Hart v McMinn

Supreme Court of NSW|2023-09-25|Before: Nixon J

Introduction

Gayle Margaret McWhirter (the deceased) died between 4 and 5 September 2022, aged 71 years. The Plaintiff, Leslie Malcolm Hart, has brought a claim for a family provision order out of the deceased's estate pursuant to s 59 of the Succession Act 2006 (NSW) (the Act).
Mr Hart and the deceased married on 10 April 1996. They remained married as at the time of the deceased's death, although they had separated some years earlier.
The deceased left a duly executed Will made on 10 November 2011, in which she appointed Ian Randall McMinn (the Defendant) as the executor of her estate. Mr McMinn was a friend of the deceased who had, at the time of her death, known her for over 40 years.
By her Will, the deceased left her entire estate to Mr McMinn.
This Court, on 24 April 2023, granted Probate of the deceased's Will to Mr McMinn.
It was common ground between the parties that: 1. Mr Hart is an eligible applicant for provision, as he was the "spouse of the deceased person at the time of the deceased person's death": s 57(1)(a) of the Act; 2. Mr Hart's application, having been commenced by a Summons filed on 23 March 2023, was brought within the period stipulated in s 58(2) of the Act; and 3. the requirements of s 59(1) of the Act are satisfied, such that the Court has jurisdiction to make a family provision order out of the deceased's estate in respect of Mr Hart's application.
However, Mr McMinn submitted that, having regard to the nature and history of the relationship between Mr Hart and the deceased, and the reasons given by the deceased for not making any provision for Mr Hart in her Will and for instead leaving her entire estate to Mr McMinn, the Court should, in its discretion, refuse Mr Hart's application, or at best allow for only modest provision from the estate.

The nature and value of the deceased's estate

The evidence before the Court, by way of an Agreed Schedule of Assets and Liabilities, was as follows: 1. The assets of the estate as at the date of the hearing have an estimated value of $1,209,741.60, with the main asset being the deceased's property at 66 Windang Road, Primbee, New South Wales (the Primbee Property); 2. The estimated costs of sale of the Primbee Property are $35,750; 3. The liabilities of the estate as at the date of the hearing are $29,718.93; 4. The net value of the estate as at the date of the hearing is $1,144,272.67.
Mr McMinn's total costs up to the end of the hearing were estimated to be $114,751 on the indemnity basis. However, this estimate was based on a two-day hearing, and as matters transpired, the hearing was concluded in one day.
Allowing for the estimate of Mr McMinn's costs (on the two-day basis), the net value of the estate, after those costs, would be around $1.03m.
Mr Hart's solicitor estimated his total costs of the proceedings to the conclusion of a two-day hearing to be $75,000 on an indemnity basis, and $52,500 on the ordinary basis.

The Statutory Declaration

At the time of the making of her Will, the deceased signed a Statutory Declaration setting out her reasons for omitting to make provision for Mr Hart in her Will. In short, she described her marriage to be one of "convenience" and stated that Mr Hart had not made any contributions to the marriage, to her care and maintenance, or to the care and maintenance of the Primbee Property.
Omitting formal parts, the Statutory Declaration is in the following terms: "1. I have considered the content of my will very carefully. 2. I have been advised by my solicitor in relation to the Succession Act 2006. 3. I have made provision in my will for my friend Ian McMinn. 4. I have not made provision in my will for my Husband Leslie Hart. 5. I have during my lifetime already provided for Leslie Hart. I have given him the following: 5.1 The use of my parents' home to live in since 1996 and he has not provided or contributed to the marriage or running of the home. 5.2 He has not made any contribution to payment of any rates, electricity, water, insurance. 5.3 He has indicated since my father passed away that [he] will not be making any contributions to the maintenance and care of myself or the property. 6. None of the income that he receives from his employment is used for the benefit of both of us. He utilises the entire amount for his own purposes. I am required to make for all of the groceries, bills and upkeep of the property. 7. I recently renovated the property which we both reside in and he has not made any physical or financial contributions to the renovations. He has not purchased any items of paint, hardware or furniture for such renovations. 8. Our marriage has essentially been a marriage of convenience. Prior to my father's passing my Husband would spend 3 nights in Sydney. However, after my father's funeral my Husband leaves on Monday morning and returns on Friday night. We essentially reside with each other on weekends. 9. I ask that the content of my will be respected."

Sections 59 of the Act

Section 59(1) of the Act relevantly provides as follows: "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
The conditions in s 59(1) are met. Mr Hart is an eligible person by reason of s 57(1)(a) of the Act, being the "spouse of the deceased person at the time of the deceased person's death"; and Mr McMinn conceded that, by reason that Mr Hart had demonstrated a financial need and no provision had been made for him by the deceased's Will, the requirements of s 59(1)(c) are satisfied.
Accordingly, the power to make a family provision order under s 59(2) of the Act is enlivened. That section provides as follows: "The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made."
The issue before the Court was essentially one of discretion. That is, having regard to the clear testamentary intentions of the deceased, the nature and history of her relationship with Mr Hart, and Mr Hart's present circumstances, should the Court, in the exercise of the discretion under s 59(2), make any order for provision and, if so, in what amount?
Section 60(1)(b) of the Act provides that, in determining whether to make any family provision order and the nature of any such order, the Court may have regard to the matters set out in s 60(2) of the Act. That subsection provides as follows: "(2) The following matters may be considered by the Court - (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
As is clear from the text of the provision, the matters set out in s 60(2)(a)-(p) are matters to which the Court "may" have regard. 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.
The words "adequate" and "proper" are not defined in the Act. The determination of what is adequate and proper will ultimately depend on all the circumstances of the particular case. The exercise of the Court's discretion is often described to be intuitive, impressionistic and evaluative.
In Estate Raineri [2016] NSWSC 489, Lindsay J wrote, at [10]: "The words 'adequate' and 'proper' require assessment of 'adequacy of provision' relative to the facts of the particular case. What is 'proper' maintenance, etc is relative to the age, mode of life and personal circumstances of the particular applicant. What is 'adequate' is relative, not only to the applicant's needs, but also to his or her own capacity and resources for meeting them. What is 'adequate' and 'proper' is also relative to the size and composition of the deceased estate in question, other demands on the estate and the deceased's expressed, testamentary intentions: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 11."
Section 61(1) of the Act provides that, in determining an application for a family provision order, the Court may disregard the interests of any other person by or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person's estate) but who has not made an application.
There is no evidence that any person other than Mr Hart would be in a position to make a family provision order. Accordingly, the interests of any persons other than Mr Hart and the sole beneficiary under the Will, Mr McMinn, may be disregarded.
Before considering the application of the factors set out in s 60(2) of the Act, I address below the relationship between Mr Hart and the deceased; the relationship between Mr McMinn and the deceased; and the current circumstances of each of Mr Hart and Mr McMinn.
Relationship between the deceased and Mr Hart
Mr Hart and the deceased were married for some 26 years. However, Mr Hart's counsel acknowledged in submissions that they did not have a conventional marriage.
As well as leaving the Statutory Declaration that I have set out above, the deceased left some handwritten notes describing particular events in her marriage. These were described in evidence and submissions as "journal" entries. But that is not an apt term. Rather than being a series of entries made over time, contemporaneously with the events described in them, the deceased's notes appear to have been compiled in 2018, at a time when she had contacted family lawyers to discuss the possibility of divorce. In that context, the notes appear to be the deceased's recollection of a number of major incidents that had occurred in the marriage, focussing on those occasions on which, and the manner in which, she felt that Mr Hart had treated her badly, or shown disregard for her feelings.
I do not doubt the sincerity and strength of the deceased's feelings recorded in these notes. However, given the circumstances in which they were created, it is important to treat them with some caution when seeking to determine the nature of the relationship between the deceased and Mr Hart. The deceased was, in effect, looking back over a marriage of more than 20 years and identifying events and incidents where she felt particularly aggrieved by what had occurred. Such an account inevitably collapses the intervals between the incidents in issue, and makes the marriage seem to be an unrelenting sequence of disputes and disappointments. The risk in reading the deceased's recollection of the worst events in the marriage as representative of the entire relationship is that such an account omits the unremarkable, and unremarked, everyday events that are individually of little consequence, such as sharing household chores or spending uneventful hours in each other's company, which can be indicative of a genuine commitment between two people to a shared life.
Although there was no other witness to corroborate the matters described in the deceased's notes, Mr Hart frankly acknowledged that some of the incidents had occurred, and that he had, at times, not treated the deceased well. This stood to his credit when he denied that some of the incidents recorded in the notes had occurred, or had occurred in the manner described, or where he disagreed with the deceased's interpretation of what had occurred.
I do not need to resolve any of the particular factual disputes that emerged during the course of cross-examination, based on individual passages of the deceased's notes. It is sufficient for the purposes of determining Mr Hart's application to outline the nature of his relationship with the deceased based on his own testimony, and some of the uncontentious events recorded in her notes.
Mr Hart and the deceased met in South Africa in October 1994, when they were aged 41 and 43 respectively. At that time, Mr Hart was living in South Africa, where he was born. He was divorced, and had two children, aged 14 and 10. The deceased was visiting South Africa on a holiday. After meeting at the home of a mutual friend, they went out together while the deceased was in South Africa.
After the deceased returned to Australia, she and Mr Hart continued their relationship via email, mail and telephone calls. The deceased returned to South Africa in 1995, and stayed with Mr Hart while she was there. In early 1996, they became engaged. They took a 15-night cruise from Florida to Los Angeles, and were married in Santa Monica in April 1996.
After another ceremony with the deceased's family and friends in Australia, Mr Hart had to return to South Africa to apply for a spousal visa. The deceased sponsored his application. Mr Hart came to Australia on 10 December 1996, after the visa was granted.
Mr Hart had pension entitlements in South Africa which he cashed in for $41,000. He brought those moneys to Australia and applied them towards paying off the deceased's credit card debt in the amount of $7,000, and towards the costs of supporting himself until he found employment.
Mr Hart and the deceased lived together at the Primbee Property, with the deceased's father, Gordon McWhirter. Mr McWhirter owned the property and was a widower. When he died in 2011, the deceased inherited it from his estate.
Mr Hart found it difficult to obtain employment as a telecommunications technician in the Illawarra area, where the Primbee Property was located. In 1997, he obtained a contract position with Inform Systems for 5 months in Sydney, followed by a night-shift job in Sydney for a facsimile transmission advertising company.
In 1998, Mr Hart was unhappy with his marriage and homesick for South Africa. He packed his bags and left Australia. He did not speak to the deceased before he left, who came home to find that he was gone. Instead, he left a typed note with her father, to give to the deceased. This note consisted of the text of a poem by an American singer-songwriter named Jewel. It opened with the words: "I'm writing this letter to tell you I don't love you anymore. I don't miss you. I never have."
Two days after Mr Hart arrived in South Africa, he received a facsimile message from the deceased, in which she asked him to return, followed by further messages. Mr Hart returned to Australia two weeks later.
When Mr Hart returned in 1998, he continued to work in Sydney, commuting every day from Wollongong until around 2005. Mr Hart gave unchallenged evidence that: he did the food shopping and cooking, including cooking meals for the deceased's father; he and the deceased gardened together; and they spent most of their time outside work at home, playing the board game Rummikub and building puzzles together.
The deceased and Mr Hart had numerous holidays together, including visiting Hong Kong, Los Angeles, San Francisco, New York, and London; travelling to South Africa together 6 times; and trips to Darwin, the Gold Coast, Melbourne, the Whitsundays and Hayman Island. The deceased was working at a travel agency, and was able to obtain discounts for these holidays. Mr Hart paid for his own airfares and his share of the accommodation.
From around 2005, Mr Hart started staying in Sydney for three nights each week, sleeping in his car in a secure carpark at his workplace. The deceased and Mr Hart ceased having an intimate relationship around this time.
Mr Hart returned to the Primbee Property every Wednesday evening and every weekend, from Friday evening to Monday morning. When Mr Hart came back home, he did food shopping, and did all of his and the deceased's laundry on a Friday evening. He maintained the lawns and garden on weekends, and bought materials at the local hardware store. This work included putting in new garden beds, landscaping the garden and lawn areas, planting new trees, installing a rainwater tank, and paving the lawn and garden areas. When Mr Hart was at the Primbee Property, he continued to cook meals for the deceased and her father. He also cleaned the house, and changed the sheets, and drove the deceased wherever she wanted to go.
Mr Hart also gave unchallenged evidence that he paid for the family health insurance, and contributed his income towards paying for food and groceries, fuel and car maintenance, and household supplies. He also made monthly payments towards the balance on the deceased's credit cards.
After Mr McWhirter became ill in around 2008, Mr Hart assisted in caring for him when Mr Hart was home.
The death of Mr McWhirter, in February 2011, marked a significant turning point in the relationship between the deceased and Mr Hart. She was, as made plain by her notes, deeply upset by her father's death and by what she regarded as Mr Hart's indifference to her grief, describing him as providing "No support or compassion".
In March 2011, the deceased stopped using her married name "McWhirter-Hart", and reverted to "McWhirter". In addition, according to her handwritten notes, she and Mr Hart started sleeping in separate bedrooms at the Primbee Property from around this time. Mr Hart deposed in his affidavit that the separate sleeping arrangements began in 2013, but the precise date is of little consequence.
Prior to his death, Mr McWhirter had paid for the rates, house insurance and outgoings on the Primbee Property. In around 2011, the deceased told Mr Hart that he needed to contribute to the costs of the house, and required that he pay her around $800 per month. Mr Hart was resentful of making these payments. In his electronic banking, he tagged them with derogatory comments, which he accepted were aimed at the deceased.
It was in November 2011 that the deceased made her Will, leaving nothing to Mr Hart, and made the accompanying Statutory Declaration. As recorded in the Statutory Declaration, she had received advice in relation to the Succession Act prior to executing those documents. In particular, according to her solicitor's files, she was advised that Mr Hart would have a "strong claim on [the] Estate". Nonetheless, she went ahead with executing her Will, leaving everything to her friend, Mr McMinn.
Based on Mr Hart's unchallenged evidence of his contributions to the marriage and the Primbee Property in the period up to November 2011, when the Statutory Declaration was signed, I find that a number of statements in the Statutory Declaration are not accurate. For example, while it is true that Mr Hart did not make any contribution to the payment of rates, electricity, water or insurance, he did make contributions to the marriage and the running of the home, including by shopping, cooking, cleaning the house, doing laundry, gardening and landscaping. Also, it is not correct that he utilised all of his income for his own purposes, and that the deceased had to pay all the amounts for groceries and upkeep of the property. Mr Hart, on a weekly basis, spent money on groceries, pet food, garden supplies, and take away meals. He also paid for the family health insurance and the costs of car maintenance. Likewise, although (as stated in the Statutory Declaration) Mr Hart did not contribute to the renovations to the Primbee Property which the deceased undertook in 2011 following Mr McWhirter's death, he had, over a number of years, made substantial contributions to the maintenance and improvement of the grounds of the Primbee Property.
The statement in the Statutory Declaration that the marriage was one "of convenience" appears to be based on the fact that Mr Hart only spent a few nights a week at the Primbee Property. In that regard, the Statutory Declaration records that he used to spend three nights per week in Sydney, but now spends four nights per week there. However, when the Statutory Declaration was made in 2011, Mr Hart's life in Sydney revolved around his place of employment, where he worked and slept. His only household was the Primbee Property, to which he returned several nights every week, and where, every week, he engaged in the household and domestic activities described above.
In 2013, Mr Hart started renting a room in Lane Cove from Antoinette Hogan. He had met Ms Hogan the previous year, when they were introduced through mutual friends.
In 2015, Mr Hart and Ms Hogan commenced an intimate relationship. This relationship has continued since that time.
From 2015 to 2020, Mr Hart continued to return to the Primbee Property every weekend, and to perform his regular household activities while there, including shopping, cooking, gardening and laundry. There were banking statements in evidence showing numerous payments made by him for food and gardening supplies at shops which were in the Primbee area, as well as continuing payments by him towards the deceased's credit cards.
In 2018, the deceased contacted family lawyers to ask about divorce proceedings. There is no evidence that this was motivated by Mr Hart's relationship with Ms Hogan, or that she was even aware of this relationship, which is not referred to in her handwritten notes, or in any of the files of the law firm. The deceased told her lawyers that she and Mr Hart had separated in March 2011, when they began sleeping in separate bedrooms. It is not clear why the deceased did not go ahead with any divorce proceedings at this time. It may be because she was advised that her husband would have a claim for in the vicinity of 20-35% of the equity in the Primbee Property, or it may be because she did not, as matters transpired, want to take the step of bringing the marriage to the end.
The deceased also applied for and received the aged pension around this time, recording in her handwritten notes that, as far as the Australian Tax Office and Centrelink were concerned, she and Mr Hart were "separated". Her notes also record that she told the deceased in 2018 that she regarded them as having separated. However, her notes recognise that "I don't believe he understands we're actually separated". That belief regarding Mr Hart's state of mind may be borne out by the fact that Mr Hart continued from this time to come to the Primbee Property several nights a week.
The deceased did not tell Mr Hart to stop coming to the Primbee Property until there were restrictions imposed on travel in 2020 as a result of the outbreak of the COVID pandemic. The deceased told Mr Hart around this time that she did not want him to come to Primbee because she was concerned about Mr Hart bringing COVID from Sydney. Mr Hart ceased visiting the Primbee Property as soon as he was requested to do so. It does not appear that he saw the deceased again until she passed away in early September 2021.
Relationship between the deceased and Mr McMinn
Mr McMinn lives and works in the Northern Beaches area of Sydney, where he owns and runs a travel agency business. He met the deceased through work in around December 1980. At that time, he was employed in the wholesale department of a travel agency called Coulter Tours, and the deceased began making bookings through his firm, as a result of which they commenced a working relationship.
Their friendship began in around 1982. They saw each other once every 4 to 6 weeks to collect travel brochures, shop and catch up with each other. They also went to dinner and movies together from time to time. The deceased was 10 years older than Mr McMinn and referred to him as "Lil Bro", while he referred to her as "Big Sis".
Mr McMinn and the deceased also continued to have a working relationship. After he began his own travel agency business, he and the deceased came to an arrangement where she would book her clients through his business, and they would split the commission. This arrangement continued up until her death.
Mr Hart and Mr McMinn only met on a few occasions.
Current Circumstances - Mr Hart
Mr Hart retired from work in 2020 and is currently aged 70.
He has assets of some $213,000, mainly consisting of a superannuation balance of $200,000. He has no liabilities.
He draws money from his superannuation to pay his monthly expenses of $1,475. Based on the Life Expectancy Tables, Australia, 2019-2021, he has a further life expectancy of 16.3 years. Over that period, his expenses are estimated to be approximately $289,000.
There is a shortfall of around $90,000 between Mr Hart's superannuation balance and his expected expenses going forward. In addition, Mr Hart's current car is nearly 20 years old and needs to be replaced. There was evidence that the cost of a replacement vehicle of a similar model would be around $45,000.
Mr Hart and Ms Hogan are in a de facto relationship. They have entered into a Financial Agreement pursuant to section 90UC of the Family Law Act 1975 (Cth). The Recitals to the Agreement record that they intend that the Agreement will apply to the whole of the property and financial resources of each of them, and will provide how their individual and joint assets, financial resources and liabilities will be dealt with as a result of separation. Relevantly, the Agreement provides that Ms Hogan will be solely entitled to all property in her sole name and possession, including the assets in Schedule B2 to the Agreement (which comprise her home, an investment property, a share portfolio, moneys in bank accounts and a substantial superannuation balance) and Mr Hart will have no entitlement to any part of such property, or any claim for spousal maintenance.
Mr McMinn pointed out that this Financial Agreement was entered shortly before the current proceedings were commenced. But it was not suggested to Mr Hart that there was no genuine agreement to the terms recorded, and the document on its face records that each of Mr Hart and Ms Hogan was independently advised on its terms and effect before it was signed.
Mr McMinn also referred to a statement in the definitions section of the Financial Agreement as follows: "'this Financial Agreement' … makes provision for the division of the property and the financial resources of the parties in the event of a breakdown of the relationship and the parties separating and shall take effect upon the signing of a separation declaration by one party". Mr McMinn submitted that, because the Agreement "shall take effect" only at that future point in time, it is not a binding agreement. However, as Mr Hart's counsel pointed out, section 90UJ of the Family Law Act provides that a financial agreement under s 90UC is binding on the parties if certain requirements have been met, and on the evidence before the Court, those requirements were met. It follows that the Financial Agreement is binding on Mr Hart and Ms Hogan, even though its provisions regarding the financial consequences of a breakdown of the relationship only operate, in accordance with their terms, "in the event of a breakdown of the de facto relationship" (see clauses 5-9 and 12).
Current Circumstances - Mr McMinn
Mr McMinn continues to run his own travel agency. He has assets of $111,583 and has no liabilities.
His current net monthly income is $2,500, and his monthly expenses are estimated at around $2,200.
He lives with his mother, who is aged 91, in her home at Elanora Heights. He is her only child. The Elanora Heights property has a current value of around $3.5m.
Consideration
I have considered the factors in s 60(2) of the Act insofar as they are relevant to Mr Hart's application.
Paragraph 60(2)(a) - nature and duration of relationship
Mr Hart and the deceased were married for over 26 years. I have already described the nature of their relationship over that period.
Although their relationship was, particularly in the last 10 years, characterised by substantial time apart, by a lack of affection and intimacy, and at times by open hostility, there remained until around the end of 2019 an ongoing level of commitment to a shared life, manifested by their spending several nights a week in each other's company, every week, and their sharing of household tasks and expenditure.
In Sun v Chapman [2022] NSWCA 132 at [190], Brereton JA quoted with approval the description of "separation" given by Watson SJ of the Family Court in Todd & Todd (No 2) (1976) FLC 90-008 at 75,079:
"'Separation' means more than physical separation - it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of children of the marriage."
In terms of these principles, I consider that the deceased and Mr Hart had separated by around 2019, although it is difficult, and unnecessary, to identify the date of separation with any precision. By this time, Mr Hart had commenced an exclusive and committed relationship with Ms Hogan, which included taking a trip as a couple to visit his son in New Zealand, and shortly afterwards, Mr Hart stopped, at the deceased's request, spending weekends at the Primbee Property.
I do not consider, however, that separation had occurred at a date much earlier than this, for example, in 2011 or 2013 when they started sleeping in separate bedrooms. Although there were respects in which their lives were, following the death of the deceased's father, increasingly physically separate and emotionally alienated from one another, they did continue to dwell together, for at least part of every week, spending money on their common household, performing chores, working on their garden together, and providing a measure of mutual society and protection.
Paragraph 60(2)(b) - nature and extent of any obligations or responsibilities
In the usual course, there is an obligation upon a deceased to make provision for a surviving spouse. That would particularly be so where the deceased has no other family, the marriage has lasted a number of decades, and the surviving spouse has ceased work and has only limited assets in his or her own name. I referred to relevant authorities in McGuire bht McGuire v NSW Trustee and Guardian [2023] NSWSC 1013 at [99]-[100].
This plainly is not the usual case, in that the deceased was of the view that her husband did not love her and their marriage was one "of convenience", and Mr Hart had in fact (unbeknown to the deceased) formed an exclusive and loving relationship with Ms Hogan well before the deceased's death. In her handwritten notes, the deceased stated that she had "built a life by myself - but a very lonely one".
A number of authorities have recognised that estrangement and separation do not eliminate, although they may well reduce, the obligations which are owed to a surviving spouse. Those authorities were reviewed by Parker J in Alvarez v Matthews [2021] NSWSC 1551 at [70]-[80].
In Re Clissold (dec'd) [1970] 2 NSWR 619, Street J considered a family provision claim by a widow who had separated from the deceased nearly 20 years prior to his death, after having been married for 13 years. No financial arrangement was made between them at the time of separation. The deceased was, at the time of his death, in a de facto relationship with another woman. He left his entire estate to his de facto partner. It was argued that the widow had forfeited a moral claim, on the basis of the lack of interest she had shown in the deceased after their separation. Street J did not consider that the widow had, by any conduct, forfeited her moral claims, and concluded (at 622) that she was entitled to some consideration, but not "of a high order". His Honour made a provision order in her favour in an amount representing about 25% of the value of the estate. In making a provision limited to that amount, his Honour recognised that the surviving de facto partner had a strong claim on the deceased's bounty in the circumstances of that case.
In Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437, White J considered a claim by a widow, who had separated from her husband at the time of his death. In this case, the separation had occurred around 6 months before his death, after a marriage of some 5 years. The widow was the deceased's second wife. He left the entirety of his estate to his son and daughter by his first marriage, in shares of 70% and 30% respectively. The estate was relatively small, the only substantial asset being a house valued at $407,500.
White J observed (at [50]) that the bond of matrimony, prima facie, gives rise to a testamentary obligation, and it could not be assumed that such an obligation would come to an end on the parties separating without them being divorced, at least where there had been no disentitling conduct by the claimant. His Honour noted that the marriage was a short one, lasting a little over 5 years before it was over for all practical purposes, and was unhappy (at [52]-[53]), but that during the marriage, the widow had provided personal care, performed household chores and contributed financially to the deceased's welfare (at [54]). The widow had significant financial need, being dependent on welfare, sixty-four years of age, speaking no English, and having little prospect of employment (at [55]). At the same time, the deceased's son had significant financial needs, and the deceased had a longer and closer bond with his children than with his widow (at [57]-[61]). Having considered those factors, his Honour held that: "In my view, notwithstanding the plaintiff's and the deceased's separation, and not withstanding the other claims on this small estate, some provision is required in recognition of the services and the financial contribution the plaintiff made over about five years of marriage and cohabitation. The deceased rightly recognised his moral obligations to his children. However, I do not think he was justified in making no provision for his wife."
Having regard to the limited size of the estate, and the competing needs of the deceased's children, White J (at [68]) ordered that the provision that should be made for the widow was an amount representing some 20% of the likely net distributable estate.
In Sarant v Sarant [2020] NSWSC 1686, Hallen J considered a family provision claim made by a widower who had had a very long marriage of some 48 years with the deceased, the last four of which they had been separated. As with the other cases, there had not been any property settlement of a formal or informal kind. His Honour made orders designed to allow the widower to continue to occupy the former matrimonial home. His Honour stated (at [241]) that, while "remembering that the deceased and [widower] had separated", the following principles should be borne in mind: "(a) A spouse, particularly of a long marriage, has a primary right to be considered by the deceased, but the extent that he, or she should provide for that spouse is to be governed by his, or her, needs, both at present, and in the foreseeable future and also the needs of any competing claimants. (b) The capacity of the spouse, himself, or herself, to provide for those needs must also be considered. (c) The general duty of the deceased to the spouse, to the extent to which her, or his, assets permit her, or him, to do so, is to ensure that the spouse is secure in the matrimonial home, to ensure that he or she has an income sufficient to permit him or her to live in the style to which the spouse is accustomed, and to provide the spouse with a fund to enable her to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free the mind of the spouse from any reasonable fear of any insufficiency as he, or she, grows older and his, or her, health and strength fail: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 47 (Sheller JA, Handley JA agreeing). See also Brereton JA in Steinmetz v Shannon at [101], citing Powell J in Elliott v Elliott (Supreme Court (NSW), 18 May 1984, unrep), which decision was affirmed by Glass JA (with whom Kirby P and McHugh JA agreed) in Elliott v Elliott (Court of Appeal (NSW), 24 April 1986, unrep). (d) Concern as to the capacity of the spouse to maintain himself, or herself, independently, and autonomously, may also bear upon the notion of what is proper provision: Richard v AXA Trustees Ltd [2000] VSC 341 at [31] (Eames J). (e) Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where he, or she, is the master, or mistress, of his, or her, own life, and in which, for the remainder of his, or her, life, she is not beholden to beneficiaries: Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep) at 29. (f) Greater weight may be given to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 at [63] (Hodgson JA, Young CJ in Eq and Palmer J agreeing); In the Matter of the will of G.G. Sitch (deceased) [2005] VSC 308 at [109] (Gillard J); Sellers v Scrivenger [2010] VSC 320 at [68] (Daly AsJ)."
In Alvarez v Matthews, Parker J observed (at [79]-[80]) that: "The cases show, as White J points out, that there is no rule that separation severs one spouse's moral obligations to another for the purposes of family provision. On the other hand, it would be absurd to say that married parties who have separated are to be treated for the purposes of family provision as if they had not. The cases show that separation is clearly relevant to the strength of any ongoing moral obligations. That is hardly surprising. Separation removes what is usually a foundational element in a marriage. As White J recognised, the effect must depend on the circumstances. Even when the parties do not separate and the marriage lasts until the death of one of them, there is no rule that the surviving spouse must receive a prescribed level of testamentary provision. It is always a matter of determining the particular moral obligation, if any, which arises on the particular facts of the case."
In the circumstances of this case, I consider that the deceased did have a moral obligation to make provision for Mr Hart, notwithstanding that at the time of her death they were separated, and he was in a de facto relationship with Ms Hogan. I have reached that view having regard, in particular, to the length of the marriage, the financial contributions made by the deceased to the marriage over that time, and his contributions to the maintenance of the Primbee Property and to the welfare of the deceased (including shopping, cleaning, laundry and gardening), as well as having regard to the lack of any competing moral claim on the deceased's bounty.
While I accept that the deceased felt that Mr Hart showed little affection or concern for her, I do not consider that there was any event or conduct on his part that was such as to disentitle him from any moral claim on her estate. The only event that might have been of that nature was his abandonment of her in 1998, when he left for South Africa while she was at work, without saying a word, and leaving behind a typed note that must have been extremely hurtful to the deceased. However, she made the decision to forgive this conduct and to ask him to return, and he did so. Moreover, this event occurred in the early days of the marriage, when it must have been difficult for Mr Hart to be living in a different country, without secure employment and apart from his teenage children. That does not excuse the manner of his departure, but does go some way to explaining why he left at that time. As matters transpired, the deceased and Mr Hart were only apart for two weeks, before resuming married life in Primbee.
It was not suggested, nor could it be, that the deceased owed any responsibility or obligation to Mr McMinn. Though their relationship was no doubt important to the deceased, they were no more than friends, who lived some 120km apart, and who saw each other once every month or so. He did not make any contributions to her welfare or to the Primbee Property.
Paragraph 60(2)(c) - nature and extent of deceased's estate
This is not a case where there are strong competing moral claims in respect of an estate of a size that is unable to accommodate all such claims.
The net value of the estate, even allowing for Mr McMinn's costs of these proceedings on an indemnity basis, will be around $1.03m, and Mr Hart seeks an amount representing only a fraction of that estate by way of provision.
Paragraph 60(2)(d) - financial resources and financial needs
I have set out at paragraphs 60-69 above the financial resources and needs of each of Mr Hart and Mr McMinn. In short, Mr Hart is retired, has no income, and has insufficient superannuation to meet his ongoing expenses and his immediate needs (in particular, a replacement motor vehicle), let alone any amount to meet unforeseen contingencies.
Mr McMinn does not have very substantial assets, but has no liabilities, and is a business owner. He meets his monthly expenses from his income, and as an only child has an expectancy of inheriting his mother's substantial estate at some point in the future.
Paragraph 60(2)(e) - financial circumstances of person with whom applicant is cohabiting
Ms Hogan has substantial financial resources. Mr Hart is dependent on her for his accommodation and living arrangements. Ms Hogan has a daughter who also lives with them.
Mr Hart and Ms Hogan maintain separate finances. Mr Hart gave unchallenged evidence that he pays Ms Hogan $250 per fortnight towards expenses in relation to their household, and otherwise pays for his own expenses.
Ms Hogan and Mr Hart have entered into the section 90UC Financial Agreement described above, with the intention that Mr Hart has no claim on her assets in the event of a separation. He therefore has no security of tenure of accommodation.
Paragraph 60(2)(f) - any physical disability
Mr Hart is in poor health, suffering from macular degeneration, monoclonal b-cell lymphocytosis, hypertension, rheumatoid arthritis, depression and Graves disease. Mr McMinn is in good health, without any existing physical ailment or disability.
Paragraph 60(2)(g) - Age of the applicant
Mr Hart is 70 years old, is retired and has no prospect of future income.
Paragraph 60(2)(h) - any contribution by the applicant to the estate or to the welfare of the deceased
The largest part of the estate is made up of the Primbee Property. This had been owned by the deceased's father, who left it to her. Mr Hart did not make any contribution to the purchase of the property, and did not pay insurance, rates or utilities in respect of the property. The deceased funded the renovations that were made to the property after her father's death, without any financial contribution from Mr Hart.
Nonetheless, Mr Hart did make substantial contributions to the maintenance of the Primbee Property in terms of time, labour and expenses. He worked in the garden every weekend, including carrying out substantial landscaping works, and he cleaned the house each weekend. He regularly purchased supplies and equipment for the household and garden.
He also made contributions to the welfare of the deceased. Each week, he shopped for her, cooked for her, did the laundry and cleaned the house. He made payments towards her credit card balance, paid for her health insurance, and provided her transportation needs.
Mr McMinn, in contrast, made no contributions to the Primbee Property, which he did not visit, and his contributions to the deceased's welfare essentially consisted of his companionship on the occasions when they met, about once every month or so.
Paragraph 60(2)(i) - any provision for the applicant by the deceased
The deceased did not make any provision for Mr Hart in her Will.
In her Statutory Declaration, signed in 2011, the deceased stated that she had already made provision for Mr Hart during her lifetime by giving him the "use of my parents' home to live in since 1996". However, shortly before that statement was made, the deceased had commenced charging Mr Hart an amount of around $800 per month for the use of the Primbee Property. As I have noted above, Mr Hart bitterly resented having to pay those amounts, but nonetheless he did so. That is a significant sum for the use of a bedroom on weekends, in circumstances where Mr Hart was making other substantial financial and non-financial contributions to the household. In those circumstances, I do not consider that, by allowing Mr Hart to stay at the Primbee Property, the deceased made substantial provision for him during his lifetime.
Paragraph 60(2)(j) - testamentary intentions
The testamentary intentions of the deceased are clear. This is not a case where she favoured one competing claimant on her bounty over another, but instead a case where she was concerned to ensure that Mr Hart received nothing at all.
The basis for that decision is as recorded in the deceased's Statutory Declaration in 2011, with further background provided by the handwritten notes that she compiled in 2018.
Mr McMinn placed reliance on the recent observations of Lindsay J in Estate Zamojski [2023] NSWSC 650 at [39]:
"…in my opinion substantial regard must be had to the testamentary intentions of the deceased as manifested in her will and her section 100 statement. The plaintiff's claim on the bounty of the deceased finds its limit in the respect due to the deceased's testamentary intentions."
It is important to pay respect to the deceased's clear testamentary intentions. In particular, the deceased's perspective on the marriage, her feelings towards Mr Hart and her intentions must be respected and given appropriate weight. However, the scheme of the Act is that those matters are to be taken into account, but are not determinative of whether adequate provision has been made.
In Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114, White JA made the following observations about the significance of testamentary intention (at [54]-[57]): "The issue is how freedom of testamentary disposition is to be factored into an assessment of whether the provision made by the testator is adequate for the proper maintenance, education or advancement in life of a claimant. The determination of the adequacy of the provision is a matter for the court and it is to be determined as at the time the court is considering the application rather than as at the time the testator made a will or at his or her death. This alone may provide a reason for interference. Independently of that, the court will interfere with the freedom of disposition if it concludes that adequate provision has not been made for the applicant's proper maintenance, education or advancement in life. But in making that assessment the court has to take into account a wide range of matters that are not confined to the parties' present financial circumstances, but can range over the relationships between the deceased and his or her family where the true facts can hardly be ascertained by a court years after the events. This may constrain the making of a family provision order under s 59. To say that a Court's ability to interfere may be constrained by freedom of testamentary disposition is merely to say that such freedom is one of the matters factored into the assessment called for by s 59. It is factored in by a recognition that in appropriate cases, deference should be given to the testator's better position in making an assessment as to what provision for proper maintenance and advancement in life is adequate. No issue arises in the present case as to whether the court should interfere where the testator has given proper consideration to the claim of the applicant on his estate. For the reasons previously given, the testator did not do so."
His Honour added (at [59]): "Section 59 confers on the Court power to interfere with testamentary dispositions or entitlements on intestacy only to the extent that it considers that adequate provision has not been made for the proper maintenance, education or advancement in life of the applicant."
Significantly, in the present case, the deceased made no provision at all for Mr Hart and, in my view, did not give proper consideration to his claim on her estate. Instead, she decided to leave him nothing in circumstances where she was advised that he had a strong claim on her estate.
Further, I have explained above why some of the statements made by the deceased in her Statutory Declaration regarding Mr Hart do not fairly reflect his contribution to their marriage or to the Primbee Property over the years that they spent together.
Paragraph 60(2)(k) - whether applicant was being maintained by the deceased
Mr Hart was not being maintained, wholly or partly, by the deceased as at the date of her death in September 2022. He had, prior to 2020, received the benefit of accommodation at the Primbee Property several nights per week. However, from 2011, this had been provided on the basis that he make payments to the deceased on a monthly basis, and Mr Hart did make such payments.
Paragraph 60(2)(l) - whether any other person is liable to support the applicant
Ms Hogan does not have any liability to support Mr Hart. I have referred to the terms of their Financial Agreement, and to the financial arrangements between them.
Mr Hart's children are not located in Australia. His son resides in New Zealand, and his daughter in South Africa.
Paragraph 60(2)(m) - character and conduct of the applicant
I have addressed Mr Hart's conduct in the course of discussing his relationship with the deceased.
Order for provision
Having regard to the principles outlined above, the evidence in this case, and the factors and circumstances I have summarised, I consider that an order for provision should be made out of the estate of the deceased in favour of Mr Hart.
Section 59(2) of the Act empowers the Court to make such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". In Vella v Vella; Vella v Vella [2020] NSWSC 849 at [20], Williams J observed that: "…The inquiry into adequacy is not limited to considering whether the plaintiff has enough to survive or to live comfortably without provision (or further provision, as the case may be) from the deceased's estate. Adequacy is a broader concept that requires consideration of matters necessary to guard against unforeseen contingencies. In deciding whether adequate provision has been for the plaintiff's proper maintenance, education or advancement in life, attention may be given to how the parties lived and might reasonably have expected to live in the future. The concepts of adequate and proper are not assessed in a vacuum, but in the context of all of the circumstances of the case, including the plaintiff's financial position, the size and nature of the deceased's estate, the totality of the relationship between the plaintiff and the deceased and the relationship between the deceased and other persons who have legitimate claims on the deceased's estate: Harris v Carter (supra) at [114]-[122] and [149]-[154] and the authorities there cited."
In Steinmetz v Shannon (at [102]), Brereton JA referred to the often quoted statement of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 regarding the "broad general rule" in respect of the obligations owed to a widow: "It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies."
As regards the nature and size of a fund for unforeseen contingencies, Kunc J made the following observations in Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130 at [12]: "There must be a demonstrable basis both as a matter of reason and evidence for making an allowance for contingencies. In my respectful view, in most cases that is provided by an inference that the Court draws by accepting as not reasonably open to question and common knowledge (see Evidence Act 1995 (NSW), s 144) that the unexpected does happen in the course of life which may require expenditure. Putting it colloquially, it is analogous to "rainy day" savings that a prudent person tries to maintain if they can. So understood, this also explains why, in the absence of specific potentialities being established by proper evidence, such allowances are generally not large and rarely in six figures (although the size of the available estate will always be a matter to be taken into account in making any such award)."
As noted above, in Sarant v Sarant at [241], Hallen J commented that, generally speaking, the amount of the fund for contingencies "should be sufficient to free the mind of the spouse from any reasonable fear of any insufficiency as he, or she, grows older and his, or her, health and strength fail".
Having regard to these principles and the factors in s 60(2) of the Act, including the needs of Mr Hart, the nature of his relationship with the deceased, the size of the estate, and the deceased's testamentary intentions, I consider that the appropriate amount of provision that should be made for Mr Hart from the deceased's estate is $200,000.
This amount is sufficient to cover the identified financial needs of Mr Hart, including the shortfall between the balance of his superannuation and his projected living expenses, and the cost of a replacement motor vehicle, together with a fund to allow for unforeseen contingencies, having regard to his age and health.
This represents around 20% of the likely net distributable estate, after allowing for Mr McMinn's costs of these proceedings on the indemnity basis. That leaves the vast majority of the estate to Mr McMinn, ensuring that the deceased's testamentary intentions are disturbed only to the extent necessary to make adequate provision for Mr Hart.
Conclusion
Because the deceased left a Will, the family provision order will take effect as if it was made in a codicil to the Will, unless the Court otherwise orders: s 72(1)(a) of the Act. It was not submitted that I should otherwise order.
Section 65 of the Act provides as follows: "65 Nature of orders (cf FPA 11 (1) (a) and (d)) (1) A family provision order must specify - (a) the person or persons for whom provision is to be made, and (b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and (d) any conditions, restrictions or limitations imposed by the Court. (2) A family provision order may require the provision to be made in one or more of the following ways - (a) by payment of a lump sum of money, (b) by periodic payments of money, (c) by application of specified existing or future property, (d) by way of an absolute interest, or a limited interest only, in property, (e) by way of property set aside as a class fund for the benefit of 2 or more persons, (f) in any other manner the Court thinks fit. (3) If provision is to be made by payment of an amount of money, the family provision order may specify whether interest is payable on the whole or any part of the amount payable for the period, and, if so, the period during which interest is payable and the rate of the interest."
I have determined that provision should be made for Mr Hart in the sum of $200,000. Such provision should be made by payment of a lump sum of money. This is what was sought by Mr Hart, and nothing was said against any provision being made in that way. Mr Hart did not, in his Summons or in submissions, seek any order for payment of interest on the whole or any amount of provision in his favour, and accordingly, I do not propose to make any such award.
The parties requested that I do not deal with costs in this judgment. I will give the parties an opportunity to agree the terms of the costs orders that should be made in light of these reasons, or otherwise to make written submissions on the appropriate form of those orders, with the intention that the question of costs be dealt with on the papers.
Orders
For those reasons, I make the following orders. The Court: 1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that the Plaintiff receive, by way of provision out of the deceased's estate, a lump sum of $200,000. 2. Directs that: 1. in the event that the parties are able to agree on the form of costs order, the parties provide a copy of any proposed consent orders to my Associate by 4pm on 20 October 2023; and 2. in the event that the parties are unable to agree on the form of the costs order, the parties are to exchange submissions, together with any supporting material, and provide a copy to my Associate by 4pm on 20 October 2023. 1. Orders that no later than within 28 days after these orders are recorded, the Defendant must lodge in the Registry: 1. The Probate bearing a copy of the orders; and 2. A copy of the orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2023

Family Law Act 1975(Cth)ss 90UC, 90UJ

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