate, to Erin.

10. The will (professionally drafted and witnessed by officers of the NSW Trustee) made no provision for, or mention of, the plaintiff.

11. There is no formal statement of the deceased as to why she made no provision for the plaintiff (her only son) and left the bulk of her estate to Erin, one of her four grandchildren with whom she became close in her final years of life.

12. The evidence of the defendant and Erin attributes to the deceased statements to the effect that she had a “special relationship” with Erin and wanted to favour her, and that the plaintiff had no need of help by way of a testamentary provision from her.

13. This runs counter to the evidence of the plaintiff that, shortly after the death of his father, his mother (now the deceased) told him that she would leave her estate to her children (the plaintiff and the defendant) in equal shares.

14. That statement gave rise to a long-standing expectation on the part of the plaintiff that he would inherit part of the deceased’s estate.

15. The gross estate of the deceased (leaving aside the personal property left to the defendant) comprises:

(a) her residence in Sedgman Crescent, Shalvey in the State of New South Wales (folio identifier 560/246316); and (b) approximately $10,570 in a NAB bank account.

16. For the purpose of these proceedings, each party obtained a real estate agent’s appraisal of the value of the deceased’s residence. The plaintiff’s appraisal came in with a valuation of between $900,000-$930,000. The defendant’s appraisal came in with a valuation of between $850,000-$870,000.

17. In submissions, counsel accepted my suggestion that for the purpose of the proceedings a valuation of $890,000 be adopted, recognising that the margin for error could be $20,000 or so either way.

18. That brings the agreed value of the gross estate available for distribution to approximately $900,500.

19. From that sum, to obtain an estimate of the value of the net distributable estate available for the making of a family provision order (should the plaintiff establish an entitlement to an order), the following deductions (totalling an estimated $116,535) need to be made:

(a) the cost of the deceased’s funeral, $11,509.18; (b) the defendant’s administration costs, $8,027.48; (c) upon an assumption that the plaintiff’s costs (up to and including the end of a one-day hearing) are to be paid out of the estate of the deceased on the ordinary basis, an estimated $45,000; and (d) upon an assumption that the defendant’s costs (up to and including the end of a one-day hearing) are to be paid out of the estate on the indemnity basis, an estimated $52,000.

20. Taking those deductions into account, the agreed “net distributable estate” available for the making of a family provision order (if one is to be made) is of the order of $783,965.

21. No allowance is here made for either an occupation fee, referable to Erin’s occupation of the deceased’s residence since the death of the deceased, or for the outgoings for the property paid by Erin during that time. For practical purposes, and bearing in mind that (absent a family provision order in favour of the plaintiff) they balance each other out.

22. There is no dispute that the plaintiff (as a child of the deceased) is an “eligible person” within the meaning of section 57(1)(c) of the Succession Act 2006, and, so, satisfies the jurisdictional requirement of section 59(1)(a) of the Act, that an applicant for a family provision order be an “eligible person”.

23. The plaintiff’s summons was filed within the limitation period (of 12 months from the death of the deceased) prescribed by section 58(2) of the Act, and, so, is made without any need for an extension of time.

24. The questions in dispute in these proceedings are essentially twofold.

25. First, can the Court be satisfied of the jurisdictional requirement in section 59(1)(c) of the Act that, at the present time, the plaintiff has been (by the will of the deceased) left without adequate provision for his proper maintenance, education or advancement in life.

26. Secondly, if so, upon an application of section 59(2) of the Act, what (if any) provision “ought” to be made out of the estate of the deceased for his maintenance, education or advancement in life, having regard to the facts known to the Court at the time of making a family provision order.

27. In considering these questions, notice is taken of the broad range of matters identified in section 60(2) of the Act as factors to be taken into account, including factors relating to family relationships, personal circumstances, the nature and extent of the deceased’s estate, and the testamentary intentions of the deceased.

28. In these proceedings, attention is also required to be given to section 61(1) of the Act because the plaintiff draws to the Court’s attention that the defendant has, by an affidavit, expressly stated:

“I do not wish to put forward my circumstances as a competing claimant as I wish to uphold my mum’s wishes.”

29. That statement of intent may need to be understood in the context of an expectation on the part of the defendant that she might benefit from the testamentary provision made for her daughter Erin, at least in a practical sense, should Erin retain ownership of the deceased’s residence.

30. Nevertheless, the point to be made is that the defendant has not put herself forward personally as a competing claimant on the bounty of the deceased.

31. Section 61 of the Succession Act is in the following terms:

“61 Other possible applicants (cf FPA 20)

(1) In determining an application for a family provision order, the Court may disregard the interests of any other person by or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate) but who has not made an application.

(2) However, the Court may disregard any such interests only if—

(a) notice of the application, and of the Court’s power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or

(b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.”

32. In the context of the defendant’s disclaimer of a competing claim, and her full participation in the proceedings as the plaintiff’s contradictor, there is no need for service of a formal notice upon her to activate section 61(1).

33. The testamentary intentions of a deceased person are generally to be respected, bearing in mind that Chapter 3 of the Act does not authorise the Court to “rewrite” a will or to re-order a deceased’s estate in the interests of “fairness”: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thomson [2017] NSWCA 326 at [1]-[2] and [83]-[87].

34. The testamentary freedom of a deceased person is not to be interfered with except to the extent that an applicant for a family provision order (such as the plaintiff) persuades the court, on evidence, that an order can, and should, be made in accordance with the statutory criteria for which the Succession Act provides.

35. That said, the Court’s evaluative judgment under section 59 falls to be considered on the evidence adduced in proceedings for a family provision order, and at the time an order is under consideration.

36. To that extent, the Court is in a position that differs from that of the deceased person whose estate is the subject of family provision proceedings. In this case, for example, the deceased made her will without notice of contingencies that have occurred and may still occur in the life of the plaintiff because of concerns with his health.

37. 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: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19.

38. 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.

39. 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; Scales Case (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.

40. That the plaintiff was left out of the deceased’s will does not, of itself, establish that he was left without “adequate provision” for his “proper maintenance et cetera”.

41. The plaintiff contends that he has, in fact, been left without adequate provision for his proper maintenance and advancement in life even though (as counsel for the defendant urges upon the Court) he, with his wife, owns his own home (subject to a mortgage): he (presently) has a well-paid job (albeit without security of tenure); and he (and his wife) have substantial superannuation entitlements (not presently, easily accessible).

42. I acknowledge that there is force in the submission made on behalf of the defendant that the plaintiff is not without resources of his own which need to be taken into account against a finding that he has been left without adequate provision for his proper maintenance et cetera.

43. To the catalogue of factors against such a finding advanced by the defendant, I would add that the plaintiff has a happy marriage and a stable family life in which his wife has been prepared to take up paid employment to support the family in times when the continuity of the plaintiff’s employment has been put at risk by unexpected poor health and the possibility of an unfavourable prognosis.

44. For my part, conscious of the competing claim of Erin on the bounty of the deceased, I am satisfied that the plaintiff has been left without adequate provision for his proper maintenance and advancement in life from the estate of the deceased.

45. Particular factors that tell in favour of that conclusion are:

(a) first, the fact that the plaintiff had a close, loving relationship with the deceased and he was a dutiful son (helping in particular with handyman tasks for the deceased), despite friction between the plaintiff and the defendant, which appears to have coloured her perception of the relationship between mother and son; (b) secondly, the plaintiff has had a long established, and reasonable, expectation that he would be a beneficiary of his mother’s estate based on her representation to him after the death of her husband (his father), and he appears to have relied upon his mother’s statement of intention over a lengthy period; (c) thirdly, his recent experience of ill health and uncertainty associated with recent developments regarding his health have put at his risk his capacity for future employment, at least at the level of seniority he had in his employment; (d) fourthly, the nature of the plaintiff’s occupation (in the building industry) is such that, even if his health stabilises, he cannot physically endure the tasks he was formerly able to perform and he risks not being able to maintain his employment; (e) fifthly, although the plaintiff and his wife own their own home, they have a substantial mortgage (of the order of $481,500), the obligation to service which requires, as they said, that the wife work in paid employment; (f) sixthly, although the net distributable estate of the deceased is not large ($783,965), it is large enough for the plaintiff’s contribution to his mother’s well-being over many years to be acknowledged by a testamentary allowance that she led him, not unreasonably, to expect in planning for his future.

46. Having determined that the plaintiff has satisfied the jurisdictional hurdle of section 59(1)(c), I turn my attention to section 59(2) of the Act.

47. In final submissions, I invited counsel to identify a range of orders that might be made under section 59(2), upon an assumption that the plaintiff has satisfied the section 59(1)(c) hurdle, indicating that (having regard to a need to respect the testamentary intentions of the deceased as expressed in her will) I was not minded to order, as the plaintiff contended I should, that he be given a legacy equal to one-half of the deceased’s estate.

48. The defendant’s primary submission was that the plaintiff’s summons should be dismissed without any order for a provision. Her secondary submission was that the plaintiff should receive no more than a legacy of $50,000.

49. The plaintiff’s primary submission was that the plaintiff should receive a legacy equal to one half of the net distributable estate. When pressed, counsel invited the court to award a legacy equal to one third of the net distributable estate.

50. In reflecting on what provision “ought” to be made for the plaintiff, I’m conscious of the deceased’s stated desire to benefit her “special granddaughter” Erin and that Erin is a single young woman starting out in life, with a career of her own.

51. An expectation of Erin’s family is that, if she is able to retain the deceased’s residence (with a mortgage to fund any family provision order made in favour of the plaintiff), the family will move into the residence to live with her and, so, indirectly benefit from the deceased’s testamentary arrangements.

52. That expectation of Erin is consistent with her continued provision of periodic “board” payments ($150 per week) to her mother despite moving into the grandmother’s residence.

53. To my observation, in acquiescing in her family’s expectation, Erin is subordinating her ambition to go to university to upgrade her qualifications (from those of an endorsed enrolled nurse to those of a registered nurse).

54. To study to be a registered nurse is an ambition she has put on hold because she lacks funds to get through her studies.

55. Nothing in the will of the deceased, or arising in these proceedings, limits the use to which she may put her inheritance from the estate of the deceased.

56. I am conscious that these proceedings, and perhaps the expectations of her by her family, have taken their toll on Erin’s well-being. I am confident that if she is given the opportunity to study, she has the capacity to achieve her ambition.

57. I encourage her, so far as I can, to think positively of her future.

58. In assessing what provision ought to be made for the plaintiff, I take into account the need to reserve sufficient resources from the estate of the deceased to assist Erin to pursue her studies, should she choose to pursue them.

59. With that in mind, I determine that the provision that should be made for the plaintiff should take the form of a legacy in the sum of $250,000. That sum will not allow him to discharge the mortgage over his home, but it will allow him, if he and his wife so choose, to pay off a substantial amount of the debt owing on the mortgage.

60. Accordingly, I make the following orders:

61. ORDER that the plaintiff be allowed out of the estate of the deceased a legacy of $250,000.

62. ORDER that no interest accrue on that legacy if paid within 28 days of this order.

63. ORDER that, if the legacy is not paid within 28 days of this order, the unpaid portion of the legacy shall accrue interest (at the rate prescribed by section 84A of the Probate and Administration Act 1898 NSW) from that date.

64. ORDER that the legacy payable to the plaintiff, pursuant to these orders, be borne by the residuary estate of the deceased.

65. ORDER that the costs of the plaintiff be paid out of the estate of the deceased on the ordinary basis.

66. ORDER that the costs of the defendant be paid out of the estate of the deceased on the indemnity basis.

67. RESERVE liberty to apply for further or consequential orders in the working out of these orders.

68. ORDER that these orders be entered forthwith.

[After entertaining submissions about costs consequent upon offers of compromise exchanged between the parties Order 5 was recast as: ORDER that the costs of the plaintiff be paid out of the estate of the deceased: (a) up to and including 31 March 2025, on the ordinary basis; and (b) thereafter, on the indemnity basis.]

******