Georgopoulos v Tsiokanis & Anor

Catchwords

[2012] NSWCA 308 ASIC v Hellicar (2012) 247 CLR 345[2012] HCA 17 Barns v Barns (2003) 214 CLR 169[2018] FCAFC 189 BCI Finances Pty Ltd (In Liq) v Binetter (No 4) (2016) 348 ALR 227[2016] FCA 1351 Boettcher v Driscoll (2014) 119 SASR 523[2007] SASC 327 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Burke v Burke [2014] NSWSC 1015 Burke v Burke [2015] NSWCA 195 Butler v MorrisButler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan (2016) 15 ASTLR 317[2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646[1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Ilott v The Blue Cross [2017] 2 WLR 979[2017] UKSC 17 In re Green, deceasedZukerman v Public Trustee [1951] NZLR 135[1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 Palagiano v Mankarios [2011] NSWSC 61 Palmer v Dolman[1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808[2008] UKHL 52 R Pty Ltd (Trustee for Fletcher Trust) and Jones (2016) 56 Fam LR 445

Judgment (36 paragraphs)

[1]

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31 Grey v Harrison [1997] 2 VR 359 Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256 Hampson v Hampson [2010] NSWCA 35 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Heyward v Fisher (Court of Appeal (NSW), Kirby P, Mahoney and Priestley JJA, 26 April 1985, unrep) Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135; [1950] NZGazLawRp 121 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 In the matter of Mediation & Online Dispute Resolution Operating Network Pty Ltd [2022] NSWSC 5 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kay v Archbold [2008] NSWSC 254 Kearns v Ellis (NSW Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unrep) Keep v Bourke [2012] NSWCA 64 Kemperman v Antonenas [2021] NSWSC 1555 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Lewis v Warner [2016] 3 WLR 1545; [2016] EWHC 1787 MacGregor v MacGregor [2003] WASC 169 Manuel v Lane [2013] NSWCA 61 Marks v Marks [2003] WASCA 297 Mayfield v Lloyd-Williams [2004] NSWSC 419 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 Palagiano v Mankarios [2011] NSWSC 61 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Payne v Parker [1976] 1 NSWLR 191 Pender v Pender [2021] NSWSC 1591 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 R Pty Ltd (Trustee for Fletcher Trust) and Jones (2016) 56 Fam LR 445; [2016] FamCA 928 Re Allen (deceased) [1922] NZLR 218 Re Dennis (Deceased) [1981] 2 All ER 140 Re Marsella; Marsella v Wareham [2018] VSC 312 Re Salmon, Deceased [1981] Ch 167 Salmon v Osmond [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 Shannon v Steinmetz [2019] HCASL 332 Singer v Berghouse (1994) CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson [2015] NSWCA 297 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Strang v Steiner [2019] NSWCA 143 Szypica v O'Beirne [2013] NSWSC 297 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Underwood v Gaudron [2014] NSWSC 1055 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) Watson v Foxman (1995) 49 NSWLR 315 Wenn v Howard [1967] VR 91 Wheat v Wisbey [2013] NSWSC 537 Williamson v Williamson [2011] NSWSC 228 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5 Category: Principal judgment Parties: Barbara Georgopoulos George Tsiokanis Constantina Meli Representation: Counsel: L Katsinas (Plaintiff) E White (Defendant)

[2]

Solicitors: Jordan Djundja Lawyers (Plaintiff) Lighthouse Law Group (Defendant) File Number(s): 2020/343250 Publication restriction: Nil

[3]

Introduction

These proceedings concern the estate of Nikolaos Tsiokanis (the deceased) and the claim brought by one of his three, now adult, children, Barbara Georgopoulos, for an order that the application be made out of time, an order seeking additional provision out of the estate and notional estate of the deceased, under Ch 3 of the Succession Act 2006 (NSW) (the Act), and an order for her costs of the proceedings. The case is another depressing example of an unfortunate legal dispute, waged between the living over the property of the dead, and the costly, unrelenting battle between siblings over the estate of one of their parents. It is regrettable that the proceedings progressed to the conclusion of a hearing of 3 days duration.
Perhaps, it is unsurprising that it did, given the nature of the personal relationship between the Plaintiff and the Defendants. It is the parties who must bear the sole responsibility for the costs that have been incurred, as their lawyers, and the Court, made every effort, before the hearing, to end the attritional litigation between them. They failed to recognise that their approach is destructive, expensive, and damaging.
I have no doubt that the legal representatives of each of the parties endeavoured to ensure that the party represented was, or were, fully cognisant of the hard realities when considering whether to continue family provision litigation, as well as the desirability of compromise.
The deceased died on 28 October 2019, aged 86 years. His former wife, Victoria Tsiokanis, who was the mother of their three children, died in August 2012. The three children are the Plaintiff, who was born in August 1957; the first Defendant, George Tsiokanis, who was born in January 1960; and the second Defendant, Constantina Meli, who was born in September 1970.
The deceased left a Will dated 4 March 2008, in which he appointed the two Defendants as the executors and trustees of his estate. He made virtually no provision ($100) for the Plaintiff.
There has been no grant of Probate of the deceased's Will, probably due to the lodgement of a caveat by the Plaintiff on 26 August 2020. Even though the caveat would have expired through effluxion of time, no application for a grant of Probate had been made. When this matter was raised at the commencement of the hearing, counsel for the Plaintiff immediately agreed that there was no reason to doubt the validity of the deceased's Will and that there ought to be a grant of Probate of that Will to the Defendants, who are the named executors. As they are, to all intents and purposes, the sole beneficiaries of the deceased's estate, they are, in any event, the proper contradictors.

[4]

Formal Matters

The Plaintiff's Summons was filed on 3 December 2020. The Summons, therefore, was not filed within the time prescribed by the Act (that is within 12 months after the date of the death of the deceased): s 58(2) of the Act.
The Plaintiff filed a notice of motion on 28 March 2022, seeking that she be granted leave to make an application for a family provision claim out of time, pursuant to s 58(2) of the Act. Because of the closeness of the date of the hearing, and also because, in New South Wales, the question of an extension of time, usually, is determined at the substantive hearing, the notice of motion was adjourned, consensually, to the hearing. It will be necessary to return, also, to this matter later in these reasons.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c) of the Act).
However, under s 60(2) of the Act, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (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 …". This factor, however, will not be relevant to the question whether the applicant is an eligible person, in the case of a child of the deceased.
A family provision order is one for the maintenance, education, or advancement in life of an eligible person. Relevantly, the Act applies in respect of the estate and notional 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.
As the deceased dealt with all of his estate in his Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

[5]

The deceased's Will

Relevantly, the deceased's Will: 1. appointed the Defendants as joint executors of the estate (Clause 2). 2. devised three properties, in Greece, to the Defendants, in equal shares (Clauses 3, 4, and 5). 3. gave a bequest of $100 to the Plaintiff (Clause 6). 4. provided the rest and residue of his real and personal estate to the Defendants in equal shares (Clause 7).
It is necessary to repeat Clause 10 and part of Clause 11 of the deceased's Will verbatim: "10. I DECLARE that this Will is made in contemplation of my divorce with VICTORIA TSIOKANIS but is not conditional on the divorce taking place." "11. I DECLARE that I have not made any provision in this my Will, other than the amount at Paragraph 6, for my daughter BARBARA GEORGOPOULOS and/or her children because: …"
There are then 17 detailed sub-paragraphs stating the reasons the deceased did not make greater provision for the Plaintiff. I shall return to these reasons, in detail, later.

[6]

The nature and value of the deceased's estate

On 8 March 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
I have taken what follows from the Agreed Schedule, dated 1 April 2022, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)
The deceased's estate, at the date of death, comprised a one-half interest in real property located in Blacktown ($340,000), and monies in the bank ($4,402). The gross estimated value of the deceased's estate, then, was $344,402. No liabilities were disclosed. (The other tenant in common of the Blacktown property is the first Defendant.)
The deceased's estate, at the date of the Joint Schedule, comprised the one-half interest as tenant in common in the Blacktown property ($400,000), and the monies in the bank ($4,402). Prior to the hearing, the Plaintiff had asserted, and the Defendants had disputed, that, at the date of the Schedule, there was rent due and payable to the estate by the first Defendant ($26,000) as he had remained in occupation of the Blacktown property following the death of the deceased.
The issue of rent was raised at the commencement of the hearing and counsel for the Plaintiff conceded that he was unable to establish a traditional ground (an actual ouster) for charging an occupying co-owner (the first Defendant) with an occupation rent, for the benefit of a co-owner who was not in possession. This prevented the estate from exercising rights to possession. In the circumstances, as it was not pursued, it is no longer necessary to refer to the claim for rent or occupation fee: Tcpt, 11 April 2022, p 2(45)-3(12).
The gross estimate of the deceased's estate, at the date of the hearing was then agreed to be $404,402.

[7]

Costs of the Proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the 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, or his, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
The Plaintiff's costs, calculated on the indemnity basis, were estimated to be $56,638 and, calculated on the ordinary basis, to be $42,478 (in each case, inclusive of GST, and based upon a hearing of two days duration). Costs of the proceedings, totalling $21,683, have been paid by the Plaintiff, leaving $34,955 to be paid by her. (If she were to succeed, and if a costs order in her favour were made, she may receive back some of the amount that she has paid.)
The Defendants' costs, calculated on the indemnity basis, were estimated to be $64,042 (inclusive of GST and based upon a hearing of two days duration).
Because the proceedings did not finish in 2 days, it was necessary to consider the costs and disbursements that would be incurred on the third day. Each counsel, after obtaining instructions, stated, from the Bar table, and I am prepared to accept, for this purpose, that an additional amount of $5,000, per side, has been incurred for costs and disbursements for the third day: Tcpt, 12 April 2022, p 187(33-49).

[8]

Background Facts

This is a rare case in which there is sworn evidence from the deceased, and others, to which I shall refer, which was created at a time far closer to the events that are said to have occurred than the date of the hearing. However, I shall remember that each of the affidavits, made in 2006 or 2007, was prepared, or obtained, for the purpose of conducting, or for, or in contemplation of, or in connection with, an Australian proceeding (a proceeding (however described) in an Australian court - Dictionary Evidence Act 1995 (NSW)).
I have taken some of what follows from these affidavits, which were filed in Family Law proceedings to which I shall refer. Where I have done so, I have limited the facts stated, under this heading, to what is unlikely to be, or have been, factually in issue between the parties. I shall refer to the affidavits, so far as they contain disputed evidence, separately.
I am satisfied that the following facts have been established on the balance of probabilities from evidence given in the case, which was not seriously in dispute between the parties.
The deceased was born in Greece in 1933. He married Victoria, who was born in 1935, also in Greece, in October 1956. They separated, under the one roof in May 2004, living at that time, in a property in Earlwood, a suburb of Sydney. It is not clear, from the evidence, whether a divorce order was subsequently made in relation to their marriage.
In May 1968, the deceased, Victoria, the Plaintiff, and the first Defendant migrated to Australia. Following their arrival, the deceased and Victoria each obtained employment, the deceased as a plasterer, and Victoria as a process worker, and then a cleaner. The deceased continued to work until he retired in October 1999.
In 1970, the deceased and Victoria purchased real estate in Newtown, Sydney, which they sold in 1974. They rented another property for a short time until they purchased a property at Earlwood, Sydney (the Earlwood property), where they lived until it was sold in 2007.
In 1983, they purchased another property at Campsie, Sydney, which they rented to the Plaintiff and her then husband. The deceased and Victoria sold that property in 1988 or 1989.
In late 1994, following the breakdown of her marriage, the Plaintiff and her two children, Louis, who was born in 1980, and Chrysoula, who was born in 1984, moved into the Earlwood property. (There was some other evidence, given by the Plaintiff, that her marriage broke down in 1992 and that she then moved in with the deceased: Tcpt, 11 April 2022, p 40(23-31). Nothing turns on the difference in dates.)

[9]

The deceased's statements

It should be remembered, that whilst statements made by the deceased are admissible pursuant to s 100(2) of the Act, the Court is not required to accept, unquestioningly, the truth, or accuracy, of the statements, particularly if they are denied by the applicant, or where there is other evidence that casts doubt upon their accuracy. The deceased may make untrue, or inaccurate, statements, either deliberately, or unintentionally, or it may be that his, or her, view is misconceived. Unfortunately, the truth, or accuracy, of the statements made cannot be tested by cross-examination of the deceased. Thus, the statements, like any other evidence, must be subject to a degree of consideration and scrutiny and the Court must carefully consider the weight to be attached to them.
That this is so, is clear as s 100(9), where evidence of a statement of a deceased person is admitted under this section, specifically permits evidence to be given for the purpose of destroying, or supporting, the credibility of the deceased (subject to s 100(11), of the Act which is not applicable in this case). Also, s 100(10) permits evidence to be given for the purpose of showing that the deceased's statement that has been admitted is inconsistent with another statement made, at any time, by the deceased.
In Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134 at 150; [1979] HCA 2 at [18], Gibbs J wrote: "... in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones [1921] NSWStRp 66; (1921) 21 SR (NSW) 693, at p 695; In re Smith [1928] SAStRp 14; (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased [1930] NSWStRp 5; (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee [1950] NZGazLawRp 121; (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court."

[10]

Witnesses not called

There were two witnesses who, in my view, could have been called by the Plaintiff. The Plaintiff's son, who had lived in the home with the Plaintiff and the deceased, at the time of the events the subject of the allegations made by the deceased, and who was about 27 years old in 2007, was present in Court throughout the hearing. Bearing in mind their apparently close relationship, he was clearly a person who might have been expected to give evidence for the Plaintiff.
The Plaintiff's daughter, who is in Sydney, but who did not attend the hearing, and who would have been 23 years old in 2007, was not called either.
Relevantly, the Plaintiff's son was involved in incidents involving the deceased and also involving the Defendants. There was one involving borrowing the deceased's car and damaging it, which resulted in a significant argument between the deceased and the Plaintiff. Another involved the assertion, made by the Plaintiff, that the Defendants had stolen items from Victoria's house: Affidavit, Barbara Georgopoulos, 18 November 2020 at par 62. She claimed, also, that her son had witnessed the Defendants take items from her mother's room: Affidavit, Barbara Georgopoulos, 24 March 2021 at par 56.
The rule in Jones v Dunkel (1959) 101 CLR 298 at 321; [1959] HCA 8, only applies where a party is "required to explain or contradict" something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of the evidence in the case: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 143; [2000] HCA 18 at [51] (Gaurdron J).
Bearing in mind the Plaintiff's blanket denial of almost all of the allegations made against her by the deceased, and as importantly, the allegations that she made against the deceased, one might have thought that each of the Plaintiff's children would have been called to provide his, and her, observations, respectively, about life in the household in which they had lived with the deceased and the Plaintiff between about 1994 and 2007.
Counsel for the Plaintiff submitted that "[i]n terms of both children, considering they were adults, one would presume that they were working, or one may presume that they didn't witness anything of the sort": Tcpt, 13 April 2022, p 193(12-14). There was no evidence given to support that proposition. When this was raised, counsel accepted that there was a failure to call each of the Plaintiff's children without explanation: Tcpt, 13 April 2022, p 193(25-44).

[11]

The Witnesses

The only witnesses who gave evidence, and who were cross-examined, were the parties. I shall now deal with the credibility of each of them. (Mr Jordan, the Plaintiff's solicitor, who provided evidence going to the extension of time aspect of her application gave evidence was not cross-examined. Nor were Mr Fazio and Mr Kyriacou, the Defendants' solicitors who made the costs affidavits.)

[12]

The Plaintiff

The Plaintiff swore 3 affidavits in these proceedings, the first sworn 18 November 2020, comprising 68 paragraphs, spanning 8 pages; an updating affidavit, sworn 15 March 2022, comprising 24 paragraphs, spanning 7 pages; and an affidavit in reply, sworn 24 March 2021, comprising 70 paragraphs, spanning 15 pages.
Counsel for the Plaintiff submitted that the Plaintiff had been cross examined for 3.5 hours and "generally did not resile form [sic] her affidavits" and "that she should be considered an honest witness who was prepared to make concessions in her examination which were clearly against her interests. This included admitting that she threw a glass at her feet in the presence of the deceased": Paragraph 28 of the Plaintiff's written Outline of Submissions dated 13 April 2022.
I do not accept this submission. Overall, I was not impressed with the Plaintiff. I am satisfied that she has convinced herself that all of the allegations of her conduct made concerning the deceased were, for the most part untrue, and to the extent that some events had occurred, those events were brought about by him, and were far less serious than had been asserted, or were otherwise justified.
In reaching this conclusion, I note that the affidavits and the Will were created at, or about, the time of the events that had occurred. In saying that, I do not forget that some were created in the context of contested litigation. Obtaining an AVO, and the terms of the orders made, albeit "without admissions" is something that also must be borne in mind. It was also the event which started the 12 year period of complete estrangement between the Plaintiff and the deceased.
I am satisfied that the Plaintiff made allegations that I do not accept as wholly truthful. The most significant allegations related to the deceased being a violent and abusive parent who consumed excessive quantities of alcohol (particularly his homemade wine "Tsiporo"), which made him aggressive and abusive towards Victoria, and towards the Plaintiff, when she tried to intervene: Affidavit, Barbara Georgopoulos, 15 March 2022 at pars 8-13.
The Plaintiff claimed that Victoria had moved upstairs "to escape the deceased, who was physically and verbally abusive, it was a decision founded in a need for personal safety and security": Affidavit, Barbara Georgopoulos, 24 March 2021 at par 23. Nothing else was written about this allegation in her first affidavit.

[13]

The first Defendant

The first Defendant swore 4 affidavits in these proceedings, a formal affidavit sworn 3 February 2021 with the second Defendant, which comprised 11 paragraphs, spanning 5 pages; an affidavit sworn 3 March 2021 which comprised 31 paragraphs, spanning 5 pages; an affidavit sworn 3 June 2021 which comprised 47 paragraphs, spanning 9 pages; and an affidavit sworn 28 March 2022 which comprised 10 paragraphs, spanning 3 pages.
He gave evidence of the relationship between the deceased and the Plaintiff in his affidavit dated 3 March 2021 at [13]. He stated that he saw and heard the Plaintiff verbally abusing the deceased and physically assaulting him - usually by throwing things such as fruit and vegetables or anything she could get her hands on in the house. He witnessed the abusive relationship that the deceased had endured with the Plaintiff in his own home. He stated that there had been many occasions in which he was required to intervene to stop the assault from escalating.
The first Defendant stated that on other occasions, the Plaintiff had tried to force him to abuse the deceased by swearing at him but that he had refused to do so.
He referred to an incident in which the Plaintiff's son had taken the deceased's car and damaged it which had then caused the deceased to nearly have an accident. He stated that when the deceased confronted Louis about it, the Plaintiff had become abusive, and had almost physically harmed him. He stated that he had been woken up by the yelling and that he had helped prevent physical harm to the deceased: Affidavit, George Tsiokanis, 3 March 2021 at par 17.
At paragraph 19 of his affidavit dated 3 March 2021, the first Defendant referred to occasions when he would return home from work to find the deceased sitting in his car in front of the house, feeling too intimidated to go inside, saying he feared another assault by the Plaintiff. The deceased would say "Thank God you are back. I don't want to go in there without you. I just don't know what to expect." They would then enter the house together.
The first Defendant repeated what the deceased had said to him some time after he had executed the Will: "I am only leaving Barbara the sum of $100 because of her terrible abusive treatment of me and because she caused me financial ruin": Affidavit, George Tsiokanis, 3 March 2021 at par 30.

[14]

The second Defendant

The second Defendant swore three affidavits being a formal affidavit sworn 3 February 2021 with the first Defendant, comprising 11 paragraphs, spanning 5 pages; an affidavit sworn 3 March 2021 comprising 46 paragraphs, spanning 7 pages; and an affidavit sworn 3 June 2021 comprising 47 paragraphs, spanning 7 pages.
It is fair to say that, at times, during her cross-examination, the second Defendant was a little argumentative and somewhat belligerent. However, I do not accept the submission made by counsel for the Plaintiff that the Court should infer that her evidence and the answers she gave in cross examination were given to suit the case.
For example, both Defendants spoke, effectively, with one voice about the relationship between the deceased and the Plaintiff. In saying this, I do not suggest that they had acted in concert in preparing the affidavits. Indeed, in cross examination, whilst the second Defendant admitted that she had read the first Defendant's affidavit when it was made some time ago, she also stated that "we were told not to repeat each other's affidavits": Tcpt, 12 April 2022, p 173(41)-174(4).
The events which prompted the Police attending the Earlwood property and escorting the Plaintiff from the premises were really not the subject of real dispute. She, too, denied that the deceased was an alcoholic, and that he was violent, or abusive, to Victoria. She also stated that the deceased did not neglect Victoria during her cancer and treatment.
In cross examination, the second Defendant denied that the deceased said nasty words to Victoria and the Plaintiff: Tcpt, 12 April 2022, p 167(42)-168(6). She maintained that she had seen the Plaintiff throw fruit at the deceased's head on one occasion. (She was unable to say whether it missed him or it just hit him on the side: Tcpt, 12 April 2022, p 171(10-14).)
The second Defendant gave evidence, which was similar to that of the first Defendant that after the Earlwood property was sold, the deceased said words to the effect: "Connie be very careful, your sister will not stop until she has taken everything, there will be nothing for you and your brother to inherit": Affidavit, Constantina (Connie) Meli, 3 March 2021 at par 28.
The second Defendant gave evidence that after the deceased executed his will, he enquired of the solicitor whether he could "divorce" the Plaintiff from his life. The deceased said to the second Defendant words to the following effect (Affidavit, Constantina (Connie) Meli, 3 March 2021 at par 29): "I spoke to my solicitor about getting a divorce from Barbara, he said it was possible but expensive and would require going to court so I won't do it, but I have said in the will that she is only to get $100.00. I want you to promise me that you will not include her name or her children in the death notice or the memorial notice - I want nothing to do with her. I cannot believe a daughter of mine could cause me such grief and pain."

[15]

Evidence regarding the extension of time for making the application

The Plaintiff sought an order under s 58(2) of the Act. The evidence on this topic was given by Mr James Jordan, the Plaintiff's solicitor. He was not cross-examined and there is no reason to not accept the evidence given by him.
Mr Jordan gave evidence that the failure to commence proceedings within time was due to the failure by the Defendants to give instructions to their solicitors at Lighthouse Law Group, despite repeated correspondence. He asserted that consequently, the Plaintiff was unable to avoid commencing proceedings by resolving the matter informally and had been unable to ascertain the value of the estate: Affidavit, James Jordan, 23 March 2022 at par 28.
Mr Jordan provided an outline of the correspondence between the solicitors of both parties: 1. On 15 November 2019, Mr Jordan sent correspondence to the second Defendant, informing her that the Plaintiff would make a family provision claim unless the executors agreed to enter into a deed of family arrangement to pay a reasonable sum to the Plaintiff. He also asked that the estate not be distributed until the claim was resolved: Affidavit, James Jordan, 23 March 2022 at par 9. 2. On 15 January 2020, Mr Jordan received correspondence from Mr Fazio, of Lighthouse Law Group, advising that he had been instructed to act for the Defendants. Mr Fazio sent a copy of the deceased's Will and a copy of the deceased's death certificate: Affidavit, James Jordan, 23 March 2022 at par 10. 3. On 17 February 2020, Mr Jordan sent further correspondence to the solicitors for the Defendants, advising that a caveat had been filed to protect the Plaintiff's interest, and asked, given the small size of the estate, whether the Defendants would be willing to participate in an informal mediation to resolve the matter. No response was received and on 5 March 2020, Mr Jordan again forwarded the correspondence to the Defendants' solicitors, seeking a response: Affidavit, James Jordan, 23 March 2022 at pars 11-12. 4. On 5 March 2020, Lighthouse Law Group advised they were awaiting instructions from the Defendants. On 13 March 2020, they advised that they were unable to obtain instructions from the Defendants: Affidavit, James Jordan, 23 March 2022 at pars 13-14. 5. On 26 August 2020, Mr Jordan caused a probate caveat to be lodged against the deceased's estate: Affidavit, James Jordan, 23 March 2022 at par 16. Why this was done was not explained. 6. On 3 September 2020, Mr Jordan sent further correspondence to the Defendants' solicitors, enquiring as to the value of the estate, particularly the value of the properties in Greece. No response was received. On 16 October 2020, a copy of this correspondence was forwarded, again, to the Defendants' solicitors: Affidavit, James Jordan, 23 March 2022 at par 17-18. 7. On 19 October 2020, Mr Fazio replied that he was seeking instructions from his clients on the matters: Affidavit, James Jordan, 23 March 2022 at par 19. 8. On 21 October 2020, Mr Jordan sent a proposal for a private mediation to the Defendants' solicitors and stated that if this was not responded to, the Plaintiff would commence proceedings: Affidavit, James Jordan, 23 March 2022 at par 20. 9. On 26 November 2020, the Defendants' solicitors advised that they had been unable to obtain instructions from the Defendants: Affidavit, James Jordan, 23 March 2022 at par 21.

[16]

The Plaintiff's Situation in Life

The Plaintiff is not currently employed. She was previously employed casually in retail but had ceased working sometime between 2006 and 2008 when she became a full-time carer for her mother: Affidavit, Barbara Georgopoulos, 18 November 2020 at pars 9, 36-37; Tcpt, 11 April 2022, p 60(1-29).
The Plaintiff's current gross monthly income is $2,120, consisting of a disability pension from Centrelink.
The Plaintiff's monthly expenditure was disclosed to be (Affidavit of Barbara Georgopoulos, 18 November 2020 at par 18): Rent $3,033 Food $2,000 Telephone $ 150 Electricity and Gas $ 433 Water $ 100 Credit Card $ 800 Entertainment/Clothes $ 400 Car Expenses $ 400 Private Health Care $ 320 Medical Expenses $ 300 TOTAL $7,936

[17]

It is difficult to accept that expenses of almost $2,000 a week were incurred. In cross-examination, the Plaintiff admitted that these expenses were expenses of her and her son. She did not, however, differentiate what part of the expenses were actually hers alone. She stated that "a bit less than half" of those expenses were paid by her: Tcpt, 12 April 2022, p 89(19-39). She then seemed to say that the expenses were not consistently divided between them, but that her son helps her on an informal basis: Tcpt, 12 April 2022, p 90(25-46).
(This is another aspect of the Plaintiff's evidence that could have been amplified by the evidence of her son, who, as stated, was not a witness called by her.)
The Plaintiff's assets and liabilities are as follows (Affidavit, Barbara Georgopoulos, 18 November 2020 at Annexure A (p 10)): Asset Value Savings $ 300 Furniture $ 5,000 Personal Belongings $ 1,000 Superannuation $48,000 Total $54,300

[18]

The Plaintiff, initially, sought provision to enable her to purchase a home in the Earlwood, or Kingsgrove area. She estimated the cost of such a purchase to be approximately $500,000 not including legal fees and removalist costs: Affidavit, Barbara Georgopoulos, 18 November 2020 at par 68. However, this was not pressed in the final submissions for the Plaintiff.
The Plaintiff also sought a sum for the exigencies of life, including for payment of a knee reconstruction operation, and subsequent physiotherapy and treatment: Affidavit, Barbara Georgopoulos, 18 November 2020 at pars 28, 68.
At the conclusion of the submissions, counsel submitted that she should receive a lump sum that equates to about 20-25% of the deceased's net estate: Paragraph 41 of the Plaintiff's written Outline of Submissions dated 13 April 2022.

[19]

The First Defendant's Situation in Life

The first Defendant had been employed as an industrial chemist by his last employer since 2011. His gross weekly income had been $1,500: Affidavit, George Tsiokanis, 3 March 2021 at pars 6-7.
However, in his updating affidavit, the first Defendant stated that his personal financial position has deteriorated since his affidavit on 3 March 2021, because he has retired. His only income is now from his superannuation, which had a balance of $182,000 at the date of the affidavit: Affidavit, George Tsiokanis, 28 March 2022 at pars 2-4.
The first Defendant's weekly expenditure is as follows (Affidavit, George Tsiokanis, 3 March 2021 at Annexure A (p 7): Council rates $ 30 Electricity $ 27 Home and Contents Insurance $ 30 Water rates $ 10 Gas $ 17 Food $200 Car servicing $ 40 Car registration $ 20 Car insurance $ 23 Fuel $120 Entertainment $100 Mobile phone $120 Credit cards $190 TOTAL $927

[20]

The first Defendant's assets and liabilities are as follows (Affidavit, George Tsiokanis, 3 March 2021 at pars 9-10): Asset Value Half share in the Blacktown property $340,000 2014 Toyota Camry $ 11,000 Superannuation with Australian Super $350,000 TOTAL $701,000

[21]

Liabilities Value Credit card debt $ 36,000 Personal loan owed to Money Plus $ 2,000 TOTAL $ 38,000

[22]

In his updating affidavit, the first Defendant stated that his current personal liabilities now amounted to $25,000, consisting of credit card debt: Affidavit, George Tsiokanis, 28 March 2022 at par 7.
The first Defendant acknowledged that the deceased had transferred his interest in the properties in Greece that he co-owned with his siblings: Affidavit, George Tsiokanis, 3 June 2021 at pars 3-10, but said he was not aware of the value of these properties: Tcpt, 12 April 2022, p 140(36-48).
Although his general physical health is "fair", the first Defendant suffers from kidney stones and has had a hernia operation: Affidavit, George Tsiokanis, 3 March 2021 at par 11.
The first Defendant stated that he intends to live at the Blacktown property at least until retirement. He is unable to afford to buy the share left to the second Defendant under the deceased's will: Affidavit, George Tsiokanis, 3 March 2021 at par 31.
In his affidavit, the first Defendant claimed that he never received any financial support from deceased, such as money to travel overseas, or to contribute towards his wedding. He also claimed he only borrowed money from the deceased while he was in university to purchase a car, which he later repaid: Affidavit, George Tsiokanis, 3 June 2021 at par 30.
The first Defendant, in cross-examination, admitted that the deceased had provided some financial assistance to him and the second Defendant: Tcpt, 12 April 2022, p 138(34-36). I have earlier referred to the first Defendant having agreed that he had lived rent free in the Earlwood property until 2007, and that the deceased had contributed to the purchase price of the Blacktown property he currently resided in: Tcpt, 12 April 2022, p 133(9-11); 141(26-30).
Additionally, he agreed that the deceased had contributed to the second Defendant's wedding, although could not recall exactly what contribution had been made, and that while he was university, he did not pay for his food or utilities at home: Tcpt, 12 April 2022, p 138(38)-140(18).

[23]

The Second Defendant's Situation in Life

The second Defendant is employed in the food and wine industry as a quality technician. Her gross weekly wage was $1,057.00: Affidavit, Constantina (Connie) Meli, 3 March 2021 at par 6.
The second Defendant's weekly expenditure is as follows (Affidavit, Constantina (Connie) Meli, 3 March 2021 at Annexure A (p 9): Food $400 Fuel $ 80 Motorway tolls $100 Electricity $ 27 Water rates $ 13 Council rates $ 18 Mobile phone $ 30 Home phone/internet $ 12 Home and contents insurance $ 7 Car insurance/registration $ 25 Car servicing $ 15 Foxtel $ 20 Health insurance $ 50 After school care $ 40 School fees $ 36 School uniform and expenses $ 15 Daughter's sporting expenses $ 9 TOTAL $897

[24]

The second Defendant's assets and liabilities are as follows (Affidavit, Constantina (Connie) Meli, 3 March 2021 at par 8): Asset Value Greystanes Property $800,000 2018 Kia Cerato $ 18,000 St George savings account $ 22,000 St George term deposit $174,000 Shares with Colonial First State $ 6,000 Superannuation with Colonial First State $180,000

[25]

The second Defendant has no liabilities: Affidavit, Constantina (Connie) Meli, 3 March 2021 at par 9.
The second Defendant agreed with the first Defendant that the deceased transferred his properties in Greece to them in 2008 and 2011 respectively: Affidavit, Constantina (Connie) Meli, 3 June 2021 at par 4.
In cross examination, the second Defendant admitted that she and the first Defendant still retain the properties in Greece transferred to them by the deceased: Tcpt, 12 April 2022, 179(11-12). I have referred to the failure to give evidence about the current value of the properties and the rent received.
Although the second Defendant described her general physical health as "fair", she suffers from Plantar Fasciitis in the feet and tennis elbow: Affidavit, Constantina (Connie) Meli, 3 March 2021 at par 10.

[26]

Submissions

Counsel for the Plaintiff submitted that the estrangement between the Plaintiff and the deceased was caused by the deceased's conduct, words and ill treatment of Victoria: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [49] (Basten JA). It was submitted that no blame could be attributed to the Plaintiff for seeking to care for and help her mother, who, the Plaintiff submits, had suffered at the hands of the deceased.
Counsel relied on the principles stated in Kemperman v Antonenas [2021] NSWSC 1555 at [107]-[110], to support his argument that given its nature, the estrangement should not extinguish, or substantially reduce, the provision which ought to be made for the Plaintiff.
With respect to the matters raised by the deceased in the Will, he submitted that most of these matters, in particular those relating to the deceased's separation from Victoria, would not be matters which "in the eyes of right-thinking members of the community, disentitle the applicant to relief": Wenn v Howard [1967] VR 91 at 95 (McInerney J).
Counsel for the Plaintiff submitted that a fair minded and right-thinking member of the community would appreciate that the Plaintiff was simply being protective of her mother.
In the further written submissions, counsel for the Plaintiff submitted that the deceased's attitude to the Plaintiff and her role in "siding" with Victoria in the family law proceedings was unreasonable and was not supported by the evidence. He submitted that this unjustified perception influenced the preparation of the deceased's affidavit in the family law proceedings and the drafting of his Will, so that the deceased's mindset "was not based in reality". Counsel submitted that, consequently, the deceased's affidavit should be read "through the prism of enmity which the deceased viewed Barbara": Paragraphs 32-34 of the Plaintiff's written Outline of Submissions dated 13 April 2022.
Counsel for the Plaintiff submitted that the deceased had an obligation and responsibility to all of his children, including the Plaintiff, in circumstances where the Plaintiff had cared for the deceased and taken him to medical appointments, and had made contributions towards household expenses.
On the matter of quantum of the provision, counsel for the Plaintiff submitted that the Court ought to make an order providing the Plaintiff with a lump sum that equated to 30% of the distributable estate. In the Plaintiff's written Outline of Submissions dated 13 April 2022, he then revised the submissions to a lump sum that equated to 20 to 25% of the distributable estate.

[27]

The Law

As the application made by the Plaintiff is based on statute, it is next necessary to deal with the law that applies. This type of legislation has been described as having been "enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded": Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [2] (Gleeson CJ).

[28]

Whether a grant of administration is required

As has been noted above, there has been no grant of administration in respect of the deceased's estate. As will be read, there is real and personal estate which the deceased died seized, or possessed of, or entitled to, in New South Wales, at the date of death. Therefore, a grant of administration of the deceased's Will is necessary in order to have property of the deceased vest in the executors: s 44 Probate and Administration Act 1898 (NSW).
Section 59 of the Act simply states that the Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person upon being satisfied of certain things to which I shall turn later in these reasons. For present purposes, it need only be said that there is no requirement, in s 59, that a grant of administration is a pre-condition of the power to make an order.
In s 3 of the Act, "deceased person" is defined as "including any person in respect of whose estate administration has been granted". The use of the word "including", suggests that the phrase is not limited to only such a person. In this regard, the Act differs from the former Act, which, in s 7, specifically referred to "a deceased person in respect of whom administration has been granted". This wording in the former Act meant that the Court had no power to make an order under the section unless and until there had been a grant of administration.
"Estate" is not defined in the Act, although under s 6 of the former Act, it was defined "in relation to a person dying leaving a will, includes property which would, on a grant of probate of the will, vest in the executor of the will or, on a grant of administration with the will annexed, vest in the administrator appointed under that grant". There is no reason to think that the definition would not be equally applicable to the Act.
Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In s 3 of the Act, "administration" is defined by reference to s 55 of the Act. That section provides in sub-section (1), that "administration" is granted in respect of the estate of a deceased person in certain specified events including where "probate of the will of the deceased person is granted in New South Wales or granted outside New South Wales but sealed in accordance with section 107(1) of the Probate and Administration Act 1898" or where "letters of administration of the estate of the deceased person are granted in New South Wales ... whether for general, special or limited purposes".

[29]

Extension of time

Even though the proceedings are to be dismissed, I shall say something about this issue, even though, strictly, it is not always necessary to do so.
As earlier stated, s 58(2) of the Act, relevantly, provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (It is to be noted that s 58(2) is in terms similar to s 16 of the former Act, but the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown".)
Without the consent of the parties, it is if, but only if, "sufficient cause" is shown, that the court has a discretion, having regard to all of the circumstances of the case, to extend the time for the making of an application.
Clearly, permitting the court to "otherwise order" was included in the Act to avoid the section becoming an instrument of injustice. Yet, "[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380 at [98] (Lindsay J). (The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175 (Sir Robert Megarry V.C.)
In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[87], I set out the applicable legal principles relating to an application to extend the time, as follows: "The decision of the court to extend time is a discretionary decision. Other than 'sufficient cause being shown', there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim. The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21]."

[30]

The Statutory Scheme

If the Court extends the time for the making of the application, the next question for the Court to determine is whether the applicant has been left with inadequate provision for her proper maintenance or advancement in life in relation to the estate of the deceased.
The answer to this question "constitutes a finding of fact, albeit one that is, in light of the subjective character of the matter to be decided, evaluative. Nevertheless, making the finding involves a binary choice - either adequate provision has been made, or it has not. A finding on the issue does not, therefore, involve an exercise of discretion": Strang v Steiner [2019] NSWCA 143 at [76] (Macfarlan JA); at [131] (White JA).
It is the mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied that the provision is neither adequate nor proper that consideration is given to whether to make a family provision order: s 59(1)(c). Only then, may "the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made": s 59(2).
The Act stipulates no automatic entitlement to provision and the deceased's Will applies unless a specific application is made to, and acceded to, by the Court. Accordingly, it is clear that the Court has a discretion whether to make an order and as to the amount of any order that is made. Then, the Court is empowered to order such provision from the deceased's estate as the Court thinks fit, but the Court is not empowered to award more than what is "adequate" provision for the applicant's "proper" maintenance, education or advancement in life. These propositions are clear and are derived from the statutory text which confines the Court's power.
Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) 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.

[31]

Claim by an adult child

In relation to the claims, each 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, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109] (Beazley P, McColl and Gleeson JJA agreeing). 3. Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). 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 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J); Taylor v Farrugia at [58] (Brereton J). 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] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J). 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. 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 at 149 (Gibbs J).

[32]

Estrangement

In this case, the Defendants submit that the Plaintiff was estranged from the deceased for at least 7 years prior to his death.
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."
I next set out some other general principles which should be remembered: 1. 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] (Pullin JA). 2. 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] (Ipp JA); Foley v Ellis at [102] (Sackville AJA). 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." 1. 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. 2. 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 at [71], (Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed). 3. As was recognized 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." 1. 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 at [3] (Macfarlan JA). 2. 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 at [50] (Barrett JA).

[33]

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.
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 (Dixon CJ); Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]-[274] (Ward J).
In Andrew v Andrew, Allsop P, at [16], and Barrett JA, at [97], cited with approval Mahoney JA's description of the court's task in Kearns v Ellis (NSW Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unrep) as being to make a determination "according to the feeling and judgement of the fair and reasonable man in the community, the spokesman of which is and must be the court itself." Basten JA observed that whilst community standards are important, they are not fixed. His Honour acknowledged that community standards cannot be identified with precision, and therefore the application of an appropriate standard to particular circumstances may also give rise to a range of legitimate outcomes.
However, in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114, White JA, after referring to Kearns v Ellis, wrote at [43]-[46]: "It is the Court's perception of what fair and reasonable members of the community would expect a testator to provide for the applicant, not something that is to be proved as a standard against which the Court's judgment is to be made, that is relevant. But unlike the reasonable man on the Clapham omnibus or the Bondi tram, or the reasonable and fair-minded lay observer asked to consider the impartiality of a judge, there is no utility in invoking a community standard or expectation against which the adequacy of provision is to be judged. I agree with Brereton JA that if one is forced to use concepts of "moral duty" or "community standards", the former is preferable. The indication of either expresses a conclusion about the judge's own evaluative assessment as to whether the provision made for the applicant was adequate for his or her proper maintenance and advancement in life (and, where relevant, education). The advice of a solicitor that judges generally expect that a certain type of provision will be made for a spouse, adult child, or grandchild may carry more weight with a client than advice that judges have said that the community generally expects such provision to be made. A client could properly consider that he or she is in as good a position as a judge to assess what the community would expect. Community expectations or community standards are not one of the specifically identified matters in s 60(2) of the Succession Act that the Court might consider in determining whether to make a family provision order and the nature of any such order. Section 60(2)(p) has a catch-all that the Court may consider any other matter, additional to those listed in s 60(2)(a)-(o), which it considers to be relevant. But whereas the legislature picked up the notion of moral obligation in s 60(2)(b) ("the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant" etc), it evidently did not consider that community standards or community expectations were a fact to be established that might be considered to be relevant in how the evaluative decision under s 59 should be made."

[34]

Qualifications on "Principles"

As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian at [117]), 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. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
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 at [18]-[19] (Basten JA), [66]-[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.
But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]-[108]: "As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox: [19] … the real provenance of the 'principles' is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance Similarly, Barrett JA explained: [67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply 'the feeling and judgment of fair and reasonable members of the community' in cases of the present kind. Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency."

[35]

Determination

There is no dispute that the Plaintiff, as a child of the deceased, is an eligible person within the meaning of that term in s 57(1)(c) of the Act.
As earlier stated, given the conclusions that I have reached, it is not strictly necessary for me to deal with the question of an extension of time. The Defendants neither consented, nor objected, to the extension of time that was sought. Had it been necessary to do so, I would have extended the time for the making of the application, as the period after the prescribed period when the proceedings were commenced was short, the reasons for not commencing proceedings were explained, and there was no prejudice to the Defendants. The interests of justice would favour an order that the application may be made out of time if the Plaintiff were otherwise successful.
I shall deal then with whether, at the time when the Court is considering the application, adequate provision for the proper maintenance or advancement in life of the Plaintiff, has not been made by the Will of the deceased and, if so, whether an order for provision ought to be made. (The answer to these questions will assist in determining the answer to the other question that are to be decided, namely whether to extend the time for the making of her application.)
Virtually no provision was made for the Plaintiff in the deceased's Will.
Ultimately, the Plaintiff's submissions, in summary, amounted to the following propositions: that she is an adult child of the deceased; that she has established a need for provision because of her limited financial means; and that those for whom the deceased provided do not have a need which would prevent some provision being made for her. In my view, even if established, these assertions are not enough.
Judged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for the Plaintiff's maintenance or advancement in life was not made by the Will of the deceased. Whilst an additional lump sum, by way of advancement in life, in other circumstances, may be appropriate, that is not all that the Court is required to consider. In no particular order of priority, the size of the estate, the totality of the relationship of the Plaintiff and the deceased, the Plaintiff's conduct, before, and after, the death of the deceased, the age and capacities of other beneficiaries, the claim of each on the bounty of the deceased, and the freedom of testation, are also relevant factors in determining the answer to the question of inadequacy of provision. I have set out the facts pertinent to this case, to which reference should be made.

[36]

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: 12 May 2022

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