Garcia Arenas v Fica; Crosby v Fica

Factual findings

1. Each of Susana and Gemma swore affidavits in support of her claim, and was cross-examined. An affidavit was sworn by Olga in support of Dasha's claim and she was not cross-examined. In the defence case, Mr Fica was briefly cross-examined and Lilly also swore a number of affidavits on which she was cross-examined.
2. Counsel for the parties adopted a generally economical approach to cross-examination. Counsel's approach, if I may say so with respect, was sensible and appropriate. However, it left some conflicts in the evidence which I have not been able to resolve.

Deceased's family relationships

1. The evidence in the proceedings concerning the deceased's family life mainly came from Susana. She said that the deceased's first wife, Esperanza, was diagnosed with cancer in 1989. The marriage was by then unhappy. When Esperanza's treatment was completed and the time came for her to leave hospital, she decided not to return to the family home but instead moved to a women's refuge elsewhere in western Sydney. The deceased, who was then 37, remained in the family home with the children; at that stage Ricardo would have been about 16, Susana 15, Gemma 13 and Pepsi 11.
2. Susana said that Esperanza returned to the family home on a trial basis about two years later. Esperanza remained unhappy in the marriage and subsequently decided to leave again. She moved to a rental house a few suburbs away where she was joined by Ricardo and Pepsi who, according to Susana, assisted with the rental payments. By this stage, Gemma had moved out of the family home. It is unclear exactly when this happened. Susana placed it at some point after she left school (at the end of 1992). But it may have been later because at that stage Gemma would have been only 16, which would be very young to have moved out of home on her own. Pepsi would have been only about 14 which would be too young to be helping with rent payments, but perhaps only Ricardo was helping with them at that stage.
3. Susana said that she herself left her home in about 1993. In about 1994, the deceased's relationship with Anna, who was to become his second wife, began. Subsequently, he, or they, bought a property at Glendenning in outer western Sydney and they moved in together to live there. The deceased and Anna had no children together but Anna had three children from a previous marriage who lived with them at the Glendenning property.
4. Susana went overseas to live in 1996. She said that the Glendenning property was purchased after she left. She returned from living overseas in late 1999 intending to live at Bondi with a friend. But, quite unexpectedly, she was diagnosed with cervical cancer and had to undergo radical surgery. Instead of moving to Bondi and taking up a job she had organised, when discharged from hospital she moved to the Glendenning property to convalesce.
5. The deceased and Anna married in 2001 but their marriage broke up a year or so later, although they were to remain friends. It seems that by the time of the break-up, Susana had moved out again.
6. Olga's evidence was that she first met the deceased in September 2001. She was then living in a Housing Commission unit at Westmead. The deceased was still married to Anna but their marriage was under strain. The deceased and Olga began a sexual relationship and the deceased lived for a time with Olga in the Westmead unit. He then went back to Anna but maintained contact with Olga. Anna moved out of the Glendenning property and the deceased would stay with Olga at Westmead during the week and at the Glendenning property on the weekends. Dasha would have been conceived in around March 2003. In April, Olga realised she was pregnant. The deceased was unhappy about this but Olga decided to keep the baby. Soon afterwards, Olga concluded that the deceased was cheating on her and stopped seeing him.
7. Dasha was born on 17 December 2003. The deceased visited Olga in hospital and at home after their discharge. He started living at the Westmead unit again but in around April 2004 he returned to the Glendenning property. He stopped seeing Olga soon afterwards. Olga applied for child support and obtained an order against the deceased in October 2004. From February 2005, the deceased started talking to Olga again, mainly about Dasha, and from time to time he visited Dasha at the Westmead unit. Olga asked him to bring things for her, particularly baby formula and nappies, but he said he had no money. In December 2005, the Housing Commission relocated Olga to a unit in Northmead. She asked the deceased to help her move but he refused; she was upset by this and contact between them ceased.
8. According to Susana, in about 2002 the deceased began a long-term relationship with a woman called April who moved in with him at the Glendenning property; however, she died suddenly in early 2005. The deceased then formed a new relationship with Lynne Godfrey who moved in with him in about April 2006. This relationship was to last for six or seven years.
9. Susana's evidence was that she had a close relationship with her father from childhood onwards. Susana said that she was mainly responsible for housekeeping and looking after her siblings after her mother, Esperanza, left the family home in 1989. At that time, Susana was only 15. As mentioned, she lived at home until about 1993 when she was about 19. She remained in touch after she left home and moved overseas. While she was overseas, she and the deceased had a two week holiday visiting members of his family in Spain. They lived together again for a period of two years or so while she was convalescing from her cervical cancer, during which time she was able to help with the housework after she got stronger. Susana has lived an itinerant life, living with friends or renting at various locations and having various relatively short-term relationships, but she said that she continued to visit the deceased at Glendenning, spending occasional nights there to keep him company and looking after the property when he was away.
10. As mentioned, Susana's evidence was that Gemma had moved out of the house by 1993 or thereabouts. There was no evidence from Gemma on this. Her evidence commenced with the birth of her son, Daniel Bucholtz, in September 1997. At the time, she was 21 years old and was living with Daniel's father, but the relationship broke up and in about 1999 she and Daniel moved in with her mother, Esperanza. She said that from 1997 through to 2011, she was living near the deceased in western Sydney. She said that up until Lynne moved in with him in 2006 she would visit him with Daniel almost every second weekend. After that point, the deceased preferred to meet away from the Glendenning property for some reason. She said she maintained contact by telephone and meeting for occasional dinners but that from about 2009 contact increased and the deceased started visiting her family about once a month. It appears that Susana was also involved in some of these visits.
11. In mid-2010, Gemma moved to the Gold Coast in Queensland with her then partner, and Susana also moved to the Gold Coast in 2011 to be near her. Both of them, however, said that they remained in contact with the deceased. Gemma said that she and her partner visited the Glendenning property on a couple of occasions and the deceased and Lynne visited her on a couple of occasions over the 2010-2011 period.
12. Gemma and her partner married on the Gold Coast in October 2011. The deceased and Lynne attended the wedding. By this time, the deceased had been diagnosed with bowel cancer. He had a major operation on his liver in about November. Gemma's evidence was that she went and stayed with the deceased at the Glendenning house, looking after him. She returned to the Gold Coast in January 2012. According to Gemma, she made three or four further visits to the Glendenning property and the deceased made three or four further visits to Queensland in the 2012-2013 period.
13. According to Susana, she was shocked by how sick the deceased was following Gemma's wedding and decided to move back to Sydney to look after him. She left the Gold Coast in December 2011 or thereabouts. Initially she stayed with a friend and then took a lease on a flat at Silverwater. During this time, Susana said she took the deceased to chemotherapy sessions at Penrith hospital and to medical appointments. According to Susana, the deceased's relationship with Lynne had deteriorated and the deceased wished to get out of it. He asked Susana to move into the Glendenning property in the hope that this would lead to Lynne leaving, which it did. Susanna said this happened in around mid-2013. Thereafter, Susana said she stayed with the deceased and looked after him.
14. According to Gemma's evidence, the deceased's attitude towards her changed at around the time he made his will in January 2014 (referred to in more detail below). The deceased had always been proud of his appearance. Gemma said that following a discussion about the will she said that she would come down to see him. The conversation continued: Deceased: NO! There will be no more visits. I don't want you to see me. It's going to get bad. I don't want you to remember me like that. Gemma: I am coming anyway. I want to come and say goodbye. Deceased: NO GEMMA. I SAID NO!
15. According to Susana, under the effects of his cancer and the treatment for it, the deceased became increasingly short-tempered, obsessive and irrational after January 2014. She described driving around the western suburbs for the purpose of buying a single capsicum and other shopping trips where the deceased would obsessively search for food that he wanted.
16. Susana said that in about May 2014, the deceased asked her to leave the house. She stayed for two nights in her car and then for a period at a cheap hotel in the hope that the deceased would change his mind. She was able to fix the period she spent at the hotel as being from 29 May to 14 June 2014. She then moved in with a friend.
17. Gemma said that shortly after Susana left the Glendenning property, she called the deceased and they had the following conversation: Gemma: Dad, Susana has told me you've kicked her out of the house? What are you doing? Deceased: I've told you this is how it's going to be. Gemma: What are you talking about? Deceased: I don't want anyone to see me. Gemma: You cannot kick her out onto the street. Deceased: It won't be for long. I'll be gone soon. Gemma: Don't be stupid. Deceased: You don't know. You don't know.
18. Gemma said that her communications with the deceased declined after this. She had a final conversation with the deceased in mid-to-late 2014 where she again said she would visit and look after him and again he told her to stay away and that he did not want her to see him in his present condition. Thereafter, she said, her calls to the deceased went unanswered.
19. According to Susana and Gemma, although the deceased had cut off communication with them, they continued to monitor his condition indirectly by speaking with Anna, with whom the deceased was still speaking.
20. Olga's evidence was that she had no contact with the deceased after December 2005, except for a chance meeting at the Blacktown Shopping Centre in about late December 2013. Olga and a friend of hers and Dasha were there. Olga greeted the deceased and asked whether he wanted to say hello to his daughter, but he only smiled. Neither Olga nor Dasha saw the deceased again before he died. The child support payments, however, continued, pursuant to the order Olga had obtained. At the time of the deceased's death, these were approximately $30 per month.
21. As mentioned, the deceased was introduced to Lilly in September 2014 by Mr Fica. Mr Fica's wife is also from the Philippines, and Lilly is her cousin. Although according to Lilly's affidavit they were only first introduced on 26 September, Lilly had stayed with him at the Glendenning property until she left to return to the Philippines on 30 September. They remained in contact via the internet. In October, the deceased wrote to her: I can see that you are feel very deep in love with me, I like to see that you are happy, laughing and start to make goals for me, like lost weight, cooking, take care of me and talk every day. All of that make me feel very lucky and love you ever time more, also I can see how exceptional woman you are and they are not many like you. For that reason I think that can't be honest for my side if I don't tell you something very important for you to make a decision to continuo the relationship. You all ready know and I tell you my situation as a pensioner but is a reason for that. The reason is because I have cancer. I going like that for few years, this year the treatment have been change I have to go for the treatment every two weeks to the cancer clinic and the condition is stable even some spots going small but as you know at the moment is not cure for this thing and nobody know what can happen, maybe few months or maybe years. We start to like each other very quick for this reason I want to tell you, because I think still early for you to know and I don't want to hurt you keeping that like a secret that you have to know soon or later. You know how I am and I will respect whatever decision you make. If you don't want a relationship I want you to know that you have a friend here.
22. Lilly responded to this email by expressing her love for the deceased and saying she wanted to come back to Australia to live with him and look after him. She returned to Australia between 19 December 2014 and 6 January 2015 so as to spend Christmas and New Year with the deceased. She said that they remained in regular communication over the internet and that on 10 January the deceased asked her to marry him to which she agreed. She returned to Sydney on 13 February so as to spend St Valentine's Day with the deceased and they began preparing visa paperwork. She returned to the Philippines on 24 March and the visa application was lodged in April. She returned on 9 May. She then went back to the Philippines on 14 June to finalise some paperwork with her employer, returning to Sydney on 4 July.
23. Thereafter, she stayed with the deceased at the Glendenning property, looking after the deceased and doing the housework. The deceased was admitted to hospital between 17 and 22 August. On 4 September, he asked Lilly to arrange a marriage celebrant for them to get married. It was planned that they would marry at home but on 7 September the deceased had to be admitted to hospital. As mentioned, the wedding took place at the hospital chapel on 9 September.
24. Lilly said that the deceased did not discuss his children much with her, but he did tell her on one occasion that he had had a problem with Susana which involved the police where Susana had broken photograph frames and paintings of his at the Glendenning property. According to Lilly, the deceased said that Susana "is doing drugs and wants me to die so she can keep the house".
25. In her affidavit in reply, Susana treated this allegation as an allegation of taking the photographs and paintings. She said she had removed some paintings when she had been asked to leave the Glendenning property, but that these were hers. She said she only smoked tobacco and did not use drugs.
26. Susana gave evidence of an occasion in the second half of 2015 when she and a friend went to visit the deceased at the Glendenning property. She said she saw the deceased through the flyscreen door and that Lilly was also there, but that neither of them would let them in and the deceased told her to go away.
27. There was a disagreement about when this happened. According to Susana, it was on Father's Day which was 6 September (incidentally, the very same day on which the deceased later wrote to his solicitors concerning his will: see [59] below). According to Lilly, it happened somewhat later in around November. I have no means of determining which of these dates is accurate.
28. On 3 October, the deceased was discharged from hospital. On 25 October, Lilly returned to Manila apparently to arrange a temporary visa, which was granted, and she returned to Sydney on 8 November.
29. The deceased was readmitted to hospital on 8 December 2015. In Susana's initial affidavit she said that she spent the last ten days of the deceased's life visiting him in hospital. She said that she spent each day, from about 10.00 am to 6.00 pm, at the hospital and that the deceased was alone, apart from her visits, for most of the time. In particular, she said that she did not see Lilly until a brief visit a day or so before the deceased died on 31 December.
30. Towards the end, Gemma came to Sydney and stayed with Pepsi. Susana said that she, Gemma and Pepsi visited the deceased. She said that Lilly visited the hospital for about ten minutes on the afternoon of 31 December and left saying that she was going out to celebrate New Year's Eve with friends. The deceased died at about 7.30 pm, around an hour after Susana and her sisters had left the hospital.
31. Lilly gave a different account. She said that she alone visited the deceased until a few days before his death. She said that she slept on a sofa in the hospital room and stayed with the deceased during the day, going home only every two to three days. She described celebrating Christmas together at the hospital; she said that the deceased said goodbye to her, saying that if his children came to the house and insisted on coming inside, she should call the police. After that, he was heavily sedated and slept for most of the time. She said that she did not see Susana until about 27 December when she visited for two to three hours, and that Susana returned on the next day with Gemma, staying a couple of hours.
32. Lilly said that on 31 December Susana and Gemma visited the hospital at 1.00 pm. She said she went home at around 3.00 pm to collect a t-shirt and socks for the deceased and was called back by one of the nurses at 7.00 pm. She arrived back at the hospital just after the deceased had died.
33. In her evidence in reply, Susana qualified her account somewhat. She said that she was working at Ramsgate which was approximately one and a half hours away by car and said she would arrive at the hospital "mid-morning most days" and stay "until the afternoon" when she had to leave to get to work on time. She said she stayed into the evening on weekends. Gemma said she arrived in Sydney on 27 December and stayed with Susana at Pepsi's house at Campbelltown. She said that each day she and Susana (but not Pepsi) drove to the hospital arriving at "approximately lunchtime" and staying until "sometime in the afternoon/evening".
34. The deceased's funeral was held at a funeral parlour known as "Ausia" at Fairfield and he was buried at Castlebrook Memorial Park, Kellyville. The arrangements for this were made by Lilly. It appears that she started to make the arrangements even before the deceased's death, making an initial payment by way of deposit to Castlebrook Memorial Park on 30 December. According to Susana, despite requests, Lilly failed to provide her with accurate details of where the funeral was to take place; she found out, she said, at the last minute from Lynne. Susana described the location of the funeral as a "Vietnamese hall" with "Vietnamese writing". She said there was no priest as her father, being a Roman Catholic, would have wished. She said that Lilly would not allow them to visit the Glendenning property to collect personal family belongings such as photograph albums. Lilly did not dispute what Susana said about the funeral and her refusal to allow the deceased's children to collect personal family belongings from the Glendenning property, although it seems that following the commencement of these proceedings and involvement from the parties' legal representatives, satisfactory arrangements have now been made.
35. Lilly's explanation for the way in which the deceased's funeral was conducted was as follows: Ricky wanted something simple and had said to me before he died: "I don't have a lot of money. Please just make it a simple funeral, with only you and my close friends. I don't want my children attending." I recall saying to him: "But why, they are your children?" He said: "I am the [shepherd] and I know my sheep. You don't know them. I want nothing to do with them."
36. The January 2014 will and instruction sheet, referred to below, are clear evidence of the deceased's wish for his children to benefit from his estate, and in particular, for the Glendenning property to be used as a place for Susana to live. It is clear that up to that point the deceased was on good terms with Susana and Gemma. But what happened after January 2014 is harder to determine.
37. I did not find either Susana's or Lilly's account entirely convincing in all its details. Assuming that the incident with the photographs and pictures took place when Susana left the Glendenning property at the deceased's request, her account does not deal with the reported allegation by the deceased that she smashed some of the items and the police were called. The taking of pictures from the home at that stage, which Susana accepts took place, seems to be a mark of permanent separation which is difficult to reconcile with Susana's evidence that she was hoping the deceased would relent. It also appears that Susana exaggerated, at least in her initial account, the amount of time she spent at the hospital at the end of the deceased's life. On the other hand, the fact is that Susana and Gemma were with the deceased almost to the end and Lilly was not. I found her explanation for not being there, that she had gone home to get some socks and a t-shirt for the deceased, rather surprising. The other evidence suggests that the deceased was sinking at that point and Lilly did not in her evidence address the allegation that she said she was planning to go out with friends. There also seems to be no good reason for Lilly to have had the funeral take place in an alien environment and to have kept the photograph albums from the deceased's children. Lilly's evidence about the funeral expenses, discussed at [62] below, also had its difficulties. However, as these matters were not ventilated in cross-examination, I am not able to take them further.

Deceased's financial affairs and testamentary intentions

1. The deceased trained and worked as a mechanic in Spain. Once in Australia, he apparently continued to work as a mechanic, but there is no evidence as to his employment career, and there is reference in the evidence to at least one period of unemployment in early 2002. There is no evidence of the deceased's earnings, but with a family of four children it seems unlikely that he was well off.
2. Susana's evidence (presumably based on what she was told by the deceased) was that the Glendenning property was acquired with money which the deceased had inherited from his father in Spain. There is no evidence as to whether the deceased contributed any savings of his own. It may be that Anna made a financial contribution to the purchase of the Glendenning property, and Olga said that the deceased referred to having to buy Anna out of the property following the break-up of their marriage. It is reasonable to suppose that the deceased did apply his earnings both to the bank debt on the property and paying off Anna, but there is no evidence which would allow this to be quantified. As will be seen below, there was still money owing on the property at the date of the deceased's death.
3. As at October 2014, the deceased was on a pension (see [32] above) but there is no evidence as to when he stopped work. It may well have been some years beforehand, given that he was diagnosed with cancer in 2011.
4. Susana said that on numerous occasions he would say to her words to the effect of: Susana, if anything happens to me you will get this house. You … are not moving around anymore. I am leaving this house to you when I pass on.
5. Susana also said that the deceased said to her words to the effect: You are special to me. I know that the cancer has affected your prospects and makes it hard to maintain a long term relationship. I want you to have a home base and when I am gone the Glendenning property will be yours.
6. In January 2014, the deceased made a will. The will appointed Anna as executor. It provided for the Glendenning house and its contents to be retained for Susana to live in, provided that she paid outgoings. In the event of her death or if she elected to cease to live there, or breached her obligations, the property was to be sold and divided into six shares. The six beneficiaries were the deceased's four children by Esperanza, namely Ricardo, Susana, Gemma and Pepsi; his daughter by Olga, Dasha; and Daniel Bucholtz, Gemma's son. Any motor vehicles owned by the deceased were left to Susana. The residue was to pass to the six beneficiaries in equal shares.
7. The instruction sheet prepared for the deceased's January 2014 will by his solicitors was in evidence. It stated: ● NOTE: Client has 4 children from his 1st marriage. He only has a relationship with [Gemma] and Susana Garcia. The other 2 have not spoken to him for about 6 to 8 years. ● [Gemma] is Daniel's mother. Daniel is the only grandson the client has and he is aged 16. ● Susana has cervical cancer and no assets. She is also unemployed. She is moving in to live with the client because of her circumstances. The client wishes to protect her with a right of habitation as she will need a roof over her head, especially as she has been fighting cancer for 10 years. She also suffers from depression and cannot work. ● His daughter [Dasha] is about 12 years old and he pays child support for her, but also has no relationship with the child or her mother. ● Client wishes to make his will as fair as possible to avoid an FPA claim for his children, but believes Susana will have the most needs after he passes away.
8. According to Susana, at around the time of making the will, the following conversation took place between the deceased, her and Anna: Deceased: We've done the will, we've put your name down and Anna. Anna: What we've agreed is that you live here until you're ready to go. I don't want any part of house. We've agreed Ricky will leave the house to his kids. Susana: Don't worry about leaving the house to anyone. Sell everything and use the money you've got to enjoy life. Deceased: No. I've left it to you. You live here until you're ready to go. Your brother and sisters are ok, they have their partners. When you're ready to go you are to divide it between your brother and sisters.
9. Gemma's evidence was that prior to the making of the will, she had a telephone conversation with the deceased: The deceased said that the Glendenning house was to be left for my sister [Susana] to occupy until she no longer needed/wanted to live there. The deceased also stated that the house was to remain as the family home in order to ensure that his children, including myself, would always have a place to live. The deceased also said that, if at any point the house needed to be sold, the funds were to be distributed equally between his four children [Ricardo], [Susana], myself and [Pepsi]. The deceased also said that his gold watch, ring and necklace were to be given to my son Daniel as his first grandchild.
10. Gemma also gave evidence of a subsequent conversation about the will, in the course of which the deceased said: I will leave the house to your sister Susana. You know that she is not well and I want her to be safe. It's the only place she has been able to call home. It will be hers until she dies or sells it. She better not sell, but if she does it is to be divided between all you children. … I'm making sure you are all taken care of. I want Daniel to have my watch rings and jewellery. Your brother the tools and the van he can't stay in one place long enough. Anything else sort it out between you with Susana's approval. I don't want anything taken from the house without her say so. She will be living there. I have left Anna as the executor. Don't say a word as she knows you kids and knows what I want. … There will be money for my burial and use the super, the money in the study is in case any of you need anything.
11. As mentioned, the deceased's last will, which gave his estate to Lilly, was signed on 8 September 2015. The will does not appear to have been accompanied by an explanatory memorandum in the way in which the 2014 will was. The only information about the preparation of the will is an email timed at 11.59 pm on 6 September from the deceased to his solicitors. The email is in Spanish and there is no translation in evidence. All I can discern from it is that it appears to contain an instruction to make the will in favour of Lilly, since it consists of the sorts of details required for insertion in the will, and it appears to say something at one point about the need to proceed as quickly as possible.

Estate assets and liabilities

1. The major asset in the deceased's estate is the Glendenning property. Its value has been estimated as $675,000 based on a "drive-by valuation" conducted by a real estate agent in August 2017. The property is subject to a bank mortgage of approximately $36,000 (as at April 2017).
2. Mr Fica's affidavit as executor disclosed that the deceased owned two trailers, with an estimated total value of $1,000, and a motor vehicle with an estimated value of $6,000. The affidavit also listed a number of personal effects of the deceased, primarily consisting of household furniture and appliances, but no value was provided. I assume they have no significant realisable value.
3. As already mentioned, the deceased's funeral and burial arrangements were made by Lilly. In Lilly's affidavit, she said that she had paid a total of $18,328 for the deceased's funeral and burial expenses. The evidence was unclear in a number of respects. Receipts from Ausia for the funeral ($4,600) and from Castlebrook Memorial Park ($2,728) by way of initial deposit and "instalment" were in evidence. The remaining $11,000 was said to have been paid to an Ellen Lajara for a burial plot ($5,500) and a plaque engraving and headstone ($5,500) in accordance with a "receipt". Attached to the affidavit was a letter to Lilly on an InvoCare letterhead and signed by Ms Lajara as "memorial consultant" (InvoCare is a funeral services group of companies). But the "receipt" attached to the affidavit was a typewritten note and dated 29 November 2016, nearly a year later, purporting to certify that Lilly had paid the amount of $5,500 and that she (Ms Lajara) had lent her a further $5,500 for the plaque and memorial inscription. The document is not on any letterhead and, to the extent it refers to the plaque, it purports to record a personal transaction between Lilly and Ms Lajara. Even if it is correct in recording that Lilly paid $5,500 for the burial site, there would appear to be an overlap with the receipts issued by Castlebrook Memorial Park in that regard.
4. Furthermore, bank statements produced at the trial showed that over a period beginning just before the deceased's death, Lilly made a number of cash withdrawals from the deceased's bank account, totalling $8,000. Lilly acknowledged in cross-examination that these monies were used by her, at least in part, to pay for some of the deceased's funeral and burial expenses. The sum withdrawn was only a bit more than the total amount required to cover the receipts issued by Ausia and Castlebrook Memorial Park. I think the remaining $11,000 claimed by Lilly to be owing to her is questionable. It is certainly not established by the evidence currently before the Court.
5. Mr Fica's affidavit as executor does not refer to any bank accounts held by the deceased and it appears that the withdrawals made by Lilly exhausted the account. Despite the deceased's reference to superannuation and money kept in his study (see [58] above), the affidavit discloses no proceeds from those sources.
6. Lynne had also made a claim against the estate, but that was settled on terms that she was to receive a legacy of $27,000 inclusive of costs. Mr Fica's costs as executor, calculated on an indemnity basis, up to and including a two day hearing (the second day of which did not prove necessary), were estimated to be approximately $98,000.
7. On the evidence, and not allowing for the $11,000 claimed by Lilly, the net value of the deceased's estate is approximately $520,000.

Susana's circumstances

1. Susana is now 43 years old. Since the beginning of 2016, she has stayed with Pepsi, who is married and has two children, in Campbelltown. She said she contributes $120 towards household expenses most fortnights but does not otherwise pay rent.
2. As mentioned, Susana has had cervical cancer and had a radical hysterectomy in 1999. She is still in remission. In her August 2016 affidavit, she said was diagnosed with depression and bipolar disorder in 2014 and received several months of treatment. Susana said she has problems with her vision but has not been able to afford to visit an optometrist nor has she been able to go to a dentist for what she suspects may be a decayed tooth. Susana was involved in motor vehicle accident in November 2016, along with Pepsi and Gemma, and said she suffered a whiplash injury to her neck. Annexed to Susana's affidavit were historical medical reports, all of which were over a decade old, which detailed her follow-up treatment after the hysterectomy. Further documents were tendered at the hearing, but these were insufficient to substantiate her current medical condition.
3. Susana completed secondary school in Sydney and did a personal training course shortly after. She said she has mostly worked in entry-level positions on a non-permanent basis. Most recently, she worked part-time at a Coles supermarket as a customer service assistant for almost two years. She took leave in February 2017, according to her August 2017 affidavit, because of experiences in the workplace, the death of her parents (Esperanza died in June 2016) and the stress of these proceedings.
4. Coles terminated her employment effective 10 August 2017. A termination letter dated 25 July 2017 stated that based on medical information provided to date, Coles considered "there is no reasonable prospect" of Susana resuming her "pre-injury duties in the near future". During cross-examination, she said she did not know what Coles meant by the phrase "pre-injury duties". Her PAYG payment summary for the financial year ending 30 June 2016 shows gross payments of approximately $16,300.
5. For about six months this year, Susana received a "sickness allowance" from Centrelink which provided fortnightly payments of approximately $460, but has been advised she is no longer eligible for these payments. She said, in cross-examination, that she now receives unemployment benefits from Centrelink of approximately $430 per fortnight ($11,180 per year). Susana also said in her oral evidence that she has made a compensation claim for the November 2016 accident and expects to receive a maximum payout of $5,000, and that she has a workers' compensation claim against Coles on foot for bullying and harassment but is apparently not expecting any money from Coles.
6. In her August 2017 affidavit, she stated that she has obtained "an unpaid trial position" at a hairdressing salon and hopes to gain a permanent position. She also said that she has commenced casual work as a waitress, receiving $15 per hour on Saturdays and $20 per hour on Sundays, but is unsure if that employment will continue. In cross-examination, Susana said she receives $10 per hour for her hairdressing position and worked 25 hours in the week prior to the hearing (receiving $250 for that week, which, if maintained, would generate $13,000 per year). She said in general the hours vary due to her health and due to the availability of shifts as she is "just in training", and that the trial nature of the position means she could "be sacked tomorrow". Her August 2016 affidavit disclosed monthly expenses of $1,800 ($21,600 per year).
7. Her August 2017 affidavit disclosed approximately $300 in savings, a second hand motor vehicle worth $100 (her August 2016 affidavit valued the vehicle at $1,500) and personal effects worth $1,000. She is unsure of her superannuation position. Susana said she has liabilities amounting to approximately $6,200, almost $5,000 of which is a debt owed to Centrelink. In cross-examination, she said she has made payments towards this debt, reducing it to $4,000, but does not know what the debt is for and does not even believe she owes it.

Gemma's circumstances

1. Gemma is 41 years old. She lives in a share house in Kirra, Queensland, and pays $170 per week in rent to her flatmate (whom she found through the internet). The lease is in the name of her flatmate. Gemma's son Daniel is now aged 20 and lives with his father. Gemma is separated but not divorced from her husband, whom she married in 2011 (see [23] above). She said she has engaged a solicitor to finalise her divorce and property settlement. Gemma's husband has three children of his own and it seems unlikely she will receive much from any such settlement.
2. Gemma has anxiety, depression, breast lumps and ovarian cysts. She said in her affidavit evidence that she requires lumpectomies and biopsies but has not been able to afford these procedures. As a result of the November 2016 accident, she suffers from bulging discs in her spine causing ongoing back pain and numbness in her right leg. She has apparently engaged a solicitor to pursue a compensation claim. Among various medical records annexed to her affidavits was a document styled "Progress Attending Doctor's Statement" on TAL Life Ltd letterhead, completed by a Dr Edward Lyle. It was dated 28 July 2018, but I assume this should be 2017. Dr Lyle diagnosed Gemma with "adjustment disorder with anxiety and depressed mood" in addition to "L4/5 disc bulge with secondary lumbar spine pain". A medical certificate tendered during the hearing and dated 6 September 2017, prepared for Centrelink (apparently as an updating certificate), stated that her "severe depression" and "severe back pain" were both "likely to persist", and provided that, for the period 7 September 2017 to 15 October 2017, she is unable to work for more than 8 hours per week or do her "usual work/study".
3. Gemma is currently unemployed. According to her August 2017 affidavit, she worked full-time as a coffee expert for Nespresso from September 2014 to October 2016. She said that from October 2016 to early June 2017, she remained an employee of Nespresso but received payments only for her sick and leave entitlements. When asked in cross-examination whether she intends to find work, she responded that her intention was to first rehabilitate herself and learn to control her anxiety and panic attacks.
4. Her August 2017 affidavit said that since October 2016 she has received a "sickness allowance" from Centrelink of approximately $640 per fortnight, but is eligible to receive income replacement payments totalling $2,275 per month from her superannuation fund (which would disentitle her from the Centrelink allowance). In her oral evidence, she said this amount had been reduced to around $1,130 per month ($13,560 per year), but she did not know why, and that the sickness allowance would now cease.
5. According to her October 2016 affidavit, her monthly expenses are approximately $2,700 ($32,400 per year). This included $210 in repayments for Daniel's dental work which, in light of her August 2017 affidavit, now appears to be completely paid out. Her monthly expenses also included $200 in "general payments" for Daniel.
6. Gemma's August 2017 affidavit also stated that she has assets worth approximately $20,300, consisting of $1,600 in savings, a motor vehicle worth $5,000 (this estimate apparently being informally provided by a mechanic when she had her vehicle repaired), personal effects worth $500 and superannuation in the sum of $13,200 from her employment with Nespresso (she was unaware of, or could not locate, any other superannuation she may have). She said her liabilities total approximately $23,400, which includes a personal loan of $2,500 from a friend, $2,200 owed to her solicitor for the income protection claim and $18,700 owed to the Commonwealth Bank of Australia for a personal loan incurred during her recent marriage for the purchase of vehicles for her husband and herself. In this respect, her affidavit said the "only purpose of a property settlement is to ensure Nathan [her husband] contributes towards the loan".
7. Susana's and Gemma's current solicitor has estimated their legal costs up to the completion of a two day hearing, calculated on the ordinary basis and including their previous solicitor's costs, to be $82,000.

Dasha's circumstances

1. Dasha turned 14 shortly after the hearing and is still at school. She lives with her mother, Olga, in a unit provided by the Department of Housing. Olga is single and also has a son from a previous relationship, who is now 29 years old.
2. Dasha is generally healthy. According to Olga's September 2016 affidavit (no updating affidavit was provided), Dasha sees an optometrist once a year but has not been to a dentist for about three years. The affidavit also stated that Dasha went to a general practitioner in mid-September and was given a referral for counselling, having been suspected to be suffering from depression. Olga suffers from arthritis and has private health insurance.
3. Olga was educated in Ukraine, where she obtained a diploma to become a chef after completing secondary school. She previously worked on cruise liners as a stewardess for 15 years before moving to Australia in 1998. According to her affidavit, she has been casually employed as a carer since October 2011. She said from 2011 to 2015 she worked 6 to 8 hours per week, in 2015 she worked 9 to 11 hours per week, and in 2016 she has been working 15 hours per week. Her PAYG payment summary for her position as a carer for the financial year ending 30 June 2016 shows gross payments of approximately $15,900 as well as $2,100 in allowances (presumably for travel).
4. Olga said she also receives Centrelink payments for "Family Benefits", which varied from $850 to $1,900 over the three months prior to making the affidavit, and a "Newstart Allowance", which was of a negligible amount over the same months. A Centrelink PAYG payment summary shows she received a gross sum of approximately $10,700 for the financial year ending 30 June 2016. She estimated her monthly expenses as little more than $3,400 ($40,800 per annum), including $990 in rent, and said that her son sometimes pays her bills when she is "struggling financially".
5. Dasha has no assets of her own. According to her affidavit, Olga has almost $24,000 in savings, $1,200 in superannuation, personal effects estimated to be worth $3,000 and a motor vehicle estimated to be worth $1,000. Olga said her liabilities total approximately $25,000, all of which (bar $44 in credit card debt) is a debt owed to her son. Olga's evidence stated that this debt was borrowed in November 2015 "to show as proof to Immigration for sponsoring my nephew Andrew when he came to Australia on a visit". However, as she was not cross-examined, this could not be explored.
6. Dasha's estimated legal costs including disbursements up to the completion of a two day hearing, calculated on an indemnity basis, are almost $62,000 (with the possibility of a further $7,300 in uplift fees).

Lilly's circumstances

1. Lilly is 53 years old and lives in the Glendenning property. She has one child, aged 28, who lives in the Philippines.
2. Lilly has a myoma in her uterus which needs to be removed. She said she currently cannot afford the procedure.
3. She obtained a Bachelor of Science and Business Administration in the Philippines and in 2003 completed postgraduate studies in business administration. She previously worked for the post office in the Philippines for 32 years, resigning in 2015, and is apparently eligible for a pension in the Philippines when she turns 60. Lilly currently works full-time as a process worker for Krispy Kreme Pty Ltd. She said she works 38 to 40 hours per week and earns $800 per week after tax ($41,600 per year after tax). She said her living expenses amount to $635 per month ($7,620 per year).
4. In her December 2016 affidavit, Lilly disclosed her ownership of two properties in the Philippines, valued at $20,000 and $30,000 respectively. She said her mother lives in one and her son in the other, and she receives no rental income. She said the properties are in need of renovations. She estimated her "personal belongings" to be worth $2,000. She said the properties have mortgages of $6,000 and $3,000 respectively, but no substantiating documentation was provided and the mortgage liabilities remained unchanged in her updating affidavit of August 2017. She also said she has a loan with "Government Service Insurance (Philippines)" of $15,000, which was for her Australian visa and incidental expenses.
5. During the hearing, further details of her financial circumstances were elicited. Lilly said she had a car registered in her name that was previously her husband's. The registration was apparently transferred in November 2016. She also said that her mother and son actually lived in the same property and the second property is vacant. It was unclear how she pays for the mortgages. Bank statements tendered during the hearing showed a balance of $760 in a "Classic Banking" account as at September 2017 and a credit card account $175 in debit as at June 2017. The "Classic Banking" statement showed five transfers out of this account in the amounts of $500 or $600 over a two month period. Each transfer bore the notation "Internet Transfer - Savings". But no savings account was disclosed in her affidavit evidence.

Entitlement to provision

1. As children of the deceased, each of the plaintiffs is an eligible person: Succession Act 2006 (NSW), s 57(1)(c).
2. Counsel for the executor, Mr Fica, conceded that, having regard to the relevant circumstances as disclosed by the evidence, the deceased's September 2015 will failed to make adequate provision for each of the plaintiffs for the purposes of the Succession Act, s 59(1)(c). Counsel accepted that the Court ought to make provision for each of the plaintiffs; it was simply a question of how much.
3. The adequacy of the provision required by the Succession Act is measured by reference to the "proper" maintenance, education or advancement of the claimant. Susana and Gemma are both independent adults. As such, I think that any obligation the deceased may have had to make "proper" provision for them is better analysed in terms of advancement rather than maintenance or education: see Kohari v NSW Trustee & Guardian (No 2) [2017] NSWSC 1080 at [83]-[85]. But Dasha is not in that position. At the time the deceased died she was 12 and at the time of delivery of this judgment she will just have turned 14. In my opinion, there is an accepted obligation on a parent to provide for his or her child, whether or not he or she has custody of that child, until that child turns 18 or is self-supporting. That obligation is reflected by the legal obligation in this case to provide child support. The deceased's death terminated the regular child support payments and the will made no provision for Dasha's maintenance or education. In my opinion, that in itself meant that it failed to make proper provision for Dasha.
4. Although I do not consider that the deceased was under any obligation to provide for the maintenance or education of his adult children, it is well accepted that in appropriate circumstances there may be an obligation to provide for the advancement of an adult child. This would also apply to Dasha after she turns 18.
5. In the present circumstances, the blood relationship between the deceased and each of Susana, Gemma and Dasha is of very great importance: Gorton v Parks (1989) 17 NSWLR 1 at 10; Nicholls v Hall [2007] NSWCA 356 at [43]-[45]. There is an additional factor which I consider is significant. The evidence does not establish that Susana or Gemma contributed in any significant way to the acquisition of the Glendenning property which is the major asset of the deceased's estate. Dasha obviously did not do so but nor did the deceased purchase it entirely out of his own earnings. But, as mentioned, the deceased's initial acquisition of his interest in the property was funded with money which came from his father's estate. Presumably, the deceased's father would have contemplated that the money he left to the deceased would benefit not only the deceased, but also, through the deceased, the deceased's family. In my view, community expectations required the deceased to take this into account when he, in his turn, came to make his testamentary arrangements.
6. In family provision litigation, where a testator's will apparently represents a considered and understandable judgment on the competing claims to the testator's bounty, that judgment has considerable weight in determining what provision was proper or ought to have been made: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 284-285 [127]. The deceased's January 2014 will satisfies those requirements. The evidence shows that it was carefully considered by the deceased and the scheme adopted in the will for the division of the deceased's estate was, subject to the qualification that it did not provide for the maintenance and education of Dasha, an entirely understandable one.
7. The same cannot be said of the deceased's September 2015 will in favour of Lilly. It appears to have been made in a hurry and at a time when the deceased was in a very physically and emotionally vulnerable state.
8. Despite the questions over the detail of Susana's account referred to at [48] above, the broad thrust of the evidence from Susana and Gemma that the deceased's personality changed and he cut off communication with them was not disputed, and I accept it. The deceased may have made the disparaging comments about his children to Lilly as recorded in her affidavit, but, if so, I think that those comments did not reflect reality but rather the strain on the deceased of his dreadful illness. I am not satisfied that there was any conduct by Susana or Gemma between January 2014 and September 2015 which would rationally justify the deceased's change of attitude towards them. Clearly, there was no such conduct by Dasha during the period.
9. While it is quite understandable that the deceased would have wished to benefit Lilly for what she did for him in the last year or so of his life, a "wise and just" testator would have balanced that against other claims. Again, despite the question marks around some of the details, there is no dispute that Lilly was the person to whom the deceased turned over the last 15 months of his life to provide both physical and emotional support and that she did provide such support. But without wishing in any way to denigrate her selfless contribution, I think it must be borne in mind that she made no significant financial contribution to the deceased's estate and the total period of time during which she was in Australia over the last 15 months of the deceased's life was 38 weeks. In my opinion, the September 2015 will does not represent a fair or rational division of the deceased's estate so far as the plaintiffs are concerned, when the whole of the deceased's family life and financial circumstances are taken into account.
10. In my view, counsel's concession was properly made. The September 2015 will fails to make provision for the proper maintenance, education and advancement of Dasha, and fails to make provision for the proper advancement of Susana and Gemma.
11. The remaining question is what provision "ought to be made" for each of the plaintiffs: Succession Act, s 59(2).
12. I have concluded that the deceased was required to make provision by way of contribution towards Dasha's maintenance and education until she turns 18. As I have mentioned, the deceased was making child support payments, but these payments were only $30 per month. I do not think that in determining what provision "ought" to be made that the Court is limited by this figure. The statutory obligation to make child support payments is based on the available income of the payer. No doubt the figure for the deceased was so low because he was himself only on a pension and would have had very limited disposable income. These considerations do not apply when considering what provision should be made from the deceased's estate following his death. On the other hand, I do not think that it would be realistic to order the setting aside of a capital sum which would generate income sufficient to provide for Dasha's maintenance and education. The appropriate approach is a lump sum to contribute to the costs of her maintenance and education for the next four years. The evidence from Olga did not attempt to dissect her expenditure so as to identify the additional expenditure attributable to Dasha. Doing the best I can, I consider that an amount of $25,000 should be provided. This would allow $120 per week over the four year period.
13. So far as the advancement of Susana, Gemma and Dasha is concerned, I think the analysis which I have undertaken above suggests that the provision by way of advancement which "ought to be made" in favour of Susana, Gemma and Dasha should follow, to the extent possible, the basic scheme laid down by the deceased in his January 2014 will. That scheme was to give Susana the benefit of the use of the property for so long as she lived there (or wished to do so), following which the property would be sold and each of Susana, Gemma and Dasha was to receive a "deferred" one-sixth share.
14. The right of residence conferred by the January 2014 will on Susana would have been a valuable one and must, in my opinion, be represented in a substantial way in determining the provision which now ought to be made for her advancement. But I do not think that, in the circumstances which now exist, it would be either practicable or fair to Lilly to seek to engraft a right of residence along the lines of the January 2014 will on the estate. The proper course is to "buy out" the notional right of residence under the will with a lump sum which Susana can put towards her accommodation.
15. The interest Susana would have received under the January 2014 will was not a life estate; it was only a right of occupation subject to conditions. One of those conditions was the payment of outgoings on the property. While the deceased's wish at that time was clearly that Susana should live at the property for as long as she could, the property was subject to a mortgage and there would be ongoing repair and maintenance expenses quite independently of outgoings such as rates. The deceased did not leave any assets which could be used for that purpose. Had the deceased died with the January 2014 will unrevoked. Susana would have been able to take up the right to live at the Glendenning property, but she would have had to find the money to pay off the mortgage and keep the property maintained in proper condition from her own resources, and she might well have experienced difficulty in doing that. This needs to be reflected in the provision by way of buy-out that Susana will now receive.
16. There was no evidence which addressed the factors relevant to the determination of the appropriate buy-out figure. Doing the best I can, I consider the appropriate provision to be $100,000. This would allow for $200 per week for ten years. Susana's life expectancy is, of course, considerably longer than that; but, for reasons that I have given, it cannot be assumed that she would have been able to maintain herself in the Glendenning property for the rest of her life.
17. This leaves the appropriate provision in favour of Susana, Gemma and Dasha to reflect the deferred one-sixth share of the property they were each to receive under the January 2014 will. In my view, the appropriate figure is $65,000 each, representing approximately one-sixth of the net value of the estate ($520,000) less the provisions in favour of Dasha ($25,000) and Susana ($100,000). This would effectively leave Lilly with the other half of the estate, representing the shares of Ricardo, Pepsi and Daniel who did not make claims. In Gemma's case, this represents the only provision in her favour and, having regard to what I say below, it is possible that the provision will be deferred while Lilly continues to live in the property. Nevertheless, I do not think it appropriate to go further in Gemma's favour. Gemma is not well-off but none of the claimants are and Lilly is not well-off either. I see no reason to depart from the priority which the deceased gave to Susana under the January 2014 will, or from the equality of distribution between the six beneficiaries under that will.
18. Counsel for Mr Fica, as executor, indicated that Lilly wishes, if possible, to remain in the Glendenning property rather than return to the Philippines. There is evidence before the Court that she has some borrowing capacity; a letter from Westpac indicates that she would be able to borrow up to $280,000. Counsel suggested that the Court could make an order charging the property with legacies in favour of Susana, Gemma and Dasha which would be payable if the property is sold or Lilly otherwise ceases to live there. I think this is a suitable idea as it closely parallels the arrangements the deceased himself made in the January 2014 will so far as the distribution of the property was concerned. Of course, the circumstances in which the legacies would become payable would need to be carefully defined, the legacies would presumably need to be indexed and they would need to be recorded in some manner on the title.
19. The practical difficulty, though, is whether Lilly will have sufficient borrowing capacity to discharge all the obligations of the estate. Paying out the bank, the agreed settlement figure with Lynne, Mr Fica's costs as executor and the legacies of $30,000 to Dasha and $100,000 to Susana would account for almost the whole of the $280,000. But as the claims made by Dasha and by Susana and Gemma have succeeded, they may obtain orders for costs out of the estate, at least on the ordinary basis. There is no evidence that Lilly would have the capacity (or the inclination) to borrow any additional amount which might be required. However, I have not determined the question of the claimants' costs and I do not know the full circumstances; nor do I know the extent to which Lilly may be able to obtain further funds or whether some negotiation may be possible. In these circumstances, I propose to allow Lilly the opportunity, should she wish, to seek to negotiate orders with the claimants which would allow her to stay in the property. If agreement is not possible, then the property will need to be sold and the deferred provisions in favour of the plaintiffs paid out along with the other provisions.

Conclusion and orders

1. For these reasons, I have concluded that: (1) the Court should make a provision in favour of Dasha in the sum of $25,000; (2) the Court should make a further provision in favour of Susana in the sum of $100,000; (3) the Court should make further provisions for Susana, Gemma and Dasha of $65,000 each; (4) should Lilly wish to take up the option of raising a mortgage on the property so as to pay out the liabilities of the estate (including the provisions in (1) and (2)), the provisions in (3) can be deferred until Lilly vacates the Glendenning property.
2. I will hear the parties on the appropriate form of orders to be made in each proceeding to give effect to this judgment. Those orders should also deal with the question of how the provision made in favour of Dasha is to be managed and administered during her minority.
3. The order of the Court in each matter is:
4. Direct that, within 14 days of the commencement of the 2018 Law Term, the defendant bring in Short Minutes of Order to give effect to this judgment.

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: 08 August 2018