Estate of Scalone; Scalone v Diaconu

Supreme Court of NSW|2021-06-11|Before: Kunc J, Mr J

Summary

This judgment resolves two applications for family provision orders under the Succession Act 2006 (NSW) (the Act) out of the estate of the late Pantaleo Scalone (the Estate). In this judgment, all references to legislation are references to the Act unless otherwise indicated.
Pantaleo Scalone (the Deceased) died on 1 June 2019. He was survived by his three children, his second wife and other family members. The Deceased left a final will made on 23 March 2015 (the Will).
The plaintiffs, Vincenza (Enza) Scalone and Emanuele Scalone are the two eldest children of the Deceased. For convenience and without any disrespect intended, in these reasons I will refer to the plaintiffs and other members of the Scalone family by their given names.
The defendant in these proceedings is the Deceased's second wife, Maria (Marianna) Diaconu, who is also the executor of the Estate. On the first day of the hearing before me, the plaintiffs sought the following orders, which the Court made by consent on 8 June 2021: "1 The Court orders, pursuant to rule 7.8 of the Uniform Civil Procedure Rules 2005 (NSW), that the defendant be appointed as the representative of the estate and notional estate of the late Pantaleo Scalone for the purpose of, and to conduct, the proceedings on behalf of the estate. 2 The Court grants, pursuant to section 91 of the Succession Act 2006 (NSW), administration in respect of the estate of the late Pantaleo Scalone to the defendant for the purposes only of permitting the plaintiffs' applications for family provision orders and notional estate orders to be dealt with. 3 The Court orders the rules for advertising be dispensed and other formal matters be dispensed with."

The facts - Generally

While there were matters about which the parties disagreed, the essential facts were for the most part not in dispute. It is neither practicable nor necessary to set out in detail every issue raised by the parties. Attention is given to those which the Court considers dispositive. To the extent that any facts set out below were not agreed by the parties, I am satisfied they could not be sensibly disputed. There were no essential facts in dispute that required the Court to make credit findings about the protagonists.
The Deceased was born in Italy in July 1932. He migrated to Australia and, in 1958, he married his first wife, Angela. They had three children together: Enza (now aged 60), Emanuele (now 59) and Giuseppina (now 46). Giuseppina did not participate in these proceedings.
Angela and the Deceased raised their children in a home on Gilroy Road, Turramurra (the Gilroy Road Property). The children lived at home and were supported by their parents until they finished their studies. All three children received a university education.
In 1986, when she was around 25, Enza moved to Italy to study music. While in Italy, she met and married her husband, and decided to remain in Italy permanently. Enza returns to Australia every few years to visit.
In 1988, Emanuele purchased a block of land. The Deceased provided him with $55,000 to help him build a home on the land. Emanuele said that he had repaid his father this amount, but it is not necessary to resolve this issue.
In 1993, the Deceased and Angela sold a property they owned and used the funds to purchase a home for Giuseppina.
In 1995, Angela died suddenly, having just returned home with the Deceased from her own mother's funeral. Her death came as a shock to the entire family. The Deceased struggled to cope in the months and years that followed. The whole of Angela's estate, including her share in the Gilroy Road Property, passed to the Deceased.
After Angela's death, Emanuele would visit the Deceased for dinner on Wednesday nights, and on Saturday nights with his wife and children. After his separation from his wife in 2016, Emanuele would visit the Deceased for dinner on Monday nights, and drop in on the weekend. He and his family would also celebrate special occasions with the Deceased at the Gilroy Road Property, including Easter, Christmas, birthdays, long weekends and Feast Days.
The Deceased retired in 2000. Not long after, he commenced what was to be a 10 year relationship with Maria Del Boccio.
The Deceased travelled to Italy every few years. When he travelled to Italy, he would leave the keys to the Gilroy Road Property with Emanuele. While in Italy in 2011, the Deceased met Ms Diaconu. When visiting Enza in Italy on that trip, the Deceased and Enza had an argument.
In 2012, the Deceased returned to Italy and, having ended his relationship with Ms Del Boccio, asked Ms Diaconu to join him in Australia. Ms Diaconu accepted and in 2013, they were married. They remained together until his death. The plaintiffs accepted that the Deceased was very happy in his marriage with Ms Diaconu and that she cared for and supported him until his death six years later.
In 2014, Emanuele's eldest son turned 21. To celebrate, his son had a small dinner with friends at a pub rather than a birthday party.
On 17 March 2015, the Deceased met with a solicitor about preparing a new will. The solicitor's file note from the meeting includes: "He indicated he wanted to leave out his children because they do not respect him, haven't respected him for some considerable time. Vincenza moved to Italy and married there against his better wishes at the time. She is sufficient unto herself. Emanuele was well provided for during his lifetime with a block of land at Glenhaven. He has shown little or no respect for example was not invited to the first grandson's 21st birthday celebration. He also received a gift of $55,000.00 before he married. Giuseppina has been well provided for during her lifetime with a property at North Turramurra, she is sufficient unto herself. … I advised that the tests are that he should be aware of the nature of the property he would be leaving and its approximate value. He should also be aware of the people who may have a claim on his bounty and thirdly have given some consideration to those who might have a claim on his bounty. I therefore advised him that to simply leave them out completely might be troublesome he should leave them something even if only minimal. Do the Will the way he wanted according to his own wishes and then in a separate statutory declaration give his reasons for possibly excluding the children."
On 23 March 2015, the Deceased made the Will and executed a statutory declaration (the Statutory Declaration). The Will appoints Ms Diaconu as the sole executor and trustee of the Estate. The Will provides: 1. $30,000 be given to Enza. 2. $15,000 be given to Emanuele. 3. $5,000 be given to Giuseppina. 4. After payment of all debts, duties, funeral and testamentary expenses, the rest and residue be given to Ms Diaconu.
The Statutory Declaration includes: "2. In signing my Last Will and Testament I declare that I have made no greater provision for my daughter [Vincenza Scalone] for the following reasons: - (a) [M]y said daughter Vincenza moved to Italy about 30 years ago. She married and settled there. We have rarely seen each other since she moved to Italy. (b) My said daughter Vincenza is employeed [sic] as a Professor at the University of Udina, Italy. She is married and has one adult son. She is well settled and sufficient unto herself out of her own assets. (c) My said daughter Vincenza has made no contribution to the acquisition conservation and Improvement of my Estate. (d) [M]y said daughter Vincenza has made no contribution to my welfare. (e) I have also taken into account her character and conduct towards me on the few occasions that I have travelled to Italy. 3. In signing my Last Will and Testament I declare that I have made no greater provision for my son [Emanuele Scalone] for the following reasons: - (a) [M]y said son Emanuele has been well provided for by myself during my lifetime. My said son Emanuele was given sufficient funds during my lifetime by my first Wife Angela Concetta Scalone (now deceased) and myself In order to purchase a block of land at [XX] Glenhaven Avenue, Glenhaven before he finished his University degree. (b) My said son Emanuele was also given the sum of Fifty five thousand dollars ($55,000.00) before he married. (c) My said son Emanuele Is employed as a School Teacher. He is married and has two adult children. He is well settled and sufficient unto himself out of his own assets, as well as the provisions made to him during my lifetime. (d) [M]y said son Emanuele has made no contribution to the acquisition conservation and improvement of my Estate. (e) [M]y said son Emanuele has made no contribution to my welfare. (f) [M]y said son Emanuele has shown little or no respect towards me during my lifetime. One example of this is that he did not invite me to his son's 21st birthday celebration (my first grandson). He has shown little love and respect for me during my lifetime."
In April 2015, the Deceased and Ms Diaconu travelled to Italy and Romania. For the first time, the Deceased did not leave his house keys with Emanuele and he did not contact Emanuele to let him know he had arrived safely. The Deceased did not visit Enza while he was in Italy.
In May 2016, Enza visited Australia and spent time with the Deceased, Ms Diaconu and Emanuele at the Gilroy Road Property.
In mid-2016, the Deceased filmed his own video eulogy, of which the first half (to the point indicated by asterisks in what follows) was played at his funeral (the Eulogy Video). The transcript of the Eulogy Video includes (translation): "Good morning I am Pantaleo Scalone, born In Vallo della Lucania, in the province of Messina, raised in a big family,12 children, 12 brothers and sisters. There was the war, life was very hard, there was no future in Italy, no work, and I migrated to Australia. I'm tired - I'll have a little rest. Three brothers married three sisters, who came from Sicily, Misserio, province of Messina. All three brothers emigrated to Australia. Here, I worked hard, had a family, had three children, my wife brought the children up, with lots of care, schooling, ensuring that we didn't want for anything. And I worked, bringing home the money, to pay the family expenses and buy the house. I'm tired. Our wish, mine and my wife's, was to give our children an education, for them to obtain a university degree, and all three of them are school teachers. As I was reaching retirement age, at the end of a working life, I was very happy, my house paid off, my children had graduated, everything was going well, but, unfortunately, I suffered a terrible loss, it was as lf my life had come to an end. My wife, on the day of her mother's funeral, we came home, and a few hours later, closed her eyes forever, without saying a word. And that was the end of my life. From the moment my wife died, my ordeal started. Too much work. I'd come home from the barbershop, [untranscribable] a big house, the garden, I had to work In the barber shop, I had to go home, go shopping, pay the bills, work In the garden. It was a life [untranscribable], cook for myself. It was a disaster. I'm tired. And such was my life, working, until 2012. I went a couple, many times to Italy. I would come back and live the same life, always by myself. Working, cooking, cleaning the house. My health wouldn't let me carry on and I was very tired. In 2012, I went to Italy and met a woman, much younger than me, and talking to her, I told her about my life, that I was alone. And she truly cared for me, and I asked her to come to Australia. She came, and since then, I can't say that I'm the happiest man on earth, but I'm aware that my wife looks after me like a child. I'm tired. I'm very sick now. I thank God I have my wife, who always keeps me in high spirits. She does everything I want. She loves me, she respects me, in the same way I respect her. I'm spending these last days very, very happy, in really wonderful company. I thank God that I've almost reached 84 years. When the Lord comes and takes me, I'll say goodbye to everyone. [The video shows pictures on the living room wall and a photo album. Family photos are placed in front of the camera one by one. Bocelli's "Con te, partirὸ" plays in the background] Did you like my youth? Thank you all and goodbye. [Someone's hand closes the photo album. The opening of Macduff's aria "O figli, o figli miei" from Verdi's opera "Macbeth" plays: "Oh my children! By that tyrant You have all been killed, together with Your poor mother!"] * * * * * * * * My dear children With respect to, a couple of words about my life. You know that I've worked a lot, I've loved with all my heart and I've given everything I could. You were my life. All three of you. Tragically, your mother closing her eyes, you didn't know how to appreciate your father's affection, the sacrifices that dad made for all of you. I had to wash, I had to cook, I had to clean, work in the shop, in order to live because I didn't have any more money. I only had the house. In any case, I put up with all of this, with patience. And you were and always will be in my heart. But I have to explain to you what I feel and what I think about my life and your respect towards me. I'll start with you, Vincenza. Far away, you've never complained. I thank you for how much you helped me when you were at home with me, at the shop, you were thorough, but when I got to your place In 2011, I didn't expect anything like it - the way you treated me, in front of your husband, and in front of your son. You're always in my heart, all of you, I've always respected, and I've always said, and to everyone I talk to, a lot of respect for Carlo, very content with [your son]. I used to be content with you, Enza, but you shouldn't have treated me that way, after you'd done the same to your mother. And then, you phoned saying you didn't want to have anything to do with your father. But you're in my heart, Enza, and all of you. … Now, [Em]anuele. [Em]anuele was my heart. He was the only one I leaned on for a bit of affection. But, unfortunately, in the end, he also fell short (of my expectations). I don't know why. When I brought Marianna here in 2012, I didn't bring Marianna here to marry her. I hadn't told Marianna that I had money, that I was rich. I hadn't told Marianna that I would have left her the house. When I met Marianna in Vallo, I told her one thing, I told her the story of my life. I told her I was lonely. I told her that if she came, I wanted her to look after me, but that the government wouldn't give her a pension when I died and that the house belonged to my children. When I got back home, I asked you for help, Emanuele. I couldn't speak English. I asked you lovingly for help, with affection, with hope. And then, you didn't understand me. Neither you nor your family. You didn't understand what your father needed as he was nearing the end of his life. So, all alone, when I phoned you telling you I needed to speak to you, you said "Hey dad, what is there to talk about? You've fallen for that woman, so there's nothing to talk about''. You broke my heart, Emanuele. I had to sort it out at the Immigration office. They were even going to put me in prison, because I was shouting, they were giving me papers, I didn't know what I was supposed to do. Time was passing and on the last day, they were going to come and take Marianna away. And I didn't want to miss the opportunity. And I had to find a lawyer, go to offices, places, pay money everywhere, in order to marry Marianna so that she could stay here. To have company for my old age. Now, dear son, one more complaint, about you Emanuele, which is very serious. I don't know if it's your fault or your son's fault or your wife's, I don't know. But when my dear grandson … turned 21 years of age, the first grandson of the dynasty, of the family, you didn't even invite me to my grandson's 21st birthday, and that was a very big blow to my health. I was well, Marianna was well. When Marianna came here, she had never taken a tablet, she was perfect In Italy. I fell ill here - first with skin problems, going from specialist to specialist. Marianna had to put cream on my whole body three times a day, then she had to put me in a cold wet pyjama, wrapped up In a blanket for two hours, then she had to wash me, apply another cream. And I did that for months and months. And still, at times, I get itchy. And what was the cause? Nerves. And that's one down. What else? Even Marianna fell ill. After a couple of months, she got diabetes, cholesterol, admitted for heart problems, then for an operation on her neck, and is still taking pills. Because you were not able to understand what your father wanted. Your father wanted Marianna's company. Marianna didn't come here because she wanted the house. When I met Marianna, I told her very clearly. I said ''Marianna, this is my situation." I handed my passport over to her and said "I haven't got anything. I live on a pension. And I have a beautiful house. But the house belongs to my children". She decided to come with me - I don't know? A gift from God? Out of pity? Or because she really loved me? As she does so now. And the way she assists me. In any case, dear children, all three of you, don't judge me wrongly, but you can even judge me any way you like, but what I do, is done well. I truly embrace you with all my heart. I'll close my eyes with you always in my arms. But you can do whatever you want, think whatever you want of me. An embrace, before I end my life, and you are always my children. You were always my children and you'll be my children even after I die. Goodbye. I embrace each and every one of you. Vincenza, Emanuele, Enza, all my grandchildren. This is a hug from your grandfather, who has given you his heart and even his life."
In July 2017, the Deceased was admitted to hospital. On 3 and 4 July, Emanuele visited him. The Deceased told Emanuele that he intended to leave everything to Ms Diaconu. Emanuele asked whether that included the family home and the Deceased replied to the effect of: "That's all I have." Emanuele later told Enza what the Deceased had said.
The Deceased was discharged from hospital about a week later. Emanuele visited the Deceased at home and they had a disagreement about the Deceased's plan to leave everything to Ms Diaconu.
A few days later, Emanuele met with Ms Diaconu in a park. He told Ms Diaconu that the Deceased planned to leave everything to her. Ms Diaconu indicated that she was not aware of that (Tcpt, 9 June 2021, p 215(7-15)). Emanuele expressed his unhappiness with the Deceased's plan, and told Ms Diaconu that he "wanted things to be done right". He said that each of the Deceased's three children should receive a third of the family home (Tcpt, 9 June 2021, p 216(12-34)).
Emanuele visited the Deceased at home for the Deceased's Feast Day on 27 July 2017. It was a short visit, but they shared a hug before Emanuele left. This was the last time Emanuele saw the Deceased. Enza also rang the Deceased for his Feast Day. Enza described their call as her last proper conversation with the Deceased, although she spoke to him on other occasions.
The following week, Emanuele tried to visit the Deceased but he was not home. Emanuele rang later, but Ms Diaconu informed him that the Deceased did not want to speak to him. When he pressed Ms Diaconu to put the Deceased on the phone, Emanuele heard the Deceased in the background say that he did not want to speak to Emanuele.
On 2 November 2017, the Deceased and Ms Diaconu met with a new solicitor, Maria Di Giovanni, about selling the Gilroy Road Property and estate planning. Ms Di Giovanni's file note of the meeting includes: "Filenote of meeting with Mr & Mrs Scalone … Estate Planning - Did his will with Ciaglia lawyers recently however is not happy. - Wants to make sure his current wife inherits his estate without interference of his children. - He has 3 children from his first wife who dies [sic] 22 years ago. One daughter lives in Perugia Italy and is self sufficient. Mr S bought son a block of land whilst he was still at university and then loaned him $55,000 to build a house on it. The loan was forgiven. … He feels he has helped his children set themselves up. The daughter in Italy has had less assistance but she abandoned the family many years ago. He believes he gave her a bigger bequest in his last will than the others to compensate this. - His current wife is Romanian. He sponsored her migration to Australia by marriage. They have been married for 6 years. He is adamant that his estate must go to her as she has cared for him for the past 6 years. She is his wife. … - I gave advice on joint tenancy and tenants in common. They asked for advice on how they should structure the purchase of another property that they wish to make with the proceeds of the sale of [the Gilroy Road Property]. I gave advice on the effect of joint tenancy and tenants in common and right of survivorship. Note for file - there is a risk of putting the new property in wifes [sic] name alone as if he gets very unwell she can evict him or sell the property etc even though putting property in her name will give her greater protection from any claims by his children."
Contracts for the sale of the Gilroy Road Property were exchanged in November 2017.
Over the course of 2018, the Deceased was repeatedly admitted to hospital.
In February 2018, the Deceased and Ms Diaconu had telephone conversations with Ms Di Giovanni about purchasing the Fairlawn Avenue Property. Contracts for the purchase were first exchanged in Ms Diaconu's name only, because the Deceased was in hospital.
In April 2018, a relative informed Enza that the Deceased had sold the Gilroy Road Property and that Enza, Emanuele and Giuseppina would miss out on receiving their mother's share.
Around May 2018, the sale of the Gilroy Road Property and the purchase of the Fairlawn Avenue Property settled. The Fairlawn Avenue Property was ultimately purchased in both the Deceased and Ms Diaconu's names as joint tenants.
The Deceased and Ms Diaconu instructed Ms Di Giovanni to hold the surplus proceeds of sale of the Gilroy Road Property (approximately $1,700,000) to pay builders for planned work on the Fairlawn Avenue Property. The building contract ultimately signed was for $1,300,000.
In July 2018, Enza rang her father for his birthday and Feast Day.
In August 2018, Enza sent a handwritten letter in Italian to the Deceased's sister-in-law, Orsolina. In September 2018, Enza sent copies of her letter to Orsolina to the Deceased's niece, nephew, other sister-in-law and a family friend. There is no evidence that the Deceased was ever made aware of this letter, which read (translation): "Dear auntie Orsolina, I hope that these few lines of mine will find you in the best of health. We haven't heard from each other since October 2012 when I called you for your birthday [a]nd after my father's departure from Vallo, together with Ms Marianna. You are always in my heart, and I will never forget what you did for the dear grandparents and the support that you gave me when I decided to marry Carlo and bring up the family here in Friuli. My silence towards you is due to the choice made by my father of marrying a woman 30 years younger than him and that he had already got to know there at Vallo during the 201[1] summer. Notwithstanding the fact that you all knew about it, my father has kept everything hidden from me until l showed up at his house in Australia in January 2016. During our conversations, Ms Marianna told me that the relatives at Vallo had reassured her that Pantaleo "is a good man" and this has confirmed to me that you had approved their relationship. I am certain that you are still in contact with my father and Marianna, and you are aware of the situation with us the children. Father does not want to have anything to do with us because we have NEVER respected him. But I want you to know from me personally that Pantaleo has disowned us children and his grandchildren, BLOOD of HIS BLOOD, leaving EVERYTHING to Ms Marianna. And contrary to Italy, we cannot do anything because the Australian succession laws allow it. Furthermore, I have just learnt that father has sold the house where we grew up during last November for 2 and a half million EURO. In this way, he has also completely erased our mother - a woman who was married to him for 37 years, [who] migrated to a foreign land at the age of 20 years, who has made many sacrifices for the family. Not even his grandchildren … will have a memory of her, their grandmother. We will not take anything with us when we will die, but the thought that my father has chosen not to acknowledge us any more wounds me and hurts me a lot, believe me. And all this for a woman who acts for him as a CAREGIVER. My mother did not deserve this, and you who have known my mother and loved her, will agree with me. None of my father's brothers, not even uncle Angelino, who remarried, has done something similar. And Pantaleo will be remembered for this - [it is] better to be born orphaned of father than find ourselves in a situation like this. I close, my dear auntie, asking you to say a prayer so the soul of my mother Angela rest in peace. I have written these lines for her, who lef[t] us 23 years ago, in order to have her voice heard. Not a day goes by without me remembering m[u]m and I thank her for everything that she has given us. A big hug, Your niece Enza"
On 30 October 2018, the Deceased and Ms Diaconu met with Ms Di Giovanni. Ms Di Giovanni said that her firm would not administer the building contract for the Fairlawn Avenue Property. Ms Diaconu, with the Deceased's assent, gave instructions to Ms Di Giovanni to transfer the $1,700,000 proceeds of sale of the Gilroy Road Property to a new bank account in Ms Diaconu's name. Ms Diaconu spent approximately $1,500,000 of those funds on work on the Fairlawn Avenue Property.
Enza rang the Deceased briefly for Christmas in 2018. This was the last time Enza spoke to the Deceased.
On 22 February 2019, Emanuele consulted a lawyer about the Will.
On 6 May 2019, the Deceased and Ms Diaconu signed a building contract for $1,300,000.
On 24 May 2019, the Deceased's nephew texted Enza and Emanuele to tell them that the Deceased was dying and in palliative care. Enza and Emanuele communicated with each other and various relatives. They did not contact Ms Diaconu. Enza remained in Italy and Emanuele did not visit the Deceased in hospital. Their evidence was that they were upset and unsure about how the Deceased would react if they went to see him.
The Deceased died on 1 June 2019.
Emanuele attended the Deceased's funeral. He arrived after the mass had begun and left before it ended. He did not sign the condolence book nor send flowers to Ms Diaconu.
Enza was in Italy and was not present at the Deceased's funeral. She made a charitable donation in the Deceased's memory.
The first half of the Eulogy Video was played at the funeral. Enza and Emauele were not aware that the Deceased had made the Eulogy Video until the funeral. The second half, in which the Deceased addressed himself to his children, was not played at the funeral. Enza and Emanuele received a copy and transcript of the full Eulogy Video for the first time after commencing these proceedings.
Enza gave evidence that when she found out that the Eulogy Video was played at the funeral, she was upset that their childhood photos were shown publicly. She rang the funeral director to ask who prepared the Eulogy Video and authorised the use of the photos. When a copy of the funeral card was posted to Enza, she returned it.
On 8 October 2019, Enza and Emanuele commenced these proceedings.

The facts - The Estate and other property

The actual Estate comprises: 1. Bank account: $30,705.01. 2. Shares: $10,552.50 (estimated at date of Deceased's death). 3. Car: $10,000 (estimated value).
It appears the Estate has not yet paid any funeral or testamentary expenses, however there was no evidence before the Court of the amount of those outstanding expenses.
The property which Ms Diaconu recorded as notional Estate comprises: 1. Half share in term deposit: $47,265.91. 2. Half share in the Fairlawn Avenue Property: $2,000,000.
Three issues arose in relation to the notional estate: 1. The value of the Fairlawn Avenue Property was disputed. 2. The plaintiffs contended that the full value of the Fairlawn Avenue Property was available to be designated as notional estate. 3. The plaintiffs contended that the net proceeds of sale of the Gilroy Road Property were available to be designated as notional estate.
I return to [54(2)] at [136] below.
The parties disputed the value of the Fairlawn Avenue Property. The Fairlawn Avenue Property has five bedrooms and five bathrooms. The Deceased and Ms Diaconu planned to use it as a boarding house to generate income and were undertaking renovation works for that purpose. Ms Diaconu oversaw those works, which remain partially unfinished. Ms Diaconu did some of the work herself.
Two registered valuers gave evidence in the proceedings. They agreed on the value of the land but reached slightly different conclusions about building costs. They ultimately agreed that a reasonable valuation for the Fairlawn Avenue Property in its condition at the time of the hearing was $4,000,000, with a 10 per cent ($400,000) margin of error.
It was submitted for the plaintiffs that the Court should find that the value of the Fairlawn Avenue Property was at least $4,200,000 at the time of the hearing, and that it would be $4,500,000 when the outstanding works are completed. It was submitted for Ms Diaconu that the sum available as notional estate if the Fairlawn Avenue Property were to be sold would be lower, because of the costs of repairs, sale and commission.
The figure for current value propounded on behalf of the plaintiffs falls within the range agreed upon by the valuers. As to the value after completion, the Court is not in a position to speculate about the future value of the Fairlawn Avenue Property if and when further works are undertaken. The evidence does not enable the Court to determine the standard to which works may be completed in the future, nor the time of completion and the market conditions at that time. These were key factors which the valuers identified as affecting the value of the Fairlawn Avenue Property. Although Ms Diaconu indicated that she intends to complete the works, whether she is in fact able to do so will depend on, among other things, whether she will be required to sell the Fairlawn Avenue Property as a result of these proceedings.
In any event, the highest figure for which the plaintiffs contended is $100,000 above the current range identified by the valuers. In the facts of this case, such a comparatively small difference would not bear meaningfully on the Court's determination of Enza and Emanuele's family provision claims. Accepting the valuers' evidence (see [57]), the Court finds that current value of the Fairlawn Avenue Property is $4,000,000.
Turning to [54(3)], the plaintiffs contended that the net proceeds of sale of the Gilroy Road Property were available to be designated as notional estate because the Deceased gave a half share in the net proceeds to Ms Diaconu, with the intention of denying or limiting any family provision claims against those funds (s 80(2)(a)).
The plaintiffs did not identify a particular transaction by which they contended the Deceased gave the half share of the net proceeds of sale of the Gilroy Road Property to Ms Diaconu. They also did not point to any evidence that the Deceased entered into that particular transaction with the intention of denying or limiting any family provision claims which could be made against the Estate. While there was evidence that the Deceased chose to purchase the Fairlawn Avenue Property as joint tenants with Ms Diaconu to ensure that she inherited it - including by limiting any family provision claims his children could bring - in the absence of other evidence that is insufficient to support a finding about the Deceased's intentions for the net proceeds of sale of the Gilroy Road Property.
In any event, the question is academic because the net proceeds of sale of the Gilroy Road Property appear to have been almost entirely spent, principally on renovating the Fairlawn Avenue Property. As a result of the work done using the proceeds of sale, the value of the Fairlawn Avenue Property increased from just over $2,000,000 at the time of purchase to $4,000,000 at the time of hearing. Effectively, the balance of the net proceeds is captured in the increased value of the Fairlawn Avenue Property, which the plaintiffs already contend is available as notional estate. There is therefore no utility in considering further the net proceeds of sale of the Gilroy Road Property.

The facts - Enza

Enza is 60. She is the eldest child of the Deceased.
Enza grew up in the family home, the Gilroy Road Property. Enza has been financially independent from the Deceased since 1984, when she accepted her first full-time teaching job.
Enza moved to Italy to study music in 1986, when she was around 25. While she was in Italy, Enza met and married her husband. They have an adult son. Enza continues to live in Italy.
Enza kept in contact with the Deceased after she moved to Italy, and visited him whenever she travelled to Australia. The Deceased also visited Enza when he travelled to Italy.
Enza acknowledged that she had a tempestuous relationship with the Deceased and that she was "in and out of [her parents'] bad books, but it didn't matter. I loved them all the same" (Tcpt, 8 June 2021, p 157(46)). There were periods in which she had no contact with the Deceased, including between 1986 and 1990 when Enza decided to marry her husband and stay in Italy, and for around nine months in 1993. Enza explained that she "didn't have a close relationship with any member of my family because I didn't do what I was supposed to do as a Southern Italian daughter" (Tcpt, 8 June 2021, p 157 (2-3)).
In the last year of the Deceased's life, he and Enza spoke only for his birthday and Feast Day in July, and at Christmas. Relatives and friends kept Enza updated about the Deceased's deteriorating health and she was aware that he was dying.
Enza is an English language teacher. Her monthly income is $2,100. Enza's husband is retired and receives a monthly pension of $2,000.
Enza and her husband have monthly expenses of approximately $3,689. Among these expenses, Enza contributes $154 per month towards a private pension to supplement her state pension when she retires. Her pension fund is approximately $25,000 at present. Enza plans to retire in five to six years.
The home in which Enza lives is owned by her husband, who is 17 years her senior. It has an estimated value of $442,930. Under Italian law, if her husband dies before she does, a half share of the home will pass to Enza and the other half share will pass to their son.
Enza and her husband have these other assets: 1. Cash savings: $41,000. 2. 2011 car: estimate value $6,700. 3. 2016 car: estimated value $8,900.

The facts - Emanuele

Emanuele is 59. He is the Deceased's second child.
Emanuele is in a relationship with Antonia Bevege. They live with their son and Ms Bevege's daughter. Emanuele has had some health issues which seem to have been successfully managed and to which no reference was made in final submissions.
Their son is 11. He has been diagnosed with autism. He is due to start high school in 2022.
Ms Bevege's daughter is 18. She is currently in year 12 and plans to undertake tertiary study when she finishes high school.
Emanuele also has two adult children from his previous marriage.
The couple live on a property owned by Ms Bevege's father and step-mother. Their home is an old caretaker's residence. Ms Bevege has lived there since 1999 and over the past two years, she has done substantial renovation work on their home.
The home has three bedrooms, a study, two bathrooms, an outdoor spa and air conditioning. An adjoining old "chook shed" provides a two-car carport and storage shed. Between their home and the house where Ms Bevege's father lives on the property, there is a small wooded area, a pool (albeit not a functioning pool at the time of the hearing) and a tennis court built by Ms Bevege's father.
Ms Bevege and Emanuele have a signed, informal lease for their home from Ms Bevege's father, which does not provide a specific term. They pay below-market rent but are responsible for maintaining the home and surrounding areas. If the conditions in the lease are not met, the document provides that their occupation can be terminated on 3 months' notice. There was no evidence before the Court to suggest there was a threat of them being asked to leave and, as I have already noted, Ms Bevege had been living there since 1999. Nor was there any evidence of Ms Bevege's father's testamentary intentions in relation to the property.
Emanuele previously owned a property with his former wife, which he purchased in 1988. As set out at [12], the Deceased provided Emanuele with $55,000 to assist with building a house on the land. The Statutory Declaration records that the Deceased considered the $55,000 to be a gift (see [22] above). Ms Di Giovanni's file note records that the Deceased referred to it as a loan that was forgiven (see [31] above). Emanuele's evidence was that the $55,000 was a loan, which he repaid in cash in 1999. It is not necessary for the Court to make a finding about whether the $55,000 was a gift or a loan or had been repaid. It is sufficient to record that the Deceased assisted Emanuele financially to own his own home. In 2019, Emanuele transferred his share in the property to his former wife and received $575,000 in return as part of their divorce.
Emanuele is a school teacher. His annual salary is approximately $115,000 (about $80,000 net).
Ms Bevege previously ran her own tennis coaching business, but reduced her work hours after the birth of their son. She currently manages the household and is not in paid employment. Now that she has largely completed the renovations on their home, Ms Bevege expects to return to part-time work to assist in meeting the family's expenses. Their son's care needs are such that she does not expect to be able to work full-time until he finishes school.
Ms Bevege's former husband provided monthly child support payments for his daughter. Those payments were due to cease in August 2021.
The family's monthly living expenses are approximately $7,176, including current school fees. While their son's school fees will increase next year when he begins high school, Ms Bevege's daughter will graduate from high school this year.
Emanuele's two eldest children are financially independent from him. He gave each of them $25,000 after his divorce from their mother. Over 2018 and 2019, he spent time with them regularly, by taking them out for modest restaurant meals twice a week.
Emanuele has these assets: 1. Cash: $570,000. 2. Shares: $16,000. 3. Superannuation: $494,000. In his 2019/20 annual statement, Emanuele's superannuation fund projects his estimated balance to be $700,000 at age 67. The AFSA Retirement Standard, which was in evidence, indicates that $640,000 is required for a comfortable lifestyle in retirement for a couple who own their own home.
Ms Bevege has these assets: 1. Cash: $20,000. 2. 2007 car: $4,500. 3. Superannuation: $13,000. 4. Furniture: Ms Bevege was unsure of the estimated value as she makes her furniture herself. 5. Tools: estimated value unknown.

The facts - Ms Diaconu

While not a claimant in these proceedings, Ms Diaconu was the Deceased's wife of six years and is a beneficiary of the Estate. The parties highlighted her circumstances as relevant to the determination of Enza and Emanuele's family provision claims (s 60(2)(b) and (d)).
Ms Diaconu is Romanian and moved to Australia after meeting the Deceased. Ms Diaconu's English is limited. She communicated with the Deceased in an Italian dialect. Although her initial affidavits in these proceedings were sworn in Italian, after the Deceased died she no longer spoke Italian regularly. She gave oral evidence in these proceedings in Romanian through an interpreter, and referred to Romanian translations of her affidavits when required.
Ms Diaconu provided care to the Deceased as his health deteriorated. The Deceased did not want to move into aged care, and Ms Diaconu's assistance allowed him to remain living at home until he entered palliative care.
Ms Diaconu has an adult son who lives in Romania. When asked whether she plans to return to live in Romania, Ms Diaconu said that she would never leave the Deceased's grave (Tcpt, 10 June 2021, p 346(39-40)).
Ms Diaconu currently lives alone in the Fairlawn Avenue Property. She has overseen and worked on the renovations. She gave evidence that she is doing the landscaping work herself because she cannot afford to pay landscapers. She said in cross-examination that she intended to rent out the four spare rooms for income, and that she had advertised the rooms online (Tcpt, 10 June 2021, p 304(2-4)). There was no evidence of when, how often or where Ms Diaconu advertised online.
Ms Diaconu said that she does not want to leave and sell the Fairlawn Avenue Property unless the Court orders her to do so (Tcpt, 10 June 2021, p 344(45-48)). She indicated that she is prepared to take out a loan, look for work or ask her son for financial assistance in the event the Court orders provision in a sum greater than the liquid assets available.
Ms Diaconu receives JobSeeker payments from Centrelink. Ms Diaconu has looked for work as a cleaner, but was unable to find an ongoing position which she attributes in part to the current COVID-19 pandemic.
Ms Diaconu's evidence is that she spends only around $50 a week on groceries because she lives frugally and knows how to make the most of what food she buys.
Ms Diaconu has these assets: 1. Two properties in Romania: an apartment in which her son lives, valued at approximately $90,000 and a house in a country town which her son has renovated and extended. 2. The Fairlawn Avenue Property. 3. Personal property: $70,000 on Ms Diaconu's evidence. The plaintiffs contended it was purchased for $100,000 in 2020. 4. A small amount of cash in two bank accounts.
Ms Diaconu has applied for a loan of approximately $500,000, which she said in cross-examination was to ensure she would be prepared for the outcome of these proceedings.

Legal principles

The applicable legal principles were not in dispute. The Act includes: "58 When an application may be made … (2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time. … 59 When family provision order may be made (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that - (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. … 60 Matters to be considered by Court (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining - (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (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, … (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. … 63 Property that may be used for family provision orders (1) A family provision order may be made in relation to the estate of a deceased person. … (5) A family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.3. … 75 Transactions that are relevant property transactions (1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being - (a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act. (2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction. (3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person's estate. 76 Examples of relevant property transactions (1) The circumstances set out in subsection (2), subject to full valuable consideration not being given, constitute the basis of a relevant property transaction for the purposes of section 75. (2) The circumstances are as follows - … (b) if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person's death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust, … (3) Nothing in this section prevents any other act or omission from constituting the basis of a relevant property transaction for the purposes of section 75. (4) For the purposes of this Chapter, in the circumstances described in subsection (2)(b), a person is not given full or any valuable consideration for not severing an interest in property held as a joint tenant merely because, by not severing that interest, the person retains, until his or her death, the benefit of the right of survivorship in respect of that property. 80 Notional estate order may be made where estate affected by relevant property transaction (1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies. (2) This section applies to the following relevant property transactions - (a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order, … 87 General matters that must be considered by Court The Court must not make a notional estate order unless it has considered the following - (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances. 88 Estate must not be sufficient for provision or order as to costs The Court must not make a notional estate order unless it is satisfied that - … (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, … 89 Determination of property to be subject to notional estate order (1) In determining what property should be designated as notional estate of a deceased person, the Court must have regard to the following - (a) the value and nature of any property - (i) the subject of a relevant property transaction, or (ii) the subject of a distribution from the estate of the deceased person or from the estate of a deceased transferee, or (iii) held by the legal representative of the estate of any deceased transferee in his or her capacity as legal representative of the estate of the deceased transferee, (b) the value and nature of any consideration given in a relevant property transaction, (c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given, (d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given, (e) any other matter it considers relevant in the circumstances. (2) The Court must not designate as notional estate property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both. …"
A claim under the Act invites two fundamental questions. The first question is whether adequate provision for the applicant's proper maintenance, education or advancement in life was made. If adequate provision was not made, the second question is the provision which should be ordered.
In Bowers v Bowers [2020] NSWSC 109, Hallen J said at [284] that determining what provision ought to be made: "… involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, Tadgell and Charles JJA agreeing). It is not a scientific, or arithmetic, or an exact exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". Indeed, it is often not susceptible of complete exposition and minds may differ as to the provision which ought to be made."
The general principles applicable to family provision claims by adult children were set out by Hallen J in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473], which I gratefully adopt and apply: "(a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). (c) Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). (d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) at 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. (e) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ). (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2."
Regarding the relevance of the size of the Estate in considering an application for provision, in Re Buckland (dec'd) [1966] VR 404 Adams J said at 415: "I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. ... The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance."
As to the significance of a claimant's conduct during the deceased's lifetime, Hallen J observed in Armitage v Fraser [2020] NSWSC 979 at [250]: "A wise and just parent will also recognise that disharmony between parent and child is almost inevitable and that in family relationships, hurts are inflicted, or suffered, sometimes consciously, and sometimes unconsciously. Regrettably, this is a part of family life."
Similarly, Holland J stated in Kleinig v Neal (No 2) (1981) 2 NSWLR 532 at 540: "A wise parent will recognize that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life."

Parties' submissions - Enza's family provision claim

Counsel for Enza submitted that she has these needs: 1. Renovations and repairs on her home: $124,000. This total comprises: 1. Roof replacement and outdoor stone paving: $93,000. 2. Gas hot water heater: $6,000. 3. Double-glazed windows: $15,000. 4. Repairs and maintenance of parquet flooring: $10,000. 1. Dental work: $10,000. 2. New car: $25,000. Enza's current car is 10 years old. 3. Buffer for contingencies: $400,000. Counsel for Enza submitted that such an amount would be proper having regard to the size of the Estate and notional estate, and the fact that Enza has only a modest amount in superannuation with five to six years of working life remaining.
Counsel for Enza submitted that her relatively distant and at times difficult relationship with the Deceased did not support a conclusion that proper and adequate provision for her would be lower than what it otherwise would have been, had Enza been more involved in the Deceased's daily life or their relationship been better. Counsel submitted that her arguments with the Deceased and the letters she sent to family members were not disentitling conduct, citing Hallen J's comments in Armitage v Fraser set out at [105] above.
Finally, it was submitted for Enza that the size of the Estate and notional estate is sufficient to allow provision to be made while respecting the Deceased's testamentary freedom and his moral obligation to make provision for his wife, Ms Diaconu. Counsel for the defendant in response drew to attention that the nature of the Estate and notional estate is also a relevant consideration. The Fairlawn Avenue Property is the main asset. It is Ms Diaconu's home, on which she has done significant work, and it was to be her source of income.
Counsel for the defendant accepted that the provision made in the Will was not proper and adequate, and that an order for provision may be made for Enza from notional estate. However, it was submitted that any provision should be modest given Enza's limited needs, her poor relationship with the Deceased and Ms Diaconu's competing claim as beneficiary. The defendant conceded that provision of around $135,000 for Enza's renovation and dental works would be proper, but submitted that it remained open to the Court to dismiss Enza's claim.

Parties' submissions - Emanuele's family provision claim

Counsel for Emanuele submitted that he has these needs: 1. Funds to assist in purchasing a home: $600,000. Counsel for Emanuele contended that his current accommodation is not secure, permanent or appropriate. It was submitted that Emanuele and his family need to reside in the Arcadia area, because it is close to their family and parish network. Provision of the sum contended for would enable Emanuele to use his savings and a mortgage of $375,000 to purchase a property for around $1,500,000. Without provision, Emanuele and Ms Bevege would not be able to afford their own home. 2. Buffer for contingencies: $100,000. It was submitted that Emanuele requires a buffer for contingencies because his savings would be used to purchase a home, and his current superannuation balance of $493,000 is, in his counsel's submission, insufficient for his circumstances.
It was conceded that the Will did not make proper and adequate provision for Emanuele. However, counsel for the defendant argued that Emanuele had few, if any, needs which would warrant the making of a family provision order. It was submitted for the defendant that Emanuele and his family are in secure accommodation, that their income will soon been supplemented by Ms Bevege returning to work, and that Emanuele's limited savings are due to his financial choices. Counsel referred to Emanuele's choice to renovate the home in which he lives and choices about his adult children outlined at [87]. I record immediately that the Court does not accept this submission about Emanuele's financial choices in relation to his two eldest children. Such matters are not financial choices which could be seen to undermine any moral claim for provision which Emanuele would otherwise have.
The defendant also submitted that the Deceased did not have a moral obligation to put Emanuele in a position to purchase an unencumbered home or to finance him into a home he otherwise would be unable to afford. To the extent the Deceased had a moral obligation to give Emanuele a start in life, the Deceased had fulfilled it by providing for Emanuele's university education and lending him $55,000 to build his home with his former wife.
Further, any moral claim Emanuele would otherwise have had would be reduced by his falling out with the Deceased. Counsel for the defendant submitted a sum of $100,000 for a buffer for contingencies would be proper provision for Emanuele, also having regard to Ms Diaconu's competing claim.

Consideration - Enza and Emanuele's family provision claims

As children of the Deceased, Enza and Emanuele are eligible to apply for family provision orders (s 57(1)(c)). Their application was filed on 8 October 2019, within 12 months of the Deceased's death (s 58(2)).
As recorded at [5], Ms Diaconu conceded that the Will did not make adequate provision for the plaintiffs' proper maintenance, education or advancement in life (s 59(1)(c)). The question before the Court was therefore what provision should be made.
In what follows, I cross-reference the sub-paragraphs to the relevant provisions of s 60(2) of the Act setting out matters which may be taken into account by the Court: 1. Enza's relationship with the Deceased (s 60(2)(a)): Enza was the Deceased's daughter. They lived in the same household until she moved to Italy when she was around 25. After she moved overseas, they visited each other and kept in touch, albeit at times infrequently. They had a tempestuous relationship. They barely spoke in the last year of the Deceased's life. 2. Emanuele's relationship with the Deceased (s 60(2)(a)): Emanuele was the Deceased's son. Of the Deceased's children, he was closest to him over the course of his life. Emanuele lived relatively near the Deceased and for many years, visited him regularly. In the final years of the Deceased's life, they had a number of disagreements and eventually stopped speaking. 3. Any obligations the Deceased owed to Enza and Emanuele (s 60(2)(b)): Enza and Emanuele had been financially independent from the Deceased since they were in their 20s. 4. Obligations owed to Ms Diaconu as a beneficiary of the Estate (s 60(2)(b)): Ms Diaconu was the Deceased's wife of six years. She moved to Australia for the Deceased and cared for him in the last years of his life. 5. Nature and extent of the Estate (s 60(2)(c)): this is set out at [51]-[53] and [60] above. The Estate has assets of around $51,200. The Estate has outstanding debts for funeral and testamentary expenses. The main item that could be designated as notional estate is the Fairlawn Avenue Property, to which I return at [136] below. 6. Enza's financial resources and needs (s 60(2)(d)): these are set out at [70]-[73] above. 7. Emanuele's financial resources and needs (s 60(2)(d)): these are set out at [83] and [86]-[88] above. 8. Ms Diaconu's financial resources and needs as a beneficiary of the Estate (s 60(2)(d)): these are set out at [96]-[99] above. 9. In relation to Enza's claim, the financial circumstances of Enza's husband (s 60(2)(e)): these are set out at [70]-[73] above. In summary, Enza's husband is retired and in receipt of a government pension. He owns the couple's home, of which Enza would receive a half share if he pre-deceases her. He is in his late 70s. 10. In relation to Emanuele's claim, the financial circumstances of Ms Bevege (s 60(2)(e)): these are set out at [84]-[86] and [89] above. In summary, Ms Bevege is currently financially dependent on Emanuele. She expects to return to part-time work sometime in the near future. 11. The plaintiffs' ages (s 60(2(g)): Enza is 60 and Emanuele is 59. 12. Any contribution the plaintiffs made to the Estate and notional estate (s 60(2)(h)): the plaintiffs did not contribute to the acquisition of the Fairlawn Avenue Property, nor the Gilroy Road Property. 13. Provision the Deceased made for Enza during his lifetime and in the Will (s 60(2)(i)): the Deceased supported Enza financially until she began working full-time at around 23. Unlike his other two children, the Deceased did not assist Enza to buy property. Enza received $30,000 under the Will. 14. Provision the Deceased made for Emanuele during his lifetime and in the Will (s 60(2)(i)): the Deceased supported Emanuele financially until he finished his university studies. The Deceased provided Emanuele with funds to assist him in purchasing a home when he first married. Whether this was a loan or a gift was disputed (see [82] above). Emanuele received $15,000 under the Will. 15. The Deceased's testamentary intentions (s 60(2)(j)): the Deceased's testamentary intentions are recorded in the Will, the Statutory Declaration, the Eulogy Video and file notes from his meetings with solicitors (set out at [20] and [31] above). The Deceased intended Ms Diaconu to receive the Fairlawn Avenue Property, where she would be able live and run a boarding house for income. The Deceased did not want his children to receive the benefit of the Estate. The Deceased provided more for Enza under the Will than Emanuele and Giuseppina, in acknowledgement that unlike her siblings, he did not assist her to purchase property during his lifetime (see [31] above). 16. Enza's character and conduct before and after the Deceased's death (s 60(2)(m)): as has been recorded, Enza and the Deceased had a tempestuous relationship. Particular conduct to which attention was drawn during the hearing included the letters Enza wrote (described at [39] above) and that she returned the Deceased's funeral card. 17. Emanuele's character and conduct before and after the Deceased's death (s 60(2)(m)): as has been recorded, Emanuele and the Deceased had a good relationship for many years and saw each other regularly. Their relationship deteriorated in the Deceased's last years. After a falling out about the Will, they stopped speaking to each other.
The Court's jurisdiction under the Act is to be applied to consider a plaintiff's need and the Deceased's moral obligation to a plaintiff in the context of, at least and not limited to, the matters set out in s 60(2) of the Act.
I next consider two particular issues raised by the parties.
First, there is the plaintiffs' conduct and the nature of their relationships with the Deceased. The defendant submitted that Enza's moral claim on the Estate was reduced by factors including her difficult relationship with the Deceased throughout his life, the letters she wrote to relatives about his decision to leave the Estate to Ms Diaconu, her failure to contact the Deceased when he was dying, and the fact that she returned the Deceased's funeral card. In relation to Emanuele, the defendant highlighted factors including his disagreements with the Deceased and Ms Diaconu about the Will, their lack of contact in the final year of the Deceased's death, his failure to visit the Deceased in palliative care, and Emanuele's late attendance at the Deceased's funeral.
The Court concludes that it would be neither helpful nor possible to attempt to assign blame for the Deceased's difficult relationships with his children and their estrangement in the final year of his life. The challenges in their relationships were complex and dated from the time of Angela's death, if not before. It is clear from the Eulogy Video that the Deceased loved his children, and it is clear from the plaintiffs' evidence that they loved their father. Nevertheless, by reason of circumstances including temperament, misunderstandings, distance and difficulties accepting the other's life choices, the Deceased and the plaintiffs each inflicted significant hurts on the other that they were unable to overcome by the end of the Deceased's life. I respectfully adopt the comments of Hallen J in Armitage v Fraser and Holland J in Kleinig v Neal (No 2) set out at [105]-[106] above, that some disharmony, hurt and disappointment is unfortunately not uncommon in many family relationships. A just and wise parent testator would not overlook the needs of their children for that alone.
For this reason, the plaintiffs' conduct in this case was not of a kind or of sufficient gravity that it could be said to reduce the moral claim which they would otherwise have had on the Estate. However, the plaintiffs' claims must be assessed in light of the reality that in the final years of the Deceased's life, they had separate lives and minimal contact with him.
Enza, in addition, has made her life in Italy, far away from the Deceased. Ultimately, and without any criticism whatsoever, in circumstances where she led a life overseas independent of the Deceased, the Court finds that the Deceased's moral obligation to make provision for her very limited.
The second issue raised by the parties was Ms Diaconu's competing claim as the Deceased's widow and his carer at the end of his life. The plaintiffs did not dispute that Ms Diaconu provided significant care for the Deceased and had a legitimate claim on the Estate. However, in considering Ms Diaconu's competing claim, attention was given by the parties to the size and nature of the Estate and notional estate.
The Fairlawn Avenue Property is the asset out of which the Court could order provision for the plaintiffs. There was no dispute that the Deceased's half share as joint tenant of the Fairlawn Avenue Property was available to be designated as notional estate for the purpose of satisfying any order for provision the Court may make. However, the plaintiffs pressed a submission that the whole of the Fairlawn Avenue Property was available to be designated as notional estate. While the provision for which the plaintiffs claimed would not exceed the Deceased's half share, the plaintiffs contended that the size of the notional estate was an important factor to which the Court may have regard under s 60(2)(c).
For the purposes of considering the plaintiffs' family provision claims, I have assumed without deciding that the full value of the Fairlawn Avenue Property may be available as notional estate. Ultimately, while the size of the notional estate is a factor in the Court's consideration, also of importance is the nature of the property available to be designated as notional estate.
Counsel for the plaintiffs contended that Ms Diaconu would need to sell the Fairlawn Avenue Property regardless of the outcome of the proceedings, so the Court should primarily consider its monetary value in assessing the plaintiffs' claims. I do not accept that this was established on the evidence. The evidence was insufficient to allow the Court to conclude more than that Ms Diaconu presented a range of options which could plausibly enable her to retain the Fairlawn Avenue Property (see [95] above). Her capacity to retain the Fairlawn Avenue Property would depend primarily on the outcome of these proceedings.
The Court has therefore taken into account that the notional estate is the home in which Ms Diaconu lives, to which she has contributed her time and labour, is where she would like to remain if possible, and from which she intends to derive income. The Court has also taken into account that the Deceased expressed clearly, on multiple occasions, that his testamentary intention was for Ms Diaconu to receive the Fairlawn Avenue Property.
Considering the parties' submissions more generally, I have borne in mind the principles in relation to claims by adult children (set out at [103]-[104] above). While accepting that the plaintiffs do not need to show some special need, neither plaintiff is a claimant who has fallen on hard times. Both Enza and Emanuele have stable employment, modest financial reserves and secure accommodation, despite not owning their own homes. The Deceased provided Enza and Emanuele with a start in life, including by supporting them both to receive a university education.
Nevertheless, the Court is satisfied that the plaintiffs have some moral claim, albeit limited, to provision from the Estate by way of some general assistance in life that an adult child might expect from a wise and just parent testator where the size of the Estate, and other competing claims upon it, permit such assistance to be given. Their claim is limited by the matters identified in [122], [123] and [129], and is outweighed for the purpose of the exercise of the Court's discretion - the instinctive synthesis - by the faithful care provided by Ms Diaconu over six years of marriage, and the matters identified in [128].
Balancing the matters referred to in the preceding paragraph in the context of the various matters set out in [117], and not overlooking the size of the available notional estate, the Court has determined that provision should be ordered for Enza in the sum of $135,000 and for Emanuele in the sum of $100,000. This provision will be ordered instead of, not in addition to, the provision made in the Will.
In Enza's case, this accepts the defendant's concession that she could properly receive provision to enable her to carry out home repairs and maintenance, and to afford the dental work she requires. The Court accepts that it would be difficult for Enza to cover those expenses without reducing her pension contributions, at an age where she expects to retire in five to six years. Provision of these funds would ensure Enza is able to address her current needs while continuing to build her private pension as a buffer for her retirement. In reaching this conclusion, the Court has taken into account that the Deceased acknowledged that Enza received less financial assistance from him than her siblings over the course of his life, and that the Deceased chose to make greater provision for her in the Will accordingly. Finally, I record that while Enza's car is 10 years old, there was no evidence before the Court to suggest it was in need of immediate replacement. Enza and her husband also own a second car which is five years old. The Court is not satisfied that Enza has demonstrated a persuasive need for a new car which would warrant provision for that purpose being ordered.
In Emanuele's case, the Court's conclusion accepts the defendant's concession that a $100,000 buffer for contingencies would be proper provision for Emanuele. Emanuele was close to the Deceased over the course of his life, despite the breakdown in their relationship in the latter's final years. While Emanuele's current financial position is relatively comfortable, he is the primary income earner for his household of four. His financial position is helped by the accommodation arrangements he and Ms Bevege have in place with her father. Ms Bevege accepted in cross-examination that their home is fit for purpose, although in her view, "not ideal" (Tcpt, 9 June 2021, p 260(36-43)). There is no suggestion that those arrangements will come to an end other than by Emanuele and Ms Bevege buying their own home. Provision of a modest buffer would put Emanuele in a more secure financial position, should they chose to do so by using his $570,000 in cash.
However, the Court does not accept that the Deceased had a moral obligation to put Emanuele in a position to purchase his own home. There is no general principle that a parent testator has such an obligation and there are no features in the relationship between the Deceased and Emanuele, or in Emanuele's current circumstances, that would support such an obligation being found in this case. To the extent the Deceased had any obligation to assist Emanuele in purchasing a home, the Deceased had already fulfilled that obligation by assisting Emanuele as set out at [12] above.
Emanuele accepted that he could borrow up to $375,000 so that he and Ms Bevege would have $945,000 to purchase a home. The Court accepts that they wish to continue to live in Arcadia, but they have not demonstrated any persuasive need to do so if they were to leave their current home. The industry of the defendant's counsel was unable to find an example of a house in Arcadia for sale in that price range. However, if $945,000 does not permit them to buy in that area, the Court does not accept that Emanuele has any claim on the Estate to provide him with additional funds to make that wish a reality.

Consideration - Notional estate

The Estate is insufficient for the sum of provision to be ordered for the plaintiffs (s 88(b)). There was no dispute between the parties that at least half of the Fairlawn Avenue Property was available to be designated as notional estate. As that half share far exceeds the provision to be ordered, there is no need for the Court to consider whether the Fairlawn Avenue Property should be designated as notional estate in its entirety.
Counsel for Ms Diaconu highlighted that the Court must not make a notional estate order unless it has considered the substantial justice and merits involved in making the order (s 87(b)). Counsel emphasised that Ms Diaconu lives in the Fairlawn Avenue Property, wants to remain there, is gradually working on completing the home and has plans to support herself with income from lodgers.
As set out at [128] above, the Court also took these factors into account in determining the sum of the legacy to be ordered for the plaintiffs, given that the Fairlawn Avenue Property is the principal asset out of which provision could be made. In those circumstances, the justice and merits of this case will be met by the Court making a notional estate order designating so much of the Fairlawn Avenue Property as is necessary to satisfy the plaintiffs' legacy, but without making an order requiring the defendant to sell the Fairlawn Avenue Property. The defendant should be given a reasonable time to make her own decision about how to finance the payment of the plaintiffs' legacy, including whether or not to sell the Fairlawn Avenue Property.

Conclusion

The parties will be given an opportunity to agree on short minutes of order to give effect to these reasons and as to costs.

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: 20 September 2021

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