Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith

Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith - [2014] NSWSC 536 - NSWSC 2013 case summary — Zoe

Judgment 1This case presents a regrettable contest: a mother opposes the Succession Act 2006, claims that two of her children bring for provision out of the estate of their late maternal grandmother. 2Vera Dell-Smith died in February 2010. Unsurprisingly her last will, made 42 years earlier in September 1968, made no provision for any grandchildren. She then had none. By that will she gave her estate to her two children, her son Mark Morgan and her daughter, Deborah Curnow. 3Deborah Curnow has since had three children. Two of them, Justyn and Selena Ng were dependent on Vera Dell-Smith before her death, although the parties contest the precise period of their dependency: Justyn and Selena Ng are conceded to be eligible for provision under Succession Act, s 57(e). No other grandchild of Vera Dell-Smith has brought a Succession Act claim for provision from her estate. Mr Morgan and Ms Curnow are now the administrators of Vera Dell-Smith's estate. 4All the parties to these proceedings are from the one family. I shall for convenience, and without disrespect to them, refer to them by their first names, as they referred to one another in the hearing. Vera Dell-Smith will be referred to either as "the deceased" or as many of her friends and acquaintances called her during her lifetime, "Dell". 5A subsidiary aspect of these proceedings concerns the estate's default on a $250,000 lending facility from the Commonwealth Bank of Australia secured by mortgage over one parcel of the estate's real property. The Court has stayed an order for the possession of the property in the Bank's favour pending the resolution of these proceedings. The Bank brought proceedings for possession of this property against the administrators of the estate ("the possession proceedings"). Directions for the further disposition of the possession proceedings are made at the conclusion of these reasons. 6The deceased died suddenly in February 2011. Over time and with hard work she had astutely built up real estate investments in Sydney, using her professional skills as a nurse. She left an estate with a net value of over $2.5 million. Throughout her life the deceased was generous in providing financial and domestic support to members of her family, including the two plaintiffs, Selena and Justyn. 7But relationships among the deceased's immediate family members have been turbulent. The plaintiffs claim that by the time of her death the deceased had became estranged from Deborah. This estrangement is said to have followed a violent October 2007 incident after which the deceased applied for an Apprehended Domestic Violence Order (ADVO) against Deborah. Deborah denies that she offered any violence towards her mother on this occasion and denies that there was any basis for her mother to take out an ADVO against her. The present proceedings certainly affirm continuing tension in Deborah's relationship with her two children. 8In a clueless act of deception in the days immediately following her grandmother's death, Selena created a holograph document that falsely purported to the deceased's last will. It purported to give one of the three estate properties to Selena and Justyn. Shortly afterwards the defendants lodged a caveat against a grant of probate for the new will, which caveat was withdrawn after Selena admitted her involvement in the forgery. 9Justyn and Selena each brought separate proceedings under Succession Act, Part 3.2 for provision out of the deceased's estate for their proper maintenance, education, and advancement in life. Selena's application is out of time and she seeks leave to bring her application under Succession Act, s 58(2). 10These reasons begin with an historical narrative about the deceased and her children and grandchildren. Many aspects of this history, including the extent to which the deceased assumed parental and domestic responsibility for Justyn and Selena, the quality of the relationship between the deceased and Deborah at the time of her death, and the deceased's intention to create a new will before she died, were contentious. This narrative both covers the important aspects of the uncontentious history and makes findings about the contentious issues that must be decided. So much was in issue that not everything can or needs to be decided or referred to in the factual issues between the parties. 11This case was efficiently conducted by the legal representatives for all parties. Mr Blackburn-Hart SC and Mr Blank appeared for Justyn. Mr Bolster appeared for Selena. Mr Ellison SC appeared for the estate. Ms Rae appeared for the Commonwealth Bank of Australia. 12The credit of the parties presented a mixed picture. Selena confessed to forging a will so her credit was immediately impaired. But despite that she gave what I mostly found to be compelling and credible evidence, which is to be preferred to that of her mother, Deborah, although I reject the detail of it in places. 13Both Justyn and Mark were mostly reliable witnesses, but I do not accept them at all times, where they are in conflict with other witnesses. Mark was away from New South Wales during much of the period that Deborah, the deceased, Justyn and Selena were together. Justyn was attacked for having a wasteful lifestyle but that did not really damage his credit. 14Deborah was a complex and at times difficult witness. This judgment contains throughout detailed findings about her conduct and credibility. She had been involved in a motor cycle accident and suffered a brain injury which I have no doubt affected her even as she gave evidence. The neurological evidence of Dr Stark is that as a result of the accident "her cognitive skills are ....affected....memory and concentration are not good, particularly short term memory;...she does report ongoing cognitive difficulties". Deborah's memory problems were very evidence at times in her evidence. Added to this her evidence was influenced by her perception of what was in her own self-interest. I did not find her to be a reliable witness at all.

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The Deceased, Mark and Deborah - 1964 to 1988 15After leaving Mark and Deborah's father in North Queensland in 1964, the deceased temporarily placed her two children with their aunt and uncle in Ulladulla, on the South Coast of New South Wales. In these early years on her own, the deceased supported herself as a nurse in Sydney, visiting her young children Mark and Deborah on weekends and holidays when she could. She began working at, then managing and operating, nursing homes throughout the Sydney area. 16Mark left Ulladulla in 1978 to join the Royal Australian Air Force (RAAF). In his 23 years of RAAF service Mark was posted to air force bases throughout Australia and overseas. He retired from the RAAF in 2001. Since then he has accepted RAAF reserve postings within Australia and overseas. Mark lived in Brisbane from 2008 and was residing there at the time of the deceased's death. Mark never lived with or near his mother or the other parties to the proceedings. He took little direct part in the events recounted in these reasons. But Mark always maintained regular phone contact with the deceased. While residing in Nowra from 2001 to 2008 he visited her up to 10 times a year, staying at 89 Bowden Street and later at Deborah's Wentworthville residence, whilst he was in Sydney. Mark is married with two children, Ben and Samantha, neither of whom have taken any part in these proceedings. They have been notified of the proceedings but have not made any Succession Act claim against their grandmother's estate. 17Deborah had left Ulladulla a few years before Mark. Soon after she commenced a personal relationship with Mr Chin Hung Ng, whom she married in early 1983. Selena was their first child, born in June 1983. When they married Deborah and Chin Ng resided in Ryde with Mr Ng's parents. 18Deborah and Mr Ng separated in 1984. Deborah and Selena then moved in with the deceased at 2 Macpherson Street. When Deborah gave birth to Justyn in 1985, she took him home to 2 Macpherson Street. But in March-April this same year Mr Ng was arrested, convicted and imprisoned for drug trafficking offences, including conspiracy to import heroin. Upon Mr Ng's arrest, Deborah took Justyn and Selena back to his parents' Ryde address, where she lived with the children until 1990. 19Mr Ng began to have weekend release from prison in 1988. But on one occasion when Mr Ng was on weekend release, Deborah says, and it is accepted that Mr Ng assaulted her and held her captive at the Ryde residence for a period of some hours. 20Mr Ng was finally released on parole in 1990, after which Deborah saw him from time to time. As a result of an isolated intimate encounter with Mr Ng after his release, Deborah's third child with him, Kailah was conceived and then born in March 1993. Kailah now resides in London. She has taken no part in these proceedings, although she too has notice of them. 21Mr Ng has provided some recent financial and other support to Justyn and Selena. Mr Ng now divides his time between Hong Kong and Sydney. Deborah says, and I accept, that she personally received no financial assistance from Mr Ng after his imprisonment.

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Purchase of 87 and 89 Bowden Street and Other Properties - 1986 to 1993 22The deceased purchased the property at 2 Macpherson Street Ryde in 1980 to be closer to her then place of work, a hostel, at 87 Bowden Street Ryde. The deceased decided to purchase this hostel property in December 1986. She operated it from 1986 and until 2000 as an aged care facility known as the 'Dellina Palm Cottage'. In 2000 she surrendered the licence to operate the facility as a nursing home, and converted the property for use as student accommodation. 23In 1990 Deborah, Justyn and Selena moved back to 2 Macpherson Street to live with Deborah and the deceased. But when Kailah was born in 1993, the deceased decided that 2 Macpherson Street was too small to accommodate so many. So in October that year she purchased an adjacent property, 89 Bowden Street as a home for Deborah, Justyn, Selena and Kailah. The deceased then turned her assets to profitable advantage by moving into a self-contained apartment at the back of 87 Bowden Street, following which she rented out 2 Macpherson Street. 24The deceased's acquisition of these three contiguous properties was a logical course: family members had mutual access among all three. Bowden Street West Ryde, runs very approximately North-South in the area of these properties and intersects Victoria Road just to the South of their location. Macpherson Street runs East-West and intersects with Bowden Street. And Macpherson Street in turn is intersected by Macpherson Lane, which runs North-South parallel to and to the east of Bowden Street. So Macpherson Lane, Macpherson Street and Bowden Street form three of the boundaries of a suburban block of houses. These three properties occupy the southern end of that block: 2 Macpherson Street is on the north-western corner of Macpherson Street and Macpherson lane; the eastern boundary of 89 Bowden Street abuts the western boundary of 2 Macpherson Street, and 89 Bowden Street is on the north eastern corner of Bowden Street; and 87 Bowden Street lies just to the north of (and has a common boundary with) 89 Bowden Street, on the eastern side of Bowden Street. Thus it is possible to walk west from 2 Macpherson Street across its boundary with 89 Bowden Street, then to cross north into 87 Bowden Street without going onto a public street. Although these three properties did not form a compound, there was ready access between them. This allowed family members living in the different properties easily to visit one another. 25In October 1993 Deborah and the deceased purchased the property 89 Bowden Street jointly as tenants in common. Selena was then 10 and Justyn was 8. Deborah says that the purchase price of the property was $285,000, to which she contributed $30,000 and the deceased $55,000. The remainder of the purchase price was funded by mortgaging 89 Bowden Street to the Commonwealth Bank. Deborah says that she and the deceased agreed that in exchange for Deborah's assistance with domestic chores, such as shopping, cooking, cleaning, and helping out at the Dellina Palm Cottage and a hairdressing business that the deceased owned in Balmain, the deceased would make all the mortgage repayments on 89 Bowden Street. 26Deborah says that she contributed to the acquisition of 89 Bowden St in other ways. She says she: paid for the connection of utilities; began contributing $200 per week to meet the mortgage instalments on the property; and, made some contribution to meeting the council rates on the property, after she gained regular employment at Ryde hospital in 1994. Deborah says that from 1998 she increased her share of the monthly mortgage instalments for 89 Bowden Street to $250 per week and paid for all the utility services at the home. 27I am prepared to accept that she made some contributions of the kind that she claims. She was continuously employed through this period. And Mark corroborates what she says. But I do not accept that her contribution was as much or as regular as she says it was. This is because weight must be given to other credible evidence that the deceased was complaining that Deborah was not making the level of contributions that was expected of her. 28Deborah, Selena, Justyn and Kailah lived at 89 Bowden Street together for ten years from 1993 until 2003. Deborah moved out that year with her new husband.

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Two Independent Witnesses 29The Court had the advantage of hearing from two witnesses who were very close to the deceased but independent of the disputes between Selena and Justyn and their mother. The first of these was Mr Frederick Guido Smith, the deceased's youngest brother; and the other was the deceased's doctor, Dr Bodil Broeng-Nielsen, who enters the historical narrative at this point. Both these witnesses gave a useful perspective on many aspects of the relationship between the deceased, and Deborah and the deceased and her grandchildren, and especially about the level of estrangement between the deceased and Deborah close to the deceased's death. Their testimony had high persuasive value in the Court's assessment of the facts in this case. They were very credible witnesses. Although each was in the witness box only relatively briefly, they were both very impressive. 30Dr Broeng-Nielsen gave evidence first. She was the deceased's general practitioner. But she was far more than that to the deceased. She was clearly a friend and confidant to the deceased over many years. And it was not difficult to see why: Dr Broeng-Nielsen presented to the Court as a witness of obvious integrity, good judgment, high intelligence and natural empathy. 31Dr Broeng-Nielsen qualified in medicine in Denmark and has been practising in New South Wales since 1984. For the last twenty years of the deceased's life Dr Broeng-Nielsen conducted general practice in the Ryde area. 32Dr Broeng-Nielsen gave special insight into the public service which the deceased provided in the Ryde area, an insight that no other witness was able to offer. Dr Broeng-Nielsen explained the deceased was a registered nurse who provided shelter for the residents at 87 Bowden Street, who were mostly homeless people many of whom had mental health issues. The deceased provided accommodation for people who had nowhere else to go. Dr Broeng-Nielsen explained that the deceased was "highly regarded by doctors and psychiatrists in the district" and often received requests from organisations such as the Mathew Talbot Hostel and the Little Sisters of Mercy to provide emergency accommodation to homeless people. 33From time to time Dr Broeng-Nielsen visited some residents of the hostel, who were her patients. During breaks in these visits Dr Broeng-Nielsen would chat with the deceased about personal matters and about life in general. Both the deceased and Dr Broeng-Nielsen each did little favours for the other and shared confidences. Selena and Justyn were also patients of Dr Broeng-Nielsen as they grew up. 34When Dr Broeng-Nielsen first met the deceased, or "Dell", as Dr Broeng-Nielsen knew her, in the early 1990's when Selena and Justyn were only in primary school. 35Frederick Guido Smith was Dell Smith's youngest brother. Dell was born in May 1936 and she was 17 years older than Frederick, who was born in December 1953. Mr Guido Smith was a most impressive witness. He was a candid and direct man who plainly spoke the truth. I accept all of his evidence which was carefully stated and gave an accurate profile of his sister, her actions and her views. Despite their 17-year age difference Frederick and Dell, as well as being siblings, were close friends. He lived in Queensland. She rarely came to Queensland to visit him, no doubt because she was busy running the hostel. But he would go to Sydney from time to time. He recalls, and I accept, initially he would stay at 2 Macpherson Street and then subsequently at 89 Bowden Street, although he can recall staying at 87 Bowden Street on a number of occasions. 36Like Dr Broeng-Nielsen, Mr Smith was a confidant of the deceased. She spoke openly to him about the problems she was having with her daughter Deborah and about her affection for Selena and Justyn. Unlike Dr Broeng-Nielsen, Mr Smith was in a position within the family to try and do something to improve the deceased's relationship with Deborah. But Deborah stonewalled him, in a way that will shortly be explained. 37But first Dr Broeng-Nielsen's evidence gives accurate insight into why the deceased purchased 89 Bowden Street. Dr Broeng-Nielsen explained, in evidence that I accept that at the time 89 Bowden Street was purchased Dell told Dr Broeng-Nielsen: that Deborah had been married to a man with a criminal past who had assaulted her (an account confirmed by other evidence); that 2 Macpherson Street was not large enough for them to all live together, precipitating the purchase; Dell "bought that house together with Deborah so that she and her three children would have somewhere to live".

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Selena and Justyn's Support 42During the 1990's the deceased maintained a close involvement in the lives of her daughter and her grandchildren. She continued to assist the family financially and spent her evenings with them at 89 Bowden Street before returning to sleep at 87 Bowden Street. Justyn and Selena recollect that during this period the deceased became increasingly involved in their care. Both say, and I accept, that although their mother ran the household, the deceased often provided the evening meal, and was more involved than their mother in important aspects of their lives, such as their daily school attendance, their sporting and other social activities. They say that the deceased's support for their daily lives became even more pronounced at the times when Deborah was involved in one of the romantic relationships, to which she was susceptible. Deborah and Mark disagree with this assessment, but I find that it is accurate. 43Justyn and Selena both describe their relationship with their grandmother as always close. They say that they had a strong bond with her and that she took primary responsibility for their day-to-day care. Both give evidence that it was the deceased, and not their mother, who paid for their education at private schools, and was a decision-maker with Selena in Selena's choice of educational opportunities and schools. Selena says that the deceased also provided money for their school lunches, or had these lunches prepared by the cook who she employed at 87 Bowden Street. Selena also recalls that the deceased picked her up from school or arranged for a longstanding employee to do so. Selena also recalls the deceased supporting her and Justyn's extra-curricular activities. I accept Selena's recollections as accurate on the subject of the deceased's contribution to her and Justyn's lives. She was the oldest sibling and was in a position to observe and appreciate what the deceased did for Justyn and for her. 44Selena says the deceased purchased a baby grand piano for her in 1990 or 1991 and then paid for her to have piano lessons. The deceased also took a close interest in Justyn's sport: played cricket with him in the backyard of 89 Bowden Street; attended his school sporting events; and, purchased sports equipment for him. 45Dr Broeng-Nielsen gave compelling evidence to similar effect as to Dell's financial contribution to Selena and Justyn's education. I accept her account that on numerous occasions Dell told her that Dell had paid Selena and Justyn's school fees. Dell also told Dr Broeng-Nielsen that she had tried to get Deborah to pay their school fees or "at least assist with payment" but that "she never did". I infer that this is what happened. 46During her adolescent years Selena had difficulties at school and was often in conflict with Deborah. The deceased helped sort out many of these mother-daughter differences and helped fund other assistance for the children, for example organising a mobile phone for Selena in 2000, and Citibank Credit Card for Justyn in 2002.

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Deteriorating Relationship between the Deceased and Deborah - 2003 to 2007 47In 2000, when Selena was 17 and Justyn was 15, Deborah began a personal relationship with a Mr Grant Curnow, who she married in 2003. Deborah's relationship with Grant Curnow was a growing source of discord between her and the deceased, and between Grant and Justyn. This discord culminated in the deceased seeking an Apprehended Domestic Violence Order (ADVO) against Deborah in 2007, and her purchasing Deborah's share in 89 Bowden Street in 2008. The plaintiffs' case is that this event led to a permanent estrangement between mother (Dell) and daughter (Deborah) until the deceased's death in 2011. 48The deceased disliked Grant. Deborah resented her mother's attitude towards him. In late 2001 Grant began living with Deborah and the children at 89 Bowden Street. During this period Deborah says, she continued to pay her mother $250.00 per week towards the mortgage over 89 Bowden Street and to perform domestic duties for her mother, and that Grant took responsibility for paying the household utility bills, in addition to paying an additional unspecified weekly amount to the deceased. Deborah says, and Mark agrees, that the deceased disapproved of Deborah's relationship with Grant, partly because she suspected Grant had designs over the deceased's assets. I certainly accept that, whatever was the deceased's precise motivation for her attitude, she did not like having Grant in 89 Bowden Street, the house that she and Deborah owned. 49But Deborah's claim that Grant was contributing to the household with her in 2001-2003 is improbable. It is inherently unlikely that Deborah would have been scrupulously attending to contributing to mortgage and other payments: to assist her mother who she perceived was causing her trouble about her new male companion, sufficient trouble indeed that she and he would soon move out. And Grant had little reason to try and maintain a household which he had to leave. 50Following their 2003 marriage, Deborah and Grant lived for a period at 89 Bowden Street. But just how long is in issue. They then moved with Kailah to live at Grant's property at Wentworthville. The parties' accounts of both the reasons for and the timing of this move vary greatly. But it is undisputed that Deborah never returned to live on a permanent basis at 89 Bowden Street with Justyn and Selena. The conflict between the deceased and Grant seemed to intensify at 89 Bowden Street: it was easier, in my judgment, for Deborah to move away with him and stay away. 51Deborah says that she, Grant and Kailah moved to Wentworthville in early 2005, but only to perform the repairs and renovations necessary to prepare to lease that property out. Deborah says this move to Wentworthville was never intended to be a permanent and for this reason they still kept most of their belongings at 89 Bowden Street. She says that during this period she continued to contribute $250 per week towards the mortgage over 89 Bowden Street. 52Justyn and Selena's accounts of this move differ significantly from Deborah's. Selena says that the move to Wentworthville occurred in 2003, only 6 months after Deborah and Grant were married. Justyn too remembers the move as occurring much earlier than Deborah recalls. They were old enough to remember this. Selena turned 20 in June 2003 and Justyn turned 18 in January of that year. I prefer their evidence of the timing of Deborah and Grant's move. They were generally reliable witnesses. And Dr Broeng-Nielsen confirmed that the move was soon after the wedding. Dr Broeng-Nielsen recalls, and I accept, that she remembers when Deborah married Grant Curnow that Deborah and Grant stayed at 89 Bowden Street for a short time before moving to Grant's property and that she did not see Deborah as a patient after that time. But Justyn and Selena continued as her patients. 53It is not necessary to determine Deborah's long term intentions in leaving 89 Bowden Street to go to Grant's Wentworthville property. Her subsequent actions are ambiguous. Although Deborah never moved back permanently to 89 Bowden Street, she (and Grant) did make what appeared to be attempts to return. These attempts caused great aggravation to the deceased and to Justyn and Selena.

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Deborah's Attempts to Move Back into 89 Bowden Street - 2003 to 2007 54Selena and Justyn's claim that Deborah intended to move to Wentworthville permanently is partly based on what Deborah said when she moved out. Selena recalls a conversation with Deborah late in 2007, in which Deborah told her that she had "no real intention" of moving back to 89 Bowden Street, but was only threatening to do so to "get a rise" out of the deceased and Justyn. I accept that this conversation took place. 55Deborah's case is that she really wanted to return to 89 Bowden Street and that, as a result of the poor relationship between Justyn and Grant, and the deceased's insistence that she not return to 89 Bowden Street, the move to Wentworthville only became permanent later. 56Deborah says that she first attempted to move back to 89 Bowden Street in September 2005. But on her return she found that the locks had been changed. Deborah says that the deceased told her she could not move back because of the poor relationship between Justyn and Grant. This relationship had indeed continuously declined since Deborah and Grant's wedding. 57Deborah says that the deceased eventually provided her with a key to 89 Bowden Street but Justyn changed the locks. The police attended at Deborah's request one night, when she found she could not enter the property. After verifying Deborah's co-ownership of the property, the Police warned Justyn that he should not again threaten a breach of the peace by changing the locks. On her returning to live at 89 Bowden Street following this incident, Deborah says the tension between Justyn, Grant and herself became unbearable. She and Grant decided to move back to Wentworthville after a period of only a few days. I accept Deborah's account of her attempt to return to 89 Bowden Street on this occasion and her decision then to stay in Wentworthville. 58Unsurprisingly, Justyn and Selena's relationship with the deceased became closer during this period. The deceased was seeking to protect them both from their mother's forcing them into very close proximity with a man both they and she disliked.

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The 2007 Apprehended Domestic Violence Order 59In 2007 Deborah again indicated to the deceased that she, Grant and Kailah wished to move back to 89 Bowden Street. The plaintiffs again dispute that Deborah genuinely wished to move back but was just causing trouble. Whatever be her true motivation Deborah's actions this time at 89 Bowden Street ended badly. The deceased took out an interim Apprehended Domestic Violence Order (ADVO) against Deborah and by August 2008 had purchased Deborah's share in 89 Bowden Street for $315,000. 60Deborah says that in October 2007 she and the deceased argued about Deborah's plan to move back into 89 Bowden Street, with Grant and Kailah. By this time Selena was 24 and Justyn was 22. The deceased told Deborah she could not move back in with Grant. Deborah says that she went to 89 Bowden Street and found that the locks had been changed. The police were once again called. After being instructed to do so by a police officer, the deceased gave Deborah a new key. I accept Deborah's account this far. 61But the balance of Deborah's account of what happened makes little sense. Deborah says that she then left the property, and shortly afterwards was served with the ADVO, for no apparent reason. She says that she intended to resist the order. The interim ADVO was dismissed when the deceased failed to attend the appointed Court hearing. But Deborah's account of her leaving the property fails to explain why the deceased sought an ADVO against her. 62Selena and Justyn's account of the events surrounding the ADVO markedly differs from Deborah's account. Selena says that she witnessed Deborah arguing with the deceased at 89 Bowden Street and pushing the deceased around. Selena says she intervened, telling Deborah "not to do that". She says she and Justyn then took the deceased to Ryde police station to report the incident and when they were there they obtained the ADVO. 63The statement the deceased made to Ryde Police on 10 October 2007 is more consistent with Selena's version of events than with Deborah's: "5. A few weeks ago my daughter told me that she wants to move in to 89 Bowden Street with her husband and daughter. She did not ask me about it just declared her intentions. To prevent further disagreement between us I called my solicitor and asked him to send a letter to my daughter asking her to sell her part of the house to me. On 5 October 2007 my solicitor called me that he sent a letter to my daughter. 6. About 3.30pm on 8 October 2007 I was at 87 Bowden Street, Ryde and I received a phone call from my grandson Justin that my daughter is at the house (89 Bowden Street) and moving furniture and I better get there. I went across to the house. When I got there I saw police officers at the house talking to my daughter. The police told me to give a key to the front door to my daughter. I saw my bed in the lounge room which is normally in my bedroom. Some time after the police have left my daughter started yelling at me because I had the lock on the front door replaced. I was afraid of her as she is much bigger than me. She also struck me with her shoulder, I can't remember which should she used and where exactly she struck me but I was knocked back. Shortly after she left. About 10.00pm on 8 October 2007 I listened a message left by my daughter on my granddaughter's voicemail telling us that she won't accept my offer. 7. About 11.00am on 10 October 2007 my granddaughter Salina called me that my daughter has moved my bed out of my bedroom again and locked the door to the my bedroom. I went over to the house. I saw my bed in the lounge room and my bedroom locked and I also noticed a few my family photos from the walls and a few other items missing. 8. I am afraid to be alone with my daughter as intimidates me and I think she might hurt me or damage my property." 64There are many reasons to prefer Selena and Justyn's version of these events. That some sort of physical altercation had taken place is even confirmed by Mark's account of a conversation he had with the deceased at the time. The deceased told Mark about this time that Deborah had been violent, and that as a result she had taken out the ADVO. The deceased had no obvious reason to exaggerate the true facts when speaking to Mark. 65Dr Broeng-Nielsen's evidence about the ADVO incident is as strongly persuasive as the rest of her evidence. Dr Broeng-Nielsen has a clear recollection of the deceased calling her to the deceased's home in October 2007. I fully accept Dr Dr Broeng-Nielsen's account that when the doctor arrived that the deceased was "extremely distressed" and gave an account to Dr Broeng-Nielsen of what had recently happened, an account which was to the following effect: "Deborah and I had a big argument. Deborah came into the house and said that Selena and Justyn had to move out immediately because she and Grant were moving back in and Grant did not want them [Selena and Justyn] there. There were no if's or but's. I didn't want that and I told her so. She then became aggressive and attacked me. She put a hand to my throat. It was awful!" 66I accept Dr Broeng-Nielsen's "clear recollection" that upon giving this account to her that the deceased "was totally devastated by what had happened". Dr Broeng-Nielsen medically examined the deceased and noticed that although her blood pressure was normal her heart was still beating at 100 beats per minute, well above the deceased's normal rate of 70 beats per minute. 67I have no doubt that Dr Broeng-Nielsen remembered this house call to her very distressed friend. The events of the visit assisted her to recall another sentiment the deceased had expressed to her on this and many other occasions up until her death: Dell said to her "I don't want Selena and Justyn to move out [from 89 Bowden Street]". 68The night of the ADVO the deceased realised she had to defend Selena and Justyn's security at 89 Bowden Street from Deborah's unpredictable future actions. She also wanted to continue to have them close to her in the future. 69The deceased did not pursue the ADVO. But I do not accept that this was because the deceased had no belief in it. I accept Dr Broeng-Nielsen's evidence, Selena's evidence and the deceased's own ADVO statement that show that the ADVO had a proper basis. 70Why did Dell not pursue the ADVO? Selena and Justyn both say, and I accept, that the deceased told them that Deborah had threatened to force the sale of 89 Bowden Street, if the deceased did not drop the ADVO and purchase her half of the property. Mark says that the deceased told him that she had dropped the ADVO as a result of Deborah undertaking, through her solicitor, not to approach the deceased again for two years.

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The Deceased Purchases Deborah's Interest in 89 Bowden Street 71The ADVO led to Deborah and the deceased agreeing to separate their tenancy in common in 89 Bowden Street. This also lends support to Justyn and Selena's contentions as to why the deceased did not support her own interim ADVO: she was probably concerned that Deborah might force the sale of the property. 72In August 2008 the deceased took out a mortgage over 89 Bowden Street to fund the purchase of Deborah's half share in the property for $315,000. The deceased did this, despite having repeatedly told Selena and Justyn, as was the fact, that Deborah had not contributed towards the purchase of 89 Bowden Street. This conflicts with Deborah's evidence, of an initial capital contribution and subsequent regular payments towards the mortgage over the property. It also conflicts somewhat with Mark's evidence as to a conversation with his mother in 1993 in which she said that she was assisting Deborah to purchase the property. 73But in my judgment the deceased took this course because she was willing to overlook the fact that Deborah had not contributed to the acquisition. Purchasing Deborah's interest enabled the deceased to achieve control: giving security for her grandchildren at 89 Bowden Street, free of Deborah and Grant. 74Dell confided in Dr Broeng-Nielsen about her reasons for acquiring Deborah's interest in 89 Bowden Street. Her disclosures to Dr Broeng-Nielsen on this subject are consistent with the only reasonably objective view of this transaction: that she wanted to loosen her daughter's control over 89 Bowden Street and to reduce her daughter's capacity to further interfere with Selena and Justyn's occupation of the property. The deceased made this motivation clear in conversations with Dr Broeng-Nielsen, which I accept accurately described the deceased's reasons for the purchase. 75Dell confided in Dr Broeng-Nielsen that she had purchased Deborah's interest in the property in 2008 and that the children were continuing to reside there. She explained to Dr Broeng-Nielsen what had happened: "When I bought Deborah's interest in 89 Bowden Street it was to protect the children from being evicted and homeless. I considered having the children put on the title of the property. We looked at the possibility of them taking out a loan to purchase their mother's interest but that all became too complicated." 76So the solution was that the deceased would buy out Deborah's interest. Once that had happened the deceased confided once again in Dr Broeng-Nielsen; this time to share her future intentions in relation to the property upon her death: "Now that I have paid Deborah out, there is no way that she should have any rights to that property. I want to leave it to the children." 77I accept that this is what the deceased said to Dr Broeng-Nielsen. But why did she not change her will? This is explained by later events.

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Estrangement between the Deceased and Deborah - 2007 to 2011 78Aspects of the deceased's relationship with her daughter are relevant to the determination of these proceedings, as is explained below, even though as a beneficiary Deborah does not have to justify her entitlement under the deceased's will in any way. 79From the time of the ADVO until the deceased's death, Deborah deliberately avoided contact with the deceased. Dell tried to contact her daughter on average two or three times a week, leaving Deborah regular messages on her telephone. Deborah accepts that there was no contact during this period but says it was on the advice of her solicitors. She says that for this reason she did not accept any of her mother's attempts to contact her, with the exception of a single phone call Deborah received from the deceased when Grant was hospitalised in 2010. At that time they had an amicable exchange regarding Grant's wellbeing. Deborah denies that she was being hostile or vindictive towards her mother by not communicating with her. 80Selena recalls things quite differently, in an account that I accept. She says that the deceased made repeated but unsuccessful attempts to reconcile with Deborah during this period, sending her birthday and Christmas cards in an attempt to bridge the gap between them. She further recalls that all these attempts to re-establish contact were rebuffed, at times aggressively, and that this was a source of distress to the deceased. Selena recalls that on more than one occasion the deceased showed her the cards Deborah had returned, torn up with grossly insulting messages written on them such as "fuck off" or "fuck you". Selena says that she saw one of these cards which Deborah had returned with a torn up photograph of herself and the deceased. The precise reasons for this behaviour on Deborah's part are difficult to fathom, and do not need to be decided. Deborah's text messages to her children throw some light on the issue: she accuses her mother of jealousy and hatred towards her. All that can be said is that there is no evidence of such things from the deceased from the most reliable witnesses in the case, Dr Broeng-Nielsen and Mr Frederick Smith. 81Deborah denied that this conduct ever took place. She insisted that she refrained from contact with the deceased after October 2007 on the advice of her solicitors. Instead, she highlighted the efforts she took to ensure Kailah maintained a relationship with the deceased. Deborah says she drove Kailah to visit her grandmother regularly, and that she did not bear any ill will towards her mother following the incidents surrounding the ADVO and the sale of her share in 89 Bowden Street. It is certainly true that Deborah did assist Kailah to have continuing contact with Dell, her grandmother. But this is where acceptance of Deborah's version of her post 2007 relationship with her mother ends. 82I prefer Selena's evidence on this issue. Regrettable though this finding is, it must be made: I find that Deborah pursued a deliberate course of freezing her mother out of her life between 2007 and 2011, despite Dell's attempts to maintain a reasonable relationship with her. 83Throughout this tension between Deborah and the deceased, Justyn and Selena's relationship with the deceased understandably continued to be close. Once again Dr Broeng-Nielsen and Mr Frederick Guido Smith assist the Court in reaching the findings on this issue. 84Dr Broeng-Nielsen's evidence describes the permanent effects of the October 2007 ADVO incident. Dr Broeng-Nielsen says that "Dell remained upset by the events of October 2007 for the rest of her life". Dr Broeng-Nielsen also recalls, and I accept, that from the time of this incident there was no further contact between Dell and Deborah and that "Dell found it very painful to talk about their relationship". Dell confided to her "I felt betrayed by Deborah". I accept Dr Broeng-Nielsen's evidence that Dell repeated this sentiment to her "on many occasions". Dr Broeng-Nielsen was not aware of any communication from Dell which indicated a reconciliation between Dell and Deborah prior to Dell's death. 85Mr Smith, Dell's brother has a clear recollection, which I accept, of discussing Dell's testamentary intentions in about August 2010 with her. What the deceased said to him relevantly confirms Dr Broeng-Nielsen's recollection and was as follows: "I must get my Will in order. I have promised Mark the property in Macpherson Street so I must give him that. As regards Deborah I have already provided for her. I purchased 89 Bowden Street as a home for her, as a single mother, and the children. After she married Grant she threatened to force the sale of the property so I was then required to find the money to buy out her interest. She has cut off all communications with me. I'm very worried about the position of Justyn and Selena. I feel that she will do nothing for them, so I'll do so, giving them 89 Bowden Street. They are a big part of my life." 86By the time Mr Smith visited Dell in Sydney in August 2010 the estrangement between Deborah and Dell was almost three years old. Mr Smith gives a compelling account of an incident which makes clear that it was Deborah who was rejecting her mother's attempts at reconciliation. Mr Smith says that during his August 2010 visit Deborah brought Kialah around to 8 Bowden Street to see Dell. When they arrived by car Kialah came into the house but Deborah stayed outside in her motor vehicle. Mr Smith offered to go outside and "speak to Debbie" to try and persuade her to come inside. The deceased said to him "it would be good if you could", and the deceased encouraged this. Mr Smith went outside and said to Deborah "Deb come in and we will patch things up". Mr Smith's diplomatic entreaty was met with what for him became a memorable communication from Deborah, who said, "No I won't come in. I will never speak to her [meaning the deceased] again". 87Finally, Mr Smith gives further compelling evidence as to the bitterness that Deborah launched at her mother over this period. I accept his evidence that Dell said to him after one Christmas, that Dell had "sent Debbie a Christmas card and she sent it back to me torn to pieces and with some unpleasant words written on the envelope". This well corroborates Selena's evidence. I prefer Mr Smith's evidence to Deborah's denials of engaging in such conduct. 88With his usual skill Mr Ellison SC put the best construction possible on Deborah's lack of contact with Dell after the ADVO incident. Picking up Deborah's evidence on the subject he submitted that Deborah "was determined to keep her distance from her mother as a consequence of the AVO". This is certainly half right. Deborah was determined to keep her distance from Dell. But I do not accept Deborah's evidence that a solicitor advised her to follow the extreme course that she did: of having no contact with Dell of any kind, even when Dell sought contact out and was looking beyond the incident of the ADVO; or, of failing to explore what future contact with Dell might be possible, once Dell had conspicuously failed to attend Court to follow through the ADVO. Deborah's blaming her own lawyers' advice was an attempt to camouflage her deliberate withdrawal of affection from her mother after 2007.

[15]

The Deceased's Intention to Make a New Will - 2010 to 2011 89At the time of the deceased's death, her latest will had been drafted in 1968 and deposited with the Public Trustee of Queensland. Deborah recovered this will shortly after the deceased's death. The 1968 will left a minor legacy to her mother and the residue of her estate to Mark and Deborah. Dell's mother predeceased her. Despite the age of this will, as Mr Ellison SC rightly pointed out it take effect under Succession Act, s 30 "as if it had been executed immediately before the death of the testator". 90This 1968 will is the legal record of the deceased's intentions, at the time of her death, more than 40 years later. But whether she in fact took steps to draft a new will in the months preceding her death was a question also debated by the parties. Selena claims that from at least December 2008, when the deceased was hospitalised with pneumonia (a little over two years before her death), she expressed an intention to draft a new will to replace the 1968 will, and to revise the disposition of her property. 91Selena says that in early 2010, the deceased asked Selena to accompany her to instruct Mr Theo Cassimatis of Sparke Helmore to draft a new will for herself, as well as a will for Selena. Mr Cassimatis saw each of them. Selena was not privy to what occurred during the separate conference between Mr Cassimatis and the deceased. Mr Cassimatis did not provide drafts of either will before Dell's death. But as will be seen that is because when she died Dell was proposing to go back and see him to give him final instructions for her will. 92Deborah says that Mr Cassimatis told her that when he discussed the will with the deceased privately, she had instructed him that she did not wish to draft a new will. But that is not consistent with the evidence, see below, of Dr Broeng-Nielsen and Mr Frederick Guido Smith and I do not accept it is accurate. 93Selena and Justyn say that from about 2008 the deceased discussed her testamentary intentions with them on a number of occasions. They each say that the deceased told them that she intended that they should have 89 Bowden Street as a family home, her cash and shares, the cars she had purchased for them, and also that she wanted them to have 87 Bowden Street as an investment, or in the alternative for them to share this property with Kailah. Mark was to have 2 Macpherson Street. They say that the deceased told them that she had already provided sufficiently for Deborah. 94I find she did say to them at least that she would give them 89 Bowden Street in her will. I accept their evidence to this extent. A note in the deceased's own hand in her notebook "89- Justyn Selena" tends to confirm this. 95The deceased seems to have seen Mr Cassimatis more than once. He was not called to give evidence, and produced no notes. No party clearly could have been expected to call him. 96Once again the evidence of Dr Broeng-Nielsen and Mr Frederick Smith helps to resolve this issue. Dr Broeng-Nielsen visited Dell, her friend and patient after she was admitted to Concord Hospital. The deceased continued to repose great confidence in Dr Broeng-Nielsen, disclosing to her things that were not made obvious to anyone else. Dr Broeng-Nielsen recalls, and I accept, that after December 2008 the deceased spoke to her about the deceased changing her will and saying "I want a new will which will see Justyn and Selena ultimately have 89 Bowden Street as a home". 97Dr Broeng-Nielsen also recalls Dell explaining to her that she had been to a solicitor about a new will. As a result Dr Broeng-Nielsen concluded, the deceased had made a new will. Dr Broeng-Nielsen only discovered, to her surprise, after Dell had died that she had not made a new will. But in all of these conversations Dr Broeng-Nielsen's firm recollection is that the deceased desired to give 89 Bowden Street to Selena and Justyn. Dr Broeng-Nielsen heard not just the words that the deceased spoke to her about Justyn and Selena. But she is an excellent judge of the sentiment that lay behind them. Dr Broeng-Nielsen observed at all times the deceased was "very protective and supportive of Justyn and Selena" and it was clear to Dr Broeng-Nielsen that the deceased "had a deep affection and love for them". I prefer Dr Broeng-Nielsen's insights on this subject to the limited contrary evidence from Deborah; limited of course, because Deborah had such little contact with her mother in the last four years of her life. 98The deceased died suddenly. Dr Broeng-Nielsen explains that although the deceased was a chronic smoker and had emphysema, her death was nevertheless unexpected. Dr Broeng-Nielsen says "it [the deceased's death] was certainly not expected by me and I am sure it was not expected by her". 99Mr Frederick Guido Smith has a clear recollection, which I accept, of discussing with his sister Dell her testamentary intentions in about August 2010. What the deceased said to him relevantly confirms Dr Broeng-Nielsen's recollection and was as follows: "I must get my Will in order. I have promised Mark the property in Macpherson Street so I must give him that. As regards Deborah I have already provided for her. I purchased 89 Bowden Street as a home for her, as a single mother, and the children. After she married Grant she threatened to force the sale of the property so I was then required to find the money to buy out her interest. She has cut off all communications with me. I'm very worried about the position of Justyn and Selena. I feel that she will do nothing for then, so I'll do so, giving them 89 Bowden Street. They are a big part of my life." 100The deceased specifically consulted Mr Smith to help her with her will making late in 2010. Before Christmas that year the deceased said to him on the telephone that she had discussed a proposal for another will with her solicitor and that the solicitor had advised her that she was "making too much provision for Justyn and Selena". I accept Mr Smith's account that the deceased asked him to come down to Sydney so that he could accompany her to see her solicitor with her. As Dell explained to him: the object of his visit was to "give me [Dell] a hand in making my will". He made appointments and booked an airline ticket to come to Sydney on 23 February 2011. But Mark telephoned him on 16 February to say that the deceased had died. 101Mr Smith's evidence, in my view, is the best explanation of why the deceased did not execute a new will before her death. She was having difficulty in reconciling her desire to make very substantial provision for Justyn and Selena with her moral obligations to other members of her family about which her solicitor was reminding her. She wanted the brother to whom she was close to help her in this important life decision. I accept Mr Smith's evidence that Dell said to him about the solicitor's advice, (no doubt speaking of Mr Cassimatis): "He said that he thought I was making too much provision for Justyn and Selena. He said the will would be heavily weighted in their favour. He said there are other members of the family and grandchildren as well." 102I infer especially from Dr Broeng-Nielsen's and Mr Smith's evidence that the deceased had an enduring desire to substantially benefit Selena and Justyn in a new will that she wanted to make in February 2011. But just how that was to be achieved, consistent with her other moral obligation, was something about which she was seeking her younger brother's assistance. 103Deborah and Mark submit that the Court should not infer that the deceased intended to benefit Selena and Justyn, contending that if she had really contemplated benefiting her grandchildren for up to 12 months before her death it is strange that she still failed to change her will. The defendants' submission is that the only proper inference in the circumstances is that the deceased chose not to change her 1968 will. 104This submission is not persuasive. There are several answers to it which the Court accepts. First, the submission is incompatible with Mr Frederick Guido Smith's evidence that the deceased was seeking to reconsider her old will with his assistance, at an appointment planned for only a week after she died. 105Secondly, nothing in the deceased's conduct before her death indicates that she had deliberately chosen to leave her will the way it was after due consideration. On the contrary she was consulting solicitors about the subject and had clearly signalled she wanted more assistance to make what was proving to be a complicated decision. And her relationship with Deborah was so poor and her vocalised concern for the future welfare of Selena and Justyn so clear, it is objectively likely that she was reconsidering the testamentary dispositions of her 1968 will.

[17]

The Forged 2010 Will 110Between the deceased's death on 16 February and the funeral on 23 February, Selena, with the assistance of a friend, forged a document purporting to be a will executed by the deceased on 10 November 2010. This forged holograph form of will made dispositions which Selena believed reflected her grandmother's true intentions. Relevantly it gave 89 Bowden Street to Selena and Justyn, gave two motor vehicles to them, gave 2 Macpherson Street to Mark and expressed a wish for the business at 8 Bowden Street to continue. The form of will gave the residue of the deceased's estate to Selena and Justyn after giving a number of small legacies and declaring that "Deborah has already received her inheritance from the settlement of property". 111Selena then placed this document in a drawer in the deceased's office, anticipating that it would be found there. The forged will was discovered amongst a pile of documents by Mr Don Mayes, a solicitor and partner of Maunder & Jeffrey that Justyn had retained. Justyn had taken from 87 Bowden Street to Mr Mayes' office. Parts of Mr Mayes' evidence suggests that Justyn may have drawn specific attention to the 10 November 2010 form of will, but I do not find that Justyn was this specific. Once the forged will was found, Justyn and Selena instructed Mr Mayes to lodge a caveat in respect of it, which he did on 4 May. 112Mr Mayes was subpoenaed and gave evidence. He describes the instructions that Selena and Mark gave him about the 10 November 2010 form of will, and communications that he had with Mr Cassimatis. But his instructions eventually terminated when it became clear that the 10 November 2010 form of will was forgery. He gave a clear and compelling account of his instructions but none of his evidence was of decisive importance. 113In late May or early June 2011 Mark brought the forgery to light. The forged will purported to appoint Mark as the executor. I accept that when the form of the will was presented to Mark he declined to seek probate, as he doubted its validity from the outset. Mark soon telephoned Justyn and told him that he and Deborah knew the recently discovered 2010 will had been forged and that Justyn should speak to Selena about it. Justyn did discuss Mark's phone call with Selena. She admitted the will was a forgery. Justyn and Selena then sought legal advice. This resulted in the caveat lodged against the 1968 will being withdrawn by consent in July 2011. 114Mr Frederick Guido Smith's close relationship with his sister, Dell, is an important reason that Selena's forgery was revealed. Deborah pursued enquiries about the 10 November 2010 form of will through Mr Smith. When he was shown the will shortly after her death he thought that it generally contained the testamentary wishes she had expressed to him. But he was greatly puzzled as to why the will was dated 10 November 2010, when she had never mentioned such a recent document to him and when the November 2010 date was inconsistent with her desire to have him assist her to make a final will with her solicitor in February 2011. Mr Smith rightly advised caution about reliance upon this document. 115Neither Justyn nor Selena ultimately opposed the grant of letters of administration for the 1968 will, which the Court granted in September 2011 to Mark and Deborah. Selena admits her role in forging the 2010 will. And she admits she knowingly made false declarations in relation to it and the caveat. She has expressed great regret over her actions. 116Mark contends Justyn was involved in forging the will, or alternatively that he was at least aware that this was unlikely to be a genuine will at the time he lodged the caveat. Mark's account was that on the day he arrived in Sydney he encouraged Justyn and Selena to search through his mother's office in order to find her will. Mark claims that later that evening, when this initial search had proved unsuccessful, Justyn said to Mark something that seemed to suggest to him that Justyn was contemplating forging a new will. The words he recalls from Justyn were to the effect "What if we found a will that divided everything between us? The deceased wanted Selena and I to have 89 Bowden Street and she said that you were to get 2 McPherson Street." He says that he responded to this by warning Justyn against "doing anything", to which Justyn assured him that he had not "done anything". 117Mark's account of this exchange seems quite improbable. I do not accept it. The revelation of the later forgery is likely to have caused an exaggerated focus on Justyn's words at the time of the search, probably leading to unconscious reconstruction of this conversation on Mark's part. I accept both Justyn and Selena's evidence that he was not involved in creating this document. 118Selena in turn accuses both Mark and Deborah of eliciting her admissions regarding the forgery by threatening her. Selena says that Mark threatened her accomplice with the disclosure of Selena's role in the forgery. Mark probably did use strong language to her about a possible forgery. But the circumstances clearly called for it. As named an executor of a doubtful will Mark was anxious to get to the truth. 119Selena also says that Deborah contacted her in June 2011, indicating that she had known about the forgery all along. She says that when they met to discuss the will, Deborah told her that if she made any claim against the deceased's estate, Deborah would ensure that she was charged in relation to the forgery and sent to gaol. This meeting is dealt with in more detail below, in relation to Selena's delay in bringing her Succession Act application. 120The defendants pursued the issue of the fraudulent will as a relevant consideration to the Court's determination of whether: there were Succession Act, s 59(1) "factors warranting"; whether any order for provision should be made, and the nature of any such order: Succession Act, s 60(1). Contending that both Justyn and Selena were involved in the forgery, the defendants submit that their involvement can be taken into account as part of the "character and conduct of the applicant[s] before and after the date of the death of the deceased person": Succession Act, s 60(2)(m). 121But the issue is relevant only to Selena's application. Justyn was not involved in the fraud. I accept his evidence that he only saw the 2010 form of will for the first time on 21 or 22 February 2011 and I accept his evidence that in the months of February, March, April and May he knew that the document existed but neither knew or suspected that it was a fraud. He only found out it was a fraud when his great uncle, Mr Frederick Guido Smith, called him and he quickly spoke to his sister about it. He learnt about the forgery in May 2011. The defendants submit that his not referring to the forgery in his own evidence is somehow concealment of it. 122But Mr Blackburn-Hart SC's well-crafted submission in answer to this is persuasive: Justyn was not responsible for the forgery; he bares no onus to explain it or to account in his evidence for Selena's conduct - she had not commenced proceedings with him; and as soon as he found out about it Justyn took steps to distance himself from the forgery, which also involved him consulting a new solicitor. 123How should Selena's forgery be assessed? Her fraud was plainly part of a plan executed over some time. Selena found will templates on Google. She assisted in producing the document which was indeed an elaborately crafted affair. Her conduct involved placing misleading documents before the Court, commencing with the 4 May 2011 caveat. The citation to take probate was a positive assertion that if Mark did not propound the 2010 will then Justyn and Selena would do so. The defendants say that in light of Selena's statutory declarations of 24 July and 5 August 2011 it is clear that she was "intent on deliberately suppressing the truth and that is what she did until March 2013 when she filed her principal affidavit in the proceedings". I do not accept the defendants' submissions that the application for leave to withdraw the caveat on 24 July 2011 was misleading. A better characterisation of the application to withdraw the caveat was that, on good legal advice, Selena was bringing to an end her false assertions. 124Context is important. Selena's conduct in creating the forged will was initiated and completed in what for her must have been a time of intense grief, between the discovery of her grandmother's body and her grandmother's funeral. Accepting the substance of Selena's evidence, as I do, she must be seen: as having just lost the person who fulfilled the role of a mother in her life; as realising that Dell's recognition of her as an object of testamentary intention had failed; and, as fearing that Deborah was quite unlikely to recognise any of Dell's recently expressed wishes to provide some testamentary benefit to Selena or Justyn. This perhaps explains but does certainly not justify Selena's conduct. 125Selena's false allegations caused additional expense to the estate. They delayed its administration. And the issue has added to the length of these proceedings. But such delay and additional expense were mainly incurred to the time administration of the estate cum testamento annexo was granted to the defendant/administrators in September 2011. All parties knew by then what were the true facts. It is clear that Deborah knew the facts by the time she confronted her daughter at the Rhodes Shopping Centre in late June that year. The withdrawal of the caveat was public recognition that the 2010 will was no longer being propounded. But the procedural wheels had been set in motion and the estate has certainly incurred further costs by having the grant of administration in solemn form after that, and for the issue even being debated in these proceedings. 126The appropriate way under Succession Act, s 60(2)(m) to take into account Selena's fraudulent conduct is to require her not only to reimburse the estate (with interest) the additional (mainly legal) expenses the estate has incurred as a result of her conduct. Moreover she should pay that part of the costs of all parties to these proceedings associated with dealing with this issue. My preliminary view (subject to further submissions should any party desire to put them on this issue) is that about 15 per cent of the estate's costs of these proceedings have been expended on this issue. Selena should have to pay that too. Any order for provision out of the estate in her favour will be conditional on her re-payment of these additional legal costs. 127I will direct the parties to endeavour to agree on the figure that Selena must pay the estate on account of these costs. And if the parties cannot agree the Court will determine the issue itself possibly under Civil Procedure Act, s 98(4)(c) by way of a gross sum order, so that the estate's administration is not delayed. 128There were a number of other contentious issues associated with Selena and Justyn's continued occupation of 89 Bowden Street after the deceased's death that do not have to be decided. All that perhaps needs to be said of them is that the defendants' submission is correct that Selena and Justyn have lived in 89 Bowden Street rent free from the time of the deceased's death. And that is a factor I take into account in considering what is an appropriate order for provision in this case.

[19]

"Eligible Person" Succession Act, s 57 134The applicable legal principles are not in contest. For an order for provision to be made under Succession Act, s 59 in favour of an applicant, the Court must be satisfied that the applicant is an "eligible person" within Succession Act, s 57. Succession Act, s 57 provides:- "Section 57 Eligible persons (1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person: (a) a person who was the wife or husband of the deceased person at the time of the deceased person's death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death, (c) a child of the deceased person, (d) a former wife or husband of the deceased person, (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death." 135Justyn and Selena submit, and the defendants do not contest, that they were at a particular time "wholly or partly dependent upon the deceased person [the deceased]" and both qualify as "eligible persons" under Succession Act, s 57(1)(e). They submit they were partly dependent on the deceased for a substantial period, beginning during their childhood when they still lived with Deborah, and continuing until the deceased's death. They fulfil the cumulative requirement in Succession Act, s 57(1)(e)(ii) as the deceased's maternal grandchildren. 136Neither Mark nor Deborah sought to deny that Justyn and Selena were at least partly dependent upon the deceased, although they contested the extent of this dependence, as relevant to what kind of order for provision should be made. The defendants' case is that Deborah took sole responsibility for Justyn and Selena's care during their childhood, despite receiving financial assistance and accommodation from the deceased. Because of this residual contest about the extent of "dependence", some examination of the authorities on what is "dependence" is still required. 137The applicable law in relation to dependence has been defined in authority to embrace concepts of both material and financial dependence as well as emotional dependence. The cases start with Petrohilos v Hunter (1991) 25 NSWLR 343, and their course is well summarised in Hallen AsJ's recent decision in Drury v Smith [2012] NSWSC 1067. In my view, there was long term dependence upon the deceased here, both in the material sense and in a wider emotional sense. 138First, the breadth of the concept of dependence in this statutory context is clear from the test stated in Petrohilos v Hunter, a case under the former legislation, Family Provision Act, s 6. In that case Hope AJA, with whom Clarke and Sheller JJA agreed, explained (at 346) the width of the concept of dependence embracing, as it does, more than just material dependence:- "I would respectfully disagree with the master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholy or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McLelland J said in Re Fulop Deceased or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989,unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period." 139Given the Court's findings in the earlier factual narrative, in my view, Justyn and Selena were 'dependent' on the deceased in the ordinary sense of the word discussed by Hope AJA: they depended on Dell for what was needed in their lives from the time they moved into 2 Macpherson Street, and especially after they moved to 89 Bowden Street. The dependence was of a different kind after Deborah moved away from 89 Bowden Street in 2003. But it was strongly emotional as well as material. The deceased was helping to provide a roof over their heads during this whole period. 140Dependency can be satisfied even where only part of the claimed dependent's needs are being met by a person on whom the dependence is said to exist. Samuels J said in Ball v Newey (1988) 13 NSWLR 489, at 492:- "'Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455." 141Of course the statute itself here emphasizes that the dependency may be partial: Succession Act, s 57(1)(e), "wholly or partly dependent". 142The deceased's informal role in loco parentis is not an obstacle to a finding that Justyn and Selena were dependent upon her. Campbell J explained in Amaca Pty Ltd v Novek (2009) 9 DDCR 199; [2009] NSWCA 50 at [44], based on earlier authority, how a legal duty to maintain can exist independently of dependence in law:- "In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'" 143A relationship of material dependence within Succession Act, s 57(1)(e) is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. "The standard of support is set by the parties themselves". That is an apt basis for assessment of the quality of Selena and Justyn's dependence in this case, which increased over time as Deborah moved away from her childern's lives. The standard the parties (the deceased, Selena and Justyn) set was one of deepening emotional dependence and sustained material dependence on the deceased. 144There were further contests that must now be decided before looking at whether or not there are "factors warranting" the making of this application within Succession Act, s 59(1)(b). If such factors are established, the next question is whether Justyn and Selena have established that there has been inadequate provision for her under the deceased's will.

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Selena's Out of Time Application 145Selena's claim is out of time. As the deceased died on 16 February 2011, her claim should have been brought by 16 February 2012, as Succession Act s 58(2) requires. But it was not filed until 18 March 2013, some 13 months late. 146The defendant administrators submit that the Court should not order under Succession Act s 58(2) that Selena's claim may be made later than 12 months after the death of the deceased. They submit Selena has not shown "sufficient cause" for the making of such an order. 147Selena's application for an order under Succession Act s 58(2) calls for more detailed examination of the events between the deceased's death on 16 February 2011 and the filing of Selena's summons 25 months later on 18 March 2013. 148The forged will was in the hands of the defendants by the first week of March 2011 and by 4 May 2011 Selena and Justyn had filed a caveat against the grant of probate for the 1968 will, citing the 10 November 2011 will. I accept that by about early June 2011 Selena told Justyn for the first time that the 2010 will was a forgery. About the same time, on 3 June 2011, Mark and Deborah had filed an application for letters of administration cum testamento annexo of the 1968 will. 149Justyn and Selena appeared in the probate proceedings on 14 July 2011. But by 24 July 2011 she had filed a motion supporting of an application to withdraw their caveat. 150In August 2011 the application for grant of letters of administration was heard and on 12 September 2011 the letters of administration in solemn form of the 1968 will were granted to Deborah and Mark as the beneficiaries named in that will. 151Shortly after these aspects of the estate of administration were completed, on 13 October 2011 Deborah's husband Grant was tragically killed in a motorcycle crash in Victoria. The same accident left Deborah severely injured and hospitalised for approximately six months. When she left hospital Deborah moved to 87 Bowden Street for a period. 152Justyn filed his family provision summons on 11 November 2011. Notice was given to both Selena and Kailah of these proceedings in December 2011. Two months later, on 16 February 2012, the Succession Act s 59 limitation period against Selena expired. 153Throughout 2012 Selena was living at 89 Bowden Street. The mortgage to the Commonwealth Bank had gone into default, and was only brought up to date by a lump sum payment of the arrears of $26,528 in July 2012. 154But I infer from the objective circumstances that by late 2012 the administrators had decided upon their future plan for the administration of the estate: they would seek to have Selena and Justyn vacate 89 Bowden Street, and allow the estate to continue in default to the Commonwealth Bank under its mortgage over that property. In fulfilment of this plan by late 2012 the executors had commenced proceedings against Selena in the Consumer Trader and Tenancy Tribunal for her to vacate the premises. On 20 November 2012 they served on Selena a notice to vacate 89 Bowden Street. An application for Selena to vacate possession of property was filed in the Consumer Trader and Tenancy Tribunal (CTTT) on 6 February 2013 and was served on her on 11 February 2013. Within three weeks of being served with this application Selena consulted a solicitor on 4 March 2013, and commenced her proceedings on 18 March 2013. 155The defendants' case was that this chronology and the broader facts showed that Selena with clear notice of her rights to bring a Succession Act claim, elected to allow her 12 month period under Succession Act, s 59 to expire, and then simply "changed her mind" when the CTTT application was served on her. The defendants point to authority that a party cannot with full knowledge of his or her rights deliberately choose to allow the s 58(2) limitation period to expire and then "change their mind" and expect to be granted an extension: Zirkler v McKinnon [2002] NSWSC 285 and Bearns v Bearns-Hayes [1997] NSWSC BC970286. 156Selena responds that the defendant's case about her delay is too simplistic. She submits that certain statements that her mother made to her in June 2011 explain why she did not bring her claim earlier and that her decision to bring a claim 13 months out of time cannot be characterised as a "mere change of mind". Selena's explanation for her delay is persuasive, for the following reasons. 157I accept the defendants' submission that Selena knew her rights to bring a claim for family provision under Succession Act, Part 3.2 would expire in March 2012. She knew Justyn had made a claim in November 2011. Moreover, she was acutely conscious that the 1968 will made no provision for her. 158By June 2011 Mark and Deborah's enquiries, to Mr Frederick Smith among others, had revealed to them that the 2010 form of will was probably fraudulent. They did not then know exactly who was behind the fraud but they were confident the will was not genuine. Acting on the strength of this knowledge, in late June 2011 Deborah contacted Selena and sent her a text message: indicating to Selena that she, Deborah, had "known all along" that the 2010 form of will was a forgery; and proposing a meeting with Selena. Concerned by this contact, Selena agreed to meet her mother the next day. The venue of the meeting says much about the then state of their mother/daughter relationship. They agreed to meet in the food court area of the Rhodes Shopping Centre, a neutral and public forum. The meeting only took 5 or 10 minutes. I accept Selena's account of what happened at this meeting, partly because it accounts for much of her later conduct and partly because of the unreliability of Deborah as a witness. 159During the course of this conversation Deborah said to Selena "I have known all along that mum's will was not real, Maree contacted us and let us know all about it. The two of you are just so stupid! You will get into so much trouble for this!" In response Selena detailed back to her mother her allegations (referred to elsewhere in these reasons) that Mark had taken $20,000 in cash from the estate. Then Deborah said to Selena "You need to stop lying. If you make a claim on mum's estate I will make sure you are charged and go to gaol. You should take this as your last chance to get out". 160I accept that Selena was devastated by this statement. I accept Selena's evidence that she had no doubt that her mother "meant what she was saying". As Selena walked away, Deborah said to her "I will be getting in contact with my lawyer". Selena says, and I accept, that she was "petrified" as a result of her mother's stern words, that she would be sent to gaol. She said back to Deborah "I am going to contact my lawyer because you are threatening me". 161Selena did contact her lawyer. In that sense what Deborah said was for Selena's benefit. She unfolded the whole story to a solicitor, Mr Michael Smith. With Mr Smith's sound advice she swore a statutory declaration on 24 July 2011 explaining everything she had done. As Mr Smith explained to her: "it would be good to have this in case it comes up later; so it does not look as though you are only admitting it because someone else brought it up". She and Justyn then gave Mr Smith instructions to apply for leave to withdraw the caveat which had been lodged in support of the 2010 form of will. Consent orders withdrawing the caveat were made on 29 July. 162Selena was very conscious what she had done was wrong. Indeed her sorrow and remorse at her involvement with the 2010 will was palpable during her evidence in the courtroom. I have no doubt that her regret at what she had done was sincere and was not merely the product of being found out. She accepts that she might have committed criminal offences, that she has placed at risk her capacity to seek admission as a legal practitioner, if and when she were to complete a law degree she started. Her statement in her affidavit "I am truly sorry for what I have done" was sincerely re-affirmed in different words a number of times in the course of her evidence. 163But Selena had the benefit of legal advice before the 12 month application period expired. Before Justyn filed his claim on 11 November 2011 Selena and he attended with Mr Michael Smith, at the chambers of Michael Willmott SC for advice about their rights. There is little evidence in these proceedings about exactly what was said in this conference but it can readily be inferred that Selena was thoroughly apprised of her rights to bring proceedings. She says, and I accept, that "they left me with the decision to make as to whether I would go ahead with the claim". 164She did make a conscious decision not to go ahead with the claim. But in my view, in the making of that decision, her mind was completely overborne by the fears engendered in her by her mother's statements. She did not make a genuinely free decision not to pursue a claim. Deborah's intention in meeting Selena at the Rhodes shopping centre was to deter her daughter from bringing a claim against the estate. She brought all the force of what remained of their fractured mother/daughter relationship to bear upon her daughter to achieve this. And Deborah's performance in the witness box showed, this could be very considerable force. The ADVO evidence shows that Deborah could intimidate her mother. She could also intimidate her daughter. 165She was successful. Deborah left her daughter with a deeply held fear that taking any positive step to make a claim against the estate would result in her being prosecuted. She feared her mother would report her conduct to the police. She feared what may follow from that. Deborah strongly conveyed the impression that she would act in a way that she foreshadowed. That is exactly what Selena came to believe as a result, an effect compounded by Selena's overwhelming feeling of guilt about what she had done. In my judgment, when Selena decided not to join Justyn to bring a claim in parallel to his in November 2011, she was paralysed by fear of what her mother would do should she bring such a claim. She was comforted to a degree by her brother's offer that he would try and share the proceeds of any success that he enjoyed against the estate. . 166The defendants analyse these events quite differently. They submit that Deborah had not threatened Selena at all but had given "what many would consider to be sound motherly advice". Pointing to the content of the statutory declaration which Selena swore on 24 July 2011 at the suggestion of Mr Smith the administrators submit that it was not Deborah's threat, but rather Selena's own perception that her conduct might have criminal consequence which really paralysed her from action. 167Moreover, the defendants submit that the final factor which caused Selena to change her mind was the January 2013 service on her of the notice to vacate 89 Bowden Street by 31 January 2013. The close proximity between the service of the formal CTTT application on Selena on 11 February 2013 and her commencement of her summons on 18 March is a powerful basis to infer that the two were connected. In my judgment the administrator's submissions are correct to this extent. Selena was prompted to commence her Succession Act proceedings in part because of the CTTT action being brought against her. But her reasons for bringing the action are more complex than just a "change of mind". The overwhelming influence of her mother's threats to her in June 2011 were only starting to subside by February 2013 and were being replaced by a new insight that she was going to face more litigation from her mother, whatever she did. 168Selena was pressed in cross-examination with the proposition that the tenancy proceedings caused her to "change your mind to bring this claim". In response she agreed that the tenancy proceedings "may have been of assistance to why I brought a claim". But she persisted in saying, correctly in my judgment, that discussions that she had "with legal aid and Mr Smith" also caused her to change her mind. This was an entirely candid account. The earlier conversations she had with legal aid and Mr Smith were part of a process of her slow emancipation from the fears her mother had induced in her. Now for the first time in February 2013, she was able to make her own free decision. 169In my view none of this can be characterised merely as a "change of mind". This case is quite unlike the "change of mind" decisions such as Zirkler v McKinnon and Bearns v Bearns-Hayes. Selena has shown "sufficient cause" for the Court to permit her to bring her application out of time.

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Factors Warranting Provision from the Deceased's Estate 170Justyn and Selena must establish "factors warranting" their applications. If the Court is to proceed to grant any order for provision, the requirement of "factors warranting" is provided for by Succession Act, s 59(1):- "(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 (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, 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." 171The defendants take an unusual position on "factors warranting". Subject to one matter, the issue of the forged will the defendants accept that there is no dispute that each of the plaintiffs has demonstrated factors warranting the bringing of his and her application. But the defendants argue that the circumstances of Selena and Justyn's involvement in the forged will should cause the Court to re-consider whether factors warranting have been proved. This argument means that the Court must still analyse the nature of any factors warranting in this case, and the extent that the forged will should influence the conclusion that the Court should come to on that issue. 172The question of what are "factors warranting" has concerned the Courts since family provision legislation was first passed with this requirement in 1982. The vagueness of this aspect of the legislation has been much criticised. Despite that the law has become more certain through judicial exposition. 173The classic statement explaining what are "factors warranting" is that of McLelland J, as His Honour then was, in Re: Fulop Deceased (1987) 8 NSWLR 679: that the factors are, when added to the facts that make the applicant an eligible person, factors which give the applicant the status of a person who would generally be regarded as a natural object of testamentary intention by the deceased. See also: Churton v Christian (1988) 13 NSWLR 241, Diver v Neal [2009] NSWCA 115, Penfold v Perpetual Trustee [2002] NSWSC 648, Evans v Levy [2011] NSWCA 125, Porthouse v Bridge [2007] NSWSC 686 per Bryson J, Drury v Smith per Hallen AsJ, Morgan v Public Trustee [1999] NSWSC 1112 per Macready AsJ and Meers v Permanent Trustee Co Ltd [2000] NSWSC 1108. These authorities indicate that the traditional Re Fulop view of "factors warranting" has been in competition for some years with the Court of Appeal's statements in Brown v Faggoter [1998] NSWCA 44 (unreported, BC9805810, 4 November 1998) which offer another test of "factors warranting": that an application might be warranted if the applicant has reasonable prospects of success. 174This conflict has been commented on in the Court of Appeal, in Evans v Levy [2011] NSWCA 125, and by Bryson J in Porthouse v Bridge. I agree with Hallen AsJ's view that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said that Brown v Faggoter is wrong. 175It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, both of which show that there will often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant. 176An aside is necessary at this point. The defendants argue that their own relationship with the deceased (and each other) is irrelevant, to the determination of the issues in these proceedings: as has often been commented, a chosen beneficiary "does not have to prove anything". Whilst that is true, the defendants still put in issue whether there are factors warranting the plaintiffs bringing their Succession Act, Part 3.2 applications for provision. That in turn requires the Court to examine evidence as to whether or not the applicants are persons who would generally be regarded as natural objects of testamentary intention by the deceased, despite the issue of the forged will to which the defendants especially point. 177Examining the status of the plaintiffs in the deceased's life inevitably brings with it a degree of indirect assessment of their relative status in a hierarchy of the deceased's concerns and affection. Moreover, the Court's findings that the deceased had what was an essentially dysfunctional relationship with Deborah, one of the primary natural objects of her testamentary attention, gives greater confidence to the inference that the deceased had accepted Selena and Justyn as having special status as natural objects of her testamentary intention. Put simply: in itself Dell's relationship with Deborah is irrelevant; but, it was so poor that it assists the inference of factors warranting Selena and Justyn's applications. 178In my view, in this case, the following factors particularly warrant the plaintiffs making of this application in accordance with Succession Act, s 59. They overlap with matters that support the success of Justyn and Selena's applications. But for the reasons that have been explained earlier, the forged will does not in any way displace the factors warranting in Justyn's favour, as he was not involved in the forgery. Nor does Selena's involvement in the forgery displace the factors warranting otherwise operating in her favour: her involvement was a misguided attempt to bolster a case that is strongly supported by factors warranting and where in any event the effect on the estate of her conduct can be and will be wholly contained by orders requiring her to pay back all the costs to the estate of her fraudulent conduct. 179The first factor warranting is the deceased's repeated recognition of Selena and Justyn as objects of her testamentary intention. The deceased re-iterated this sentiment not only to Selena and Justyn themselves but to two very close confidants, Dr Bodil Broeng-Nielsen and Mr Frederick Guido Smith. I accept the deceased made these statements as found in the narrative section of these reasons. And I accept that the statements so made represented the deceased's genuine intentions at the time she made them. 180A second factor warranting is the deceased's defence of Selena and Justyn from Selena's various attempts to move back into 89 Bowden Street and by her presence to threaten to disrupt Selena and Justyn's lives. That the deceased did this on more than one occasion between 2003 and 2007 indicates that when it came to Selena and Justyn's emotional and material security the deceased was prepared if necessary to thwart her own daughter's actions. 181A third factor warranting is the deceased's late 2008 decision to buy Deborah out of co-ownership of 89 Bowden Street. She did this because of the threat that Deborah represented to Selena and Justyn's stable occupation of 89 Bowden Street. It was a decision based on securing the objective of the emotional and material welfare of Justyn and Selena by containing Deborah's capacity to interfere in their lives and ensuring that they would remain close to her, the deceased, whatever Deborah did. It was a simple and effective act which demonstrated the importance of Justyn and Selena in the deceased's life. The deceased's bargain with Deborah to buy out Deborah's interest in 89 Bowden Street was also a final recognition that Deborah, Selena and Justyn would never reside together sharing that property in the future. 182Selena's propounding of the forged will after the deceased's death does not change any of these factors warranting her application. It was a single act after a lifetime of close relations with the deceased. It was not directed at the deceased. It was a misguided attempt indeed to have her recognised as an object of the deceased's testamentary intention. Selena's position as a natural object of the deceased's testamentary intention is unchanged.

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The Parties' Financial and Personal Circumstances 183Before considering what is adequate provision for the plaintiffs, findings are necessary about the present financial and personal circumstances of the parties. In short both plaintiffs are employable but without any assets. The defendants' needs for capital are substantial, especially Deborah who it can be anticipated will have significant medical bills in the future. 184Selena. Selena is generally health although appears to be stressed and feels "down" from time to time. She admitted to problems with the management of alcohol, and even drugs from time to time. But she has managed to attain a tertiary qualification in the field of human resources and when the hearing was in progress had apparently started a job in that field, giving her a starting package including superannuation of approximately $60,000. Although by the time the proceedings came around for final submissions the evidence was, and I accept, that she had lost her job and was unemployed. 185In my view she is likely to continue to face periods of unemployment in the future. Even at her present age she does not have consistent employment record in any one field: working as an assistant property manager for real estate agents, as a disability support worker, as a bar worker, as a leasing consultant. She finally supported herself whilst she studied human resource management with casual work in hotels, racecourses and call centres. 186With this patchy employment record the defendants were critical of how well thought out Justyn and Selena's idea of living together in 89 Bowden Street was. But they were a highly co-operative pair as was obvious from the way they gave evidence. And meeting the external obligations of such a property would be one of the spurs to Selena concerning her qualifications to account in a more consistent way in the future. 187Justyn. Justyn is in good health for his age. He has slightly high blood pressure but that is treatable and not serious. He has acquired two tertiary degrees by hard work and is currently in full time employment earning over $1,000 per week net. But he has not managed to acquire many assets and has concerns about his budget from week to week. 188The defendants were critical of Justyn that he gambles and spends too much money in upmarket restaurants and in socialising. But much of that is a function of his age and in the short to medium term he will need to settle down and will need a capital base to start a family and to develop his career. Justyn is employed as an assistant development manager at TA Global Development Pty Ltd, a Malaysian based company and I accept his position with that company is not secure. The defendants criticised his case that he and Selena should be given 89 Bowden Street as essentially vague, unspecific and sentimental. But in my view, because of his co-operative attitude with Selena with whom he has lived for a number of years, a pooling of capital providing shelter for themselves for each of them in the short term is in my view exactly what Justyn needs for career growth and financial stability. 189Mark. Mark is in his early 50's and in full time employment, earning $86,000 a year before tax from Australian Aerospace and receiving $20,000 per year before tax as a RAAF pension. He and his wife have managed their income well over the years and have acquired four investment properties which are all negatively geared. They own a resident in Narangaba Queensland, which is mortgaged up to its full value, approximately $420,000. They own four other investment properties in Queensland, New South Wales and Western Australia, with combined mortgages of close to $600,000. These properties are rented and are negatively geared. Mark has superannuation of $77,000 and savings of about $70,000. His main need is to substantially reduce approximately $1,000,000 in his overall mortgage liability together with doing repairs to his and his wife's residence. 190Deborah. Deborah has substantial needs but she also has reasonable financial resources. Deborah was very badly injured in the motorcycle accident in October 2011. I accept her submission she will not return to the workforce. She has significant cognitive and memory problems as a result of the accident, and has required rehabilitation. Her current assets she estimated at the time of final submissions were $938,088.29, including a house at Merrylands worth $750,00 a yacht worth $90,000 and superannuation worth $46,000, together with other smaller sums. She sold her Wentworthville property and has net proceeds of sale of $23,688.29. 191Deborah is servicing a mortgage to the ANZ of $458,686.00 out of the proceeds of the Wentworthville property. She needs funds to renovate the Merrylands property to better accommodate her present situation. 192Her income is presently $934 per week compensation from her accident. Her regular household outgoings presently marginally exceed her weekly income. She could do with a substantial injection of the capital that she will receive from her mother's estate.

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Adequate Provision 193The final questions now relate to whether an order for provision should be made in Justyn and Selena's favour. The test of whether provision should be made in any partiular case is set out in Succession Act s 59(1)(c):- "(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: ... (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." 194Many judicial statements summarise the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:- "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 195Whether the two-step test operates with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a very clear one on the question of whether or not adequate provision has been made for Justyn and Selena once they have been shown to be eligible persons, and that there are factors warranting their applications. 196Some other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been most conveniently collected in the decision of Hallen AsJ in Drury v Smith at [153], [154], [155], [158] and [160], which relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." ... [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." ... [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."" 197The Court must now decide what is appropriate provision in this case. The defendants submit that the appropriate provision in their favour is only a modest legacy each out of the estate. Selena and Justyn in contrast submit that the appropriate order for provision in the circumstances is that they each have a half share in 89 Bowden Street. 198Selena and Justyn Ng stand in an unusual position, in claiming against the estate of their grandparent. For the last eight years of their lives from 2003, their mother had chosen to leave their household and to live elsewhere. She did so because she made a choice to be with her new husband and her youngest child rather than her two eldest children. After she left the only evidence of any contact between Deborah and her children quickly spiked into conflict. The deceased filled the gap that their mother left in their lives, as best as she could. She appears to have done that well enough becoming an important semi-maternal figure for both Selena and Justyn. I infer this from many things, the not least of which was the complete absence of any demonstration of any maternal feeling from Deborah towards Selena and Justyn in the courtroom. 199Even before 2003 the same pattern was emerging, although less obviously so. A woman who disengaged from her son and daughter physically by 2003, in my view had already emigrated in other ways from their lives and been replaced by their grandmother in a semi-maternal role. 200In my judgment these two grandchildren should be judged not simply as the grandchildren they are, but more analogously with children. Comparisons were made with such cases as Wilcox v Wilcox [2012] NSWSC 1138, Wilcox v Wilcox (No. 2) [2014] NSWSC 88, Simons v Perpetual Trustee Co Ltd [2005] NSWSC 223, and the principles stated in Sammut v Kleeman [2012] NSWSC 1030 at [107]. But it seems to me that this case has special features that distinguish it and place Selena and Justyn in an unusually close role in relation to their grandmother. 201Justyn and Selena need financial stability in their lives now. What is a proper measure of provision out of the deceased's estate is closely influenced by a number of factors. Their needs for capital are present rather than future. Selena is recently unemployed. Although Deborah's needs for medical care in the future may be high, she has in substantial capital available to her. 202The deceased's views about what was proper for Justyn and Selena do not bind the Court but they are not irrelevant. The deceased's focus was not only upon the need for secure accommodation for Justyn and Selena but she was also interested in their proximity to her. And it must be recognised that a 31 year old woman and her 29 year old brother may find many reasons in the future not to occupy the same house. But that being said, they are now at 89 Bowden Street and certainly see their short to medium term future as being there together in the near term. When the time comes they are the ones best equipped to decide how to turn that asset to account later. 203In my view the appropriate provision out of the deceased's estate is for them each to be given a half interest in 89 Bowden Street, free of any mortgage liability. That will be the order for provision of the Court. In Selena's case that will come with the condition of repayment of the estate discussed earlier in these reasons. 204And the future administration of the estate is probably likely to involve the liquidation of 2 Macpherson Street and 87 Bowden Street, two properties which even after the payment of estate expenses will still provide many of the defendants' expectations. Their proceeds would allow Deborah to carry out the renovations and repairs to her home at Merrylands that she wishes. Mark has a substantial negative gearing debt of over $1,000,000 that he wishes to reduce from the proceeds of the estate. He will still be able to effect a very substantial reduction in this debt after 89 Bowden Street has been set aside for Selena and Justyn. But if the defendants want to arrange their affairs to keep one of the estate properties, they may be able to pursue that option as well.

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The Possession Proceedings 205On 1 May 2013 the Commonwealth Bank commenced proceedings for possession of 89 Bowden Street, Ryde ("the possession proceedings"). In the Statement of Claim in the possession proceedings the Bank sought judgment for $248,039.24 and possession of 89 Bowden Street. The Bank alleged, and it was not in contest, that the Bank had provided credit in December 2008 to Dell in the sum of $250,000 the repayment of which was secured by mortgage over 89 Bowden Street. The estate defaulted under the agreement after Dell's death so that by 13 March 2012 payments due and not paid totalled $13,368. From 13 March 2012 until April 2013, shortly before the commencement of the possession proceedings, despite a lump sum payment in July 2012 payments due to the Bank had been continually in arrears. 206On 3 July 2013 Gadens Lawyers acting on behalf of the Commonwealth Bank e-filed a Notice of Motion seeking default judgment. On 9 July 2013 judgment was entered for the Bank for possession of the land and for debt in the amount of $254,596.35. On 18 July 2013 Gadens Lawyers e-filed a motion seeking the issue of a writ of possession in relation to 89 Bowden Street. And on 20 August 2013 the Sheriff of New South Wales issued a notice to vacate the property by 25 September. 207But by the time of the hearing of the proceedings the date to vacate the property was imminent. Selena and Justyn sought a stay on the Bank's execution of its judgment for possession by motion. At the same time Selena and Justyn sought orders for interim provision from the estate to assist in funding the terms of any stay order made against the Bank. 208By the time of the last scheduled continuous hearing date Monday, 2 September 2013 it was becoming apparent that the Commonwealth Bank's 20 August 2013 notice for Selena and Justyn to vacate 89 Bowden Street by Wednesday 25 September needed to be addressed. A date was set for the parties to bring any motions to stay the Bank's action. There were a series of directions hearings and motions heard respectively on 13, 18, 19, 20 and 25 September to deal with these questions. Throughout this period, with the assistance of Ms Rae from Gadens, the Bank showed commendable practical flexibility in dealing with the issues thrown up by this dispute. 209The estate's lawyers Barwick Boitano Lawyers contended in early September that there were then insufficient funds in the estate accounts to pay arrears on the mortgage. This was correct. They reported by letter dated 3 September 2013 that they had been negotiating with the Bank on behalf of the estate but that the Bank had threatened foreclosure. Barwick Boitano Lawyers reported on 3 September that although they had been able to negotiate the making of a lump sum payment to the Bank in July 2012 to bring the arrears of mortgage up to date, they were not in a position to make any further payments because: estate funds had been almost exhausted; Ms Curnow had no current source of income other than a pension; and, Mr Mark Morgan had no spare income to assist in funding the estate's liabilities to the Bank. Barwick Boitano Lawyers declined to give any undertakings to the lawyers for Selena and Justyn for them to remain in occupation of 89 Bowden Street. 210This was the position when the stay issue arose. The evidence on the motion showed both the state of accounts between the estate and the Bank and the estate's resources from time to time. 211At the time of the deceased's death in February 2010 the mortgage over 89 Bowden Street was not in default, but it went into default immediately thereafter. It can safely be said on the evidence that the executors have not given priority to the payment of the Commonwealth Bank's mortgage over 89 Bowden Street. 212On the income side, between Dell's death and the hearing the estate received the total sum of $282,528.10: being $107,771.23 from the proceeds of the deceased's St George Bank account; being $153,698.97 for a superannuation death benefit; being $3,147.55 for the sale of miscellaneous furniture and other items and the surrender of property; being $2,840.82 for the sale of shares; being $14,486.60 for rental money; and, being $582.93 for refunds for water usage. 213On the expenditure side, the estate has paid a total of $274,851.74 from the death of the deceased until just before the hearing. The estate's expenditure included fees for solicitors and counsel in relation to proceedings against the estate, insurance premiums, payment of credit card debts, land tax, council rates and other utility rates in respect of estate property and other small sums. The largest single class of this expenditure was legal fees. The estate made only one payment on account of the mortgage after the deceased's death: on 10 July 2012 it paid $26,528 to the Bank to bring arrears up to date, to avoid initiation of earlier possession proceedings. No other payment was made to the Bank before or after this date. 214The Barwick Boitano Lawyers trust account statement for the estate an account through which all estate funds flowed do not perfectly reconcile with the figures given earlier but the figures are very close. For the period 19 May 2011 to 21 August 2013 the trust account statement shows receipts of $285,583.69 and withdrawals of $274,851.74, leaving a net balance of $10,731.95. The running balance of the trust account approximately every six months during this period reveals a steadily declining bank balance. On 26 October 2011 the estate account balance was $261,500.10. On 8 May 2012 it was $85,044.69. On 19 November 2012 it was $4,310.25. 215It is remarkable that after the payment of $26,528 was made to the Commonwealth Bank on 10 July 2012 leaving an account balance of $45,980.25, that none of that remaining money was applied to the monthly accruing mortgage liability to the Bank. Although council and water rates were paid on 89 Bowden Street after July 2012 about 80 per cent of what remained in the account was spent on legal fees rather than in preserving the estate property. It must have been obvious to well advised administrators at that time, July 2012, that there would soon be another default on the Bank's mortgage, and that something would need to be done to preserve the value of this part of the estate's property. It was certainly not beyond the wit and ingenuity of prudent administrators to do something with the estate's significant reserves of equity to avoid short term default whilst these proceedings were entrain. 216Yet the executors did not take the initiative. They seemed strangely content to allow default to the Bank leading to Selena and Justyn's inevitable eviction. Co-operative action with the other parties to see what could be done to prevent mortgage default or individual action to try and re-finance were not taken. It should be said though in the administrators favour that they were defending hard fought litigation over this estate which they could reasonably have anticipated would continue to be expensive. And it can be said that both Selena and Justyn could have been more proactive in offering some contribution to the mortgage liabilities over 89 Bowden Street to prevent default to the Bank. 217But the kind of prudent action that was called for was for the executors to ensure that something was done to husband the estate's limited resources to avoid the costs that have now been incurred to the Commonwealth Bank. Given the orders which the Court will make in the Succession Act application that conduct may not have any costs or other consequences in these proceedings other than for the administrators themselves, reducing their interests as residuary beneficiaries. It is not necessary therefore to consider these issues any further, other than to say that the Commonwealth Bank will have to be paid out very soon, and should not be required to wait much longer. The parties will have a 60 day extension on their existing stay of the possession proceedings. But they must comply with the existing terms of the stay for this extra period.

[25]

Conclusions and Orders 218In summary the result of the two proceedings is as follows. In the possession proceedings the Court will continue the stay already granted, to prevent the Commonwealth Bank from executing on its judgment for possession for the period of only 60 days. But the estate must continue making payments to the Bank as a condition of the continuation of this stay. That should be sufficient time for the parties either to re-finance or pay out the Commonwealth Bank's mortgage security. 219In the Succession Act proceedings the Court has found that Justyn and Selena Ng, the deceased's grandchildren, have established a dependency upon the deceased and are eligible persons under Succession Act, s 57(e). As these reasons explain in more detail the Court has found: that under the deceased's will they were both left without adequate means of support; that an order for provision should be made in their favour; and, that they should receive provision in the form of an equal share in the property at 89 Bowden Street, North Ryde free of any mortgage liability to the Commonwealth Bank. The estate will have responsibility for paying out that liability. 220But because of Selena's involvement in the propounding of the forged will in 2011 after the deceased's death, she will be required to pay back to the estate as a condition of her receipt of the order for provision, the estate's probate and administration costs incurred as a result of Selena propounding the forged will. These are said to be about $60,000 but the parties will have an opportunity to try and fix a figure with more precision if necessary by agreement. Interest will also be payable to the estate at the rates fixed under Civil Procedure Act, s 100 on money the estate has expended on the wasted costs of the probate proceedings. 221The Court will also require Selena to repay to the estate that portion of the estate's costs of these proceedings attributable to the forged will issue which the Court assesses at 15 per cent of the estate's total costs of these proceedings. Selena will not be allowed to recover from the estate 15 per cent of her own legal costs of these proceedings on the same basis. 222Ordinarily the executors Mr Morgan and Mr Turner should have their costs out of the estate on an indemnity basis and the costs of the two plaintiffs should be paid out of the estate on the ordinary basis. One or other party may wish to argue for a different order. 223And in any event the Court will order an adjustment to the usual form of costs order on account of Selena's propounding of the forged will. Moreover, there may be special costs orders to be made arising out of the circumstances in which the estate fell into and remained in default on the Commonwealth Bank mortgage over 89 Bowden Street. For these reasons the Court will not make costs orders at this stage. But the parties are invited, after considering the Court's reasons, to re-list the proceedings for any argument in relation to costs issues. The simple procedural orders of the Court will therefore be as follows:

Direct the parties within 7 days to bring in agreed, or in the alternative their competing short minutes of order, to give effect to these reasons.
List the proceedings for further argument in relation to costs at 9.30am on Tuesday, 20 May 2014, or such other date as the parties may arrange by agreement with my Associate.
Direct that by 4.00pm on Monday, 12 May 2014 both plaintiffs shall provide to the defendants an estimate of their party/party costs to date.

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