[2010] VSCA 195
Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490
[1957] HCA 82
McCosker v McCosker
[1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808
Source
Original judgment source is linked above.
Catchwords
[2007] SASC 327
Burke v Burke (2015) 13 ASTLR 313[2010] VSCA 195
Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490[1957] HCA 82
McCosker v McCosker[1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808[2008] UKHL 52
Re the Will of Sitch (deceased)[1994] HCA 40
Smith v Johnson (2015) 14 ASTLR 175[2015] NSWCA 297
Soens v Rathborne [2018] NSWSC 302
Stern v Sekers[2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191[2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431
Judgment (29 paragraphs)
[1]
Background Facts
In claims such as these, factual context is necessary. It is convenient to begin with a short statement of some of the background facts, since these provide the context in which the issues arise. Many of these facts are taken from the affidavits read in the proceedings, or in evidence given during the case, which are uncontroversial. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the background facts set out hereunder should be regarded as the findings of the Court.
The deceased was born in March 1951. He married Gabriela in May 1972. There were two children of the marriage, being Julie, who was born in February 1974, and who is now 44 years old and Craig, who was born in February 1978, and who is now 40 years old.
The deceased and Gabriela were divorced in about 1995.
The deceased met Natalie in about 1992. They had a brief relationship for about 12 months in about 1999. They began seeing each other again in 2008 and they married in February 2009. They remained married at the date of the deceased's death, a little over 7 years later. There were no children of their marriage.
(Between about 2003 and 2008, the deceased was in a de facto relationship with Ms Jackie Wakerman. She has played no part in the proceedings and there is some evidence that there was a property settlement between them.)
The deceased's Will provided that the executors would hold his estate on trust to "sell, call in or convert into money, any part of my estate and pay any and all estate or succession duties, debts, legacies, funeral and testamentary expenses and any other costs fees or expenses associated with my death or the administration of my estate". The Will then provided:
1. In Clause 5.2, for a bequest of 1,000 shares in Ultraclean Fuel Limited ("Ultraclean") to Julie;
2. In Clause 5.3.1 and Clause 5.3.3, the establishment of a fund consisting of the remaining shares in Ultraclean, and any income or property added, or accumulated to, the fund from time to time ("the fund"), to Julie's son, Luca, to be held for him on trust until he attained the age of 18 years;
3. In Clause 5.3.2, for Gabriela to be trustee of the fund;
4. In Clause 5.4 and Clause 5.5, a gift of household and personal items, other than articles of domestic use or ornament referred to in any list that the deceased created, to Natalie. (There was no evidence of any list, but it does not matter as Natalie is the residuary beneficiary.)
5. In Clause 5.6, the executor was required to do all things necessary to enable Natalie "to have the use and enjoyment of all of my digital rights, accounts, assets and device content".
6. In Clause 5.7, Natalie was to be permitted to live in "the house" for up to 36 months after the deceased's death (described as "the Residence Period"), provided that she paid the mortgage, rates and taxes levied thereon, the premiums on any insurance policies taken out by the executors on the property, and kept the house in repair; the house could not be sold during the Residence Period without Natalie's consent; and then "to give to Natalie my interest in the house subject to all encumbrances at any time during the Residence Period, provided that she pays the sum of $150,000.00 to my son, Craig…".
Natalie was permitted to exercise her right to receive the deceased's interest in the house "by making the payment at any time from my death until the expiration of the Residence period" by giving notice to any executor to whom Probate has been granted. She was also required to pay any costs of transfer, including the amount required to repay any loan secured against the house;
1. In Clause 5.8, if Natalie did not exercise her right to receive the deceased's interest in the house, it was to be sold, and from the deceased's share of the proceeds of sale, the amount of $150,000 was to be paid to Craig;
2. In Clause 5.9, the rest and residue of the estate was given to Natalie.
In the Inventory of Property attached to the Probate document, the property owned solely by the deceased at the date of his death, consisted of his 2/3 interest in the house, which is located at Little Bay, a suburb in south-eastern Sydney ($1,566,666) ("the house"), moneys in bank ($2,284), an ordinary share in a company called Market Horizon Pty Limited, which is the trustee of the deceased's superannuation fund ($1.00), 3,000 ordinary shares in Ultraclean ($45,000) and a car ($12,000). The total gross value of the deceased's estate was estimated to be $1,625,951. (In these amounts, I have omitted the reference to cents and will continue to do so. This will explain any seeming mathematical errors.)
(The trustee of the superannuation fund holds a total of 6,600 shares in Ultraclean, which shares, as stated earlier, have an estimated value of $99,900.)
There were no liabilities disclosed in the Inventory of Property, but in an affidavit sworn by Mark on 25 July 2017, he disclosed that there was a mortgage debt secured on the house ($547,501) of which the deceased was responsible for two thirds ($365,000) and a personal debt owed to Mr Adams, who is Natalie's father ($30,000). Mark also disclosed a debt of $63,004, owed to Natalie, for funeral expenses ($10,119), probate and administration costs ($7,193), legal fees incurred for a settlement conference before proceedings were commenced ($6,606), mortgage payments made ($36,845), council rates ($2,231), "Dynamic levies" ($1,310), household repairs/expenses ($1,837) and utilities ($3,466). (The amounts actually total $69,607, which was accepted as the correct total of the debts said to be owed at the hearing: T6.45 - T7.31.)
Bearing in mind the terms of the deceased's Will, some of these expenses may not be recoverable by Natalie from the deceased's estate. However, neither counsel made any submissions, on the topic as subsequent agreement was reached to enable the Court to calculate the net distributable estate out of which any order for provision might be made.
At the hearing, the parties agreed that the deceased's estate consisted of the deceased's two third interest in the house ($2,000,000); cash held in the Keypoint Law trust account ($314); one share in Market Horizon Pty Ltd ($1.00); 3,000 shares in Ultraclean ($45,000), and the car ($12,000). The estimated gross total value of the deceased's estate, at the date of hearing, was, therefore, estimated to be $2,057,315.
The parties also agreed that the estate has unpaid liabilities (not including costs of these proceedings) of $448,532, comprising two thirds of the mortgage debt secured on the house ($357,533); the personal debt owed to Mr Adams ($30,000); the funeral expenses to be reimbursed to Natalie ($10,119); the Probate and administration costs and disbursements to be reimbursed to Natalie ($7,193), money said to be owed to Natalie in respect of mortgage, rates and expenses (being two thirds of the mortgage repayments, and the repayments of the rates and expenses incurred since death) ($43,686). Thus, without any costs of the proceedings being deducted from the gross value of the deceased's estate, the value of the estate was estimated to be $1,608,783: T8.
There was no dispute that the house was purchased by the deceased and Natalie in about 2008 for $1,750,000. Natalie contributed $250,000 of the purchase price; $550,000 was borrowed by them both and was the amount secured by the mortgage registered on title; and the deceased contributed the balance.
The title to the house was registered in both their names, as to two thirds registered in the name of the deceased and one third in Natalie's name, as tenants in common. More will be written later about Natalie's contributions to the mortgage repayments and her other financial contributions to the deceased after the marriage.
Natalie has continued to live in the house and wishes to continue to do so. She has informed Mark that she exercises her right to receive the deceased's interest in the house and has given evidence that she will refinance, if she is able, to enable the lump sum to be paid to Craig, and to satisfy any orders of the Court in relation to Julie.
The only eligible persons are the children of the deceased, Natalie, Gabriela and perhaps, Jackie. Only Julie has made a claim for a family provision order. However, Natalie and Craig is each a witness and there is evidence that each of them, as well as Gabriela and Jackie, has been served with a notice of Julie's application and of the Court's power to disregard her, or his, interests, in the manner and form prescribed by the regulations or rules of Court.
Each of Natalie and Craig has raised her, and his, financial circumstances, respectively, as a competing beneficiary. In any event, the Court may not disregard the deceased's freedom of testamentary disposition and the preferable disposition to each of them as a beneficiary, regardless of her, and his, financial position or needs, respectively: s 61 of the Act. In reaching the conclusion, the Court has not disregarded her, and his, competing interest as a claimant upon the bounty of the deceased.
[2]
Costs and Disbursements of the Proceedings
Usually, in calculating the value of the deceased's estate and notional estate available from which an order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that his costs, calculated on the indemnity basis, should be paid out of the estate.
As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]:
"In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
Julie's costs and disbursements, calculated on the indemnity basis, up to and inclusive of the two day hearing, were estimated to be $100,278, inclusive of GST and, if calculated on the ordinary basis, to be $81,527, inclusive of GST. No amount has been paid on account of her costs and disbursements.
In an affidavit sworn on 12 April 2018, Julie's solicitor, Ms J Botros, revealed that a conditional costs agreement had been entered into with Julie and that her solicitors were acting "on a contingency basis" and that "the Plaintiff's legal fees are only payable to [her solicitors] on the successful outcome of her case whether through negotiation or by Court order". (At the hearing, the Court was informed by counsel for Julie that there was no "uplift factor" added to the estimate of her costs and disbursements.)
During submissions, in answer to questions from the Bench, counsel for Julie informed the Court that under the conditional costs agreement, Julie would be required to pay some disbursements, there being "a limited obligation to pay disbursements, [namely] the filing fee, service fee and … [the] costs of subpoenas". Counsel estimated that the disbursements might amount to $1,500: T158.28 - T158.36.
The Court was also informed by counsel for Julie that the costs and disbursements would be increased by an additional $3,000, which results in the indemnity costs being $103,278 and her costs, calculated on the ordinary basis, being $84,527. (Counsel for Mark was prepared to accept the updated costs estimates as being relevant for the purposes of calculating the estate available for distribution if a costs order in Julie's favour were to be made.)
Ms M Ross-Maranik, solicitor, in an affidavit sworn on 11 April 2018, stated that Mark's costs and disbursements, including counsel's fees, calculated on the indemnity basis, up to and including the two day hearing, were estimated to be $60,200, inclusive of GST. She stated that $21,984 has been paid. (This amount was borrowed from Natalie and will have to be taken into account in estimating the value of the estate available for distribution.)
At the conclusion of the submissions, counsel for the Defendant informed the Court that in the event that the Summons is dismissed, Mark did not seek an order that the Plaintiff pay his costs, as the Defendant, of the proceedings: T158.16 - T158.26.
The parties requested, however, that the Court not resolve the issue of how the costs and disbursements of the proceedings should be borne, as there may be relevant documents that impact upon that issue. They agreed that, in the event the costs estimates prove accurate, and if an order is made for all of the costs to be paid out of the deceased's estate, the value of the estate, out of which an order could be made, would be about $1,464,056: T10.10 - T10.18.
Whilst estimates provide some basis for estimating the ultimate legal costs that may have to be paid out of the deceased's estate before any distributions of that estate can take place, it is to be remembered that they are estimates only. In addition, in many cases, costs may not be ordered to be paid on the usual basis, because of the service of an offer of compromise or a Calderbank offer.
Upon delivering these reasons, I shall set down the costs argument, if one remains, for hearing after allowing the parties to reach agreement on costs, including the quantum of costs.
[3]
The events in, and after, 2013 involving the Plaintiff and the deceased
Before turning to the statement made by the deceased to which reference will be made, it should be noted that Mark accepted that "Julie and the deceased had an ordinary father/daughter relationship up until around 2013, when the deceased was diagnosed with stomach cancer".
Julie's counsel, in submissions, described the relationship, until April 2013, as "a relatively loving, and unremarkable, relationship with her father": T123.22 - T123.26. That appears to be an apt description from the evidence that has been presented to the Court.
The events to which reference should next be made involve a meeting that occurred at the house on 22 April 2013, at which the deceased discussed his testamentary intentions with his two children.
The version of those events surrounding the discussion about the deceased's Will, given by Julie in her first affidavit, was disclosed in one paragraph. It is fair to say that this paragraph did not present the whole picture of what occurred. Indeed, in no affidavit, did Julie provide a complete account of her conversation with the deceased on 22 April 2013.
Julie stated that there had been a conversation with the deceased about his Will. She said that she was shocked that the deceased was discussing his Will with her and with Craig. She did not state what the deceased had said about his Will. Nor did she give any evidence about what she had said, but simply stated:
"[L]ater that evening, after Mark Coves had left, my father started screaming and ranting … I did not make any comments while he was yelling 'You're so ungrateful. You haven't said anything. Fuck off' … I felt humiliated. I had not spoken to my father about his Will because it was a sad topic which I did not think he had to discuss with us…".
In her affidavit in reply, Julie acknowledged that "[I]n 2013, we had a disagreement about his testamentary intentions"; she referred to "our disagreement when he spoke about the will"; she denied that she stated "I want half the house"; and referred to the deceased having "stated that my brother and I would receive $180,000 each".
In cross-examination, Julie admitted that she had attended, with Craig, at the house on 22 April 2013; that the deceased sat with them to discuss his Will; that, at the time, she was aware that he had stomach cancer; that the "worst case scenario" was that he had five years to live; that she "understood, in that context … this was a serious discussion about how [her] father wished to leave his estate"; that the deceased informed her and Craig that he was doing a new Will in which each would receive $150,000 (although she thought he had first mentioned $180,000) and that Natalie would get the rest; although she thought it was "unfair", she did not say "[n]o disrespect, but I'm entitled to say what I think. Dad, that's not good enough. We should get half the house"; she stated that, initially, she was shocked, but that shock turned to anger by 23 April 2013; she knew that Natalie had been supporting the deceased for five years previously, including paying the mortgage on the house and the household expenses; that the deceased had said "I'm not a millionaire. I'm sorry you just don't get that. I have been supported by Nat for five years"; and that the deceased had invested $100,000 in the business conducted by Julie's husband, Grant (at a time well before their separation in April 2014): T49 - T50.
Julie did not explain why she thought that what the deceased had said was "unfair", other than referring to what she understood to be some difficulties in the deceased's marriage to Natalie (a matter not raised in cross-examination with Natalie). Even if that were true, it would not provide a basis for unfairness as between the deceased and his children.
There was no evidence, in any of Julie's affidavits, or in any of the text messages that she had sent following the conversation on 22 April 2013, to the deceased about his relationship with Natalie being a cause for her upset or anger. She referred to a text message that she had sent to Craig, but that, also was not the subject of any evidence.
Natalie gave evidence about the events that occurred at this meeting. Whilst I accept that she was not there when the conversation about how the deceased intended to distribute his estate was explained to the others who were present, I do accept her evidence that she was there when Julie said "No disrespect, but I'm entitled to say what I think. Dad that's not good enough. We should get half the house" to which the deceased had responded "You're so ungrateful. Fuck off". I accept Natalie's evidence in this regard.
Mark, also, gave evidence about the events before, on, and after, the meeting held on 22 April 2013. He is, of course, the executor and not a beneficiary. In my view, to the extent that he gives evidence of what he himself heard during the meeting, I accept that evidence where it conflicts with that of Julie.
His affidavit evidence on the topic is as follows:
"16. At a family meeting attended by Natalie, Craig and Julie in late April 2013, Gary said to me:
'I'm having a family meeting to discuss my will, I want you to be the executor, I want you to be present at the meeting. They all know I'm dying, I want to talk about my will so that Nat doesn't have any problems when I'm gone. It is something I have to do.'
17. It was a very emotional and very sad occasion. At the time of the meeting Gary had been diagnosed with cancer and was aware his death was only a matter of timing. Gary said to me previously, 'there is no cure for my cancer it's only a matter of when I die'.
18. Craig appeared to find it extremely difficult to verbalise his feelings and took little part in any discussions.
19. Julie, appeared quite vitriolic and lacking any empathy towards her father or the stress he was experiencing. Julie said to Gary:
'What am I going to get out of all this when you pass away?'
Gary said:
'I'm doing a new will, you (referring to Craig and Julie) will each get $150,000. Nat gets the rest.'
Julie said:
'Nat, no disrespect but I'm entitled to say what I think. Dad, that's not good enough, we should get half the house'
Gary said:
'You're so ungrateful. Fuck off'.
Julie left after yelling at Gary. I was horrified by Julie's behaviour and complete lack of empathy or concern for her father. Although Julie had always appeared very selfish, I could not believe her attitude towards Gary, who was very ill, the only sentiment she expressed was what money she could get."
In cross-examination, Mark admitted that he was not present for part of the conversation referred to in Paragraph 19 of his affidavit, but that he had been informed about what had happened by the deceased a short time later. This was consistent with what Natalie had heard at the meeting.
Mark also corroborated that he had heard the statement that Julie denied, namely "Dad that's not good enough. We should get half the house": T118.39 - T119.07.
In answers to questions from the Bench, Julie acknowledged that during the conversation with the deceased on 22 April 2013, she understood that the discussion was about how the deceased wished to distribute his own money, not money that then belonged to either of his children, on his death, and that he was entitled to do with it as he pleased: T50.33 - T50.50. Her evidence does not reveal any appreciation that requiring the deceased to provide her and Craig with "half of the house" would, in all probability, require its sale and leave Natalie, to whom the deceased had been married, at that time for about 5 years, and who was a co-owner, without the home in which she had lived with the deceased throughout their married life.
Craig gave evidence in answers to questions from the Bench that at the meeting, that the deceased had gone through the figures and that he remembered the amount of $180,000 being mentioned. He said that Julie "was a little bit upset with that…she didn't think that was enough" and that the deceased "was getting a little bit upset that Julie was upset". He did not recollect any conversation involving a share of the house: T112. His evidence should also be accepted.
Following the meeting on 22 April 2013, a number of text messages passed between Julie and the deceased, which included:
The Deceased (Tuesday, 23 April 2013 at 9:58 a.m.):
"Julie, I'm sorry and that you feel the way you do. I love you and want you to come tomorrow with Craig and Nat, but that is your decision. I always have your best interest at heart and I feel the way Nat was treated was hurtful. I believe that Nat loves you too.
Dad"
The Plaintiff (Tuesday, 23 April 2013 at 10:35 a.m.):
"Understand you are going through the worst time of your life Dad. My life has just got a whole lot harder and I am scared about that. I now have to look after Luca, Craig, Mum and myself with minimal support. I have no house and no money and the chances are I will be a single Mum. I'm sure Donna and Gordo won't be helpful like you as I'm not family. I'm sure Nat, her Mum, brother and sister will appreciate you looking after them because that is what you have written down. I guess the same thing happened to you so you don't see it from our perspective. I would have expected Nat to say the arrangement is not entirely fair to Craig and I don't intend to have beg her for help in the future. She will have moved on with her life. I feel very alone and not that important as I have during your previous relationship with Jackie. I will never do this to my son."
The Plaintiff (Tuesday, 23 April 2013 at 10:53 a.m.):
"I don't want to be the executor with Mark and I don't want to talk about this anymore. I am feeling angry and it is making it hard for me to be around Nat and yourself. But I will be there for you Dad. I hope the test goes ok today. Maybe I can come and see you later. Love Julie"
The Deceased (Tuesday, 23 April 2013 at 1:37 p.m.):
"Don't bother because I am totally disgusted with your misconceptions. I am not a millionaire. I'm sorry you just don't get that. I have been supported by Nat for 5 years, I am very very upset."
Despite the tone and content of the text messages that passed between them, following the meeting on 22 April 2013, the deceased and Julie were able to have dinner together, with Grant, on 24 April 2013: T53.34 - T54.03.
Regrettably, there was a serious disagreement between them on this occasion also, although the precise details of what occurred are not disclosed in the evidence.
The depth and intensity of the feeling that the two events engendered in Julie is evidenced by the content of her text messages sent to the deceased on 25 April 2013 and 27 April 2013 respectively:
The Plaintiff (Thursday, 25 April 2013):
"I felt like jumping off a cliff last night, Zukes the only thing that stopped me. I will never forget or forgive you for the things you said last night to me and in front of Grant.
…"
The Plaintiff (Saturday, 27 April 2013):
"Stop involving Craig and Grant. You are the issue not us. We are done, nothing you do now likw [sic] convincibg [sic] Craig, Mum or Grant will help. You are an awful person.
Thank you
That should read like and convincing. You have no idea what an awful nasty person you are. I was done after Jackie and gave you a second chance. Stupid me.
This situation is not repairable. The more you say and do the more I hate you"
Following the events in April 2013, both the deceased and the Plaintiff were extremely upset, one with the other. I am satisfied that despite Julie's denial, the events in April 2013 were a turning point in the relationship between them.
Yet, their relationship did not break down completely. Whilst there can be no doubt that his principal carer was Natalie, Julie gave evidence, which Natalie accepted, that Julie did take him to most of his radiation treatment appointments: T77.32 - T78.38; that there were text messages between them "where Julie [was] being either supportive or positive in her dealings with" the deceased: T79.11 - T79.15; and that their relationship was "relatively cordial" until about March 2014: T79 - T80.
Indeed, for his birthday at the end of March 2014, Julie sent him a "personalised photo book", which restated events and stories and in which Julie expressed her gratitude for all of the things that the deceased had done for her. It was in loving terms.
Julie also gave evidence that her relationship with her father was "reconciled … in early 2014".
However, their relationship deteriorated, again, in May 2014, when Julie went to the deceased's home to collect some personal items. On this occasion, they had an argument and, according to Julie, the deceased stated that he intended to support her husband, Grant, in family law proceedings relating to Luca (the deceased's grandchild).
In relation to this incident, Julie wrote:
"Later on the afternoon of 13 May when I went to my father's place to collect some of my belongings, my father came out onto the balcony screaming: 'Fuck off and never come back. We're going to help Grant get custody of Luca'.
As I followed my father into his house crying, I tripped and fell on my face, spraining my hand and injuring my knee and face. My father laughed at me when I fell and was crying. I had never felt so alone. I collected my things and met my friend Bernadette Cormican, who was helping me and Luca to move into a new rented place in Malabar that same day. I made another report of the incident at Maroubra Police."
I am satisfied that it was on this occasion, on 13 May 2014, he said to Julie words to the effect:
"Fuck off and never come back, we're going to help Grant get custody of Luka."
Whatever its origin, and no matter how angry the deceased was at the time he said these words to her, this conversation upset Julie greatly. Undoubtedly, it prompted Julie to limit contact to Luca: T136.31 - T136.35. It was after the argument in May 2014, that Julie ceased to have contact with the deceased, and, despite her denial, I am satisfied that when Luca was with her, she did not permit the deceased to have any contact with him. Whether that was warranted, in the best interests of Luca, does not have to be decided. It is the explanation upon which counsel relied in relation to Julie's conduct.
Without condoning Julie's conduct, it is clear that from early 2014, she was going through her own personal, marital, and other difficulties. It is also likely that there were observable signs of a deterioration in her behaviour and well-being, which prompted the deceased to write to the Sydney Clinic, at which Julie had attended, relating to his concerns. Those difficulties may also provide some basis for the deterioration of her relationship with the deceased.
Even after the events in May 2014, the deceased extended an olive branch to Julie. On 14 May 2014, he sent her a text message (identified in Ex. 1 but not in any affidavit filed and served by her) in the following terms:
"Julie
I only want you to be alright. I do love and care about you and Luca. I am willing talk [sic] with you calmly and with your counselor [sic] if you agree?
I understand you are under enormous pressure. I believe you need support and Ono [sic] of your family want things to be this way"
Notably, in Julie's affidavit evidence regarding the events in May 2014, she did not mention that she had received this text message from the deceased. It was submitted by the Defendant's counsel that was a "significant omission in circumstances where … the impression is given that there was no contact from her father after that incident on 14 May": T142.45 - T142.47.
Furthermore, in response to a list of dates that Natalie asserted the deceased had tried to contact Julie in order to "resume their relationship", including the text message sent to her on 14 May 2014, Julie stated:
"I did not receive a text from my father on 29 April 2013 attempting to resume his relationship with me. The only caring text I received from my father after May 2014 is a text on 26 September 2014 … However, I had not received an apology from my father for what my father had said to me on 14 May 2014."
Counsel for the Defendant also submitted that words, or even entire text messages, had been omitted from Julie's affidavits in respect to the text messages she had sent the deceased. This is so and does Julie no credit.
In her affidavit, sworn 14 June 2017, Julie referred to a text message that she had sent in September 2014, in which she responded to the deceased telling a local shopkeeper "Julie wants nothing more to do with me". Her actual response was revealed to have been sent 5 August 2014 (Ex. 1). It stated:
"I'm aware Sue at Foodworks has been told I want 'nothing more to do with you' Dad and that I sent awful messages to you Mum. To set the record straight - I was sent around 30 text messages by you Mum stating you were going to kill yourself and that I had destroyed the family, so concerning I showed the police and you were consequently involuntarily scheduled into a mental health facility. Two days after this, you stated Dad that 'we are going to help Grant get custody of Luca' and you laughed when I fell over and hit my head and sprained my hand. These are abusive behaviours. I did not deserve to be treated this way and I will no longer be abused by either of you. It's because of these abusive behaviours, I chose not to have contact with either of you for a period of time. Luca is still in hospital, yet I am hearing about false and derogatory comments being made to my friends. The consequences of this latest issue are I intend after this message not to have contact for a long period of time now. Nat, I have included you because I'm not sure you are aware of these facts."
Counsel for the Defendant suggested that this text message, omitted from her affidavit, "was for more significant than simply a responsive text message after what she had heard from the shopkeeper and … that message in its entirety tells a different story from what is suggested in … her affidavit": T143.05 - T143.08. Again, this is so.
By way of a further example, counsel for Mark pointed to a text message sent on 9 September, 2014, which Julie had extracted in her affidavit evidence. He submitted that "a substantial slab of text … has not been included in her affidavit and importantly, it [the omitted text] deals directly with the question of Luca": T143.10 - T143.16.
These matters led to counsel making the submission that Julie's evidence, by virtue of her omissions, was "in a sense selective and self-serving and trying to paint a picture that was more one sided than was actually the case": T143.37 - T143.40. There is a sound basis for having made this submission.
It is clear that Julie and the deceased remained estranged, after May 2014, until the deceased's death, notwithstanding repeated attempts by him to resurrect contact with her.
Julie stated that "after each disagreement my father and I made amends. The exception to that process was that I could not overcome the last argument with my father in 2014 about his assistance to my estranged husband. It seemed to me to be a serious betrayal … ".
Perhaps, the depth and intensity of Julie's feelings is demonstrated by what occurred in mid-2016, after she was informed that the deceased had only a few weeks to live. She sent the deceased a card, in which she wrote that she "can visit you, if you like", but that she was not prepared to do this if "I'm going to be abused as per what's happened in the past". She ended the card with the hope that he was not in pain and that he was getting the care that he needed "at this difficult time".
The deceased acknowledged receipt of the card "and just wanted to wish you and Luca all the best for the future".
Extraordinarily, Julie responded by sending a text message, detailing all of the wrongs alleged to have been visited upon her by the deceased and other family members; informing him that psychologists, and others, had said that he did not care about her; that she "was the family scapegoat and I haven't deserved any of this"; and that "[i]t's sad that you haven't seen Luca and I as important enough in your life".
Natalie intercepted the text message and informed Julie that she was not going to show the deceased it "unless he asks".
The text message sent by Julie knowing that the deceased was in the last weeks of his life, in my view, demonstrated an extraordinary lack of empathy and concern for him. At the time Julie sent them, she should have realised that it was not the time to regurgitate what she perceived as the deceased's past wrongs and to berate him with her views about his conduct. It also demonstrated a self-regarding view of their relationship, in circumstances when her view should have been otherwise. It justifies some of the comments made about her by the deceased to which I shall next refer.
[4]
The deceased's statements made during his lifetime
The deceased left a document headed "Succession Act 2006 Statement", which was dated 25 May 2016 and which he signed on 29 May 2016 in front of Mr Michael Rogers, solicitor. A copy of this document formed part of Mark's evidence in this case. In addition, there was evidence given of oral statements made by the deceased during his lifetime, to one, or more, of the witnesses.
Natalie gave evidence that the deceased "probably took a dozen attempts to try and get this letter to where he wanted it to be": T92.14 - T92.18. I am satisfied that the deceased carefully considered what he wanted to write in this document and it genuinely expressed his feelings about Julie at the time it was written.
Section 100 of the Act provides:
"(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.
(3) Subject to subsection (4) and unless the Court otherwise orders, where a statement was made by a deceased person during the person's lifetime otherwise than in a document, no evidence other than direct testimony (including oral evidence, evidence by affidavit and evidence taken before a commissioner or other person authorised to receive evidence for the purpose of the proceedings) by a person who heard or otherwise perceived the statement being made is admissible for the purpose of proving it.
(4) Where a statement was made by a deceased person during the person's lifetime while giving oral evidence in a legal proceeding (being a civil or criminal proceeding or inquiry in which evidence is or may be given, or an arbitration), the statement may be approved in any manner authorised by the Court.
(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve.
(6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it."
There was no objection made to any parts of the deceased's statement, which despite its length, should be set out verbatim:
"Succession Act 2006 Statement
25th May 2016
I, Gary Roberts of … Little Bay NSW hereby provide the following statements as to why I have distributed assets in my Will accordingly between my daughter Julie Gargano (formerly Julie Roberts) and my son Craig Roberts.
What has been provided in my Will is the total distribution of assets to Craig Roberts; Julie Gargano and Luca Gargano; $150k and 2,000 shares in Ultraclean.
Beneficiaries:
Craig Roberts $150K with delayed payment of up to 36 months;
Julie Gargano 1,000 Ultraclean shares;
Luca Gargano 1,000 shares held in trust with Gabriela Roberts.
As it currently stands we still have a mortgage of approximately $590K on our family home.
Reasons for my decision to divide assets according between Craig and Julie are the following reasons:
• I was first diagnosed with cancer in April 2013 and decided to discuss my Will with my children. I was appalled at Julie's attitude with regard to our discussion on my decisions with the distribution of assets and that she did not speak to me for weeks. Julie displayed an unbelievable sense of entitlement and greed that greatly disappointed me.
• There was little if any concern about my situation and wellbeing.
• Julie decided in September 2014 to cut off family contact of her own accord. I was devastated by this action and it has hurt our family deeply. I did offer to meet to discuss the situation to try to come to some resolution however, Julie decided to ignore any further correspondence.
• Grant Gargano has allowed both Grandparents access to spend time with our Grandson Luca while he has custody, as Julie has cut off any access to him. Grant wants Luca to have as normal as possible upbringing with a loving family environment.
• Julie has a tendency to overreact to comments which has resulted in the breakdown of numerous relationships. This appears quite evident with the rejection of family and friends and discussions I have had with many of them. Julie has stopped contact with many long-term friends, sent confrontational and abusive messages to a number of people who have all been there to support her. Julie appears to have a limited ability to keep things in perspective. Small things quickly escalate to become major issues and there starts the seemingly endless pursuit of finding someone to agree with her views.
• Julie portrays herself as a 'victim' and has lied and concocted stories about my upbringing and more recently her own upbringing.
• Julie interfered with other people's relationships, outwardly expressing her views with character assassinations and hostility (Michael Rogers and Jackie Wakeman).
• Julie strongly embraced being a part of the Gargano family and to a great degree was the centre of attention. A comment from Grant's sister 'How's the parasite' (whilst a poor comment) started a downward spiral with the whole family relationship. Julie was asked to sit at a different place setting at a family dinner and Julie's view was that it was part of the family rejecting her and a conspiracy taking place. Julie has taken comments and spiralled out of control with her over reactions.
• In hindsight it is clear to me that Craig has not had the same level of assistance and support that Julie has had over the years. It is time for me to make that up to Craig. Craig is now trying to set up his own business and needs my support.
• Throughout my life I believe I have done my very best to give both Julie and Craig support in every aspect of their lives. I insist that my final wishes are respected.
• I have considered my legal and moral obligations to my children under the Succession Act 2006 and do not feel there is any obligation owing to Julie Gargano.
• I request that my executors keep this document confidential and it is to be used at their discretion in the event of a claim by Julie Gargano (or Julie Roberts) under the Succession Act 2006."
[5]
Corroboration of the deceased's statements
There can be no doubt, despite Julie's version of the event on 22 April 2013, and what followed, that the deceased was very upset by the statement, which I find that Julie, despite her denial, did make. There is evidence from other sources that demonstrate the depth of the deceased's disappointment by the events that occurred.
Craig Watkins, a long time, and close, friend of the deceased, gave evidence of a conversation that he had with the deceased about the event of 22 April 2013:
"Shortly after Gary's cancer diagnosis, he said to me:
'I'm devastated by Julie's appalling and selfish conduct. We had a family meeting where I told Julie and Craig the details of my will …
I can't believe Julie's sense of entitlement, I've worked hard for everything I have and Nat has supported me the whole time we have been together. Julie doesn't care about me or that I'm dying, all she cares about it [sic] how she can get money and what she will get when I'm dead. She has never cared about me. She doesn't understand that Nat has supported me since before we were married.'"
Mr Watkins also gave evidence that the deceased had told him of his attempts to contact Julie and her lack of response.
In relation to the card that Julie had sent the deceased when he was in the last stages of his life, it is clear that its receipt also caused the deceased great disappointment. Mr Watkins gave the following evidence:
"Gary was disgusted at Julie's final card. I visited Gary in the last few weeks of his life, he appeared hurt and upset by Julie's card. He said to me:
'I can't believe I'm on my death bed and she is still making it all about her! She is unbelievable and I don't want her at my funeral. I don't want her to be able to make any more trouble'."
Mr Neil Grant, also a long time, and close, friend of the deceased, gave evidence of his conversation with the deceased following the events of 22 April 2013.
Although Mr Grant was not available for cross-examination, I considered that his affidavit ought to be read as much of what he has written could not be substantially in dispute and, even if it is, it is consistent with the evidence of other witnesses and the statement of the deceased. Of course, I have given his evidence less weight since he was not available to be cross-examined. As Julie's counsel acknowledged, "the way the matter has progressed, it probably won't turn on anything that any of the … peripheral witnesses say": T97.14 - T97.23.
Mr Grant wrote:
"After Gary told me he had been diagnosed with cancer, he said to me:
'I met with Julie and Craig to talk about my will. It should not have been "confrontational" however that is how it ended up. I'm devastated by Julie's reaction, she is so greedy. All she cares about is what she will get and her expectations when I'm dead. She couldn't care less about me'.
Gary and I then discussed his will. Gary said to me:
'I've instructed a solicitor to do my will. Originally my estate was divided $150,000 to each of Julie and Craig and the rest to Nat, but after Julie's reaction, I've changed it. Craig still gets his $150,000, but I've reduced Julie's share, provided for Luca and Nat still gets the rest'.
I have read Gary's wills dated 6 June 2016 and his earlier will from 2015. These two wills are exactly as Gary stated to me. When Gary told me about the content of his wills, his meeting with Craig and Julie to explain his wills, he said to me:
'I've made a conscious decision about my will given Julie's disgusting behaviour towards me. I want you to support Natalie as the major beneficiary of the will.'
Gary also said to me:
'I am going to write a letter as to why I have done what I have with my most recent will, please ensure as my friend that my will is upheld. Julie cannot continue to behave like this'."
In relation to the card sent by Julie to the deceased, the deceased told Mr Grant:
"[I]t is still all about her, I'm on my death bed and she says she's happy to come and see me if I like! I don't want to see her and I don't want her at my funeral. She has caused enough shit, I don't want any more trouble, especially when I'm gone."
Mr Grant then gave evidence that the deceased said that he felt his relationship with her had "deteriorated to such an extent that I feel that any further contact with Julie is causing me unneeded emotional grief in my final weeks".
In relation to the deceased's written Statement, the deceased said to Mr Grant:
"I'm fully aware of the intent of the letter the solicitor asked me to write to be held with my Will. I have done it because I feel that Julie will try to contest the will. I want to make sure that the intent in the will is actioned."
Mr Gregory Hopper, also a long time, and close, friend of the deceased, gave evidence of having had similar conversations with the deceased about how Julie's conduct had affected the deceased and the deceased's view of that conduct.
[6]
The Law
To justify an order for provision under the Act, the Court must be affirmatively satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased. If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes.
There is no automatic entitlement to provision stipulated by the Act and the deceased's Will applies unless a specific application is made and acceded to by the Court.
The parties were largely agreed as to the principles to be applied on this topic. I have dealt with them in many cases. For the benefit of the parties, I shall repeat the relevant principles.
Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (1994) 181 CLR 201, at 210-211; [1994] HCA 40.
Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], commented that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J (as his Honour then was) wrote that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "'an evaluative determination of a discretionary nature, not susceptible of complete exposition' and one which is 'inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific'": Szypica v O'Beirne [2013] NSWSC 297 at [40], citing Manuel v Lane [2013] NSWCA 61 at [9].
Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on his estate: Sgro v Thompson [2017] NSWCA 326, per Payne JA (agreeing with White JA) at [6].
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]:
"… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs."
In Grey v Harrison [1997] 2 VR 359 at 366-367, Callaway JA observed:
"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". Neither is the word "maintenance", nor the phrase "advancement in life", defined in the Act.
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at 228-229, said, of the words "maintenance", "support" and "advancement":
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]:
"'Proper maintenance' is not limited to the bare sustenance of a claimant…but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility."
In McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82, Dixon CJ and Williams J wrote, at 575:
"The presence of the words 'advancement in life' in the... Act in addition to the words 'maintenance and education' is not unimportant... 'Advancement' is a word of wide import."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P said:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams…)."
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
These words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476:
"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Their Lordships went on to state, at 478:
"The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the court were concerned merely with adequacy. But the court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration."
Dixon CJ and Williams J, in McCosker v McCosker at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word "proper", that:
"It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at 19, pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration:
"The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502:
"…the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin at [114], Callinan and Heydon JJ wrote:
"…the use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J pointed out in Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. He wrote, at [12]:
"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied." [Citations omitted.]
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life "involve value judgments on which minds can legitimately differ", and "[t]here are no definite criteria by which the question can be answered."
His Honour added, in Slack v Rogan; Palffy v Rogan at [123]:
"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
In Sgro v Thompson, White JA, at [86], stated:
"[T]he most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former."
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
As will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as also will be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]:
"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added:
"'Need' is not so synonymous with 'want' such that the two are interchangeable."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
Section 60 of the Act provides:
"(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(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."
It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order. There is no mandatory command to take into account any of the matters enumerated. In the context of the section, "may" does not mean "must".
In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote:
"Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender.
The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
Section 65(1) of the Act requires the family provision order to specify:
1. the person or persons for whom provision is to be made, and
2. the amount and nature of the provision, and
3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and
4. any conditions, restrictions or limitations imposed by the Court.
The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the will (s 72(1)(a) of the Act).
[7]
Some Additional Principles
Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19; McKenzie v Topp [2004] VSC 90 at [63].
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:
"Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added:
"There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes:
"All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
In Vigolo v Bostin at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:
"It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232 at [108], I also noted that:
"Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
In Sgro v Thompson, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan, at [127], namely, that:
"…respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
His Honour added, at [86]:
"To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41]; Borebor v Keane [2013] VSC 35 at [67].
In relation to the claim by Julie, being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember:
1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109].
3. Generally, also, "the community does not expect a parent to look after her, or his, children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58].
4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia at [58].
5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].
6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge the correctness of those principles), in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297, at [62].
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby J, 26 April 1985, unrep).
In Foley v Ellis at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
Perhaps, the person with the greatest claim on the bounty of the deceased is Natalie, who, of course, is not an applicant for provision. She does not have to prove an entitlement to the provision made in the deceased's Will or otherwise justify such provision. Nor does she have to explain the decision by the deceased to make the provision that he did for her in his Will.
The following principles are relevant to the competing claim of the spouse of the deceased.
1. As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to his or her spouse, to the extent to which his or her assets permit him or her to do so, is to ensure that she or he is secure in the matrimonial home, to ensure that she or he has an income sufficient to permit her or him to live in the style to which she or he is accustomed, and to provide her or him with a fund to enable her or him to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free her or his mind from any reasonable fear of any insufficiency as she or he grows older and her or his health and strength fail (see: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24). Concern as to the capacity of the spouse to maintain herself or himself independently, and autonomously, may also bear upon the notion of what is proper provision.
However, what I have said above is not of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142]-[144].
1. The three elements identified in (a) above are not necessarily mutually independent. The Court is not to approach the assessment of what is proper for a competing claimant by attempting precisely to replicate the way of life that the deceased and his or her spouse planned to have had he or she survived.
2. There is binding authority which gives greater weight to the claims of a party who has entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68].
In Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [24] , Gleeson CJ wrote:
"The structure of marriage and the family is intended to sustain responsibility and obligation."
However, in Bladwell v Davis [2004] NSWCA 170 at [19], Bryson JA stated:
"In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits."
Ipp JA added, at [2]:
"I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."
Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109 at [80] - [82].
1. Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where she is the mistress of her own life, and in which, for the remainder of her life, she is not beholden to beneficiaries: Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep).
2. Ward J (as her Honour then was), in Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201, at [98], stated:
"Of course, the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims. In Bladwell v Davis [2004] NSWCA 170 Bryson JA (at [18]) noted an inconsistency between according paramountcy to the claims of surviving spouses (in the context of competing claims) and the application to the facts and circumstances of each case of s 7 of the Family Provision Act and the approach established by Singer v Berghouse. His Honour said: 'Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982'. His Honour considered it would be an error generally to accord to widows (or, by analogy here, widowers) primacy over all other applicants regardless of the circumstances and 'regardless of performance of the stages of consideration described in Singer v Berghouse in full and with reference to the instant facts' (para 19)."
Similarly, Craig, as a beneficiary does not have to justify his entitlement under the deceased's Will. I shall, later, in these reasons, refer to the unchallenged evidence that he gave for the deceased making the provision for him that he did.
Although, neither party submitted that Luca's share of the estate should bear part of the burden of the provision, if any, made for Julie, counsel for the Plaintiff (T156.22 - T156.34) and counsel for the Defendant (T154.45 - 154.49) each accepted that part of the burden, potentially, could be borne from that provision. However, counsel for the Plaintiff also submitted, in the alternative, that Craig could bear part of any provision made as he appears "to have regular employment on his own evidence today, at least he is capable of paying down his debts albeit slowly": T156.49 - T157.03.
[8]
Estrangement
On the topic of estrangement, in Underwood v Gaudron [2014] NSWSC 1055, I set out the principles at [230] - [233]. An appeal was dismissed: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, with the summary of principle not disturbed on appeal.
That summary of the principles was also referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [95]. It was also referred to, more recently, in Nicholas v Tubb [2016] TASSC 53 at [21], by Holt AsJ, with approval, in Toscano v Toscano [2017] NSWSC 419, by Robb J, at [90], and by Kunc J in Condello v Kim [2018] NSWSC 394, at [190].
I repeat what I wrote in that case:
"On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]:
"The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered:
(a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].
(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that:
"... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act."
(c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
(d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.
(e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed):
"If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will."
(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3].
(g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].
(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].
In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows:
"As explained by the primary judge, the term 'estrangement', which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience."
His Honour added:
"The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.
…
Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of 'love and support' from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility.
…
Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant."
I have carefully read all of the affidavits from the close friends of the deceased, all of which are consistent, and all of which demonstrate the deep level of distress that the deceased felt, particularly in regard to Julie's conduct towards him and Natalie. That they were able to communicate civilly, one with the other, and send, one to the other, a Christmas, or a birthday card, does not mean that one, or both, had completely erased that level of distress.
Counsel for Julie put that "if the deceased was influenced by events between April 2013 and May 2014, it was an irrational and eccentric influence": T 98.08 - T98.27. I do not accept this submission. I tend to the view that whilst the relationship between those dates was "relatively cordial", the undercurrent of disappointment that the deceased expressed was created by those events and were repeated by him in the Statement that he made in relation to the lack of provision for the Plaintiff out of his estate.
However, even if one accepted that an estrangement between them did not occur until mid-2014, there was an approximate period of two years at the end of the deceased's life where they had no contact.
It is impossible to resolve the question as to whose fault it was that an estrangement existed. When one reads all of the evidence, it is clear that each placed responsibility for the estrangement entirely in the hands of the other. The subjective perception of the events existing at the time of those events, which subjective perception the Court is unable to replicate, can often create this result, with the consequence that the Court accepts the estrangement as a background fact and as part of the platform from which it must then determine the result of the case. Experience dictates that very rarely can one party be absolved, completely, from all responsibility for the breakdown of the relationship.
What is often clear is that for the period of the estrangement between child and parent, there does not exist between them the companionship and support which might be seen in an harmonious parent/child relationship.
The Court, of course, does have the evidence of the deceased's state of mind, and, in particular, how the events that involved Julie affected his testamentary intentions. That he was well aware of Julie's entitlement to make a claim challenging his Will and of the Court's power to make a family provision order in her favour as an adult child who had been excluded from benefit under that Will cannot be disputed. Indeed, in the Statement he wrote that he had "considered my legal and moral obligation to my children under the Succession Act".
I do not accept the submission made by counsel for Julie that the Statement reveals that the deceased had an "unreasonable perception and [that] Julie remained, as she had been for her entire life, a dutiful daughter": T130.22 - T130.28.
Overall, I am satisfied that that the estrangement that existed does not prevent Julie from obtaining a family provision order. In this regard, the Court must consider the whole of their relationship, not just their relationship in the last 3 years of the deceased's life.
Yet, there can be little doubt that the existence of the estrangement and Julie's conduct in the last years of the deceased's life should be taken into account in calculating the quantum of the provision that ought to be made for her. In all the circumstances, I am of the view that Julie's conduct does mean that there should be restraint in the amplitude of that provision.
[9]
Qualifications on "Principles"
As long ago as 1980, in White v Barron at 440, Stephen J wrote:
"[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]:
"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18] - [20], and by Barrett JA, at [66] - [67]; in Burke v Burke [2015] NSWCA 195, at [84] - [85] and Yee v Yee [2017] NSWCA 305 at [172]. They must be remembered.
[10]
Additional Facts
I set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.
[11]
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
Julie is the child of the deceased. She gave evidence that she felt anxious as a child due to her parent's "volatile relationship". She complained that her parents were not "emotionally supportive" during her childhood. However, she and her parents celebrated birthdays and Christmases together, as well as going on yearly family holidays to Noosa.
In about 1999, Julie lived with the deceased in Neutral Bay. She described her relationship with the deceased at this time as "very good". She gave evidence that she ate dinner with him. She also cooked, cleaned, and otherwise assisted the deceased look after the property where they both lived.
Julie travelled overseas, in 2000, for about 3 months, and when she returned, she again lived with the deceased, both at his rented Neutral Bay property, and, then, at the home he purchased in Mosman.
(In Natalie's affidavit, affirmed on 3 August 2017, she denies that the Plaintiff lived with the deceased "other than temporarily when she was between properties".)
When Julie was required to move to Dee Why to work as a business development manager, she maintained regular contact with the deceased, speaking with him on a weekly basis.
In about 2003, the Plaintiff purchased a unit located "across the road" to the deceased's property in Mosman. She gave evidence that while she lived in this property, she saw the deceased weekly.
Julie gave evidence that the relationship with the deceased was "volatile" and, at times, she felt the deceased loved her, while, at other times, the deceased was "difficult to deal with even though [she] loved him".
Julie also gave evidence of consulting with her General Practitioner, which resulted in her receiving counselling, in order to "deal with the emotional strain that [she] was having from [her] relationship with [her] father".
In March 2009, Julie attended the wedding of the deceased and Natalie. While Natalie and the deceased were overseas in 2012, Julie looked after their house and cared for their dog. The deceased also helped Julie, when she was 13 weeks pregnant, and while her husband was overseas, to renovate her unit to prepare it for sale, and to inspect a property in Alexandria that Julie intended to purchase.
Also in 2012, Julie briefly moved in with the deceased and Natalie in the Little Bay, before the deceased assisted her to move into another property.
In her affidavit in reply, Julie gave evidence that she supported the deceased, emotionally, through various medical treatments throughout his life time. This included the deceased's heart valve replacement, his treatment for gangrenous gall bladder, his radiation appointments, and the surgery in which his stomach was removed.
Natalie also gave evidence, in her reply affidavit of 12 April 2018, stating that she and the deceased provided assistance to Julie before the breakdown of the relationship. This assistance, some of which occurred during 2014, included looking after Luca, shopping for Julie, cooking for Julie, and sharing meals with Julie. I consider this evidence relevant in showing that a relationship existed with the deceased and Julie.
Evidence given by Mr Hopper attests to the presence of the deceased and Julie in each other's lives, at least before 2014. He wrote that the deceased referred to Julie as his "little girl" and that in response to her medical conditions, the deceased told Mr Hopper that he "supported Julie unconditionally".
Mr Watkins also gave evidence suggesting a presence of the deceased and the Julie in each other's lives. He gave evidence that the deceased said to him that Julie is a "needy person" and "she requires lots of love and encouragement". He also gave evidence that he saw the deceased provide assistance to Julie in obtaining her university education, as well as doing maintenance work on some of Julie's properties.
[12]
(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
There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd at [478]-[479]:
"Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.
Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of her children, once they became adults, imposed upon her by statute or common law.
Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way:
"The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
The boundaries of the obligation or responsibility are not amenable to rigid definition. Importantly, there is no "presumptive testamentary entitlement of an offspring": Underwood v Gaudron [2015] NSWCA 269, at [73].
The size of the deceased's estate is also relevant to determining the extent of the obligation or responsibility.
[13]
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered
I have earlier dealt with these matters. The value of the net distributable estate, even without considering the costs of the proceedings, is on any view, reasonably large.
[14]
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate
Julie is currently unemployed. She receives fortnightly income from Centrelink ($765), as well as income from her Public Sector Superannuation pension ($227). In addition, she receives monthly child support payments from Grant ($1,010). Her weekly income is about $1,001.
Julie gave evidence that her current assets comprise superannuation ($92,237), cash in bank ($76,643), a car ($7,000) and household contents ($57,926). The total value of her assets is $233,806. Julie's only liability is her credit card debt ($1,658).
Julie gave evidence that she expects to have a further liability of $67,891 because of the legal fees resulting from her family law proceedings.
Julie's annual expenditure is approximately $76,875, which includes rent ($36,504), electricity ($1,600), groceries ($14,200), telephone and internet ($1,080), house and contents insurance ($252), house repairs ($100), health insurance ($2,135), motor vehicle insurance ($1,000), motor vehicle registration ($304), vehicle fuel and repairs ($1,600), school expenses ($100), "children activities" ($250), child minding ($300), fares and parking ($250), medical, dental and optical ($15,000), chemist and pharmaceuticals ($1,000), hobbies ($200), holidays ($900) and other entertainment ($100).
Natalie gave evidence of her financial position. She works as a national account manager. Her monthly income is $9,583, which equates to $2,395 per week. She also receives a monthly car allowance of $833.
Her assets comprise cash in bank ($77), a motor vehicle ($10,000), clothing ($2,000), jewellery ($30,000), household contents ($100,000), her 1/3 interest in her home ($1,000,000), superannuation ($438,100). Her assets have a total value of $1,580,177.
Natalie is said to have liabilities of $607,295 comprising credit card debt ($3,995), mortgage debt ($536,300) and a personal loan ($67,000). It should be noted, however, that since there has been acknowledgement that the estate has a liability for two-thirds of the debt secured by the mortgage, Natalie is only liable, personally, for one-third of the mortgage debt ($178,766). Therefore, her actual liabilities total $249,761.
Her net financial position, when taking into account that she is only liable for 1/3 of the mortgage on the home, is $1,330,416.
Natalie's monthly expenses are $12,255. Her expenses comprise mortgage repayments ($3,349), house maintenance and repair ($100), credit card repayments ($4,000), pharmaceutical and medical expenses ($200), rates and levies ($491), phone rental and calls ($100), utilities ($539), food ($1,000), medical and dental ($100), clothes and shoes ($100), hairdressing and toiletries ($130), "other" ($500), car registration, maintenance and repair ($67), fuel ($80), car parking ($350), various insurances ($569), holidays ($100), restaurants and theatre ($100), sports and hobbies ($180), gifts ($100), and other entertainment expenses ($100). Her monthly expenses exceed her income.
Natalie also gave evidence that she has contributed $69,951 in additional financial contributions in respect of the home since the deceased died, which included home insurance, council rates, utilities, home loan fees, and internet and telephone costs.
(However, Natalie, in cross-examination, admitted that, at least in respect of the mortgage repayments, the figure she had provided included the 1/3 interest for which she was liable as a co-mortgagor and co-owner of the property: T102.37 - T103.08. As I have referred earlier, the mortgage repayments and rates that she has made on behalf of the deceased since his death ($43,686) have been included in the liabilities of the estate: T103.21 - T103.29.)
Craig gave evidence of his financial circumstances. He currently works as a grave digger: T110.30. He earns approximately $1,100 per week after tax: T110.44 - T111.01.
Craig gave affidavit evidence that his only asset is his 14 year old Nissan X Trail ($3,500). However, an annexure to this affidavit, suggests, in fact, his other assets include cash in bank ($1,584), clothing ($2,000), jewellery ($500), household contents ($1,500) and superannuation ($28,872). This brings the value of his assets to about $37,956.
Craig moved back to Sydney following the deceased's diagnosis. He gave evidence that in the months leading up the deceased's death, he was unemployed. As a result of his unemployment, he has incurred "debts which have since spiralled out of control". His disclosed debts include a bank overdraft ($608), a loan for his stolen motorcycle ($1,566), a personal loan ($16,200) and debt to the Australian Taxation Office ($41,840). His total debt is about $60,214.
In cross-examination, his debt was confirmed to include about $40,000 owed to the Australian Taxation Office, which has resulted from when Craig worked for himself and did not pay tax, as well as the subsequent interest that has accrued on that debt: 109.38 - T109.46.
Furthermore, Craig gave evidence that his primary mode of transport, his motorbike, was stolen from a car park. He stated that his insurance did not pay his claim for $18,000 because the vehicle's registration had lapsed.
His monthly living expenses total $3,836. It includes "lease/loan/interest" payments ($433), phone rental and calls ($125), credit card payments ($40), service and calls ($125), food ($600), clothes and shoes ($300), hairdressing and toiletries ($100), car registration, maintenance and repair ($80), fuel ($160), superannuation ($453), holidays ($200), restaurants and theatre ($200), sports and hobbies ($100) "newspapers/magazines/books/CDs/etc" ($50), gifts ($50) and tax on income and investments ($945).
Craig has "mostly" lived with his mother and her partner since returning to Sydney, as he believes he cannot afford to live independently. He asserts that the legacy left to him in his father's Will "is now my only hope of getting out of financial debt and enabling me to restart my life".
I am satisfied that Craig's financial position is far from strong.
[15]
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person
Julie is now living alone with, and caring for, Luca, who is currently 5 years old.
[16]
(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
The Plaintiff has been diagnosed with vasculitis. She also suffers from a range of other medical conditions, including colitis (inflammation of the large intestine), connective tissue disease, inflammatory arthritis, cluster migraines and severe lethargy.
In December 2016, Julie was diagnosed with breast cancer because of which, in January 2017, she had a partial mastectomy and was "diagnosed with the BRCA2 gene".
Due to her risk of cancer, she requires a hysterectomy ($3,895). She must also pay for the associated anaesthesia ($1,473) which will cost $5,368 for the entire procedure. Julie also requires plastic surgery for her breast reconstruction, and must also pay for the anaesthesia, which will cost $7,414.
In a letter from Professor R Penny AO, a now retired medical practitioner, who was the Plaintiff's doctor for ten years, it was noted that Julie has "managed and coped remarkably well over the years considering the burden of her severe chronic disease". He also noted that initially Julie was diagnosed with inflammatory bowel disease, which "later transformed into a more broad-based unspecified autoimmune connective tissue disease". She had "multiple admissions to hospital in the past for specialist review and investigations".
Another letter, from Dr B Watson, dated 11 May 2017, revealed that as a result of Julie's illnesses, she will need "to have recurrent hospitalisation".
Julie attends counselling once a fortnight and meets with a psychologist on a quarterly basis. She has also given evidence of an ongoing hearing problem which will require a stent.
Julie takes a range of medications.
In cross-examination, Julie said that after her next surgery, following recommencement of her medication, and also the resolution of her family law proceedings, "there is no impediment to returning to the workforce": T45.33 - T46.01.
Natalie gave evidence that she is currently suffering from depression and takes anti-depressants. Following the death of the deceased, she has also been prescribed Diazepam in order to "control high emotional situations such as this litigation".
[17]
(g) the age of the applicant when the application is being considered
Julie is 44 years old.
[18]
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant
I accept Julie's evidence that she provided some emotional support to the deceased when attending some of the various medical treatments he required, with him and prior to the events of 2013. However, I also consider the evidentiary weight of this emotional support should be balanced with the negative feelings experienced by the deceased in relation to the events in, and after, 2013. Bearing in mind his condition, at the time, her conduct, at times, was not that of a loving daughter and would not have contributed to his welfare.
[19]
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate
Whilst in her affidavit of 14 June 2017, she contends that she received no gift in the deceased's Will, the deceased did leave her 1,000 shares in Ultraclean Fuel Limited, which has a value of $15,000.
Julie also gave evidence, which I have no reason to doubt, that the deceased gifted her a car (Suzuki Swift) in 1991 valued at $20,000. He also gifted her a "Tag Heur watch" in 1996 valued at $7,000.
There is also evidence that the deceased used some funds from his superannuation to purchase shares in Grant's business in 2013, at which time, so far as is known, their marital difficulties, if any, were not publicised. (Julie admitted in cross-examination that she "knew that … [her] father had invested $100,000 into your husband at the time's business": T49.42 - T49.44.)
[20]
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
I have earlier discussed the statement the deceased made, which he described as "Succession Act 2006 Statement", in combination with the Will, as evidence of the deceased's testamentary intentions.
I also find the following evidence of Craig relevant, which goes to the deceased's testamentary intention:
"Dad told Julie and me what was in his will during his lifetime. Dad told me during his lifetime that the purpose of the pecuniary legacy to me in his will was to 'assist in your efforts to build a new life, return to the Gold Coast, and facilitate starting a business'. I believe that my father wanted to see me succeed after some major setbacks."
Craig was not cross-examined on this topic. There is no reason to doubt his evidence.
[21]
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so
There is no evidence that Julie was being maintained by the deceased in the years prior to the deceased's death.
[22]
(l) whether any other person is liable to support the applicant
Julie has settled her family law property dispute with her ex-husband Grant. It follows that Grant is no longer liable to support Julie. However, it should be remembered that the Plaintiff receives child support, from Grant, in respect of Luca. I have already written that this amount is $1,010 per month.
The Plaintiff receives a single parenting pension and family tax benefit from Centrelink: T33.40 - T33.41. Consequently, the Commonwealth Government's has a responsibility to continue to provide her with support, so long as she remains eligible for this support.
[23]
(m) the character and conduct of the applicant before and after the date of the death of the deceased person
I have discussed, already, Julie's conduct in and after 2013, which led to the deceased making a statement in respect of the provision he left her in his Will.
[24]
(n) the conduct of any other person before and after the date of the death of the deceased person
Natalie, as the principal beneficiary of the Will, gave evidence in respect of the contributions she made to the deceased and his welfare, the significance of which contributions the deceased acknowledged.
Although there is evidence that Natalie and the deceased had previously dated, they recommenced their relationship in about 2008 and this relationship lasted until the deceased's death. In late 2008, Natalie and the deceased contributed to the purchase price of a property in Little Bay. Natalie gave evidence that she sold her existing property in Gladesville, putting the proceeds of the sale towards their shared property.
(In cross-examination, Natalie accepted that when she sold her house, she had received $520,000, out of which she "applied $250,000 to the purchase of the property at Little Bay": T89.27 - T89.35.)
At this time, Natalie was the only one working. She gave evidence that from her salary, she solely met the repayments on her and the deceased's joint mortgage, as well as both of their living expenses and household bills. She calculated her financial contributions from 2008 to 2016 in respect of home insurance, council rates, mortgage payments, strata levies and other utilities as totalling $418,803.
Natalie also estimated that the total contribution she has made towards her and the deceased's living expenses to be greater than $725,000. In cross-examination, she stated this was calculated by going "through every possible bill I had for all of those utilities. Where I didn't have bills, such as home loan repayments prior to, I think, 2009, I done [sic] an average of the prior years to come up with that amount": T103.38 - T103.41. She further stated "it was only the home loan repayments that I didn't have the statements for. So I added every single one up and I have copies of all of them": T103.50 - 104.02.
(Julie's counsel, after calling for, and being provided with, a spread sheet containing Natalie's calculations for the estimated amount that she was said to have contributed, accepted that "whatever else might be said about the sums, they were obviously considerable and whether it be $425,000 or a greater or lesser amount, they are still considerable": T122.42 - T122.45.)
As mentioned, the deceased and Natalie married in February 2009. Natalie gave evidence of the extensive support she provided to the deceased from 2009, including being present at his various medical appointments. Included in these appointments was:
1. In 2010, a heart valve replacement where the deceased was in the Intensive Care Unit for some period of time following the operation;
2. In 2012, the removal of his gangrenous gallbladder, in which Natalie rushed the deceased to the emergency room;
3. In 2013, medical testing in connection with the deceased's cancer diagnosis, as well as attending chemotherapy with him, while he was able to be treated;
4. Also in 2013, the operation for the removal of his stomach, as well as the connected complications with this surgery;
5. In 2014, attending the emergency room with the deceased because of his diverticulitis (a serious condition that nearly resulted in the deceased's death);
6. Also in 2014, assisting the deceased with his temporary colostomy bag, installed for 6 months, where Natalie was required to change its seal and the bag daily.
Natalie also gave evidence that as the deceased and she lived alone, it was "very difficult juggling his medical conditions, medical appointments and balancing … full time work". She remained as the sole income earner until the deceased's death. She and the deceased continued to rely on this income for their financial support, household expenses, the car running expenses and other living expenses.
Natalie gave evidence that the deceased was in very poor health in the last three years of his life. This resulted in Natalie being required to give up her employment, on various occasions, until the deceased's death, in order to care for the deceased. During these periods, she was receiving holiday leave, carer's leave, or no pay at all. She gave evidence that in the total time she was unemployed she did not receive approximately $200,000 from her salary.
Relevantly, Natalie sold her own car in 2015 for $14,000, choosing to drive the deceased's car, as he could no longer drive it. The proceeds of sale were used to pay the bills and mortgage on the house while she was unemployed.
In May 2016, she was required to become the deceased's full time carer and did not return to full time employment until after his death. Natalie and the deceased used their savings, and borrowed money ($30,000) from Natalie's father, in order to "keep up mortgage repayments and general bills". She also did all of the household chores, as the deceased's health had deteriorated to an extent where he was "unable to help around the house or do any basic chores".
Finally, also from May 2016, Natalie contributed to the deceased's welfare and his palliative care, by assisting him when he required to use the toilet, or shower, and by helping him shave.
I am satisfied that Natalie made extensive contributions to the deceased's welfare both financially and emotionally. It should be remembered that the deceased himself recognised this support in a text message he sent to Julie on 23 April 2013, in which he stated "I have been supported by Nat for 5 years".
Craig's evidence is also relevant, as he is a beneficiary in the Will, as well as the deceased's only other child. He attests to having had a "very close relationship with [his] father". While Craig worked in Queensland, he and the deceased spoke on the telephone at least once per week. He would also regularly visit and stay with the deceased in Sydney.
When Craig was told about the deceased's terminal illness, he resigned from his job in order to be "by his side during the final months of his life". I accept his evidence. It is also relevant that he provided emotional support to the deceased in the final years of his life.
[25]
(o) any relevant Aboriginal or Torres Strait Islander customary law
This factor is not applicable.
[26]
(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
The Plaintiff has given evidence that Luca has suffered from numerous ongoing medical issues. He has osteomyelitis (an infection of bone tissue), discitis (an inflammation that develops between the intervertebral disks), and has pathological indicators that point to a possible autoimmune or inflammatory bowel issue. He also is "frequently sick with viruses and is being monitored by a Gastroenterologist".
A letter, from Associate Professor D Lowinger, an ear, nose and throat surgeon, on 17 September 2015, confirmed Luca "has had a concern with fluctuating high temperatures" and "is being investigated from an immunological perspective by Dr McKay".
Also relevant is a letter, from Dr B Watson, in regards to Luca's health, stating:
"Julies [sic] son Luca has health issues. From the age of 22 months her [sic] has had symptoms of recurrent pain/diarrhoea/back and abdominal pain. This has been investigated and a specific diagnosis has not been resolved, however he continue [sic] to be symptomatic. It may be that the underlying cause for his symptoms has not presented itself in florid enough state to allow diagnosis and that the condition is 'Forme Fruste'.
He is currently under the care of a paediatric gastroenterologist and rheumatologist."
As the mother of Luca, I consider his health concerns are relevant to Julie's case for additional provision, in that it is an expense for which she will be, at least partly, responsible in the future. (Of course, Grant also has parental responsibility for Luca, and, as such, shares care and financial responsibility for Luca, which is also a relevant factor.)
It is also relevant that Natalie continues living in the marital property at Little Bay, as she and the deceased purchased this property together with the intent to live there "permanently". She wishes to remain living at this property in the long term, as it is at a convenient location for her work in the Sydney city and has a garden for her two poodles. Furthermore, Natalie believes there would be considerable work required to sell the property at its estimated value of $3,000,000.
[27]
Submissions
Counsel for Julie submitted that adequate and proper provision in the circumstances of this case would result in her receiving a lump sum of $220,000.
I have referred earlier to her liabilities and the costs of the family law proceedings.
Julie also gave evidence that she currently drives "a small 2015 Kia Rio and would like to purchase a family car that is more suitable for me and Luca". She wishes to purchase a second hand Mitsubishi ASX 2017, or similar, for approximately $24,588.
Counsel put his calculations in reaching the figure of $220,000 in this way at T137-138:
"The provision we say is this. Your Honour will find … [the Plaintiff] has anticipated legal fees of about $70,000. I think they might be fractionally less now, but nothing to speak of, not to this case. She desires a house, but in reality, that's out of the question on any view. But she is paying rent of about $700 a week, and if your Honour were to take the view that bearing in mind it's not at all clear when she'll return to the workforce but assume that it might be in two years time, it could be earlier, it might be later, a proper figure in my submission would be about $70,000.
Her health is on any view poor, certainly her physical health is poor. She takes out private health insurance which is about $2,400 a year. Lines might differ, but if one were to say five years for that it would be about $12,000. She attends counselling which is about $1,100 a year and again if one assumes two years, that's $2,000. She wishes a motor vehicle of a value of about $24,000 and the so-called two big ticket items, one is she has to have some follow up surgery which is anticipated to cost about $15,000 and she has to bring up Luka [sic] and it's conceded that she'll receive some assistance from her husband, the extent to which is unknown.
It would appear that on the figures provided and the materials, that will cost her, at least in theory, I don't mean this at every level, something in the order of $400,000. If one were to take one fifth of that, and again, there's no science in that, it would be $80,000 and a buffer of 50 brings to a figure of, I think, $320,000. In my submission one has to of course accept that the estate is only $1.5 million. One has to accept that $150,000 of that will be paid to Craig Roberts. Accordingly, in my submission one would reduce it and again, arbitrarily I've reduced it by $100,000. That's the calculation."
Counsel for Mark submitted that Julie's claim should be dismissed. However, in the alternative, it was submitted that an appropriate quantum of provision for the Plaintiff was from $50,000 to $60,000: T155.04 - T155.11.
[28]
Determination
Having established eligibility, and that the proceedings were commenced within time, relevantly, the first question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Julie, has not been made by the Will of the deceased.
What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.
There was little provision in the deceased's Will made for Julie. However, this does not, automatically, mean that she will have satisfied the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her in the deceased's Will.
Yet, judged by quantum, and looked at through the prism of her financial and material circumstances, adequate provision for Julie's proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased. As stated, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
Whether that is so, requires an assessment of her financial position, the size and nature of the deceased's estate (and notional estate), the relationship between Julie and the deceased, the competing claims of Natalie, Craig and Luca, as other persons who have a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of Natalie: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 at [70].
This is a case where, apart from the last three years of their joint lives, there was a reasonably close relationship between Julie and the deceased. That it deteriorated to the point where she felt she could no longer have contact with him, after about May 2014, and write to him, as she did, shortly before his death, despite earlier attempts by him to resurrect contact, does Julie no credit.
The deceased repeatedly professed his love for Julie as his child. He considered that the obligation that he had to her was circumscribed by the limited contact that they had after May 2014, although clearly the events of April 2013 played a role in his considerations also. The Court should take into account, and evaluate, the whole of the circumstances regarding the relationship of the Plaintiff and the deceased.
In addition, there was the significant competing claim of Natalie, in particular, which must also be considered.
Taking all of the circumstances into account, I am satisfied that adequate provision for Julie's proper maintenance and advancement in life was not made by the Will of the deceased.
The more difficult question then arises, namely what provision "ought to be made for her maintenance, education or advancement in life", having regard to the facts known to the Court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison at 367. It is not a scientific, or arithmetic, exercise. However, similar considerations as are set out above arise.
Having considered the matters I am required to consider, and remembering that what is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances, I am satisfied that Julie should receive a modest capital sum for exigencies of life, or if she wishes, to use to pay off some debt, or to use in any other way that she sees fit.
As stated earlier, the relationship that existed between Julie and the deceased for the last two or three years of the deceased's life does operate to restrain the level of provision that "ought" to be made for her.
The provision for the proper maintenance and advancement in life of Julie that ought to be made, in my view, is by way of a lump sum of $85,000. In coming to this conclusion on quantum, I have taken into account, amongst other things, the value of the estate; the competing claims, particularly, of Natalie and of Craig; the fact that Julie no longer has a husband who has responsibility to assist in maintaining her; and that her child, Luca, has a number of medical problems, as does Julie herself.
I have not forgotten, in coming to the conclusion on the quantum of the provision to be made for Julie, the deceased's entitlement to testamentary freedom, and the fact that he made a detailed statement setting out the reasons he had for making such limited provision for her.
In relation to Natalie, as the deceased's widow, who made a very substantial contribution, as his wife of some years, her claim upon the bounty of the deceased, and her competing financial claim on his bounty is very significant. Nor have I forgotten that, generally, the community does not expect a parent to look after an adult child for the rest of that child's life and into retirement.
Despite her very significant competing claim, I am of the opinion that she should bear the burden of the provision made for Julie. In my view, neither Luca's share, nor Craig's share, should bear that burden. In relation to Luca, he is a minor beneficiary, for whom the deceased cared and who is a chosen object of testamentary bounty. Craig's financial position is such that it would not be just or equitable to adjust his share.
In summary then, subject to any further submissions on the form of orders, the following orders may be appropriate:
1. Having found that the Plaintiff is an eligible person, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, in addition to the provision made for her in the Will of the deceased, the Plaintiff is to receive a lump sum of $85,000.
2. No interest is to be paid on the lump sum if it is paid within 2 months of the making of orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment in full.
3. The burden of the provision made for Julie should be borne out of the share of the deceased's estate passing to Natalie.
4. The parties are to endeavour to reach agreement on the burden of costs of the proceedings, failing which the matter will be listed for further submissions.
5. Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.
6. Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of the proposed orders, including any orders as to costs.
[29]
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: 03 July 2018
WCA 61
Marks v Marks [2003] WASCA 297
Marshall v Carruthers [2002] NSWCA 47
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Milillo v Konnecke [2009] NSWCA 109
Palagiano v Mankarios [2011] NSWSC 61
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308
Salmon v Osmond [2015] NSWCA 42
Sellers v Scrivenger [2010] VSC 320
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297
Soens v Rathborne [2018] NSWSC 302
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285
Toscano v Toscano [2017] NSWSC 419
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Yee v Yee [2017] NSWCA 305
Texts Cited: R Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5(1) Aust J Leg Hist 5
Category: Principal judgment
Parties: Julie Denise Gargano (Plaintiff)
Mark Coves (Defendant)
Representation: Counsel:
Mr A Rogers (Plaintiff)
Dr S Chapple (Defendant)
Judgment
HIS HONOUR: Gary Alan Roberts ("the deceased") died on 6 July 2016 aged 65 years. He was survived by the two children of his first marriage, Julie Denise Gargano, who is the Plaintiff, and Craig Alan Roberts, and by his second wife, Natalie Roberts, both of whom are witnesses in the proceedings.
Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.
Julie filed a Summons on 23 June 2017, in which she sought a family provision order out of the deceased's estate and/or notional estate pursuant to Chapter 3 of the Succession Act 2006 (NSW) ("the Act") and an order for her costs. (The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.) A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.
In the Summons, Julie named Natalie as the only Defendant. By an amended Summons filed on 13 July 2017, Natalie was removed as the Defendant and Mark Coves, who was one of the executors appointed under the Will made by the deceased on 6 June 2016, to whom this Court granted Probate on 19 December 2016, was substituted as the only Defendant.
The other executor named in the deceased's Will was Gabriela Maria Roberts, the first wife of the deceased and the mother of Julie and Craig. She renounced Probate on a date not disclosed in the evidence. The deceased described her as "my friend" in the Will. She has played no role in the proceedings.
A family provision order may be made in relation to property that is not part of the deceased person's estate, but is designated as "notional estate" of the deceased person by an order under Part 3.3 of the Act: s 63(5). The parties agreed that the only property that could be designated as notional estate were shares (with an estimated value of $99,900), which the deceased held in his superannuation fund to which reference will be made. Ultimately, however, no submissions were made by counsel on this topic and the trustee of the superannuation fund was not a party to the proceedings. It would have been necessary to join the holder of notional estate as a party to the proceedings if an order designating that property as notional estate was to be sought: Soens v Rathborne [2018] NSWSC 302 at [9] - [10].
During the course of the hearing, the parties agreed that Mark, as executor, should be given the opportunity to satisfy any orders made in favour of Julie, whether a family provision order, or a costs order, and if either order was not satisfied, a notional estate order in relation to the shares could be made: T30.48 - T31.08.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, Julie is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased.
It was also not in dispute that Julie commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
It was also agreed that there was no scope for the operation of the intestacy rules, with the result that it is only necessary to refer hereafter to the Will of the deceased: T52.28 - T52.35.