Goldberg v Landerer; Kennedy v Landerer

Rony 24 Rony is currently unemployed. He receives a disability pension. He claims to suffer from depression, but no medical evidence was tendered to establish that he is medically unfit for work. He did work for a few days at a restaurant two years ago, but he had a dispute with the manager and was dismissed: see his evidence at T114 and 146. He has no children and is not married. 25 Rony did not matriculate from school and has had no tertiary education. In his younger years, he worked in his mother's retail handbag store and was involved with nightclubs (Pips, Studio 66 and Williams), and he claims to have had some success in these endeavours, a matter to which I shall return. Rony says that his father did not provide any funds for these ventures and told him "I'd rather throw money into the harbour" when Rony asked him for a loan of $5,000 for Pips: see paragraph 23 of Rony's affidavit sworn 25 November 2008. Rony helped to establish a nightclub called "Lombardos" in Perth and attempted to set up a nightclub called "Cocos" in Surfers Paradise. In the mid-1990s, he had a short involvement with a restaurant known as "Nox on Knox" ("Nox"). His departure from Nox is a matter of controversy in the proceedings, and I shall return to this topic. After Nox, Rony was involved in a number of business ventures which failed, and he was made bankrupt in 2004. Since 2004, he has not (other than for the two days two years ago mentioned above) had any gainful employment or derived any income from any source other than Centrelink. 26 Rony also seeks an amount from the estate which will enable him to purchase a property for between $600,000 and $800,000 and a lump sum of $200,000: see T282. In his affidavit sworn 25 November 2008 (see paragraphs 69 and 70), he said that he would like to establish a boat charter business (costing $225,000 for a half share) and to buy a coffee shop business "costing about $400,000", but no material was put forward to justify those claims. He later indicated that he no longer wished to pursue either of these ideas, but rather wished to establish a photography business and to be involved in a gold vending machine business, the cost of which was not adequately identified: see paragraphs 16 and 19 of Rony's affidavit sworn 5 October 2010 and T143-145. Ms Coulton did not press any claim based on these business ventures. 27 Rony's evidence at paragraphs 13 and 14 of his affidavit sworn 5 October 2010 point to him living beyond his limited means, and he now lives in the spare room of a friend's unit. The value of the estate 28 Since the net value of the estate is nearly $5 million (after allowances for these proceedings), a bequest of $50,000 to each of Judy and Rony is, in total, approximately two percent of the estate. Martha not only has the residue of the estate, but she also has the matrimonial home in Bellevue Hill. The house, whilst encumbered, is only encumbered for the purposes of the business. Martha also has access to the Trust and superannuation monies derived from the jewellery business, and she already owns half of LK Jewellery. She has played a significant role in the success and maintenance of the business.

The Family Provision Act 29 The FPA requires the Court, first, to be satisfied that the claimant is an "eligible person", and secondly, to be satisfied that there are factors which warrant the making of the application having regard to all of the circumstances of the case. 30 The FPA (and its analogues) has been the subject of much judicial consideration, very likely because of the vagueness of terms such as "proper" and "adequate". The High Court has outlined the approach to be taken in Singer v Berghouse (No. 2) (1994) 181 CLR 201 and in Vigolo v Bostin (2005) 221 CLR 191, and the New South Wales Court of Appeal has restated the position in a number of cases, such as Dolman v Palmer [2005] NSWCA 361 and Ford v Simes [2009] NSWCA 351: see also the decision of Brereton J in Taylor v Farrugia [2009] NSWSC 801. 31 There are three questions that the Court is required to address (leaving aside the question of notional estate, which does not arise in this case): (1) Is the claimant an eligible person? (2) If the answer to (1) is yes, has adequate provision been made for the claimant's proper maintenance, education or advancement in life?; and (3) If the answer to (2) is no, then what is the provision which the Court should now make for the claimant's proper maintenance, education or advancement in life? 32 Section 9(3) of the FPA specifies the matters which the Court may take into consideration in determining the adequacy or otherwise of the provision: (1) contributions made by the eligible person (whom I shall refer to as "the claimant"); (2) the character and conduct of the claimant before and after the death of the testator; (3) circumstances existing before and after the death of the testator; and (4) any other matter which the Court considers relevant. 33 The reference in the third category to "circumstances existing before and after the death of the testator" links to the requirement that the Court must determine the matter as at the date of the hearing and not the date of the will, or even the date of the testator's death. "Contributions" includes financial and non-financial benefits to the welfare of the testator.

34 It will be observed that categories (2), (3) and (4) are very wide in scope. I shall endeavour to identify the "circumstances" and "matters" which have been considered relevant to a determination, including matters relevant to contributions: (1) the claimant's contributions (if any) to the property of the testator, either in direct financial assistance or in assistance that has enabled the testator to amass the property which he or she has acquired; (2) the claimant's non-financial contributions to the welfare of the testator; (3) the claimant's present financial position; (4) the claimant's earning capacity and needs in the future; (5) the claimant's age, current health and prognosis; (6) the totality of the relationship between the claimant and the testator; (7) the character and conduct of the claimant, whether there has been any disentitling conduct on the part of the claimant, and the "nature and quality of the relationship"; (8) the size and nature of the estate; (9) the relationship between the testator and the other persons who have legitimate claims upon the testator's bounty, particularly the residuary beneficiaries; (10) whether the testator promised the claimant (or induced an expectation) that he would leave property to the claimant in his will; and (11) whether the claimant received substantial assistance from the testator during the testator's life, that is, the level of comfort and benefit which the claimant received from the testator whilst the testator was alive - the "station in life", it has been called, as Callinan and Heydon JJ noted in Vigolo at page 228. 35 The judgment in Vigolo reflects varying views on the question of "moral claims". It was accepted by all members of the Court that it is the legislation itself that must govern the matters to which regard must be had, but when the legislation itself refers to "character and conduct", "circumstances" and "any other matter", there is very significant scope for many different considerations.

Character and conduct of a claimant 36 The FPA specifically provides for the character and conduct of a claimant as matters to be taken into account. The FPA does not limit the consideration of "conduct" to conduct towards the testator. Reprehensible conduct of a general kind would appear to be relevant, because a testator might quite reasonably feel indisposed to provide any benefits to the claimant on that basis. Hostility, abuse, and even violence towards the testator would certainly appear to be relevant, but abuse and violence towards other family members would also be relevant, in my view. Cessation of contact over an extended period and a general lack of care and attention to the needs of the testator are relevant. It has been accepted by the Court of Appeal that estrangement does not of and by itself necessarily preclude an award, but it is clearly relevant: see Palmer and Ford. 37 There is a strand in some of the cases which indicates that it is appropriate for the Court to consider the reasons for any hostility or otherwise potentially disentitling conduct on the part of a claimant: see Foley v Ellis [2008] NSWCA 288. If the Court regards the reaction of the testator as extreme or not entirely justified, it may treat the conduct as not being disentitling or reduce the significance of the otherwise disentitling conduct. 38 The hostility of a claimant to values and institutions held dear by a testator raises an interesting question, which fortunately does not need to be investigated here. This might be framed as conduct thought by the testator to be reprehensible, but not necessarily so viewed by the wider community. Renunciation of a religion or adoption of a political philosophy antithetical to a testator's beliefs may be relevant conduct which a testator is entitled to take into account in reducing his or her generosity towards a claimant.

The importance of testamentary freedom 39 The Court of Appeal has accepted that the FPA is an intrusion into the freedom of testators to leave property to whomever they wish and that: (1) the Court should accept that testators are, in certain circumstances, entitled to make no provision for children, particularly in the case of "children who treat 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": see Ford at [71] per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed; and (2) the Court should not seek to remake the will, but only alter it to the extent that adequate provision is to made for the eligible person: see Alexander v Jansson [2010] NSWCA 176 at [20] per Brereton J (with whom Basten JA and Handley AJA agreed), citing Re Fulop (1987) 8 NSWLR 679 and Stewart v McDougall (unreported, Supreme Court of New South Wales, Young J, 19 November 1987). In a passage in Walker v Walker [1996] NSWSC 188 (approved in Palmer at [111]), Young J (as his Honour then was) said: "I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at p 19." 40 Given the multiplicity and width of factors which are to be taken into account, it follows that where the Court is persuaded that the provision in the will is inadequate in respect of two or more claimants, very different awards may be made to each of them. 41 The executor (on behalf of the estate) accepts that Judy and Rony are eligible persons. He also accepts that inadequate provision has been made for the claimants in the will by the bequests of $50,000. Those concessions having been made, it is only the third question identified in [31] above that needs to be answered.

Witnesses 42 In Judy's case, in addition to affidavits of Judy sworn 11 June 2009 and 21 September 2010, affidavits of Vanessa Dixon (Judy's daughter) and Alexander Goldberg (Judy's son) were read. Also read was an affidavit of Ms Bateman, a forensic accountant, sworn 29 September 2010. 43 In Rony's case, in addition to affidavits of Rony sworn 25 November 2008 and 5 October 2010, the affidavit of Ms Bateman was also relied on. 44 In the executor's case were read affidavits of Mr John Landerer sworn 6 March 2009 and 1 October 2010, affidavits of Martha sworn 29 May 2009, 1 June 2009 and 25 June 2009, and an affidavit of Mrs Mercedes Ureta sworn 29 May 2009. Mrs Ureta is a housekeeper who was employed by the testator and Martha. 45 There was no challenge to the credibility or reliability of Mr Landerer or Mrs Ureta. 46 There were challenges to the credibility and reliability of Judy and Rony.

Judy's credit 47 So far as Judy is concerned, I thought that she was a poor witness. She constantly interrupted questions and answered questions of both Mr Willmott and myself before they had been completed. She gave inconsistent answers within seconds of another answer: see T48.19-32, T49, T50.22-39, T51.44-52.9, T64.29-39, T79-80, T81.7-23, T82.1-18, and T84.47-85.11. was unable to deal with contradictions when they were exposed. She was shown to have included as liabilities amounts that were not correct, and she answered that she had told her solicitors about the matters that needed correction: see T53. At one point, she denied that she had said words to the effect described by the testator in a statutory declaration he made at the time of his will, but then admitted that she had said words to that effect: see T88-89.

48 Judy was an undischarged bankrupt when she received $9,000 from the testator shortly before his death and $50,000 from the estate after his death. Judy did not inform her trustee in bankruptcy of these receipts, and she denied that she knew that she was required to do so or that she had been informed in writing that she was required to do so. Exhibit 1 is a copy of a letter from her trustee in bankruptcy to her, and I find her assertion that she never saw it (see T61-64) difficult to accept. I also found her assertion that she had no interest or involvement in her husband's discussions with Martha at the time of the testator's accident (see T77-78) difficult to believe, and I note that Mr Gray submitted that Judy was entitled to have a concern about the fate of the business. 49 Mr Gray sought to ameliorate or expiate the effect of the matters to which I have referred. He submitted that: (1) Judy has not been well; (2) the events with which the Court is concerned occurred long ago; (3) Judy is an unsophisticated witness with no experience of litigation; (4) her evidence about liabilities ought to be viewed essentially as that she still had more liabilities than her income; and (5) her evidence that her position had not changed was not shown to be false, because her overall position remained one where expenses exceeded income.

50 I accept that Judy has, in the past, not been well, that many of the matters in question concern times long ago, and that Judy is an unsophisticated witness, but none of these matters are sufficient (individually or together) to overcome the negative aspects of her credibility. So far as 49 is concerned, I think that Judy was deliberately seeking to boost her case of financial need, but as I note below, I do not think that on the evidence there can be much doubt that her assets and income are very limited.

Rony's credit 51 In relation to Rony's credit, attention was drawn to: (1) his assertion that he had not been assisted by his father in relation to Pips nightclub, and yet had made $80,000 out of the venture: see paragraphs 21-22 of Rony's first affidavit; (2) in his first affidavit, he said that his father had not assisted him with guarantees in relation to the nightclubs, but in his oral evidence, he said that he thought that his father had assisted him and then said that he did not recall: see T116-117; (3) his assertion that he had spent $80,000 on shopping, travel and women: see T118.3-15; and (4) his claim that he had an interest in Nox and had sued his father in relation to Nox on that basis, when he did not hold any shares in Nox and had contributed no money. 52 So far as 51 and (3) are concerned, the fact that he received $80,000 from Pips without putting any capital in is unlikely, but not so implausible as to establish that his denial that his father assisted him must be false. 53 So far as 51 is concerned, I think that this supports the contention that the testator did provide assistance to Rony and affects Rony's credit.

54 In relation to 51, Rony accused his father of stealing the Nox business from him (see T123-124), and he claimed in his first affidavit that he was promised 25 percent of the shares in Lonsted by the Japanese owners of the company once the business was up and running. No document was produced to support that allegation, and a letter from his solicitors at the time (see page 71 of Exhibit J1) made no reference to any such promise or claim, although it did seek $91,000 for Rony's past efforts "in establishin the…restaurant business, in obtaining the liquor licence and for securing a fifteen year lease at a very favourable rental". It appears from page 76 of Exhibit J1 that a counter-offer was made, but Rony's solicitor stated that Rony "is not able to accept this offer because it would not enable him to establish a new way of life for himself and a new business at Surfers Paradise". Rony sought payment of a lump sum of $30,000 and $500 per week for four years: see page 76 of Exhibit J1. In October 1993, a deed was prepared with two lump sums of $10,000 and $500 per week for five years incorporated. It is Rony's evidence that although his father never signed the deed, he did agree to pay that amount. In his first affidavit, he said that his father had orally agreed to pay $20,00 and $500 per week for five years "in lieu of your prospective right to the 25 percent of the shares in the company": see paragraph 37 of Rony's affidavit sworn 25 November 2008. There is no evidence of any agreement between Rony and the directors of Lonsted in respect of any proposed shareholding by Rony in Lonsted. In his first affidavit, Rony also said that his father did not pay him the lump sum in the Statement of Claim filed on his behalf in the District Court proceedings. The Statement of Claim acknowledged receipt of a payment of $10,000 and three further payments totalling $14,000, which payments Rony said he could not recall: see T130-131. 55 The evidence does not support Rony's assertion that he had any claim against the testator or Lonsted in respect of shares, and it is suggestive of an attempt originally to obtain assistance from the testator to fund a lifestyle, rather than being directly based on any legal claim against the testator. Whether Rony had a claim based upon the alleged subsequent agreement to pay $150,000 is obscure, and that claim, it is agreed, was settled (see pages 96-98 of Exhibit J1)(the testator saying that he was seriously ill and could not face the prospect of a court case). Rony agreed in cross-examination that the settlement yielded to him more than he had stated in paragraph 39 of his first affidavit: see T138-139. 56 In addition to these matters, I found Rony's denial that he had abused Martha's parents and the testator as difficult to accept, given that he consented to orders preventing him from carrying out such acts in the future. 57 Cross-examination established that the proposed photography and gold vending machine businesses for which Rony was seeking funding were unrealistic and appear to have been included to justify a substantial award. 58 These matters lead me to doubt Rony's veracity and to think that his evidence should be approached with considerable caution. Martha's credit 59 Although nothing was said as to Martha's credit in submissions, the cross-examination implied that part of the plaintiffs' case was that Martha's evidence is, in some limited respects, false. 60 I thought that overall Martha was a forthright, honest witness. She was prepared to make admissions against her interest. Whenever her testimony is in conflict with Judy's or Rony's evidence, I would regard Martha's as more reliable. Matters relevant to Judy's case Hostility to Martha 61 Judy admitted that she regarded Martha as a "gold digger" (see T90.1-6), and she, in effect, conceded that she had told the testator of her view of Martha and that he was "an idiot" for marrying Martha: see paragraph 2 of the testator's statement. She admitted that she excluded Martha from the house (see paragraph 3 of the testator's statement), but she said that this was in the context of family occasions when her mother was visiting, which I think is unlikely to be a full explanation. Judy admitted that she had said something to her father meaning that his having a child by Martha was "disgusting": see paragraph 5 of the testator's statement and see T89.

62 It is not uncommon for children to be hostile to the concept of a second marriage of one of their parents to another person. This may well be exacerbated when the new object of affection is similar in age to the children of the first marriage. I do not think that Judy's response, particularly given her perception that her father had treated her mother shabbily, was surprising. 63 I find that Judy said to the testator words to the following effect: "You are an idiot marrying that woman, she is nothing but a gold digger, we do not want that woman in our house." and that in 1978, when Martha became pregnant, Judy said to him words to the effect: "You are too old to be having children, it is absolutely disgusting at your age to be bringing children into the world and you will be dead before the child grows up." 64 The comments made by Judy were no doubt hurtful to the testator. I think it is clear that there was considerable hostility from Judy to Martha and to the marriage, and it seems on the balance of probabilities that the hostility, which had become mutual, did not abate: see Martha's third affidavit and see T263.21-24. I think that the testator was entitled to take into account the hostility over a long period of time. The 1978 incident 65 In paragraph 6 of his statement, the testator asserts that whilst he was in hospital in a critical condition in 1978, Judy and her ex-husband, Richard Goldberg ("Richard"), approached Mr Landerer and his accountant, Graham Simos, to enquire if they could remove Martha from LK Jewellery and take over the business. 66 No evidence was led on this incident from Mr Landerer (who gave evidence on other topics) or from Mr Simos. Martha gave evidence of what occurred (see T188.21-189.34 and T190.3-39): "Q. I will just deal with one point that arose in relation to an objection taken by Mr Gray to paragraph 12 of your affidavit sworn 25 June. You met Judy Goldberg's husband Richard Goldberg on various times? A. Various times. Not a lot, not a lot.

Q. Do you recall an incident when you saw him in the offices in Kennedy House at Double Bay sometime in late 1978 or early 79? A. Yes.

Q. And when he arrived there did he arrive there by himself or was he accompanied by anybody? A. To my knowledge he was accompanied by Judy and Rony Kennedy.

Q. And did he say something to you? A. He was sitting in Louis's chair - I had come back from the hospital. He was sitting in Louis's chair and he said we need to talk.

Q. This was Richard Goldberg? A. Yes.

Q. What else did he say? A. What do we need to talk about? We need to talk about the business.

Q. That's what he said, "We need to talk about the business"? A. And I said to him there is nothing to talk about until Louis gets better and that was the end of it. Then they left. I had a phone call, to my knowledge, from John Landerer. He called me.

Q. You can't tell us what Mr Landerer said, but you had a call from Mr Landerer, did you? A. Yes.

Q. Did you have any further conversation with Richard Goldberg on that occasion? A. Not on that occasion, after that, later on." Q. How long afterwards? A. It was when Louis was diagnosed. He wasn't waking up from a coma that they realised he had to have brain surgery.

Q. How long was this after the occasion? A. This would have been - they tried to get him to revive. They had put him in an induced coma. So then they worked out he wasn't waking up. So they went back, the neurosurgeon--

Q. Just a moment. What he asked you was when? A. Sorry, when?

Q. Yes. A. It would have been probably 4 weeks, 5 weeks after the accident.

Q. You had a call from Mr Goldberg I think you said, did you? A. Richard Goldberg and Rony Kennedy called me at the home.

Q. And you had a conversation? A. Yes, I did.

Q. And you had a conversation with Mr Goldberg. What did he say to you? A. And at the same time Rony Kennedy get on the phone, so it was a joint conversation.

Q. Just tell me first of all what Mr Kennedy said? A. Okay. He said that you know the doctor said he's probably going to have brain damage and we have to talk about what's going to happen with the business.

Q. What did you say to that? A. I said to them I don't believe that and that I'll wait for the doctor's reports.

Q. Did he say anything else to you? A. That was more or less it.

Q. Did he explain to you what he meant by the words he said to you? A. No.

Q. Did you ask him? A. I didn't believe that something was going to be wrong with Louis.

Q. My question was: did you ask him what he meant by the words Mr Goldberg had used, we need to talk about the business?

Q. You said Mr Rony Kennedy was on the telephone. What did he say to you? A. "Sweetie, we have to discuss the situation with dad."

Q. Did he say anything else? A. No.

Q. Did you say anything to that? A. "I'll wait until Louis gets better."" 67 Rony gave evidence of the conversation he had with Martha in, he said, 1980: see paragraph 47 of Rony's first affidavit. He questioned her about the involvement of her sister in the business and said, "I think you should close the shop and not let your two sisters run it until my father is able to talk and communicate properly. Obviously, there is millions of dollars worth of jewellery in the shop." Martha's response was, he said: "Keep out of it, f- off!" In her first affidavit, Martha places a separate conversation with Rony as being in late 1978 or early 1979, but in her oral evidence, she said that Rony accompanied Judy and Richard.

68 Judy denied that she had any involvement with Martha's removal or attempted removal from the business. On Judy's evidence, nothing connected with this topic was said by her or in her presence. 69 Given the absence of evidence from Mr Landerer, I find that no approach was made to him. Nor am I satisfied that an approach was made to Mr Simos to arrange for the removal of Martha from the jewellery business. 70 The evidence of Martha, which I accept, is that Judy was present (contrary to Judy's assertion), as was Rony, when Richard spoke to Martha. 71 The circumstances outlined might well have given rise to an expectation in the mind of Martha that Judy (with her husband) and Rony (who had been opposed to her marriage to the testator) would try to oust her from the business, but the conversations Martha describe involve no express threat to do so, and more importantly, do not establish that Richard, Judy or Rony did in fact make such an attempt, other than by their visit, the manner of it, and the conversations. What the testator describes in paragraph 6 of his statement has not been established as a fact. Guarantees and payments by the testaor 72 No evidence has been led to corroborate the testator's assertion in paragraph 7 of his statement that a Summons was served on LK Jewellery in connection with a claim of $35,000 on a guarantee given by the testator on behalf of Judy in 1977. The testator says that he paid the mercantile agents $35,000. On the other hand, Judy says that she is aware that he paid $27,000. I do not think that the difference in amount is of any real significance. 73 The other specific loan that the testator said he had guaranteed for Judy was a guarantee of Judy's obligations in respect of which he says that he was required to pay $12,000 in 1998: see paragraph 8 of the testator's statement. Further, he says that he paid $600 per month to assist Judy with the running costs of her business. Judy does not dispute that he paid the $12,000, and for a period of 18 months or so, the testator paid $600 per month (that is, approximately $10,800). 74 I proceed on the basis that the testator paid $30,000 for the first guarantee, $12,000 for the second, and another $10,800 for assistance to Judy following her separation from Richard. The total is $52,800. I will treat the $7,400 received from her uncle, George Rappaport, as having been organised by the testator, and as we know, the testator provided Judy with $9,000 much closer to his death. Thus the testator provided approximately $70,000 to Judy over more than 30 years. He did not assist Judy in buying a property. The testator did not put any capital into Judy's business or that of her ex-husband. Judy claims that the testator borrowed money from Judy's ex-husband that he did not repay, but Martha denies that any such loan was ever made by the testator, and Judy produced no documentary evidence of such a loan. The testator did give Judy a car when she matriculated. Relationship with the testator 75 Judy admits that she had no contact with her father between 1973 and 1978, but denies that the estrangement continued after that. The testator stated in his will that Judy and Rony had "shown [him] no care, respect or friendship nor any interest in [his] health or well being" and that their only interest had been to see how he could assist them financially. Although there is evidence to support that contention in respect of Rony, there is no such corroboration in respect of Judy, and indeed the evidence supports the contention that the testator felt some obligation towards Judy, albeit limited, in the 1990s and even after he made his will in 1998, notwithstanding what he said in 1998 and 2004. 76 I do not think that Judy had a close relationship with her father. That she was willing to have nothing to do with him for at least four years, on her evidence, and 10 years on Martha's evidence, which I am inclined to accept, her admitted feeling that her father had treated her mother poorly, the second wife issues, and her perception as relaying to her father near his death in answer to his statement that he had not been a good father that he "[was not] the best" (see paragraph 9(h) of Judy's first affidavit and her comment at T89.40 that "He was only hurting me all the time") all provide support for that conclusion. It appears that the testator was a man of strong opinions and predilections - a "character". He does not appear to have had much time for "pastoral care" with either of his children from his first marriage. According to Judy's evidence, although she was diagnosed with cancer, operated upon and had a three-year period of recuperation, the testator did not visit her. However, it should be noted that the testator was himself confined to a wheelchair at that time. 77 Although I take into account that for a substantial period, Judy and her ex-husband did not speak to the testator, there was in the later years of the testator's life a degree of reconciliation, more so in the last year of his life: see T. I think it is clear that the relations between Judy and Martha were poor. It is likely that this had an effect on the testator, and Judy contributed nothing to the testator's welfare, but it was accepted that Judy's conduct was not of such an egregious kind as to warrant almost complete excision from the will.

78 This view is strengthened by the fact that the testator did see Judy and have telephone contact with her in his later years, and he even provided some financial support to her in the 1990s and then a small amount shortly before his death.

Other matters 79 There are some other matters in Judy's evidence with which I need to deal: (1) Judy has obtained and will obtain nothing from the estate of her late uncle, George Rappaport; (2) In relation to her mother's will, I had some doubt about her veracity in asserting that she has received and will receive nothing, but the evidence does not support a finding that she has or will receive a benefit; and (3) I have some doubt as to the degree to which Judy's financial position is as poor as she contends, and this is for three reasons: (a) when she received $9,000 from the testator, she spent it on luxury items; (b) when she received $50,000 from the estate, she gave much of this money to her sons and some to her mother, with little spent on herself: see T94.45-95.22; and (c) she exaggerated her expense by not correcting items in her first affidavit. 80 Although I have doubts about Judy's veracity: (1) there is no evidence that she has any substantial assets; (2) she works part-time as a sales assistant for a small remuneration. I do not think at 61 years of age that she could be criticised for not wishing to work full-time; (3) she lives in a one-bedroom apartment which she rents; and (4) she is not in the best of health and will, I think, incur medical costs which will exceed the benefits payable to her under Medicare for treatment and medication. Mr Gray initially put a figure of $50,000 as covering the likely shortfall for these for the rest of Judy's life, and I regard that figure as realistic. 81 I think that weight must be given to the testator's "explanation" as to why he made such a small provision to his daughter, but there are a few matters which I think downplay the significance of his statement: (1) Judy's antagonism to the testator's second marriage to a woman younger than her is not particularly surprising. The testator seems to have decided, in a sense, to put his second marriage first in his priorities (on Judy's evidence); (2) Whilst Judy's comments to the testator about his second marriage were no doubt painful to the testator, they were made long before his 1998 will, although the lack of relations between Judy and Martha does seem to have remained constant until the testator's death; (3) A significant matter in the testator's statement is what he said was an attempt to oust Martha from the business. I think that he was entitled to believe that Judy and Rony wanted to see Martha out of the business, but I have indicated previously that the foundation for his belief that they actually attempted to achieve this has not been made out; and (4) There is unchallenged evidence from Judy's daughter and one of her sons (Alexander) that Judy visited her father up to six times a year. 82 I summarise the matters which might encourage the view that a substantial provision should now be made in Judy's favour: (1) she is the testator's daughter; (2) she is single and lives in modest rented accommodation; (3) she has very little in the way of assets and has been a bankrupt until relatively recently; (4) she has health problems, which are likely to involve continuing expenditure; (5) the estate is large and Martha, the residuary beneficiary, has a house of significant value (half of which she acquired upon the death of the testator) and access to substantial trust and other assets; and (6) she had contact with the testator in the later years of his life. 83 I summarise the matters which might discourage the view that a substantial provision should be made in Judy's favour beyond the $50,000: (1) she is 61 years of age; (2) when she received $9,000 and $50,000 from the testator or the estate, she spent some of it on a plasma television and luxury items and provided assistance to her adult children; (3) she made no contribution to the physical or economic welfare of the testator; (4) her children are adult and are not dependant on her; (5) she has expressed and maintained hostility to the testator's second wife and long ago expressed her opposition to the testator's marriage to Martha; and (6) the testator helped her over the last 30 years to a total of approximately $70,000 and gave her a car when she was 18 years of age, but did not otherwise contribute to her economic welfare since she married. 84 In coming to a conclusion as to what is adequate provision out of the estate for Judy, I regard the fact of paternity, the size of the estate and Judy's financial circumstances and poor health as significant in justifying a provision far in excess of what the testator provided, but regard also need to be given to the fact that Judy is 61 years of age, had no significant part in the testator's life for many years, and apart from the specific and limited assistance he provided to her, she can realistically have had no expectation of being maintained in a particular lifestyle by the testator. I accept that Martha will remain able to have a very comfortable lifestyle even if a substantial provision is made for Judy, either alone or together with Rony. 85 I take into account the degree of estrangement that had occurred between Judy and the testator, but I accord less significance to what might be described as disentitling conduct, given the origins of the disharmony and the fact that in later years some level of reconciliation with the testator was achieved.

86 I have referred to Judy's claims. Ms Bateman's evidence provides a means of calculating what amount would be needed to fund annual incomes on different hypotheses. 87 In the recent decision of the Court of Appeal in Tchadovitch v Tchadovitch [2010] NSWCA 316, Campbell JA made the comment at [73]-[74] (Allsop P agreeing at [1]-[5] and Young JA agreeing at [94]): "73 I would not want my finding that it was within the discretion of the trial judge in the present case to take into account the expert evidence, to be taken as encouragement for parties in Family Provision Act cases to provide expert evidence of the type that was provided here. Presumably it would be of little assistance in many such cases because the assets were insufficient to meet all claims. In the present case, a sufficient reason why the judge was justified in taking it into account was that both parties conducted the case on the basis that such evidence was appropriate for him to consider. 74 There is no issue before us concerning the admissibility of such reports, but such an issue might arise in future cases. It might arise at the level of whether the assumptions were adequately established, or at the level of whether a ground for exclusion under section 135 Evidence Act 1995 was made out. Alternatively, if admitted, a question might arise about whether cross-examination should be limited. There are some other matters of potential concern besides admissibility. One is that, many testators manage to write wills that make proper provision for their family without calling on an actuary or accountant to help them do so. When the Act enables the Court to make proper provision for eligible people when a testator has failed to do so, it is far from clear that the Court ought to do so using a type of factual material that a testator is unlikely to have used. Another is that it would be a matter of concern if the costs of Family Provision Act cases were increased through regular use of such reports. The effect of these matters can be left for future decision." 88 There was no argument advanced by the defendant that the tables were irrelevant, but I think that the Court should not treat claims under the FPA as if they were personal injury claims, and this is reinforced, I think, by what was said by the Court of Appeal in Tchadovitch. I treat the tables as providing a guide to what annuity would be produced by a particular lump sum, and hence as relevant information to be taken into account in considering the benefit of the amount to be awarded to the plaintiffs. 89 In Nicholls v Hall [2007] NSWCA 356, the Court of Appeal (Mason P, Hodgson and McColl JA) explained that whilst moral duty or moral obligation of the testator is relevant, it is not determinative and can be misleading because the circumstances may not have been known to the deceased, so that there was "no non-compliance with any moral duty or obligation" and the question posed in s 9 of the FPA is to be determined having regard to the facts as they exist at the time of the hearing: see Nicholls at [40]. The Court of Appeal also said at [41]-[42]: "41 For those reasons at least, it is in our opinion more satisfactory to approach the question of what is "adequate" and what is "proper" having regard to what might be characterised as the claim of an applicant on the estate of the deceased: this more readily accommodates objective facts rather than just the facts known to the deceased, and it also accommodates events occurring after the death of the deceased. In saying this, we are not suggesting that the Court cannot give weight to the deceased's own assessment of moral claims on the deceased and of the deceased's moral obligations: this can be taken into account in assessing the strength of moral claims. 42 In assessing the strength of moral claims, the Court can have regard to (1) all aspects of the relationship between the applicant and the deceased, and (2) all aspects relating to needs of the applicant. These matters would be considered having regard also to (3) the size and nature of the estate, and to (4) other legitimate claims on the estate, each of which would also involve some consideration of the relationship of a claimant to the deceased and the needs of that claimant. When a moral claim has been assessed in that way, that does not determine whether an order should be made, but only informs what the Court would find to be "adequate" and "proper". Certainly, in our opinion, a finding that an applicant has been left without "adequate provision" for "proper maintenance" does not necessarily mean that the deceased failed in any obligation; although it can loosely be expressed in terms that there was a moral claim that, in the event, was not met." Conclusion in relation to provision for Judy 90 Recognising the limitations of the "moral obligation" approach to which I have referred, it is in effect conceded by the executor that the testator did have a moral obligation to Judy that is not reflected in a bequest of $50,000. However, I do not think that his obligation required him to provide Judy with a two-bedroom unit in Bondi Junction at a cost of $800,000 and to provide her, in addition, with an annuity by way of a lump sum of $400,000, notwithstanding the size of the estate, the affluent position of the residuary beneficiary, Martha, and the absence of any claims by the two other children of the testator (whose interests, it can be inferred, are closely allied to Martha's). Mr Willmott submitted that the maximum amount for a home that either plaintiff would be entitled to received was $450,000-$550,000, and he accepted that a two-bedroom unit would be appropriate for Judy: see T306. 91 Returning to the words of the legislation, determining what provision ought be made requires that all of the relevant circumstances which I have endeavoured to identify above be taken into account. I have reached the conclusion that the appropriate provision for Judy is $850,000. This amount would produce an annuity of more than $55,000 (using the five percent discount rate table in Ms Bateman's affidavit) or permit the purchase of a two-bedroom unit for $565,000 in Randwick in the Eastern Suburbs (see Exhibit 2)(excluding stamp duty and legal costs), with $295,000 remaining for conveyancing costs and for other needs. The testator has provided Judy with $50,000, therefore she should be provided with another $800,000. I do not think that she should be provided with a further $59,000 to enable her to repay money which she is obliged to pay to her trustee in bankruptcy. The executor should require proof by Judy of advice to her trustee in bankruptcy that she is to inherit these monies. Mr Willmott pointed out that if a substantial amount were ordered to be paid by the estate, there would be need to have recourse to either a loan on the Bellevue Hill property or even sale of that property, because of the interconnection of the estate with the jewellery business. There is evidence that monies can be drawn down on the existing loan, but it seems likely that some time would be needed to organise the funds for payment by the estate. The estate should be given an opportunity to structure the payment of this amount. Matters relevant to Rony's case 92 The testator asserted in his statement that: (1) since his divorce from Alice, the only contact Rony had with him was when Rony approached him for money; (2) Rony was expelled from Scots College for stealing money from telephone boxes in 1968. He has not attained any academic qualifications; (3) Rony has had no success, and in 1972 the testator paid a $3,000 Diner's Club bill for him; (4) he gave personal guarantees to the National Australia Bank and Westpac to help Rony with various business enterprises; (5) he paid $50,000 to $60,000 in 1978 to both the National Australia Bank and Westpac to extinguish personal liability his for Rony's business debts; (6) Alice guaranteed Rony's debts and had to pay approximately $140,000 when the guarantees were called on; (7) in 1997 or 1998, Rony told him that he was going to start a new life in Israel and open a successful business and that he would not be ashamed of Rony any more. Two months later, the Hilton Hotel rang the testator to say that they would not let Rony leave until his bill was paid. The testator says he then sent $1,500 to clear the bill and paid Rony's airfare back to Australia; (8) when he refused to lend Rony money in 1978, Rony said the testator would be sorry if he did not give Rony money; (9) Rony would ring him every four or five months asking for money, asserting that the testator had not looked after him properly. The testator says that in one conversation, Rony said: "'I am again in debt, I need your help.' I replied, 'I have done all that I can for you.' Ronald Kennedy then said, 'I want money. You have not looked after me properly.' To the best of my recollection I replied, "I have given you more than enough money and at your age you should be able to support yourself.' Ronald Kennedy then said, 'You are miserable and that woman you have married wants to take our money away! You are my father and you have to give me money. It is your duty. Your bitch wife has a Mercedes car, she wants me to have nothing, you will be very sorry all of you if you don't give me money.'" (10) Rony verbally abused Martha and she was forced to go to court to obtain an Apprehended Violence Order; and (11) in 1997, Rony sued him in relation to a business enterprise (Nox). The testator says that he was seriously ill and could not face the prospect of court proceedings, and therefore settled the claim, paying $85,000. 93 Dealing with the matters relied on by the testator to justify the bequest of $50,000 to Rony, the first (see 92) is the lack of social contact over 20 years, except when Rony approached the testator seeking financial assistance. Rony accepts that contact was not extensive, but he does not accept that the only contact he had was to seek money. The limited contact and the requests for money are borne out by the evidence of Martha and corroborated by their housekeeper, Mrs Ureta. Mrs Ureta gave evidence not only of the testator telling her that Rony was looking for money, but she deposes to an occasion when the testator gave her a $50 note to give to Rony at the gate and Rony told her to tell his father to give him more: see paragraphs 8(a) and 9(b) of Mrs Ureta's affidavit. 94 There is no dispute that Rony was expelled from Scots (see 92), and he admits that he was also expelled from The Armidale School. The precise reason for his expulsion from Scots is in dispute. I do not think that it is of significance to the resolution of this case. There is no dispute that Rony did not obtain academic qualifications of any sort. 95 Dealing with 92, there is a dispute as to whether the testator paid a Diner's Club credit card debt in 1972. Rony says that he did have success with Pips and Studio 66.

96 Dealing with 92 and (5), the testator asserts that he provided guarantees in connection with Rony's nightclub businesses and that he paid between $50,000 and $60,000 to extinguish his liability for Rony's business debts. Rony said under cross-examination that he thought his father had guaranteed 50 percent of the investment in Pips (see T117.5-7), but then said that he could not recall (see T117.12-14) and then denied any investment as an "absolute dream" on the part of his father: see T117.40. 97 Dealing with 92, the testator asserts that Alice guaranteed Rony's debts and paid out $140,000. Rony agreed that his mother gave him help (see T119.16-19 and T116.32-33), but he disputes that she paid $140,000 (see T119.13-14) and there is no evidence to support the testator's contention. 98 Dealing with 92, the testator asserts that he paid $1,500 for Rony's unpaid hotel bill in Israel and airfare home. Rony says that the testator did not do so. There is no material tendered in support of the allegation, but Rony did admit that he needed money and that thought his mother had provided him with $1,000. 99 Dealing with 92, the testator asserts that he refused to help Rony in approximately 1978 and that Rony said, "You will be very sorry all of you if you don't give me money". Rony denies the whole of the conversation. 100 Dealing with 92, the testator asserts that Rony regularly asked him for money between 1978 and 1993. He sets out the conversations which, if held, amount to a form of abuse of the testator. 101 Dealing with 92, Rony admits that he abused Martha verbally and that an Apprehended Violence Order was taken out. He accepts that he consented to orders in connection with the Apprehended Violence Order. However, he denies that he abused the testator or members of Martha's family, but by the consent orders, he accepted implicitly that he had done so or that they had reason to believe that he had done so. 102 Dealing with 92, Rony sets out his version of events in relation to Nox in paragraphs 30-40 of his first affidavit. He claims that he was instrumental in the establishment of the restaurant in which he was to be employed as a manager. He does not say that he provided any funds for the venture, but says that he was told that he would received 25 percent of the shares in Lonsted once Nox was up and running. He says that the testator purchased half of the shares in Lonsted, telling him that, "it will be able to give you security for the rest of your life because this is a very good venture". He says that the testator told him that Martha did not want Rony involved in the restaurant and that he was sacked. The statement that the testator made about why he purchased shares in Nox is at odds with the notion that he had no desire to assist Rony at all. 103 Rony then sought compensation for "his past efforts during the past eleven months": see page 71 of Exhibit J1. The letter from his solicitors to the testator makes reference to Rony's desire to set up a coffee wholesaling business and restaurant in Surfers Paradise and seems to acknowledge that the testator might reasonably be concerned that the $91,000 sought would be squandered, because it offers that two-thirds of the monies be held in trust and invested on his behalf: see page 72 of Exhibit J1. 104 Martha's version of Rony's ouster is quite different to Rony's. She describes how Rony approached the testator and herself for $20,000 to cover the wages of the Nox staff. She says that the loan was made on a short-term basis and that when it was not repaid by Lonsted, the directors of Lonsted met with the her and the testator and "after expressing serious concerns about the viability of the business and also Rony Kennedy's involvement as licensee and manager, Louis and I agreed to purchase the business from Lonsted". Martha deposes to the fact that Rony remained an employee in the business, but was removed after he attempted to control staff and "continually offered friends food and beverages". She says that on his ouster, Rony was abusive to Louis and herself and that Rony then went to Surfers Paradise of his own volition, refuting Rony's version that he was sent off to Surfers Paradise to get him out of the way while the testator and Martha surreptitiously took over the business. I accept Martha's evidence over Rony's, not only because I have more confidence in Martha's credibility, but also because the letters sent by Rony's solicitors make no mention of any claims of a promise by the Japanese directors of Lonsted that he would receive 25 percent of the shares of the business being stolen. 105 I am not satisfied that Rony had any legal basis for a claim against the testator, and I think that the monies paid out by the testator (approximately $49,000 excluding legal costs) should be seen as assistance to Rony in the past. 106 It will be apparent that there is an absence of evidence to support some of the assertions made by the testator that he provided assistance to Rony, either directly or indirectly. A question arises as to the extent to which a testator who wishes to make no provision for an eligible person (or only a very small provision) must have detailed evidence to support his explanation so that his executor can defend his approach. It seems to me that it would be a most unfortunate development if a testator were required to ensure that sufficient "evidence" of the type required in a commercial court case was made available to his executor to justify his explanation. Evidence of an amount paid twenty or thirty years earlier is, realistically, unlikely to be available in any event. 107 Some of the amounts in question, such as the Diners Club bill and the hotel bill, are not large amounts, and I do not accept that the testator made up these claims. The $50,000-$60,000 debt is a large amount, but I think that it can be dealt with in this way. If the testator did pay $50,000 or $60,000 on behalf of Rony, it would support (or tend to support) the testator's view that he had done enough for Rony in the past. If, on the other hand, Rony's version of events is accepted and the truth is that the testator did not guarantee the debts (and pay on the guarantees) and the $80,000 that Rony says he made from Pips was largely dissipated in the fashion he asserts (see T117-118), then it is in keeping with the image that Rony understood his father had of him in the Nox period: see the reference in [103] above in the letter of Rony's solicitors of 3 September 1993. If the testator was not justified in thinking that he had assisted Rony enough, then he was justified in thinking that Rony could not be trusted not to waste money in a similar fashion. If the testator had provided the money, he could consistently have held both views.

108 So far as Rony's character and conduct are concerned, I think that the testator was entitled to form the view that Rony's only interest in him was related to the money that the testator might be willing to give him. Having said that, however, I think that there was clearly antipathy between Martha and Rony which coloured the relations between Rony and his father. Further, the testator did not seem to accept that some part of Rony's conduct and failings as a son were a result of his upbringing by the testator, nor did he accept that the poor relations between Martha and Rony were something the testator could affect by his own behaviour. It does seem that Rony's contact with his father was very limited, but that is what the testator wanted. There is little to support Rony's evidence that he tried to engage his father, but nor is there any evidence that the testator sought to have a positive relationship with his son. Rony claims that he has always loved his father and wanted his father to be proud of him and that to a very significant degree it was Martha who was working to undermine his relationship with the testator. The material available does not support the proposition that Rony had a good relationship with his father, but I accept that it is likely that the testator was to some degree influenced by the antagonism between Rony and Martha, for whatever reasons that antagonism had developed. 109 I regard it as a significant matter that Rony commenced legal proceedings against his father. Such a step is consistent with a severe rupture in relations and is conduct of a kind that prima facie would justify a minimal provision or no provision in a will in favour of an eligible person. The background to the claim is complicated, as I have outlined, and it ended in effect with a payment of $80,000, of which Rony received $49,000, in addition to some $40,000 previously paid by the testator: see page 91 of Exhibit J1.

110 Rony claims that he is obliged to pay $75,000 to a Mr Zeljko Ranogajec and a Mr Adesh Goel. He has signed a "direction" to his solicitors to pay $75,000 to their solicitors. Exhibit C makes it clear that neither Mr Ranogajec nor Mr Goel, who are both mentioned as having provided support and assistance to him over the last 10 years, have "ever asked for anything in return". The direction is bizarre. If Mr Ranogajec or Mr Goel have assisted Rony by paying legal fees, then those amounts can be repaid to them when the fees are reimbursed by the estate, but I do not think that any regard should be paid to the "direction". 111 I summarise the matters which might encourage the view that a more substantial provision should be made in Rony's favour: (1) he is the testator's son; (2) he has virtually no assets; (3) he has limited income-earning potential given his age; (4) he is on a Centrelink pension; (5) he has been bankrupt twice; (6) the size of the estate; and (7) the financial position of the residuary beneficiary, Martha, both by reason of (6) and more generally. 112 I summarise the matters which might discourage the view that a substantial provision should be made in Rony's favour beyond the $50,000: (1) his age; (2) the fact that, on his evidence, he has received very little assistance from the testator in the past and could not have had any realistic expectation of being a significant beneficiary under the will; (3) his character and conduct; (4) he has been negative and abusive to the testator's second wife and to the testator; (5) he has made very limited effort to find work and seems to have unrealistic notions of how he can earn a living, and he has since 1978 had very little sustained success with any business venture at which he has tried his hand, even on his own evidence; (6) he has shown a propensity to dissipate monies, implicitly recognised in his solicitors' letter of 3 September 1993 and only strengthened if his evidence about expenditure of his profit from Pips is accepted; and (7) the fact that he made claims on his father and, on his evidence, settled those for $150,000, of which he ultimately received approximately $89,000 (excluding payment of legal costs) in a further settlement.

Conclusion in relation to provision for Rony 113 Rony seeks a unit valued between $600,000 and $800,000 and "a lump sum cushion for living expenses in the future" of $200,000: see T282. I refer to [90] above, and whilst it is in effect conceded by the executor that the testator did have a moral obligation to Rony that is not reflected in the bequest of $50,000, I do not think that his obligation required him to provide Rony with a unit between $600,000 and $800,000 in value and an additional sum of $200,000. In Rony's case there is even less room for any expectation on his part that his father would make much provision for him, the testator having given him no significant amount of money since 1978, apart from the Nox/District Court claim. In determining what provision ought be made and considering all of the relevant circumstances, which I have endeavoured to summarise above, I regard the size of the estate, Rony's impoverished circumstances and the fact of paternity as significant matters justifying a provision that far exceeds that provided by the testator, but the other matters to which I have referred lead me to the conclusion that the provision ought be far less than has been sought by Rony. I think that the testator was (and the Court is) entitled to have regard to the prospect that any amount of money given to Rony would be likely to be dissipated quickly, but one answer is for a testator (and the Court) to make provision for an annuity or a life interest in property, or by some other measure reduce the prospect of dissipation. 114 I accept Mr Willmott's submission that in Rony's case, the appropriate provision is a life estate in a one-bedroom unit. The unit should not exceed $400,000 in value unless the estate wishes to purchased a more expensive unit, and the unit should be in a location agreed upon by the executor and Rony. It should revert to Martha or beneficiaries nominated by her on Rony's death. Council rates should be paid by the estate. Attention will need to be given to the form of orders, including the time within which the purchase is to be effected. Orders 115 The parties should bring in Short Minutes of Order reflecting the conclusions I have reached and dealing with the issue of costs.

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