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Category: Principal judgment

Parties: Leslie Thomas Green (Plaintiff)
D’Ann Maree Jones (First Defendant)
Leonard Keith Jones (Second Defendant)
Brent Thomas Green (Third Defendant)

Representation: Counsel:
G Schipp (Plaintiff)
J Brown (Defendants)
Solicitors:
Bale Boshev Lawyers (Plaintiff)
Carroll & O’Dea Lawyers (Defendants)

File Number(s): 2023/00305930

Publication restriction: Nil

JUDGMENT

1. In these proceedings the plaintiff Leslie Thomas Green (the plaintiff or Leslie) claims provision from the estate of his late mother, Barbara Jean Green (the deceased or Barbara) who died on 17 November 2022 aged 79 years old, pursuant to s 59 of the Succession Act 2006 (NSW).

2. The defendants are the executors and trustees under the deceased’s last will dated 5 July 2018: the first defendant is the deceased’s daughter and only other child, D’Ann Maree Jones (D**’**Ann); the second defendant is the deceased’s grandson, Leonard Keith Jones (Lenny) and the third defendant is another of the deceased’s grandsons, Brent Thomas Green (Brent). Probate was granted on 16 August 2023. Without intending any disrespect, I will refer to family members of the deceased by their first names.

3. The plaintiff commenced these proceedings by summons on 26 September 2023. It is not in dispute that Leslie is an eligible person under s 57(1)(c) of the Succession Act, and that his claim was brought within time.

4. At the hearing the plaintiff was represented by Mr Schipp of counsel and the defendants by Mr Brown of counsel.

5. References below to statutory provisions are to the provisions of the Succession Act unless otherwise stated.

Factual background

6. Under this heading is set out the factual background to the claim, most of which is undisputed. Where there is dispute, the following should be taken as the findings of the Court.

7. The deceased married Alan Green in around 1964. She had two children, D’Ann born in January 1964 and Leslie born in July 1965. At the date of the hearing, D’Ann was 61 years old and Leslie was 59 years old.

8. In around 1968 or 1969, Barbara and Alan purchased a property in Hexham (Hexham property).

9. Alan worked as a bulldozer driver at BHP and, in the early years of the marriage, the deceased worked as a cleaner and barmaid.

10. The evidence of both Leslie and D’Ann indicates that the marriage of the deceased and Alan was marred by serious and disturbing domestic violence committed by Alan against each of the deceased, D’Ann and Leslie. While there is disagreement between Leslie and D’Ann as to which of them received the worst of the beatings by their father, there is no dispute that each was subject to unacceptable violence from their father throughout their childhood which contributed to their poor performance at school. It is also not in dispute that the deceased was subject to physical violence from her husband, but there is no suggestion that she was responsible for any violence towards Leslie or D’Ann.

11. Leslie went to Hexham Primary School and then to Raymond Terrace High School, but left in year eight. He did not obtain a school certificate or other educational qualification. He was subsequently diagnosed with dyslexia which is likely to have contributed to his poor performance at school.

12. After Leslie left school, he worked in the renovation business of a friend of his father, including demolition work and plastering, and then did casual work for four or five years at an Aluminium Smelter near Newcastle. He then did casual work including garbage collection, bricklaying, demolition work, truck driving, plastering, and pouring cement slabs for a number of different businesses. However, he found it difficult to get full-time employment because he had not finished school and had no qualifications.

13. In January 1985, D’Ann, then aged 21 years, moved out of the Hexham property and married Kenny Jones. They have two children: Lenny born in February 1986 and Joley born in October 1988. Lenny is the second defendant and one of the beneficiaries under the will. At this time, Leslie was still living with his parents at the Hexham property.

14. In around 1989, Leslie formed a relationship with Jenny Trindall (Jenny) and moved out of the Hexham property. That relationship was volatile and at times Leslie returned to live with his parents during periods of separation. Leslie and Jenny had two children, Melissa born in October 1992 and Brent born in August 1994, both of whom are residuary beneficiaries under the will. Brent is the third defendant. Leslie and Jenny’s relationship ended in around 1999. They were never married.

15. On 30 October 1998, the deceased and Alan purchased a property at Beresfield for $129,000 (Beresfield property) and moved into that property in around December 1998. The Beresfield property is the main asset of the estate.

16. Leslie continued to stay at the Hexham property after the deceased and Alan moved to the Beresfield property. Leslie deposed that around the time his parents moved to the Beresfield property they told him that the Hexham property was being ‘left to you and whoever needs somewhere to stay’, and that the deceased said to him that he could stay at the Hexham property ‘as long as he wanted’. Importantly, what he had been told by Alan and the deceased was that they would keep the Hexham property for the family to use if they needed it and not just Leslie.

17. He deposed that his arrangement with the deceased and Alan before they moved to the Beresfield property was that he would pay rent of $60 per week to help with household expenses for the Hexham property and would also help out by mowing the lawns, trimming the hedges and doing any other jobs that Alan would ask him to do. Leslie also deposed that this arrangement changed when the deceased and Alan moved to the Beresfield property in 1998 so that instead of paying rent of $60 per week, Leslie was required to pay all the bills associated with the Hexham property, including council, electricity and water rates, and continue to maintain the property.

18. While living at the Hexham property during the period from 1998 to 2011, Leslie regularly visited the deceased and Alan at the Beresfield property and would assist Alan with household chores at the Beresfield property, including mowing the lawns, cutting down palm trees, cleaning the pool and other maintenance jobs. This continued until he had a falling out with Alan in 2011, referred to below.

19. In early 1999, D’Ann and Kenny Jones separated. D’Ann deposed that her separation from her husband was ‘messy’ and as a result of threats he made that he would sell all their possessions, including those of Lenny and Joley, Lenny told D’Ann that he wanted to move to live with his grandparents at the Beresfield property to prevent his father from taking and selling his things. D’Ann and Lenny gave evidence that from late 1998 Lenny lived with his grandparents full-time at the Beresfield property. He was 12 years old when this occurred and already had a close connection with his grandparents as he had previously stayed at the Hexham property for extended periods from the age of five or six. Lenny’s evidence is that throughout the period he lived with his grandparents at the Beresfield property he formed a close bond with both of them and each treated him like a son. This evidence, which I accept, is corroborated by D’Ann and by Leslie, who deposed that Lenny started to live with the deceased and Alan for extended periods at the Hexham property from the age of five or six and ‘gradually it seemed that Mum took over Lenny’s care and started taking him to his school at Thornton primary school’ and accepted in cross examination that the deceased ‘did raise [Lenny], yes, because her daughter couldn’t’. I find that by the time Lenny was 12 years old, the arrangement under which Lenny lived full-time with, and under the care of, the deceased and Alan had become permanent and that he continued to live with them at the Beresfield property until they died.

20. After the breakdown of Leslie’s relationship with Jenny in 1999, Leslie formed another relationship with Sarah Collins (Sarah) with whom he ultimately had five children: Ollie (born in December 2008), Abby and Oscar (in October 2009), Maime (born in March 2012) and Marlee (born in July 2015). They were never married. At the time they commenced their relationship Sarah already had two children from a previous relationship. There is a conflict in the evidence as to the period in which this relationship lasted. Brent, D’Ann and Lenny each say that it commenced in 2004, whereas Leslie says it commenced in about 2010 which cannot be correct as he and Sarah already had three children by 2010 (Oscar, Abby and Ollie). I find that the relationship commenced in around 2004 and ended in around 2020, and that at various times in the period from 2004 until 2011 Leslie lived at the Hexham property (sometimes with and sometimes without Sarah), but he also spent time in that period at rented properties at Taro and Maitland.

21. The Hexham property was sold by the deceased and Alan in late 2011. Leslie deposed in his first affidavit to a conversation with Alan in around 2011 when he was told by Alan that he and the deceased had decided to sell the Hexham property, to the following effect:

Alan: Les, you won’t be able to stay here anymore because we are going to sell the place.

Leslie: I didn’t think you were going to sell it, I thought you were going to keep it for anyone who needed somewhere to live.

Alan: No, if anyone needs somewhere to stay they can come and stay at my place at Beresfield.

22. However, in cross examination he contradicted this evidence when he denied that his father ever said to him ‘No, if anyone needs somewhere to stay they can come and stay at my place at Beresfield’ (T50.22).

23. During 2011, Leslie had a falling out with Alan before the Hexham property was sold. There is a dispute in the evidence as to the cause of the falling out. Leslie’s evidence in cross examination was that it came about because he complained to Alan about being required to spend so much time at the Beresfield property doing maintenance work on the property at weekends (including mowing the lawns, cutting palm trees down and maintaining the pool) instead of spending that time with his children. The exchange in cross examination was as follows:

Q. As I understand your evidence, you said that originally, you were doing all the maintenance at Beresfield?

A. I was doing all the mowing, and cutting the palm trees down. Yeah, tidying up, doing the gardens. Doing the pool.

Q. Eventually, you took offence to doing that?

A. I just got sick of ‑ I couldn’t spend any time with my own kids. My whole weekend was spent staying at my dad’s place, doing work for him. And I wanted to spend time with my kids, and take them somewhere.

Q. He asked you to mow the lawns, and palm tree, and gardens?

A. Yeah.

Q. And you took offence to that?

A. Yeah.

Q. Therefore, eventually, you had a falling out with your father?

A. Yes.

Q. And your mother, subsequently?

A. Yeah, mum come down and ‑ yeah.

Q. And you had a falling out with your mother?

A. But I still talk to mum. We had a fall out, but we still spoke. Me and my mum never had that sort of, you know, argument that we never ever wanted to speak to each other again.

Q. Well there were years when you didn’t speak to each other, correct?

A. Well probably.

24. It was not apparent from the evidence why Alan’s requirement that Leslie perform maintenance work at the Beresfield property of the kind identified by Leslie in his evidence was so onerous as to cause the falling out with his father in 2011.

25. D’Ann deposed that on several occasions Alan had showed her overdue bills for the Hexham property which he had been required to pay, which evidence Leslie denied, but it is possible that this was also a cause of friction between Leslie and Alan. Ultimately, nothing turns on the reason for Leslie’s falling out with Alan in 2011 because it is not in dispute that it occurred and that Leslie saw very little of his father after that time.

26. Leslie accepts that when his falling out with his father occurred, there was a heated argument between the deceased and Sarah when the deceased went to the Hexham property to tell Leslie and Sarah to leave. There was a period of around six months in 2011 when Leslie met his mother regularly in Maitland Park (at a time when Ollie was two years old) but these meetings ceased because Alan found out about them and told the deceased she could not see Leslie anymore. Leslie did not reconcile with his father before his father’s death in 2016.

27. After 2011, Leslie and Sarah lived in rental premises until about 2015 or 2016 when the landlord decided to sell the property and they moved into Sarah’s mother’s house for a short period. Leslie’s evidence is that they were then essentially homeless, staying with friends that they knew, for a period of around 18 months until Leslie was able to secure housing commission premises in Rutherford (Rutherford property). The date of the residential tenancy agreement entered into by Leslie with the NSW Land and Housing Corporation is 21 October 2016.

28. Since Leslie’s relationship with Sarah ended in around 2020, he has continued to live at the Rutherford property with his five children. Leslie has full custody of their children, and Sarah is required to pay him $19.89 per fortnight for their maintenance.

29. On 2 July 2016 Alan died. Leslie attended Alan’s funeral.

30. After Alan’s death, D’Ann moved into the Beresfield property with the deceased and Lenny for around 12 months to help care for the deceased and to ensure that she would not be alone when Lenny went to work.

31. In around 2017, the deceased’s hearing deteriorated and an attempt was made to give her a cochlear implant but this was ultimately unsuccessful. She had regular hearing appointments to update her hearing aids with Hearing Australia until she passed away in November 2022. She was taken to these appointments by D’Ann, Lenny or Joley. In 2018, Lenny commenced paying the telephone bill for the landline of the Beresfield property. The only person who used a landline was the deceased.

32. By 2019, the deceased’s health had declined to such an extent that she could not go out of the Beresfield property independently. D’Ann’s evidence was, which I accept, that she became more hands-on in providing care to the deceased as her health started to decline at this time, including taking her to and from her medical appointments, haircuts and shopping and taking her for drives. In January 2020, D’Ann and Joley took the deceased on a holiday to the Gold Coast and in 2021 D’Ann purchased a motorscooter for the deceased which allowed her to leave the Beresfield property for short trips to the shops.

33. Also from around 2019, D’Ann along with Lenny and Joley assisted with the deceased’s physical care as she became incapable of doing things for herself.

34. On 10 May 2019, Leslie visited the Beresfield property to see the deceased as he was in town for the funeral of Sarah’s mother. Lenny’s evidence is that on this visit Leslie and his five children entered the house and Leslie spent time with his mother on the verandah. Leslie denied in his affidavit evidence that he and his children were ever permitted entry to the Beresfield property to see the deceased. I deal with the conflict in this evidence below.

35. On 17 November 2022, the deceased died. Leslie attended the funeral. In the two months prior to her death, the deceased was admitted to hospital from time to time and during this period Leslie visited her in hospital and took his children to see her. It is not in dispute that the deceased enjoyed seeing her grandchildren on these occasions and I accept Leslie’s evidence that she told him on these occasions that she missed him.

The will

36. The deceased made her last will on 5 July 2018. The defendants were appointed executors and trustees. By the will:

37. she gave legacies of $2000 each to Leslie’s five children from his relationship with Sarah and each of Joley’s three children, upon their attaining 21 years;

38. she gave various chattels to certain of her grandchildren and to D’Ann;

39. she gave the residue of her estate (after paying her debts, legacies and funeral and testamentary expenses) including the Beresfield property, to D’Ann and four of her grandchildren: Brent and Melissa (who are Leslie’s two children from his relationship with Jenny), and Lenny and Joley (who are D’Ann’s two children), subject to the right of Lenny to reside in the Beresfield property for as long as he wishes.

40. Lenny’s right under the will to reside in the Beresfield property for as long as he wishes is subject to the proviso that (a) he pays the rates, taxes and other outgoings for the property, (b) he keeps the property insured against loss and damage from fire storm and tempest in an amount, and with an insurance office, approved by the trustees, and (c) he maintains the property in a state similar to that in which it is at the deceased’s death.

41. The deceased was survived by the beneficiaries in the will.

42. The deceased did not make a written statement under s 100 of the Succession Act.

The deceased’s estate

40. The parties are in agreement that the estate is modest. In the inventory of property attached to the Grant of Probate, the estate was disclosed as comprising cash on deposit with IMB Bank and Greater Bank in the sum of $37,164.00 (ignoring cents), the Beresford property with an estimated value of $450,000.00, a Subaru Forester motor vehicle with an estimated value of $1,000.00 and a campervan with an estimated value of $10,000.00.

41. The defendants provided their estimate of the value of the estate at the date of the hearing is as follows:

| Current Assets of the estate: Beresford property | $450,000.00 | | (Estimated net proceeds of sale after cost of repairs, clearing, and sale costs if property is sold pursuant to orders of court, which are opposed) | | | Subaru Forester Registration BG XXXX | $1,000.00 | | 1997 Campervan/Ford Transit | $10,000.00 | | Estimated value of assets | $461,000.00 | | Current Liabilities of the estate: Roof repairs (paid by Leonard as executor and owed to him) | $1,900.00 | | Celebration of Life expenses (paid by Leonard and owed to him) | $1,185.00 | | Registration and insurance of Subaru (paid by D’Ann and owed to her) | $1,000.00 | | Registration and insurance of Campervan (paid by executors and owed to them) | $1,600.00 | | Estimated liabilities owed | $5,685.00 | | Funds received into the estate: IMB Bank proceeds (funeral of $10,566.50 paid from account prior to closure) | $21,788.79 | | Greater Bank proceeds | $5,796.43 | | Total | $27,585.22 | | Payments made out of the estate Legal costs paid for probate | $6,015.15 |

42. The net value of the estate at the date of hearing is $476,885.07 (not including costs of these proceedings).

43. Leslie did not dispute the above estimate, except for the value attributed to the Beresfield property. In relation to that question, Leslie relied on a drive-by valuation of the property dated 20 January 2025, which estimates the selling price to be between $600,000 and $660,000. Leslie says that based on this estimate the net estate available for distribution would be in the order of $600,000 (before legal costs).

44. The defendants relied on a drive-by valuation of the Beresfield property obtained during the hearing which estimated the selling price of the property to be between $500,000 to $580,000. The defendants submit that it would be necessary to deduct the selling costs (agent’s commission, marketing expenses and conveyancing costs) and costs of preparing it for sale (including repairs), of approximately $50,000. Using these figures, the defendants submit that the net estate available for distribution would be in the order of $500,000 (before legal costs).

Costs of the proceedings

45. Mr Joshua Hay, Leslie’s solicitor, deposes that as at 24 January 2025, he estimated Leslie’s costs and disbursements of the proceedings on the ordinary basis were $125,000 to $130,000 plus GST ($137,500 to $148,000 incl GST). The costs on the indemnity basis were said to be $150,000 plus GST ($165,000 incl GST). He also states that Leslie has signed a conditional costs agreement (which does not provide for the charging of an uplift fee).

46. Ms Rebecca Tidswell estimated the defendants’ costs to be $125,000 plus GST (on an indemnity basis) and $100,000 to $110,000 plus GST (on an ordinary basis) if the matter were to run for three days at hearing.

47. Lenny gave evidence that he would enter into an arrangement with the other executors to pay the estate’s costs of these proceedings by raising a personal loan. The defendants’ solicitor, Ms Rebecca Tidswell deposed that depending on the orders of the Court her firm would enter into a payment arrangement with the defendants regarding the costs incurred to defend the proceedings designed to ensure that the Beresfield property would not need to be sold to pay their costs.

48. If the Court does not limit or cap the parties’ costs in some manner, the net estate will be:

49. On the defendants’ estimated value of the estate of $560,000:

(a) Less plaintiff’s ordinary costs $148,500 (b) Less defendants’ indemnity costs $137,500

Total available for distribution $214,000

2. On the plaintiff’s estimated value of the estate of $600,000:

(a) Less plaintiff’s ordinary costs $148,500 (b) Less defendants’ indemnity costs $137,500

Total available for distribution $314,000

49. On any view, the plaintiff’s costs are disproportionate to the amount of his claim. Not only are they very high compared to the quantum of his claim, but it is difficult to see that they are justified given the output which comprises two affidavits of Leslie in support of his claim, together with relatively short updating affidavits and a two day hearing. While it is not unusual for a successful plaintiff’s costs to be paid out of the estate, the courts have expressed concern about the disproportionate legal costs charged in family provision proceedings in the case of estates of less than $1 million: see eg Wengdal v Rawnsley [2019] NSWSC 926 at [31]-[52]; Practice Note SC Eq 07 at [40]. This is a matter which would need to be taken into account if the plaintiff’s claim is successful, but for the purposes of considering his claim, I will proceed on the basis that he would seek to recover from the estate a significant sum in respect of his costs.

Evidence and credit

Plaintiff’s evidence

50. Leslie relied on affidavits made on 26 September 2023 and 6 June 2024 and four updating affidavits filed on 20 January 2025, and was cross examined. He also relied on two affidavits of his solicitor, Mr Joshua Hay, the first attaching drive-by valuations of the two properties relevant to the proceedings and the second going to costs.

51. There were a number of difficulties with Leslie’s evidence. First, it was apparent from his cross examination that he had great difficulty in recalling accurately the dates on which important events in his life about which he gave evidence in his affidavits occurred, which casts significant doubt on his accurate recollection of those events. Second, there were important aspects of his evidence which he contradicted in cross examination, as noted at [22] and [78]. Third, the statements in his affidavit evidence as to his income and expenditure were shown in cross examination to be incorrect but he refused to make the obvious concession about this error despite being shown the relevant financial records (which he had put into evidence). I find Leslie to be an unreliable witness and do not accept that his recollection of relevant events and conversations as accurate or reliable where it is inconsistent with the evidence of the defendants’ witnesses.

Defendants’ evidence

52. The defendants relied on four affidavits made by D’Ann, four affidavits made by Lenny, an affidavit made by Brent and affidavit of their solicitor, Ms Rebecca Tidswell going to costs. D’Ann and Lenny were both cross examined.

53. D’Ann and Lenny each impressed me as an honest witness who gave every appearance of trying to answer the questions they were asked honestly and to the best of their recollection. While I have treated their evidence with caution given their self-interest in the proceedings, I generally accept it.

Relevant principles

54. As Leslie is a child of the deceased, the Court has power to make a family provision order in his favour if the Court is satisfied that, at the time when the Court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made by the will: Succession Act, s 59 (1)(c). If so satisfied, the Court may make such order as the Court thinks ought to be made for Leslie’s maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made: s 59 (2). Each of these twin ‘tasks’ requires an evaluative judgment having regard, among other things, to the matters identified in s 60(2) of the Succession Act: s 60(1)(b); Blendell v Blendell [2020] NSWCA 154 at [8].

55. Section 60(2) of the Succession Act states that the following matters may be taken into account by the Court:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

56. The key concepts in the evaluative exercise are ‘adequate’ and ‘proper’, which are not defined in the Act. In Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [112]-[115] Payne JA (Macfarlan JA and Sackville AJA agreeing) made the following observations as to how the Court approaches the question of whether adequate provision for the proper maintenance, education or advancement in life of a plaintiff has been made:

In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that:

[T]he words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.

What is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. The Court’s assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application. This does not, however, mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.

In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [12] Allsop P stated:

Accepted and acceptable social and community values permeate or underpin many, if not most, of the individual factors in s 60(2) and are embedded in the words of s 59, in particular ‘proper’ and ‘ought’. That such values may be contestable from time to time in the assessment of an individual circumstance, or that they may change over time as society changes and grows can be readily accepted.

Allsop P acknowledged that orders made by reference to “perceived prevailing community standards of what is right and appropriate” referred to an imprecise, variable and contestable standard. See also White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [125]–[127].

57. The observations of White J (as his Honour then was) in Slack v Rogan (2013) 85 NSWLR 253 at 284-285; [2013] NSWSC 522 picked up at the end of this passage included the following at [127]:

In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed: Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]. This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.

58. In Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [89], Brereton JA approved these observations of White JA, and noted at [90] that the respect given to the judgment of a capable testator ‘will have importance chiefly where a testator, faced with multiple obligations and an estate insufficient to meet them all in full, has had to make a difficult judgment as to which will be satisfied and to what extent’.

59. The Court takes into account the deceased’s testamentary intention because it is recognised that in many cases the deceased person will have been better placed to assess the moral obligations which they owed than the Court. As Kitto J observed in McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at 579 (quoted by the Court of Appeal in Bassett v Bassett [2021] NSWCA 320 at [82]-[83]):

The testator has shown by the terms of his will that he did not fail to consider what he ought to do for the several members of his family and that it was his deliberate judgment that some of them, including the respondent, had been adequately provided for by assistance he had given them. His opinion on the subject is, of course, by no means conclusive. But there is nothing to suggest that he was under any misapprehension, or that he was in any way prejudiced against the respondent; and the case seems to me to be one of those in which the testator is much more likely to have formed a correct conclusion on the subject of the moral obligations he owed to his family than a court can well hope to be.

60. The importance of bearing in mind that the concepts of ‘adequate’ and ‘proper’ are relative to the circumstances of the particular case was explained by Dixon CJ in Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19:

It has often been pointed out that very important words in the statute are “adequate provision for the proper maintenance and support” and that each of these words must be given its value. “Adequate” and “proper” in particular must be considered as words which must always be relative. The “proper” maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is “adequate” must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words “proper maintenance and support”, although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.

61. While the evaluation of what is ‘proper’ is made by reference to ‘perceived community standards of what is right and appropriate’ (or ‘moral duty’ which was the preferred way of expressing the same concept in in Steinmetz at [44] and [109]), these are to be ascertained according to the circumstances of the particular case, including the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [64]. Importantly, as White JA said in Steinmetz at [59], ‘the court does not ask whether the will was fair and does not have the power to adjust entitlements under the will according to what it considers to be fair’.

62. In Lalic v Lalic [2022] NSWSC 31 at [48]-[54], Henry J summarised the authorities on the correct approach to the evaluative task required when determining whether the provision in a will is adequate and, if not, whether a family provision order should be made, as follows:

Pursuant to s 60(1)(b) of the Succession Act, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, whether an order for provision should be made and if so to what amount: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7]; Chan v Chan [2016] NSWCA 222 at [21].

The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education or advancement in life of a person, nor does it allocate relative weight to any of the various matters set out in s 60(2) to which the Court may have regard.

While adequacy is concerned with quantum and the word “proper” prescribes the standard of the maintenance and advancement in life, they are relative concepts with no fixed standards. The Court is left to form opinions on those matters on the basis of its own general knowledge and experience of current social conditions: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] (Gummow and Hayne JJ), [114] (Callinan and Heydon JJ); Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 (Limberger v Limberger) at [423].

A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the claimant’s proper maintenance, education or advancement in life: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [6] (Payne JA), [86] (White JA, McColl JA agreeing). The relevant circumstances will include a claimant’s needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any assessment of a claimant’s needs also requires consideration of the size of the estate and others’ claims on it: Chan v Chan [2016] NSWCA 222 at [22].

Thus, the concepts of adequate provision and the proper level of maintenance and advancement are to be assessed in the context of all of the circumstances of the case, including the claimant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the claimant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on the deceased’s estate. Attention may also be given to how the claimant lived and might reasonably expected to have lived in the future: Blendell v Blendell [2020] NSWCA 154 at [7]–[8]; Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114].

The determination of what is adequate provision for the proper maintenance, education and advancement in life of a claimant is to be guided by applying the Court’s assessment of what is considered to be right and proper according to contemporary accepted community standards or what is considered to be the moral duty of the deceased: Squire v Squire [2019] NSWCA 90 at [10]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 (Steinmetz v Shannon) at [44] (White JA), [109] (Brereton JA).

In appropriate cases, if the deceased was capable of and did give due consideration to what provision for a claimant’s maintenance, education or advancement is proper, the Court should give considerable weight to the deceased’s testamentary wishes. This approach recognises that a testator or testatrix is in a better position than the Court to make such an assessment, although the application of s 59 of the Succession Act is not confined by notions of reluctance to interfere with freedom of testation. The Court’s assessment of whether there has been adequate provision for the claimant’s proper maintenance and advancement in life must be made when the Court is considering the application, rather than at the time of the deceased’s death or will, and requires an evaluative judgment of all of the circumstances: Megerditchian v Khatchadourian [2020] NSWCA 229 (Megerditchian) at [33], [35] (Payne JA, Macfarlan JA and Emmett AJA agreeing); Steinmetz v Shannon at [52]–[54] (White JA), [96] (Brereton JA); Sgro v Thompson at [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [126]–[127].

63. In Jodell v Woods [2017] NSWSC 143 at [104] Hallen J summarised some of the principles relevant to a claim for provision by an adult child drawn from cases where such claims have been considered:

(a) 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.

(b) 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]; 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].

(c) 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].

(d) If the applicant has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, (dec’d*)* [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd, at 148; Goodman v Windeyer [1980] HCA 31 ; 144 CLR 490 at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, (dec’d) at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams at [86].

(e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker [1957] HCA 82 ; (1957) 97 CLR 566*; Kleinig v Neal (No 2)* at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45 (Nicholson J); Taylor v Farrugia at [58].

(e) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].

(f) 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.

64. A similar statement of these ‘principles’ is found in subsequent decisions of Hallen J, including Page v Hull-Moody [2020] NSWSC 411 at [176], and in his Honour’s earlier decision in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], which was cited with approval in Chapple v Wilcox (2014) at [21] (Basten JA) and at [65]–[67] (Barrett JA).

65. However, as was noted by Hallen J in Page, these ‘principles’ are only guidance as to community values relevant to the assessment of the deceased’s moral duty and are not to be elevated to rules: see Page at [178]-[185] citing Chapple v Wilcox at [18]–[19] (Basten JA), [66]–[67] (Barrett JA, Gleeson JA agreeing); Burke v Burke (No 2) [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 at [37] (White JA). As Hallen J observed in Xiang bht Cao v Tong [2021] NSWSC 44 at [361]:

…there are no special rules or principles applicable to the claims of an adult child. Nor is there any presumption in favour of, or against, there being an obligation to make provision for an adult child: Towson v Francis [2017] NSWSC 1034 at [108]; Torok v Becker [2020] NSWSC 1570 at [320] (Ward CJ in Eq)… Each case must be considered by reference to its particular facts and circumstances.

66. It follows from the above that while the principles stated in Jodell are relevant, ultimately what is required is a multi-faceted evaluative judgment, having regard to the particular circumstances of the case including the matters set out in s 60(2)(a)-(p) to the extent relevant, to determine whether the basis for a family provision order has been established. Further, as noted by Nixon J in Stokes v Stokes [2023] NSWSC 1223 at [33], the matters set out in s 60(2)(a)-(p) are matters to which the Court ‘may’ have regard, and none is a prerequisite to the making of an order; none is given any precedence over any other; and there is no relative weighting as between them.

67. Also, it is important to recognise that the evaluative exercise often requires a balancing of competing claims taking into account all the relevant circumstances including the strength of each claim and the ability of the estate to meet them. As Robb J noted in Katramandos v Hasapis [2018] NSWSC 948 at [101]:

Accordingly, the factors may provide a list to assist the Court in approaching its task properly, but they do not obviate the need for the Court, upon the whole of the evidence, to decide for itself the crucial questions involved in achieving the state of adequate provision for the proper maintenance, education or advancement in life of the applicant. Furthermore, as each estate will be finite and more persons than the applicants for family provision orders may have similar claims against the estate, the Court will be required, without any definitive guidance from the statutory provisions, to reach an outcome that achieves a proper balance between the provision made out of the estate in respect of all such persons, having regard to the nature and strength of their individual claims for provision out of the estate.

68. Where, as here, the estate is modest in size, this will be a matter relevant to the evaluation of the appropriate balance between competing claims (see s 60(2)(c)). This was explained by Salmond J in Re Allen (dec*’*d); Allen v Manchester [1922] NZLR 218 at 221:

Applications under the Family Protection Act for further provision of maintenance are divisible into two classes. The first and by far the most numerous class consists of those cases in which, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator. Any provision made by the Court in favour of the applicant must in this class of case be made at the expense of some other person or persons to whom the testator owed a moral duty of support. The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator possessed more he would have been bound to do more for the welfare of his dependants. In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims.

69. Where the Court is satisfied as to the threshold issue posed by s 59(1)(c), it does not follow that an eligible person is entitled to provision as of right. There is a further discretionary judgment to be made as to what provision the Court thinks fit for the maintenance, education or advancement in life of the plaintiff having regard to the facts known to the Court at the time the order is made. As Hallen J noted in Wild v Meduri; Meduri v Neal; Meduri v Meduri [2023] NSWSC 113 at [1004]:

… the Act does not stipulate any automatic entitlement to provision when the jurisdictional requirements of s 59 are satisfied and, 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: “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”.

Consideration of s 60(2) matters

Relationship between the plaintiff and the deceased: s 60(2)(a)

70. Leslie was the only son of the deceased. While Leslie had a difficult childhood due to Alan’s physical abuse of him, it is not in dispute that the deceased was never violent towards him and the deceased and D’Ann were also victims of Alan’s anger and violence. D’Ann’s evidence is that they both received the same treatment from their father and that the deceased did not intervene when this occurred. While the evidence of the physical abuse is disturbing, I do not accept Leslie’s submission that the deceased bears some responsibility for what occurred in that she ‘acquiesced in the ongoing physical abuse by failing to remove her children from the household’.

71. The Court is not in a position to assess the extent of the physical abuse in the household during Leslie’s childhood or the responsibility for what occurred, particularly in circumstances where the deceased was also the subject of Alan’s physical violence (on the evidence of both Leslie and D’Ann). However, to suggest that the deceased should be criticised for acquiescing in what occurred fails to have regard to the complicated family dynamic and, on the evidence, the lack of any clear alternative open to the deceased than to remain with her children in the household. Leslie did not adduce any medical evidence linking his difficulties at school with the physical abuse he received from his father at home, and he accepted in cross examination that the real reason he had problems at school was his dyslexia (T24.46).

72. For these reasons, I do not accept that this is a case where conduct of a deceased can be said to have had the effect of depriving an applicant for provision of opportunities in life or where there is some causal connection between such conduct and the applicant’s need for provision (see the observations of Henry J in Pulitano v Pulitano [2019] NSWSC 1688 at [134] and cases there cited). Nevertheless, it is clear that Leslie had a difficult childhood due both to his father’s physical abuse of him and his dyslexia, both of which have contributed to his difficulties in adult life and this is relevant in assessing the moral duty of the deceased to Leslie referred to under the next heading.

73. Despite his difficult childhood, Leslie lived with his parents at the Hexham property for extended periods prior to 1998, albeit paying rent of $60 per week. After 1998, his parents allowed him to continue to live in the Hexham property on favourable terms to him until there was a falling out with his father in around 2011.

74. Apart from the times Leslie visited the deceased in hospital before her death in 2022, I am satisfied on all the evidence that Leslie only met or spoke to his mother twice after 2011, the first being at his father’s funeral in 2016 and the second being a visit to the Beresfield property on 10 May 2019 which was the day of Sarah’s mother’s funeral.

75. Leslie deposed that he tried ‘many times’ to visit the deceased at the Beresfield property on many occasions, often ‘about twice a week at different times’, and would knock on the door or also on the window to try to get the attention of either the deceased or Lenny. He deposed that his mother did not see him and that Lenny ignored him

76. Lenny denies that this occurred and deposes that Leslie visited only once, on 10 May 2019 (a date confirmed by a text message Lenny sent to his sister), and on this occasion was given access to the house and spent time with the deceased both in the house and on the verandah where they ‘had a smoke’. Lenny deposed that the next time he saw Leslie was when the deceased was in hospital. He accepted in cross examination that it was possible that Leslie had attempted to visit the deceased on other occasions when he was not at the Beresfield property, for example when he was at work. However, the front door was locked when he was absent and he did not recall the deceased ever mentioning that Leslie had been to see her while Lenny was not there.

77. In his second affidavit Leslie denied that he ever sat on the verandah at the Beresfield property when the deceased had a smoke and deposed that he did not smoke. However, his medical records (dated 19 June 2023) state that he is an ex-smoker and he accepted in cross examination that (a) he did visit the Beresfield property on the day of the funeral of Sarah’s mother, but denied that he had been given access to the house or had a smoke with his mother on the verandah, and (b) he did enter the Beresfield property three weeks before that day, and spoke to the deceased which was the last time he spoke to her before he visited her in hospital in 2022 (T 26.43).

78. Leslie made no mention in his affidavits that he had entered the Beresfield property at any time after the falling out with his father in around 2011. Indeed, the affidavit evidence was that ‘every time I tried to see [the deceased] I could not get in because Lenny would not let me in’. He contradicted this evidence in his cross-examination.

79. Leslie’s evidence regarding his attempts to see his mother after 2011 was unsatisfactory in another respect. His evidence was that he had a mobile phone. However, he gave no evidence of ever having telephoned the Beresfield property to ask to speak to the deceased or arrange with Lenny for a time to meet with her. Both Lenny and D’Ann deposed to never having received a telephone call at the Beresfield property from Leslie, which Leslie did not deny in his evidence. Leslie does not explain in any of his affidavits or oral evidence why he did not try to telephone the deceased, particularly after 2016 when his father had passed away and there was no longer any impediment to him speaking to the deceased. Nowhere in his evidence does he say that his mother’s poor hearing prevented him from being able to speak to her on the telephone and, to the contrary, his evidence was that when he saw her in hospital in the last months of her life: ‘I was able to talk to her although I had to speak very loudly as mum could not hear very well’. In any event, he could have spoken to Lenny on the telephone in the period after July 2016 to arrange a meeting with the deceased at the Beresfield property at a convenient time for her. Nowhere in his evidence does he say that Lenny at any time said to him that he could not meet with his mother, and Lenny’s evidence, which I accept, is that he never blocked any attempts by Leslie to visit his mother.

80. Had Leslie really wanted to see the deceased he could, at the very least, have telephoned the Beresfield property at least once in the period 2016 to 2022 to either speak to his mother or to arrange a meeting with her. I reject Leslie’s submission that Lenny and to a lesser extent D’Ann prevented Leslie from seeing the deceased or shielded Leslie from her. I infer that Leslie was simply not prepared to make a concerted effort to see the deceased until she became seriously ill in the last few months of her life, when he did see her several times in hospital.

81. While Leslie and the deceased were not estranged from each other, the infrequent contact between Leslie and the deceased from 2011 (and in particular from 2016) helps to explain why the three youngest children of Leslie are not mentioned by name in the deceased’s will and why Leslie was left out of the deceased’s will. Nevertheless, just as estrangement does not disqualify an applicant from a family provision order, Leslie’s infrequent contact with the deceased from 2011 does not disqualify him and should not be given disproportionate weight in the analysis of the various factors under s 60(2): Sreckovic v Sreckovic [2018] NSWSC 1597 at [150].

The deceased’s obligations to the plaintiff or to any beneficiary: s 60(2)(b)

82. What is to be considered under this heading is the nature and extent of any legal or moral obligations or responsibilities of the deceased to Leslie or to any of the beneficiaries and potentially requires a balancing of competing obligations between each of them: Bruce v Greentree [2015] NSWSC1611 at [206].

83. The deceased did not have any legal obligation to Leslie or any beneficiary of the estate.

84. Leslie accepted in his evidence that once he became an adult, he supported himself independently of his mother. It is not in dispute that Leslie, as an adult child, has no presumptive testamentary entitlement: Underwood v Gaudron [2015] NSWCA 269 at [73]. Rather, Mr Schipp submitted that the deceased owed a moral duty to Leslie, relying on what was said by Hallen J in Jodell at [104], extracted above, particularly paragraphs (c)-(f).

85. The defendant submitted that Lenny was the person to whom the deceased had the highest moral obligation because he was dependent on the deceased for a long period of time both during childhood and at the time of her death, having lived with her Beresfield property for around 27 years, from the age of 12. Leslie accepted that the deceased had essentially raised Lenny from a young age and agreed that the deceased had taken Lenny to school, bought his clothes and provided him with a home both before and after the acquisition of the Beresfield property (T41).

The nature and extent of the deceased’s estate: s 60(2)(c)

86. It is not in dispute that the amount of the estate is modest, as set out earlier, with the only significant asset of the estate being the Beresfield property.

87. It is also not in dispute that if Leslie’s claim for provision of $140,000 is accepted, the Beresfield property will need to be sold and consequently the deceased’s testamentary intention that Lenny be allowed to live in that property for as long as he wishes could not be met.

The financial resources (including earning capacity) and needs of the plaintiff or any person with whom he is cohabiting: s 60(2)(d), (e) and (g)

88. Leslie was born in July 1965, is currently 59 years of age and single. He supports five children from his relationship with Sarah who are aged 16, 15, 15, 13 and 9 at the date of the hearing. He deposed that his present and future needs are financial support for himself and his five children, including living expenses such as food and accommodation, and treatment of his ongoing health needs.

89. He lives in a four-bedroom house which he rents from the NSW Land and Housing Corporation under a rental tenancy agreement dated 21 October 2016 (rental agreement). His two sons are bunked in one-bedroom, two daughters are bunked in another bedroom and his third daughter has a third bedroom. Leslie occupies the largest bedroom, which also has the wardrobes for the clothes of his children as their bedrooms are too small to store the clothes. There is also a lounge room, dining room, kitchen, bathroom and a separate toilet. He deposed that the house is very hot in summer as it does not have air-conditioning, and while he has applied to the Department of Housing for an air conditioner, the application has not been successful.

90. Leslie’s assets are a 1995 Nissan Pajero motor vehicle, furniture and a small amount of cash in his bank account. He has no superannuation entitlement. He has a liability to the NSW Government for an unpaid fine (described as animal management) of $9,600. The motor vehicle is unregistered, and he does not have a driver’s licence and therefore is unable to drive. There is no evidence as to why he lost his driver’s licence.

91. Leslie deposed that his only income is a disability support pension and family support payments from the Federal Government of $1,519.04 plus modest child support payments from Sarah, his former partner (which his bank statements establish are now $19.89 per fortnight), and that his fortnightly expenses to be paid out of this income totalled $1,656, including rent of $416. However, it became apparent in his cross-examination that when regard is had to the records which he put into evidence (including his bank statements and Centrelink records) that he had understated his disability support pension and family support entitlements, which total $2,512.38 per fortnight. His bank statements show that he currently receives in respect of these entitlements a net amount of $1,926.94 per fortnight, following the deduction of the fortnightly rent and associated charges payable under the rental agreement. After adding the child support payment of $19.89 per fortnight, his disposable income after meeting his housing expenses is $1,946.83 per fortnight. Despite being shown the discrepancy between the amount stated as his fortnightly income in his affidavits and the bank account and Centrelink records, he would not accept in cross examination that his affidavits were incorrect (T40.9-38).

92. The evidence as to Leslie’s expenditure is a little opaque. He gave estimates of his fortnightly expenditure in his first affidavit for rent, food, mobile phone, medications, electricity and gas at a total amount of $1,656. However, when this was tested in cross examination by reference to his bank statements, electricity and telephone bills, a more complete picture emerged. Bearing in mind that his rent is deducted at source from his disability support pension payment and his estimates of his mobile phone, electricity and gas expenses were shown to be unreliable when tested against the invoices he had received for those items, a more realistic estimate of his regular expenses was around $900 per fortnight.

93. Mr Brown submitted that the Court was left in the dark as to what the balance of around $1,000 per fortnight is spent on. The only other expenditure mentioned by Leslie was an amount of around $175-$200 per fortnight for alcohol and an amount of $39.90 per week for a gym membership for his family. I infer that the balance of around $720 per fortnight is spent on the needs of his five children living with him (such as clothing, equipment for school and sporting activities) and public transport (as he does not drive a car). Clearly, Leslie is responsible for meeting the financial needs of those five children who are dependent on him, and their financial circumstances are also relevant under s 60(2)(c). However, he did not suggest in his evidence or in submissions that the balance of around $720 per fortnight was insufficient for that purpose.

94. Under this heading it is also necessary to consider the future needs of Leslie. The evidence regarding this was limited to the statement in Leslie’s affidavit evidence that his future needs relate to supporting his financial security and that of his five children into the future and his ongoing health problems. It is necessary to bear in mind, in considering his future needs, the fact that he has no savings and little prospect of generating significant savings in the future.

The financial resources (including earning capacity) and needs of the other beneficiaries: s 60(2)(d)

95. The only beneficiaries who have given evidence as to their circumstances are D’Ann and Lenny.

D’Ann

96. At the date of the hearing, D’Ann was 61, divorced and single. She owns her home at Thornton, New South Wales (Thornton property) where she lives with her daughter, Joley (who is 36 years old) and Joley’s three children. Joley makes a contribution towards the cost of electricity and gas for the property. The Thornton property has an estimated value of between $500,000-$550,000, and is subject to a mortgage securing a debt of around $130,000.

97. At the time of the hearing, D’Ann was employed as a disability support worker by Connectability Australia Ltd. She suffered a work injury in December 2023, involving a right gluteal tear, which has limited her capacity to work. From the payslips and bank statements in evidence it is apparent that (a) prior to this injury, she was earning per fortnight around $1,702 (net after tax) credited to her bank account together with the benefit of $619.15 under a salary sacrifice arrangement (although the evidence does not disclose what this amount is paid for); and (b) in the period from December 2023 to December 2024, she had limited capacity to work due to her injury and was earning per fortnight around $931 (net after tax) credited to her bank account together with the amount of $619.15 under the salary sacrifice arrangement, plus a further $611.53 as a workers compensation payment. D’Ann estimated her weekly expenses to be around $900 to $920, although the actual amounts would vary at times but in any event it is clear from her evidence that she does not usually have spare money left over the end of each month.

98. Her evidence at the hearing was that due to her work injury, she is unable to return to the same role with her current employer and as a result is on the verge of losing her job with that employer. She is concerned that she will not be able to obtain new employment as she has previously worked only in factories and more recently as a carer, which are roles she is no longer able to perform, and does not have the skills to perform a ‘desk job’. Leslie does not dispute that D’Ann’s future work situation is unpredictable given her poor health (T81).

99. D’Ann’s assets at the date of the hearing were the Thornton property, superannuation in an amount of $137,607.04, bank accounts with the total balance of less than $200, and two unregistered motor vehicles with a total estimated value of $12,000 (a 2020 Nissan Elgrande and a 2022 Toyota Camry). Her liabilities are the home loan of approximately $130,000, a debt owing for the installation of solar panels of $9,061 and a debt owing to Ambulance New South Wales of $1,000.

Lenny

100. At the date of the hearing, Lenny was 38 years old and single with no dependents. He lives alone in the Beresfield property but his nephew, Riley, spends several days per week living with him.

101. Lenny works full-time for a wine distribution company as a call centre team leader/manager earning $37.95 per hour. He generally earns around $2,300 to $2,500 per fortnight (net of tax), depending on the number of hours worked. From around mid-2021, he has worked from home for three days per week and for the other two days per week from his employer’s office.

102. Lenny estimates his weekly expenses to be around $670, and in addition he spends approximately $125 per week on assisting his family, including his sister, Joley, who is a single mother and struggles to support her children. He deposed that the Beresfield property is rundown and requires repairs to the door frames and screen doors which he estimates will cost approximately $2,500 and a new stove. He spent $1,900 on repairs to the roof in March 2024. There was some cross examination of Lenny regarding his discretionary expenditure but in my view none of this expenditure is out of the ordinary for a person of his age and stage of life.

103. Lenny’s assets are a Nissan motor vehicle with an estimated value of $11,500, net savings in his bank accounts of approximately $14,000 (after taking into account his credit card debt) and a superannuation balance of $122,153.55.

Any physical, intellectual or mental disability of the plaintiff or any beneficiary: s 60(2)(f)

104. Leslie suffers from the following medical conditions: ischemic heart disease, mechanical heart valve, obstructive sleep apnoea, asthma, generalised anxiety disorder, GORD, osteoarthritis and hypertension.

105. D’Ann has arthritis in both her back and her knees, and requires a knee replacement operation but cannot afford it at this time. She suffered a back injury at work around 17 years ago and more recently suffered further injury to her back, neck and shoulder as a result of an incident at work with a patient. She has type II diabetes, chronic obstructive pulmonary disease, and also suffers from sleep apnoea, cardiomyopathy, atrial fibrillation, depression and anxiety.

106. Lenny suffers from asthma, obesity, anxiety and significant back pain as a result of a sporting injury suffered at the age of 13.

Any contribution (financial or otherwise) by the plaintiff to the deceased’s estate or her welfare: s 60(2)(h)

107. Leslie does not identify any contribution to the deceased’s estate beyond the payment of rent of $60 and bills for the Hexham property and general maintenance for the Hexham property and the Beresfield property in the period prior to 2011 referred to earlier. However, it can be said for each of these items that they were provided in return for adequate consideration, being the occupation of the Hexham property. Leslie deposed to lending money to the deceased when Alan was alive, but there is no evidence as to the amounts involved and it was accepted that he borrowed from his mother from time to time. I am not satisfied that Leslie has established any contribution relevant under this heading.

Any provision made for the plaintiff by the deceased during her life or from her estate: s 60(2)(i)

108. Leslie deposed that the deceased lent him small amounts of money from time to time but these amounts were always paid back, and accepted that he supported himself independently of his mother.

109. The deceased and Alan allowed Leslie to live with them for significant periods of his adult life prior to their move to the Beresfield property in 1998, albeit on paying modest rent of $60 per week. From 1998 to 2011, the deceased and Alan allowed Leslie to live in the Hexham property without paying rent, although he was required to pay all the bills associated with the Hexham property and maintain it. Leslie gave some evidence that he disliked being required by Alan to do maintenance work at the Beresfield property and that this was the reason why he fell out with Alan in 2011. There is nothing in this evidence to suggest that the maintenance work he was required to do at the Beresfield property was unreasonable or overly demanding. In my view, this was a significant contribution made by the deceased to Leslie during her lifetime.

The deceased’s testamentary intentions, including evidence of statements made by her: s 60(2)(i)

110. Apart from what is contained in the deceased’s last will, the only evidence of the deceased’s testamentary intentions are various conversations she had with each of Leslie, D’Ann and Lenny about her will.

111. Leslie deposed to only one conversation with the deceased regarding her will, which occurred at some time prior to 2011 (although he does not say when) in which she said words to the following effect: ‘if Dad goes before me then I get everything. If I go before Dad then Dad gets everything, and if we both go together, like in a car accident, then everything will be split half and half between you and D’Ann. I also don’t want the place and Hexham sold, that should be for the family.’ However, her intention as stated in the last sentence clearly changed in 2011 when the Hexham property was sold.

112. D’Ann deposed to a number of conversations with the deceased on this topic:

113. A family discussion at the Hexham property prior to 2011 when Alan, the deceased, Leslie and herself were present, in which Alan said that she and Leslie ‘were to get nothing’ in their wills and ‘you are both old enough to have made your own bed, now lay in them’.

114. In a subsequent discussion with the deceased in her later years, which I infer was in around 2018, the deceased told D’Ann that she had been ‘added … into her will because she wanted to show me appreciation for the help I provided Mum and Dad in [their] final declining years’.

115. A conversation with the deceased, which I also infer was around 2018, in which the deceased told D’Ann that ‘she wanted Lenny to be able to stay in the house and that was a priority for her, at least for as long as he wanted to’ and ‘I’m leaving the grandkids something. I do not want it to get in Leslie’s and Sarah’s hands otherwise it will just go to drugs and alcohol’.

116. D’Ann also deposed to a conversation with Alan towards the end of his life most likely when he was in hospital, in which he asked her to promise him that she ‘would not let Les bleed Mum dry’, and that Alan said to her ‘Do not let Les and Sarah back into Mum’s life to bleed her dry’ (T87). It was put to D’Ann that she took steps to prevent Leslie from seeing the deceased after 2016 in order to give effect to the promise that she had made to Alan, which D’Ann denied. I accept her evidence, for the reasons already given, that she did not prevent or attempt to prevent Leslie from seeing the deceased.

117. Lenny deposed to a conversation with the deceased between 2016 and 2018 in which she said that she had decided to exclude Les from her will ‘due to the fact that he removed the deceased from his and his children’s lives for the most part since 2013’. He also deposed to other conversations with the deceased in which she said to him in her later years that she thought ‘Les only valued her for what she was worth to him when she died’.

118. I am satisfied based on this evidence and the evidence as a whole that the will reflected the deceased’s considered view as to the claims on her testamentary bounty, in particular that (a) Leslie was excluded because ‘he was old enough to have made his own bed’, he had detached himself from her life and any gift to him was likely to be wasted; (b) she wanted Lenny to have a right to occupy the Beresfield property for as long as he wished because of her close and loving relationship with him for almost his entire life, and (c) D’Ann was included as a residuary beneficiary to reflect the care and consideration she had provided to her mother particularly during her final years.

Whether the plaintiff was being maintained by the deceased: s 60(2)(k)

116. Leslie was not being maintained by the deceased.

Whether anyone else is liable to support the plaintiff: s 60(2)(l)

117. It is not suggested that anyone else is liable to support Leslie, although I note that there is no suggestion in the evidence that his disability support pension or other government benefits are at risk of being withdrawn.

The plaintiff’s character and conduct: s 60(2)(m)

118. I have dealt above with Leslie’s character and conduct and the nature of his relationship with the deceased.

Conduct of any other person before and after the deceased’s death: s 60(2)(n)

119. I have referred above to the support and care provided by both D’Ann and Lenny to the deceased, particularly after 2016.

Any other matter considered relevant: s 60(2)(p)

120. The parties did not identify any other matters relevant to Leslie’s claim. In my view, a relevant matter to take into account is the quantum of costs incurred by the parties. Leslie’s costs are very high (given that his evidence comprises two affidavits and four relatively short updating affidavits) and in my view are disproportionate to the amount of his claim. While the Court has power to cap costs in an appropriate case, if Leslie is successful there is likely to be a significant cost burden on the estate for both his costs and the defendants’ costs.

121. In relation to the defendant’s costs, while they are high, I do not regard them as disproportionate. D’Ann deposed that on 16 January 2023 Leslie told her that his claim was for 50% of the estate. In that context, the preparation of a large number of affidavits by the defendants was not disproportionate to the claim and the quantum of the defendant’s costs does not appear excessive. I have already referred above to the evidence indicating that if the defendants are successful, a payment arrangement will be entered into with the defendants to ensure that the Beresfield property will not need to be sold to pay the defendants’ costs.

Parties’ submissions

Plaintiff’s submissions

122. Mr Schipp submitted that whatever inaccuracies Leslie made in his evidence regarding his income and expenditure, they go nowhere because it is clear from the evidence that he has no financial resources and essentially lives from week to week with housing which is inappropriate for his family situation. It was submitted that Leslie’s needs are multifactorial, including improved housing within the local area, provision for transport and medical expenses and also a fund to cushion him against the contingencies of life.

123. Leslie’s claim was first articulated in Mr Schipp’s opening submissions which stated that a reasonable estimation of the proper provision for Leslie includes: (1) proper and secure accommodation in the order of $40,000 for bond and rent (which would allow Leslie to obtain private accommodation, of an appropriate standard); (2) a suitable six seat vehicle and registration (say $30,000); (3) medical expenses ($20,000); and (4) a fund for contingencies ($50,000). In relation to the claim for a fund of $50,000 for contingencies, reliance was placed on the observations of Meek J in Papantoniou v Foundouradakis [2023] NSWSC 1374 at [234]-[261]. Although the claim was said in Mr Schipp’s opening submissions to include these amounts, the hearing proceeded on the basis that the total amount of the claim was $140,000.

124. The plaintiff submitted in relation to D’Ann, that although she is not ‘well off’, she is in a better position than the plaintiff, including that she does not have minor children to care for. The plaintiff acknowledged that she still has some need and that provision for himself should not be borne from her share, but noted that her needs would also go unmet if the Beresfield property is not sold.

125. In relation to Lenny, the plaintiff submitted that a grandson would not ordinarily be the object of testamentary recognition; he has had the enormous benefit of free accommodation for many years both before and after the deceased’s death; he is single with no dependents and is in a comparatively much better financial position than the plaintiff. Further, the community would not expect that Lenny’s claim on the deceased’s bounty would be prioritised over that of the plaintiff, especially given the nature of the plaintiff’s upbringing. In relation to the other three residuary beneficiaries, the plaintiff submitted that they are not natural objects of testamentary recognition.

Defendants’ submissions

126. Mr Brown submitted that Leslie has failed to provide any evidence to support the amounts comprising the claim for provision of $140,000, which had essentially been ‘plucked from the air’. In relation to accommodation, Leslie made no assertion that the Rutherford property is not secure or is insufficient for the needs of himself and his family. There is no evidence of any request made to the Department of Housing for different housing and what it would cost, and while Leslie stated in one of his updating affidavits that he had requested air-conditioning to be installed in the house and that the approval has not been given, there is no evidence of the request for air-conditioning or the response to it or any quote for installation of an air conditioner. There is no evidence to show how the fund of $40,000 is arrived at.

127. In relation to the claim for $30,000 for a six seat vehicle and registration, there is no evidence to suggest that Leslie is entitled to a driver’s licence and his evidence suggests that he has not held a driver’s license for many years. The evidence does not indicate the reason why Leslie is unable to drive, and what type of vehicle he seeks. Nor does he give any evidence of a need for a motor vehicle or any suggestion in the evidence that he struggles to transport his children to the places where they need to go.

128. In relation to medical expenses for which the claim is $20,000, the only evidence before the Court is the statement of Leslie’s medical conditions (referred to above) but there is no evidence of the cost of the medications to treat those conditions and his estimate of his fortnightly expenses describes the cost of his medical expenses as nil. It appears that this is because he receives government support for his medical expenses. While it was submitted by Mr Schipp in closing submissions that there is a gap between the government support and the actual cost of his medications, there is no evidence of this and it is inconsistent with the estimate in his evidence that his medical expenses are nil.

129. In relation to the claim for a contingency fund of $50,000, the only evidence before the Court is Leslie’s statement that his future needs relate to supporting the financial security of himself and his five children and meeting his ongoing health problems. However, the failure of Leslie to put before the Court evidence as to what the remainder of his disposable income of around $1,000 is spent on meant that the Court could not properly evaluate the extent to which his needs might be met from his income. While Leslie accepted in cross examination that he spends between $175 to $200 per fortnight on alcohol, and also pays for a gym membership for his family, the balance is unexplained. Without evidence as to how Leslie spends his disposable income, the Court cannot properly evaluate the need for a contingency fund.

130. In light of these matters, Mr Brown submitted that the Court did not have the evidence necessary to enable it to make the evaluative judgement required to determine whether Leslie had been left with adequate provision for his proper maintenance, education or advancement in life.

131. Even if the Court was satisfied that it has evidence of a need to make an evaluative judgement, this is a sad case where the modest size and nature of the estate meant that the Court ought not to disturb the deceased’s testamentary freedom to choose to benefit only those persons named in her will.

Determination

132. I am not satisfied that the deceased’s will fails to make adequate provision for the proper maintenance, education or advancement in life of Leslie, for the following reasons.

133. First, I accept Mr Brown’s submission set out above regarding the inadequacy of Leslie’s evidence in support of the need for an amount for proper and secure accommodation, a motor vehicle and medical expenses. Leslie ought to have produced more detailed evidence of his financial circumstances to support these aspects of his claim: Evans v Levy [2011] NSWCA 125 at [38], [43]; Baker v Baker [2024] NSWSC 559 at [24].

134. Second, I accept that Leslie is in difficult financial circumstances. I also accept that provision can be made by the Court for an amount for contingencies despite a lack of detailed evidence of the likelihood and nature of the contingencies given that such a claim is to address exigencies of life which are essentially unforeseen: see Papantoniou at [250]-[261]. However, as Basten JA noted in Chan v Chan [2016] NSWCA 222 at [22], it ‘is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter’. Hence, proper provision and adequate provision are not to be determined purely by a calculation of financial needs: Sgro v Thompson [2017] NSWCA 326 at [71] per White JA (McColl JA agreeing). It follows that while the fact that Leslie, given his poor financial position, has a need for some amount for unforeseen contingencies is a relevant consideration it does not determine the question whether adequate provision was made for him in the deceased’s will.

135. Third, there is no general expectation in the community that a parent will provide an adult child with an unencumbered house, or expect a parent to look after the child for the rest of the child’s life: Jodell at [104(b)]. While there is a recognition in Jodell at [104(c)] that when an adult child falls on hard times and there are assets available, the community may expect a parent to provide a buffer against contingencies, the qualification that there are ‘assets available’ is significant. In the present case, sufficient assets are not available to meet Leslie’s claim when account is taken of the other claims on the deceased’s testamentary bounty, in particular Lenny.

136. A grandchild is not normally regarded as an object of the deceased’s testamentary recognition, which is implicit in s 57(1)(e)(ii) and s 59(1)(b) of the Succession Act. However, this will be different where the grandchild is taken in by a grandparent and their relationship becomes more akin to that of parent and child. In Bowditch, Hallen J observed at [113]:

Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

137. I am satisfied that Lenny was taken in by the deceased and Alan at an early age and was raised by them in circumstances where the deceased came to assume a position more akin to that of a parent rather than a grandparent with direct responsibility for Lenny’s welfare. In particular, the deceased undertook a continuing and substantial responsibility for his welfare, providing him with a home for almost his entire life. He in turn provided care and affection to her, including in particular in her final years after Alan’s death. On the evidence of D’Ann’s financial and personal circumstances, which I accept, I am satisfied that Lenny cannot expect any significant inheritance or financial support from her.

138. Consequently, in my view, Lenny has a strong competing moral claim on the deceased’s testamentary bounty. While he is in a better financial position than Leslie, he is not in a strong financial position. The deceased sought to recognise Lenny’s claim in her will by conferring on him a right to occupancy of the Beresfield property for as long as he wished, as well as an interest as a residuary beneficiary when that right to occupancy comes to an end. Leslie’s claim, including a buffer for contingencies of $50,000, would not allow the deceased’s recognition of Lenny’s moral claim to be satisfied. I address the significance of the need to recognise the deceased’s testamentary intention below.

139. Fourth, while it is a relevant matter that Leslie has the financial burden of supporting his five dependent children (Jodell at [104(d)]), the evidence does not establish that Leslie cannot meet that burden from his income: see [93] above.

140. Fifth, Leslie has received support from the deceased and Alan during his adult life. He lived with them at the Hexham property until 1998 paying rent of $60 per week, and from that time until 2011 he was permitted to live at the Hexham property rent-free on terms that he would pay the expenses of the property and maintain it, as well as performing maintenance tasks for his parents at the Beresfield property. This support Leslie received from the deceased up to 2011 was significant. After that time he had little involvement in the deceased’s life, and I am satisfied that this was his own choice.

141. Sixth, this is a modest estate. Leslie’s claim together with his claim for legal costs would require the only significant asset of the estate to be sold, which is the Beresfield property.

142. It was the testamentary intention of the deceased that Lenny should have the right to live in the Beresfield property for the rest of his life, subject to paying the rates, taxes and other outgoings of the property, keeping the property insured and properly maintained. Leslie’s claim would prevent that intention from being achieved. I am satisfied that the deceased was conscious of the various claims on her testamentary bounty and her will reflects her considered evaluation of those claims, particularly as to how best to deal with the Beresfield property in light of those various claims. In light of the modest size and nature deceased’s estate, considerable weight should be given to the testator’s judgment as to how best to balance the various claims on her testamentary bounty: s 60(2)(c) and (j) and the authorities referred to at [56]-[60] above.

143. The evaluative exercise required by s 59(1)(c) of the Succession Act is a hard one in the present case due to Leslie’s difficult financial position and personal circumstances. However, in my view, taking into account the six matters referred to above and all the other matters referred to earlier in these reasons, the deceased’s will does not fail to make adequate provision for the proper maintenance, education or advancement in life of Leslie.

Costs

144. While costs are in the discretion of the Court, the Court may make an order for costs of the proceedings to be paid out of the estate, in such manner as it thinks fit: Succession Act, s 99(1). In the present case my view is that the defendants’ costs as set out earlier in these reasons are not excessive and the appropriate order is that the defendants’ costs be paid out of the estate

Orders

145. For these reasons, the Court will make the following orders:

146. The plaintiff’s summons should be dismissed.

147. The defendants’ costs be paid out of the estate on the indemnity basis.

148. Direct that if any party seeks a different order as to costs that party should do so by motion filed within 14 days.

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