…before a court can be satisfied that a plaintiff was left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation.
60 Here, however, the information has been provided, albeit late. The lateness would at most go to credit and it seems to me that Rees' explanation (that it was his money and by inference did not need to be taken into account) is likely to be a product of his lack of understanding as to what was required rather than any intention to mislead. I draw no adverse inference from this.
61 It was submitted by Mr Elliott that, instead of obtaining work, Rees has elected to lead a relatively leisurely life with the benefit of rent free accommodation in the property and that there is no reason why the court should infer that he could not obtain paid employment if he had an incentive to do so. Certainly, Rees has obtained a number of qualifications since he left the BHP which might enable him to obtain remunerative employment (such as welding; land care; forklift driving qualifications, and the like) and he has had some paid employment, such as cleaning work and, more recently, work packing eggs at the local egg farm. However, I do not think I can assume that secure ongoing employment (for someone of Rees' age and with his abilities and employment history) would be readily available. The fact that Rees appears to have been diligent in attending work related courses (and has worked with a case manager to prepare his curriculum vitae) does not suggest that he has been indolent in that regard.
62 Although Chris deposed in his affidavit to a conversation with Rees around 1993 when he says Rees told him he was not interested in working, Rees says that that was in the context of the particular job which Chris had said he could line up for him. I do not think I can draw from one conversation which took place some time ago (whichever version be accepted) the conclusion that Rees is now simply seeking to avoid the need to look for or take on any work (as was suggested by Mr Elliott).
63 I also take into account that (despite the fact that he has a number of personal references, including one from someone he knew at the BHP) the difficulties working with others which seem to have led to his departure from the BHP in the first place (and the difficulties which seem to have beset his dealings with the neighbours at Edgeworth) may be indicative of a personality which would make long term work at this stage of his life less easy to obtain. (I note that although Rees' affidavit suggested that he had left work at the BHP to help his mother care for his father (para 5), Rees seems to have accepted that there were also issues at work at that time.)
64 That said, it seems that Rees is capable of obtaining work from time to time to supplement his government income benefits and I see no reason why that should not be able to continue in the future. This is relevant when considering the amount for which provision, if any, should be made out of what is a very small estate.
65 As to the question of need from a social point of view (and in particular the need Rees is said to have for continuity of occupation of the home), reliance was placed by Mr Liebhold on a report obtained from an expert psychologist, Dr Warren, for the proposition that Rees has a need for security of accommodation and that it would be stressful for Rees to be required to move from the Woodberry property. (I note Mr Liebhold did not rely upon the fact that a tutor had been appointed to conduct these proceedings for the conclusion that Rees suffered from a psychological disorder amounting to impairment of any kind - T 7.) Mr Liebhold asked that the court take judicial note of the fact that it was not an easy thing for an expert to form an objective opinion where the person the subject of the assessment wished to appear to be better than in fact he was. In that regard, it seems to me that to make any such assumption would rather seem rather to beg the very question at issue, which is whether Rees had any special need arising from his psychological state, and I have not done so.)
66 I admitted much of Dr Warren's report subject to relevance and to weight over the objection of Mr Elliott that the report did not meet the test outlined in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. Mr Elliott noted that the information on which Dr Warren had formed his opinion was not specified in the report nor was his reasoning clearly stated (it was not clear for example how it was said that Rees was 'faking good' or why that would be an indication of psychological difficulty nor was there any information as to why that information would suggest psychological impairment within one of the two stated domains - or any explanation of those two stated domains - Asperger's syndrome or schizoid personality disorder).
67 Dr Warren had observed Rees on two occasions for two and a half hours and one hour respectively. He had been asked to address the question whether Rees had any psychiatric or other disorder (and, from his answers in cross-examination, it seems his attention might have been directed in that regard to Asperger's syndrome). After taking into account the history obtained from Rees; his instructions from Rees' solicitors; his assessment of Rees during the two interviews and the result of psychometric assessments he carried out, Dr Warren was unable to draw an unequivocal conclusion as to whether Rees suffers from a psychiatric or other disorder.
68 Dr Warren was apparently asked to consider whether Rees suffered from Asperger's syndrome (which he referred to as the "diagnosis put to me", presumably by Rees' lawyers - T 36.12) or whether Asperger's might be a relevant diagnosis (T 36). Without further information, and in particular without family history of Rees' behaviour during childhood, Dr Warren said that he was unable to reach a concluded view on that diagnosis. He says that he "tried to broaden it out beyond that" (T 36) and he speculated (by way of an alternative diagnosis) that Rees might suffer from some schizoid personality disorder, but again was unable to reach a concluded view on that. His report nevertheless proceeded on the basis that he had a degree of psychological difficulty that he considered amounted to an impairment, from which he made various observations as to how a person with such an impairment would respond to the circumstance of having to leave his or her rent-free accommodation.
69 The difficulty I have with Dr Warren's report (and which I raised during debate with Counsel over the objections to its admission into evidence) was that Dr Warren did not in the report make clear the information on which he based his ultimate conclusion (despite earlier having said he was unable to form an unequivocal view as to the diagnosis) that Rees suffered from a psychological impairment or as to what that impairment consisted of, beyond reference to the terminology of the World Health Organisation definition of impairment.
70 I gave leave for evidence to be adduced in chief from Dr Warren as to the information on which he had based his conclusion that it was more likely than not that Rees suffered a degree of psychological difficulty constituting an impairment (either Asperger's disorder or schizoid personality disorder). In essence, Dr Warren identified that information as being his experience of Rees in his two interviews with him, the information provided by Rees' solicitor and the outcome of the formal psychological assessments (T 19.47); which he expanded to include Rees' reluctance to visit Dr Warren's rooms (which meant that Dr Warren had to visit him at his home); Rees' "pleasant but distant" manner (T 20.10) and the difficulty establishing rapport with him; the history Rees had given him (which led Dr Warren to conclude that Rees had had a relatively 'narrow' life) (T 20.11) and matters such as Rees' reference to friends whom Dr Warren seems to have considered likely to be no more than work acquaintances); Rees' lack of a grief reaction when he referred to the death of one of his dogs; and certain test results (which, though showing Rees to be within normal to average clinical scales on the personality assessment heading, were said to have showed a high score for 'faking good' - which led Dr Warren to conclude that Rees was, in effect, masking a 'difference' which Rees recognised set him aside from other people).
71 Dr Warren, relevantly, seems to have expected (broadly, from his interaction with Rees) that he would see clear indicia in the answers to the tests he administered of symptoms going to psychological problems (T 20.39) and the fact that he did not (the test results showing Rees to be 'high functioning and having no problems'), led Dr Warren to the conclusion that "he had a problem but [was] not admitting to it".
72 Dr Warren's conclusion was thus that Rees had a problem "notwithstanding the lack of any clear indicia or symptoms of that problem on tests or personality profile" (T 22.7). But for the high "fake good" score, and his interviews with Rees and observations of him when he visited him, Dr Warren accepted that he might have drawn the conclusion that there was nothing wrong with Rees (T 22.23). He expanded on this at T 23.14 (there suggesting that Rees had been 'unfriendly' and indicated that he did not really want Dr Warren in his house - though earlier Dr Warren had described Rees' manner as 'pleasant but distant' - T 20.10).
73 Dr Warren expressed the opinion that it was presumably in Rees' interest to have the assessment (which supported his view that Rees had a problem since Rees had not facilitated the assessment process) - though that in itself seems to involve an assumption that the outcome of the assessment process would be that Rees did have a problem (since otherwise the outcome of the process would at most be neutral or perhaps tending against Rees' application for provision). There was therefore an assumption built into the premise on which this conclusion was reached as to what that conclusion would be.
74 Dr Warren noted that Rees had expressed a lot of anger towards his neighbours (and indeed Rees was quite emphatic in his evidence in the witness box that the disputes were his neighbours' fault - which was about the only time he appeared to be very agitated in the witness box).
75 As Mr Elliott noted, it was not possible meaningfully to test Dr Warren's observations as to the 'faking good' scores given the absence of the questionnaires to which Rees' test results responded (Dr Warren having not produced them on subpoena apparently due to a concern that they might be published and that patients might be able to Google them and adapt their profiles accordingly) or the personality scales or indices to which Dr Warren said the test results were correlated.
76 What I seemed to be left with was an (unchallenged) assessment that Rees is of low average intelligence and an assertion (difficult to challenge because of the lack of transparency of the test results and the generality of the information on which it was based) that although Rees tested within the normal range for personality assessment, he was 'faking good' because of his reluctance to be interviewed and his protestations as to his condition (plus the high scores on a 'faking good' index which apparently correlate with scales of results from those with particular profiles of those who might similarly be expected to 'fake good' but which scales or indices were also not before the court). To the extent that Dr Warren's assessment that Rees had a problem was based on his view that Rees was trying to hide that he had a problem, and was so "significantly defensive" and "adamant that there was nothing wrong" (T 35.38), it might (not unreasonably) be thought that this was a situation where an initial assumption had been made from certain observations and that when the test results did not reflect that, reliance was placed on that very inconsistency to support a conclusion that the initial assumption had been correct (rather than accepting that the test results might have pointed to an inaccurate first impression). That said, Dr Warren is an experienced psychologist and it might also be expected that he would have a reasonable sense of when some form of psychological disorder was being exhibited. The difficulty I had was as to how that could be tested in any meaningful way on the material before me.
77 I was left with considerable doubt as to what weight should be placed on the conclusions so equivocally expressed by Dr Warren in light of the conflicting personality assessment results and without a clear understanding of how the personality scales against which the 'fake good' results were measured would ordinarily apply.
78 While I was prepared to admit various portions of the report (subject to weight and relevance) insofar as they seemed to me to explain how a person affected by a personality disorder (be that Aspergers or a schizoid personality disorder) might be affected if required to move out of his or her home into rental accommodation after a number of years living rent free in the home; and on the basis that at the very least it seemed to me relevant that someone with Dr Warren's experience could not exclude the possibility of a personality disorder of some kind, in the end what I have put more weight on is the history of Rees having had difficulties in interacting with work colleagues and with his neighbours; the limited social interaction it appears that Rees currently has with others (albeit a member of the local dog training and 4-wheel drive clubs); and Rees' evidence in the witness box, which seemed to indicate a degree of self-absorption.
79 In that regard, I note that in the witness box, Rees seemed to be quite tense - he sat stiffly and he clutched tightly the copy of his affidavit which he had with him in the witness box. Of course, without knowing what Rees' out of court behaviour is like I cannot draw much from this observation but it is consistent with the views expressed by Dr Warren.
80 Rees answered the questions put to him quite readily and seemed to have no difficulty in responding though I note that he had a tendency to focus on his own situation even where the questions related to that of, say, his late mother's position (particularly in relation to the move). As noted above, he became agitated when talking about the disputes with the neighbours "They wanted to tell us what to do in our own back yard and they kept pushing all the time pushing and pushing and pushing. They wouldn't stop" (T 54.20) though he was not similarly agitated when asked about the apprehended violence order or his arrest in relation to an altercation with his neighbours.
81 It appeared to me that at times he had some difficulty in focussing on the questions put to him (rather than what seemed to be important to him about the questions). This was particularly so when he was cross-examined as to the conversations to which he had disposed with his mother about him being allowed to stay in the house after her death. I formed the view that this may have produced some confusion in Rees' answer to the question (at T56.3) whether all conversations about being allowed to stay in the property were when he had been living at Edgeworth (a proposition to which he acceded). At the time, Rees seemed to be focussing on the fact that he had not wanted to move, rather than what he was being asked as to whether the conversations had taken place only at Edgeworth or after he had left. For that reason, when Mr Liebhold sought to clarify with Rees during re-examination what he had meant, and Mr Elliott objected to the re-examination, I attempted in fairness to the witness to put to him in a neutral fashion what I considered had been the thrust of the question to which he had earlier responded in a manner inconsistent with what was said in his affidavit (T 63.5-21). I did so in that manner (rather than, in the face of Mr Elliott's objection to such a course, permitting Mr Liebhold simply to take the witness to his affidavit and ask if what he had earlier said was correct) because it did not seem to me that I would be in a position to place any real weight in an answer led from the witness by reference back to his affidavit in that fashion.
82 In the end, I doubt that much weight can be placed on Rees' answers in relation to this issue (since he seemed to be solely focussed on telling the court that he did not want to leave Edgeworth) and I am by no means confident that he was paying close attention to, or fully comprehended, the question which he was being asked - as to whether the relevant conversations with his mother about staying in the house continued after they moved to Woodberry. By the same token, I cannot be confident in light of his evidence in the witness box that his affidavit evidence as to when and where the conversations took place was not equally the product of some misunderstanding on Rees' part or him simply accepting propositions put to him as to that issue. On balance I think it is unsafe to assume that the deceased had continued to make promises to Rees after they moved to Woodberry but ultimately I think little turns on this for the reasons I set out later.
83 I am prepared to accept that Rees is likely to find it difficult to interact in a work or social context as many others would be able to do and that he may suffer from a degree of psychological difficulty in that regard. However, I cannot conclude that he has any particular psychological disorder which would amount to a recognised impairment as such. I would accept that he is likely to suffer a degree of stress if required to move out of his present home, though I cannot say whether this would be more or less than the stress anyone may experience when moving out of familiar surroundings and the security of one's home (and being required to pay rent after a number of years occupying a home rent free). In that regard, I note that Dr Warren seems to have assumed (or been instructed to assume) that the Woodberry home has been Rees' refuge for some years, which does not necessarily take into account that Rees moved there only in 2004 after having spent a longer period in the Edgeworth home. I also note that Rees seems to have been able to adjust to living in his new home, even though he did not like it at first, and there seems no reason why a similar adjustment could not be made in the future. The reality seems to be that unless his siblings are prepared to bear the cost of the current proceedings themselves then whether or not Rees might otherwise have been able to remain in the Woodberry home it will need to be sold. (Mr Liebhold's fallback submissions as to the relief sought granted if Rees' claim for provision is made out recognise this to be the case.)
84 No evidence was adduced as to what would be the likely cost of a suitable property for Rees if a sale of the property were required (as is usually put before the court on applications of this kind). Nor was there any evidence of the relevant rental market. Mr Liebhold submitted that it could be assumed accommodation in Woodberry would be likely to be more than $180,000. It was also suggested at some stage (albeit in the course of argument on the objections raised to the expert psychological evidence which was before me) that it would be acceptable to have regard to Internet evidence of property sales and to take judicial note of information of that kind. In that regard, it would seem from a cursory review of the domain.com website that homes in the Woodberry area include a two bedroom home at Beresfield listed for sale at $169,950, a one bedroom mobile home in Heatherbrae listed for sale at $114,000 (although site fees are $103 per week, I note that it is possible Rees might qualify for rental or other assistance of some kind while he is unemployed), a two bedroom house in a residential community in Tarro which is listed for sale at $166,000 and two bedroom unit in Beresfield listed for sale at $137,000 but that other homes in or around the Woodberry area are in the range above $180,000 (with many being above $200,000) and that rental properties are in the order of around $255 - $290 per week for a two bedroom home in the Woodberry area.
85 I accept that Rees' financial circumstances are such that the current provision under the will is unlikely to enable him to acquire accommodation of the same kind as he presently occupies and that, in the absence of full time employment or much in the way of assets, he will struggle in making provision for himself in later years if limited to the provision left to him under the will.
Size and nature of the estate
86 As noted already, the estate was modest in size. The principal asset was the Woodberry property (said to be now worth about $255,000), with the balance of the estate assets comprised of some cash and personal assets. The estate was overall worth less than $300,000.
Relationship between deceased and applicant/others with claim on the estate