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[2026] NSWSC 1127
Supreme Court of NSW
2026-09-17
Hammerschlag CJ in Eq
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Freeman v Freeman [2026] NSWSC 1127
Hearing dates: 2, 3 September 2026
Date of orders: 17 September 2026
Decision date: 17 September 2026
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Hammerschlag CJ in Eq
Decision: (1) The Plaintiff’s claim is dismissed.
(2) Provisionally, the Plaintiff is to pay the Defendant’s costs. This order will solidify seven days after today’s date unless either party has notified my Associate and the other party in writing that some other order is sought, specifying the order and providing brief grounds supporting it, in which event, the order will not take effect and I will hear the parties on costs.
Catchwords: SUCCESSION — Succession Act 2006 (NSW), Ch 3, ss 59-60, 100 — family provision — claim by 76 year old adult child for provision of $90,000 from his deceased father’s estate — Plaintiff’s party-party costs are approximately double the claim — the deceased left his house to another child (the Defendant) who had singlehandedly cared for him and who has lived there all his life — the will is accompanied by a written statement by the deceased explaining why he did so, being that the Defendant is on a disability pension and has otherwise devoted himself to looking after his parents and has not had the opportunity to acquire assets of any substance and where the deceased feels that his other children (including the Plaintiff) have established themselves in life and to varying degrees are in a reasonably comfortable financial position — where the Plaintiff claims that he is penurious and homeless and is presently sleeping on a mattress at his first ex-wife’s house — he has spent a significant amount of time living in Thailand, where he uses only cash — where he made no contribution to his father’s welfare or the estate — he seeks provision to enable him to pay rent for a residence in Victoria for the rest of his life but where the provision amounts only to two years of rent and the Court is not satisfied that he genuinely intends to live permanently either in Australia or in Victoria — he claims medical expenses for private healthcare but does not establish that he cannot obtain it in the public system and is unable to assist the Court in quantifying this claim — he claims provision for a motor car and he already has one in Thailand — HELD — claim dismissed — claim for rental is a contrivance — claim for private medical care is made where there is no suggestion that public medical care is not available — contingency claim not justified — Court not satisfied either that inadequate provision has been made for the Plaintiff or that the provision he seeks (or for that matter, any other provision) should be made
Legislation Cited: Succession Act 2006 (NSW), ss 59-60, 100
Cases Cited: Camernik v Reholc [2012] NSWSC 1537
Singer v Berghouse (No 2) (1994) 181 CLR 201
Smith v Johnson [2015] NSWCA 297
Category: Principal judgment
Parties: John Allan Freeman (Plaintiff)
Mark Andrew Freeman (Defendant)
Representation: Counsel:
P Bates (Plaintiff)
L Ellison SC (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Maclarens Lawyers (Defendant)
File Number(s): 2025/00140121
Publication restriction: Nil
This family provision claim is for $90,000. It was heard over two days. There had earlier been an unsuccessful court-annexed mediation. The Plaintiff (John) read 11 affidavits (six of his own) plus two expert reports, one by a specialist ophthalmologist (Dr Wechsler) and another by a mortgage broker familiar with reverse mortgages (Mr Vartanian). The Defendant (Mark) read nine affidavits (five of his own).
John’s lawyers were retained on a no win no fee basis, with provision for a 25% success uplift. Their estimated party-party costs (including disbursements) to the end of the hearing are $172,569 (which they have agreed to cap at $170,900). Their solicitor-client bill would be $197,685 excluding the uplift, and $223,625 with it. That is, their party-party costs are nearly double the amount at stake and their solicitor-client costs are more than double as much. They have now waived any uplift entitlement.
John avows to be penurious. Whether true or not, on the face of things, he is presently in no position to pay anything vaguely like the legal costs that have been incurred by him, or for that matter, which have been incurred by Mark.
For his part, Mark has already paid his lawyers over $50,000 (most, if not all, of his savings). His lawyers have told the Court that they will not charge him any more.
Thus, John has brought a case where he has no real risk of having to pay either his own or Mark’s costs, whereas Mark has been put to defend it entirely at his own economic risk.
With monotonous regularity, the Court must deal with family provision claims where any positive result the claimant might achieve is dwarfed by the claimant’s legal costs and there is an expectation that legal costs, or a material portion of them, will be paid out of the estate because the claimant cannot afford them. [1]
For reasons which follow, I have concluded that John’s claim is without merit.
Family provision applications frequently follow a familiar pattern. A partly or wholly disinherited child of the deceased makes a claim on the estate of their late parent saying they had a wonderful, close and loving relationship with the deceased, to whom they were devoted and with whom they spent much time. The principal resisting child of the deceased, who lived with and took care of the deceased, disputes what their sibling says. The resisting child says their brother or sister (as the case may be) lived their own separate life and seldom visited or helped the deceased and they did not (contrary to what they say) have a close relationship with their parent. Regularly there is a question as to whether the deceased parent was invited to a wedding or birthday or some other occasion of the claimant child. In some cases (not this one), to counter the fact that their sibling alone looked after their parent, the claimant asserts that their sibling kept the deceased captive, but for which they would have done more. Sometimes what the claimant says is correct and sometimes what the resisting party says is correct. Exaggeration or minimisation on one or both sides is not uncommon. In the end, usually the contemporaneous objective material, of which there is not very much, is decisive.
This case broadly follows the pattern, but here, the resisting child (Mark) who alone cared for the parent, is to be believed, whereas the protestations of the claimant child (John) of his closeness to his father, were not convincing in the least.
Kenneth Vivian Freeman (the Deceased or father) passed away on 17 May 2024 aged 98 years. He left a will dated 7 February 2011 (the Will) and an estate worth a little over $1.3 million, almost all of which is a house at 56 Carrington Street, Revesby, New South Wales (the House). He also left a 2000 Toyota Camry, some shares and some cash. The shares and cash were enough to pay for estate administration and funeral expenses. The value of the House is agreed at $1.3 million.
The Deceased married Elsie Ellen Freeman (Elsie), who passed away on 2 July 2010. They were married for 66 years and had five children:
Carol (now 81);
Kenneth (now deceased);
John (now 76);
Robyn (now 74); and
Mark (now 63, born 14 March 1963).
First names are used in these reasons. No disrespect is intended.
The Deceased retired in about 1990. In addition to having worked as a fireman, he worked as an insurance salesman and a ganger at Bankstown Council.
I APPOINT my son MARK ANDREW FREEMAN as Executor of this my Will and I GIVE the whole of my estate unto my said son for his own use and benefit absolutely.
STATEMENT
I, Kenneth Vivian Freeman have given careful thought to how I wish my estate to be disposed of after my death.
I have five children namely, Carol, Kenneth, John, Robyn and Mark and I love all of my children equally.
My son Mark has lived with me for his whole life and has been the carer for myself and for my wife Elsie until her recent death. Mark is on a disability pension and because he has been unable to work, and has otherwise devoted himself to looking after his parents, he has not had the opportunity of acquiring assets of any substance. I am concerned that after my death he will not have a place to live and it is therefore my firm intention that I wish my whole estate to go to the benefit of my son Mark. I have given very careful thought to this question before making my decision.
I feel that my other children Carol, Kenneth John and Robyn have all established themselves in life and to varying degrees are in a reasonably comfortable financial position.
My first Will was made on 9 March 2009 and therein I provided that my whole estate was to go to my son Mark. This Will has been revoked by my current Will of even date with this statement and has been prepared with the benefit of legal advice from my solicitor particularly in relation to the Family Provision legislation now contained within the Succession Act 2006. The size and nature of my estate mean that I cannot adequately provide for my son Mark if I make any, or any significant provision for my other children. I have very carefully considered the contents of my Will and its effect before I have signed it. I love all my children and want them to respect my wishes expressed in my will.
Probate of the Will was granted to Mark on 30 September 2024.
In two handwritten letters by the Deceased, dated respectively 5 October and 28 October 2017, both witnessed by an acquaintance Roger Gallagher, the Deceased exhorted his daughter Robyn to regard his last wishes that Mark have the House which has been willed to him (he apparently thought she might challenge his Will). The later letter referred to statements made by one of his granddaughters that the Deceased required care and that Mark would not “let him leave as then MARK would be homeless”. The Deceased disputed this, referring to Mark as caring for his wellbeing.
As I have mentioned, the only significant estate asset is the House, which is unencumbered. The Deceased built it. There was some irrelevant debate as to whether it has two or three bedrooms.
John also claimed that Elsie had “amassed hundreds of small antiques and collectables” which are valuable and remain in the family home, including Royal Doulton figurines and crockery including limited editions, vintage plates, sterling silver snuff boxes and antique women’s vanity boxes with brushes and combs. Hundreds is a big number. Mark responded to this assertion, providing photographs of the items purchased by Elsie as mementos. There was one Royal Doulton plate, a few metal boxes and one vanity box. He could not locate hundreds of items.
John has now accepted that what Elsie left is of no commercial value, but why he made the exaggerated assertion is tolerably clear. If she had left anything of value, provision might have been made out of it without having to resort to the House. Sentiment has little role to play in this kind of dispute.
John was born on 15 October 1949, so he is about to turn 77.
John married Stephenie (Stephenie) in 1969. They have four children: Kylie (born 21 August 1970), Matthew (born 6 February 1975), Timothy (born 7 February 1979) and Stephen (born 22 February 1982).
Kylie is married to Stewart, a software engineer. They live near Kellyville, New South Wales. They rent. Matthew is a window cleaner. He lives with Stephenie. Timothy is a carpenter/builder/engineer and teacher at Tafe. He lives at Warrnambool, Victoria (which is about a 3-hour drive south-west of Melbourne). His wife works in her parents’ family business which teaches about restaurants and how to run them. They own their house. Stephen lives on the New South Wales Central Coast. He too is a window cleaner. His wife works at the University of Sydney.
John did not, in his affidavit evidence, provide any information as to the financial circumstances of any of his children or disclose (as is the fact) that he has from time to time received assistance from Timothy, apart from $1,000 sent by Timothy to help him pay for emergency medical treatment in Thailand when he apparently experienced a blockage of his urethra.
After they married, John and Stephenie lived for about four years in a detached cottage in the back yard of the House (which cottage Mark says is now dilapidated). Mark referred to it as a shed. The cottage was built by the Deceased to live in while the House was being built.
In 1983, John and Stephenie moved to Victoria. According to John, while he was living in Victoria he continued to work as a fireman in Sydney.
John maintains that he had a close, loving relationship with the Deceased which continued after he moved to Victoria in 1983. He returned to Sydney in around 1987.
In 2000, John and Stephenie separated. John was unfaithful but, according to Stephenie, they separated on mutual and amicable terms. They divorced in 2001. John says his father was there to console him and help him navigate the separation. Apparently now, John and Stephenie are good friends. He says that she is presently putting him up but that she does not want him to live there. He is sleeping on a mattress on the floor at her home. He pays board. Stephenie provided an affidavit in support of John’s claim.
In 2006, John married Kris. His father was not at their “small intimate garden wedding”, John says, for health reasons. John says that the rest of his family were there. But Mark says that their father was well enough to go (he drove a car until 2010) and that his mother was still alive and could have gone too, but he recalls no invitation. It is not in dispute that Mark was not there. I believe Mark. Some corroboration for his version is to be found in the fact that Mark has never met Kris. John never brought her to the House when Mark was there. John’s relationship with Kris was short-lived and they divorced in about 2010. There is no evidence that the Deceased ever met her.
Mark is 63. He is the youngest of the Deceased’s progeny. He has lived in the House since he was born.
Mark’s social network is centred around Revesby. He was president of the Canterbury Bankstown Leagues Club Photography Club.
Mark is not in the best of health. He has severe asthma, depression, anxiety, bladder and prostate disease, diverticulitis, androgen deficiency and osteoporosis with spinal fractures. There is a medical certificate dated 23 October 2024 from his general practitioner, Dr Odysseas Missiakos, confirming this. None of these ailments are immediately life threatening.
Mark’s actuarial life expectancy is 23 years.
Mark, together with his father, looked after his mother until she died and in later years, he singlehandedly looked after his father. So much is established by the Statement and one of the Deceased’s later letters. Mark gave detailed, unchallenged evidence of his care for his mother and father. A letter from Dr Missiakos dated 8 August 2025 supports this. As does a letter from HammondCare, an independent Christian charity which provided services to the Deceased from 2015 until he died. John made no contribution in this regard.
Mark says that, on one trip to Sydney, John asked the Deceased if he could stay for a few days, but ended up staying for much longer, during which time he contributed nothing towards expenses. According to Mark (although disputed by John), John expected to be fed and cared for by Mark. Mark says that the Deceased asked John to leave. I believe him. There is a text message exchange between John and Mark dated 19 April 2014 which provides some support for Mark’s version.
Mark says, contrary to what John says, that his father did not have a close relationship with his grandchildren, most of whom he never met.
John seeks an order pursuant to the Succession Act 2006 (NSW) (the Act) that provision be made for him for his maintenance, education and advancement in life from his father’s estate.
When counsel for John opened the case, he restricted John’s claim to $90,000.
John argues that the terms of the Will and what the Deceased said to the effect, so far as it applies to him, that he had established himself in life and was in a reasonably comfortable financial position, was misconceived because, as it happens, he is not in a reasonably comfortable financial position. He argues that had his father known the true facts, he would have made provision for him in the Will. John argues that things must be evaluated in light of the full facts known to the Court at final hearing. Those facts, he argues, are that he is destitute, impecunious and homeless and has significant medical needs, especially with respect to his eyesight and for urology management.
At the beginning of the hearing, I asked for assistance from counsel for John as to how the claimed provision of $90,000 is arrived at. This is what I was given:
rental assistance: $50,000;
medical treatment: $20,000; and
contingencies: $20,000.
References to sections are to sections of the Act.
Under ss 59(1) and (2), the Court may, if it considers that adequate provision for the proper maintenance, education or advancement in life of an eligible person (of which John is one) has not been made by the will of the deceased, make an order for such provision out of the estate.
Section 60(2) identifies a series of matters to which the Court may have regard in determining whether to make such an order. The following are relevant to this case:
(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…,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…,
…
(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,
…
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
…
(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.
Neither counsel took the Court to any particular subsection in s 60(2).
Sections 100(1) and (2) provide:
(1) In this section—
statement includes any representation of fact whether or not in writing.
(2) In any proceedings under this Chapter, evidence of a statement made by a deceased person is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible.
John was an unimpressive, unpersuasive and unconvincing witness.
He was keen to paint a rosy picture of the closeness of his relationship with his father, when the reality is that he seldom visited him. A significant feature of the uncontested facts which undermines John is that, from 2014, he effectively lived in Thailand and found a partner there. He frequently travelled between Thailand and Australia but only seldom visited his father. His travel is also inimical to his claim of destitution. He still has a car in Thailand and over the last two years has been there, it seems, at least four times.
John gave unpersuasive evidence of an intention now to live in Australia and, in particular, implausibly, in Warrnambool, Victoria.
He gave contradictory evidence about his motor cars.
He gave implausible evidence that his father did not know that Toi was ill and that he kept that fact from him.
He asserted that his mother left a valuable collection of “hundreds” of antiques, which was not true. There were not hundreds, and what was left was of no commercial value.
John’s avowed intention is now to live permanently in Warrnambool, near Timothy. On this basis, he makes a claim that there should be provision for his rental of a one-bedroom apartment in Warrnambool for the rest of his life. [6]
On the medium life expectancy actuarial tables, John’s life expectancy is 12 years. I leave out of account the fact that his father lived to be close to 100.
The claim for provision for rental is a contrivance.
First, the amount claimed bears no discernible relationship to the articulated basis for the claim.
A late affidavit (not objected to on behalf of Mark) by John’s solicitor adduced results of internet searches for rental premises (with pictures) in Warrnambool. It also recounted a hearsay telephone conversation between John’s solicitors and a real estate agent in Warrnambool.
Annexed to the affidavit is an email from a real estate agent saying that one-bedroom properties are extremely difficult to secure in Warrnambool. That particular agent has no such rentals available. The internet search results identify, however, houses (including large double storey ones) to rent for up to $850/week. There is one listing of a two-bedroom residence at $550/week. The agent says that rental for two-bedroom properties can vary, and they currently rent for between $430-$460/week. There is no basis upon which John, even if he were otherwise deserving, should be provided with a two or three bedroom residence. In Thailand he lives in one room, he says.
Counsel’s first explanation for the $50,000 figure was that it is “$430/week for 12 years”. But this is arithmetically wrong and results not in $50,000, but $268,320 (undiscounted). At this stated rental rate, $50,000 (undiscounted) would last for barely two years.
In additional written closing submissions, John changed position.
It was ultimately put that the calculation used $430/week “for 116 weeks in accordance with Annexure C” to the solicitor’s affidavit. This is a reference to the rental figure of $430-$460/week in the real estate agent’s email. That email says nothing of 116 weeks. 116 weeks has obviously been arrived at by taking a pre-selected claim of $50,000 and dividing it by $430 to yield a number of weeks.
The $50,000 figure was plainly plucked out of the air. Motivating a claim on this basis is, or borders on, unethical. This approach lacks the candour which is expected of parties, and for that matter practitioners, in these cases.
Second, Warrnambool does not have one-bedroom accommodation, with which, according to counsel for John, he would be satisfied.
Third, when John goes to Thailand, he pays rent of $50/week and he still has a car there. He could live comfortably on his pension in that country. Yet he eschews any intention of going back. It was submitted on behalf of Mark that the Court could not be satisfied that John would use the money for rental in Australia and he might use it to go off to Thailand and live at $50/week and he has a history of going there, “[a]s long as he comes back every so often to renew his pension.” There is force in this submission. I am unpersuaded that John has any genuine intention of living permanently in Australia, and even less in Warrnambool, Victoria. To the extent that he says he does, I disbelieve him.
The rental claim was limited to $50K by way of acknowledgement that the distributable estate of $1.3 million dollars is not large enough to provide full provision for the rest of the Plaintiff’s medium life expectancy; the Plaintiff reaches 77 years of age next month on 15th October and then has life expectancy of 12 years to age 89.
and the following submission by counsel for John: [7]
If this was a bigger estate obviously he would be seeking more than - we’ve come to this Court realistically. We’ve given you the life tables. We know that this is not provision for this man’s life, but we’ve been realistic. We’ve looked at an estate of $1.3 million and we’ve come to this Court and laid our cards out very candidly to the Court and to my friend and we’ve been sensible and realistic and that’s what we’ve asked for because that’s reasonable in the circumstances. That’s the reason. He should have that and, yes, he at least has dignity and respect and while he’s here in Sydney waiting for his other surgeries and things.
This claim is predicated on the unestablished assumption that John cannot obtain the necessary medical care in this country within the public system. A number of pejorative observations about the public system were made by counsel for John, without any evidentiary basis. In my view, there is no legitimate basis upon which provision should be made out of this estate for private medical care where it has not been established that public care is not available. John is eligible for treatment in Australia even if he comes back from Thailand temporarily to get it.
Counsel for John’s attempt at an explanation of how the medical claim is made up did not fare any better than did his attempt to explain the rental amount.
Dr Wechsler’s report contains price ranges for various procedures and items.
However, counsel was unable to explain how the figure claimed was arrived at, despite the Court repeatedly asking.
I am satisfied that the round figure of $20,000 was, like the rental claim, plucked out of the air and adopted as an ambit claim without any discernible reference to the figures provided in that report. During submissions there was an attempt to “reverse engineer” the contents of Dr Wechsler’s report to achieve a $20,000 outcome. Again, this approach lacks the candour which is expected of parties, and practitioners, in these cases. It is, or borders on, unethical.
Additionally, previously Timothy has assisted John with payment of his medical care and one might infer that he will do so again, if called on.
John has a motor car in Thailand. If he goes back there, he has a car. If he does not go back there, he can sell it and buy one in Australia. He says that he needs a car to go to medical appointments. But on one of his versions, he has not had a car for two years and it is not suggested that he never got to his medical appointments. He did not suggest that public transport was not available or that Stephenie or one of his children could not take him.
A contingency provision was otherwise not justified.
It is not in dispute that the only asset out of which provision could be made is the House. It is not suggested that Mark’s living there should be put at risk by any relief which John might obtain.
For any provision to be made, the only realistic source of funds is for Mark to borrow money on the strength of what is commonly referred to as a “reverse mortgage”. Mark could not afford to make interest repayments on a conventional mortgage.
John argues that Mark should be required to enter into a reverse mortgage.
Mr Vartanian provided an expert report dated 2 April 2026. He was cross-examined briefly and was a credible witness. He displayed an understandable keenness in favour of the product.
A reverse mortgage is a loan secured by first mortgage over real property, without a requirement to make regular repayments to the mortgagee. The interest is capitalised and the loan, together with interest, is repaid when the borrower sells the property, permanently vacates it or dies. This type of facility is often offered by financial institutions, not usually major banks, which have banking licences.
Typically, the lender cannot recover more than that for which the property ultimately sells. Mr Vartanian did not provide an example of a comprehensive set of terms and conditions, for example, a registered Memorandum, which would apply. I can readily understand a lender being restricted to recovering the sale price obtained if it sells the property under the mortgage. What would be the position if the owner sells it at what the mortgagee might regard as an undervalue was not explained.
Mr Vartanian opined that at age 60, borrowers may typically access 20% of the property value, and that at his age, Mark could borrow approximately 23% of the value of the House. This would be subject to lender policy, which was not particularised.
Understandably, the interest rate typically charged on a reverse mortgage is significantly higher than standard bank mortgage rates, it seems, by about 25%. Current first mortgage rates are about 6% per annum. The interest rate if Mark borrowed the maximum amount (which would not be required to fund $90,000) would be 8.7% per annum, about a 30% increase of the usual bank mortgage rate. Mr Vartanian says that, based on a loan of $100,000, in 23 years’ time, Mark would owe $677,000. That is, more than half the present equity in the House. If he lived longer, the amount would be higher. In those circumstances, that increase is a certainty. The value of the House may increase, but that is no certainty.
The primary financial impact of such an arrangement is to reduce the equity in the House over time, thereby reducing the value of Mark’s asset available (potentially to nil) to him to be used, should he need it, or for the benefit of his own beneficiaries should he die.
…where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent 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.
In John’s case, I do not consider that the community would have expected his father to have provided any buffer for him. I am not satisfied that he has been unable to accumulate superannuation, make other provision for his retirement or that he is destitute.
If John’s father was mistaken about his financial wellbeing, that was John’s own doing. The following revealing exchange occurred between counsel for John and Mark: [8]
Q. You know that John doesn't actually have any home that he owns in Australia?
A. No, but that's - to me, in my view, it's his own doing.
Taking into account all relevant matters, this is not a case where provision should be made out of the estate. The relevant matters are:
John’s financial position (or rather what of his financial position has been disclosed) and his other personal circumstances;
the totality of the relationship between John and his father, including his lack of contribution to his father’s welfare;
the totality of the relationship between Mark and his father, including the fact that Mark was his sole carer for a long time;
the fact that Mark has a legitimate claim upon their father’s bounty as reflected not only in his relationship with his father, but in accordance with the Will and the Statement;
the personal circumstances of Mark, including his life expectancy;
the prospects of John obtaining assistance from his children;
the size and nature of the estate;
the terms of the Will and the Statement; and
the nature and consequences of the provision sought.
The Court is not satisfied either that inadequate provision has been made for John or that the provision he seeks (or for that matter, any other provision) should be made.
I leave aside the various instances of John’s lack of full and candid disclosure.
The power of the Court under the Act to make provision is wide and its exercise can have far-reaching implications, including by bringing about departure from a testator’s clearly expressed wishes. This power is to be exercised in a principled way in accordance with the provisions of the Act as construed and applied by the Courts. It would be contrary to principle to order some or other provision simply because an estate can afford it or because its effects will not be felt much by the persons whom it adversely effects. This appears to be the basis upon which cases are regularly brought in this jurisdiction. The Court must, on a principled basis, conclude both that inadequate provision has been made and that provision should be made: Singer v Berghouse (No 2) (1994) 181 CLR 201.
I make the following orders:
The Plaintiff’s claim is dismissed.
Provisionally, the Plaintiff is to pay the Defendant’s costs. This order will solidify seven days after today’s date unless either party has notified my Associate and the other party in writing that some other order is sought, specifying the order and providing brief grounds supporting it, in which event, the order will not take effect and I will hear the parties on costs.
**********
Tcpt, 2 September 2026, p 21(19)-(25).
Tcpt, 2 September 2026, p 33(5)-(7).
Tcpt, 2 September 2026, p 47(29)-(30).
Automated Teller Machines.
This causes fingers to bend towards the palm of the hand.
Tcpt, 2 September 2026, p 2(38)-(40).
Tcpt, 3 September 2026, p 115(21)-(29).
Tcpt, 2 September 2026, p 80(48)-(50).
Freeman
Freeman
Nevertheless, John maintains that his relationship with the Deceased continued to be happy, healthy, loving and close. The few smiling photographs on special occasions tendered by John do not prove this.
In his first affidavit, John said that his mother passed away in about 2006. He got that wrong. It was 2010. Perhaps this reveals something of the nature of his relationship with his parents. He says that after Elsie’s passing, his father’s personality changed somewhat. John says his father became withdrawn and isolated himself at home with Mark.
John retired at age 65 in 2014 and has been on the Age Pension ever since. Before he retired, John owned a cleaning business which he sold. He did not say why he sold it or provide any details of what he got for it, apart from saying that it was a small business. John had fire brigade superannuation but, to use his words, “[u]nfortunately…cashed [it] in 1983.”
John says that in about 2014, he “found himself” in a very precarious financial position and was forced to sell his home to cover the costs of various tax bills and his divorce. He disclosed no details of how he accumulated those tax bills (which must have been generated from income earned) or what he did with the money which generated that liability. He gave no details of the divorce settlement or what he got out of it. He gave no evidence of how he came to have nothing.
John maintains that he “found himself” homeless, on a pension and “resorted” to travelling to Thailand where the cost of living was significantly lower than in Australia. He says that this also made it more difficult to visit the Deceased regularly. Whether that made it difficult or not, I am satisfied that he did not visit his father much.
John says that he resisted telling his father about his precarious financial circumstances because he would have been badly affected by bad news and he did not want this to affect his father’s health.
John says that he would continue to come back to Australia regularly to visit his father (despite his evidence that it was difficult). I do not believe him. Mark says that John seldom visited, then mostly only on birthdays and that he was the brother “living in Thailand”. I believe Mark.
A more rational explanation for John’s return trips, consistent with other facts in this case, is that he returned because of Thailand’s visa requirements or to protect his pension entitlements in this country.
In Thailand, John began a relationship with a lady (his description) named Toi.
Although Toi was seriously ill at the time, John did travel to Australia for his father’s 98th birthday celebration on 21 March 2024. In April 2024, Toi died of lung cancer. John says that he never told his father about Toi’s illness because Mark asked him not to, because their father had met Toi and liked her very much. The difficulty with this is that there was a video call with Toi from her hospital room during the birthday celebration from which it must have been obvious to the Deceased that she was ill. John also says that he did not tell his father of Toi’s passing because he did not want this to affect his overall mental and emotional health. If this were true, for the Deceased, who is said to have liked Toi very much, Toi would have simply disappeared without trace.
It was repeatedly put on John’s behalf that his father loved him and was concerned for his welfare. This being the case, had John been in a sufficiently precarious financial position, he could no doubt have turned to his father for money. I am unpersuaded that John was motivated in his non-disclosures by a desire to protect his father from bad news.
In these proceedings (apart from brief cross-examination which revealed that he walks, meets friends and sometimes has a beer), John disclosed almost nothing of his life in Thailand, such as where, with whom (when he was not living with Toi – if he indeed lived with her) and how he lived (or lives). He disclosed nothing about whether Toi left anything, or what her financial circumstances were. What John did disclose was that he still has a motor car in Thailand but says it is unregistered and needs work. John says that he has been unable to sell it but gave no evidence of any attempts to do so. He still pays for parking it. John’s bank statement for March 2025 shows that he received $350 from Ross Trevethan (a friend, he says) for a new clutch. It is not clear whether this was for his Thailand car or his Australian car. He gave contradictory evidence about his Australian car. He first said that he has not had a car in Australia for about two years. [2] Then he said that he last had a car in Australia six months ago. [3] If his first answer is true, this money was for his Thailand car. If his second answer is true, the money could have been spent on his Australian car, in which event, at that time he would have owned two cars, hardly a symptom of penury.
One feature of John’s life in Thailand is that he uses only cash there. His motivation for this was not revealed. But it means that his expenditure in Thailand cannot be traced. He transfers money from his bank account in Australia with the Commonwealth Bank to a banking service called Wise Australia, which enables him to withdraw cash from ATMs [4] in Thailand. The evidence only shows transfers to Wise Australia. He did not produce his Wise Australia account (maybe he was not asked to). What other moneys may go into that account, if any, is unknown to the Court. He has made transfers directly from his Commonwealth Bank account for airline tickets, hotels and the like.
In an affidavit dated 26 May 2025, John said “I currently live between Sydney and Thailand.” Perhaps this has changed. He now apparently wishes provision to be made from the estate to enable him to rent in Warrnambool for the rest of his life.
Despite having “no money”, John travelled to Thailand in April 2026 to honour Toi’s memory and reconnect with her family. He was there for nearly two months. He also travelled to Thailand at least twice in 2025 and, for visa reasons, says he visited Vietnam for about seven days in December 2025.
John says that he has various medical conditions and ailments including Duprey’s Contraction, [5] constricted urethra, glaucoma and cataracts, high blood pressure and thickening of the spine. Apart from Dr Wechsler’s report, the Court was not taken to any medical evidence to support his statements as to his current state of health. Although John says that he needs a catheter to urinate, Mark gave unchallenged evidence that some years ago John told him that he had a severe urinary tract infection and that after it was properly treated, he no longer needed to use a catheter. There is in evidence a text message dated December 2023 in which John says “…I’m getting better with my problem with right antibiotics now peeing ok again...Yes I had bad ecoli infection blocks the urethra n prostate”.
In the same affidavit, John says that he is currently homeless and staying at the homes of various family and friends who will let him temporarily stay with them.
In this context, I record that it was put to John that he is still eligible for a retirement visa in Thailand (which he previously had). His response was that he could not apply for a fresh retirement visa because he could not afford it because it used to cost a couple of hundred dollars but now it costs $3,000. This was the only hurdle he identified. I am unpersuaded that he is unable to afford this, given his expenditure on travel.
Fourth, this is manifestly no more than an ambit claim brought because there is an estate to which recourse might be had. I am fortified in this conclusion both by paragraph [4] of John’s written additional closing submissions which state:
The existence of a reverse mortgage in favour of a mortgagee would affect Mark’s ability to borrow on the House in case of need.
Mr Vartanian candidly made the point that accessing equity and gifting funds may impact government benefits, including pension entitlements, and that they should be assessed independently. The Court was not favoured with any assistance on whether this is an issue in this case.
In summary then:
Mark would have to borrow at a materially higher interest rate than the current bank mortgage rate;
the equity in the House would be eroded and the erosion would increase as Mark got older and therefore more needy;
the provision sought has the capacity to undermine, perhaps profoundly, the provision which his father willed Mark should have; and
the submissions on behalf of John did not extend to what form an order would take which entailed a reverse mortgage by Mark, especially the specific terms upon which he would have to encumber the House.
Even had John persuaded me that any component of his claim otherwise had merit, I would not order provision in his favour where Mark must reverse mortgage the House. Apart from anything else, this would be to ride roughshod over the wishes of the testator, his father. I record that I do not accept John’s submission that if he was indeed penurious or that his father had known it, he would have made provision under the Will for John, to the detriment of the provision he clearly and specifically made for Mark, the son who singlehandedly cared for him in his later years.
There is no evidence that John provided any care or assistance for his father or made any contribution to his welfare. He made no contribution to the acquisition, conservation or improvement of the estate. Indeed, there is evidence which satisfies me that he took advantage of his father.
Counsel for John referred to the following passage from Camernik v Reholc [2012] NSWSC 1537 at [159] (Hallen J) (incorrectly said by counsel to have come from Smith v Johnson [2015] NSWCA 297 at [62], where it was subsequently referred to):
The Exhibits are to be returned.