Kitteridge v Kitteridge

Supreme Court of NSW|2022-02-02|Before: Robb J

Solicitors: Edwards Kirby Lawyers (Plaintiff) Farrar Gesini Dunn (Defendant) File Number(s): 2021/81198

Judgment

The plaintiff, Lee Kitteridge, is the second son of the late Brenda May Kitteridge, who died on 7 September 2020 at the age of 80 years.

Background of the Kitteridge family

In addition to the narrative of the deceased's testamentary acts and intentions set out above, it will be appropriate to recount the relevant matters in the history of the Kitteridge family in order to understand the nature of the estrangement between Lee and his father on the one hand and the deceased and Steven on the other.
The deceased and her ex-husband had three children during their marriage: Robert, born in 1962 and 59 years of age at the date of the hearing; Lee, born in 1966 and 55 years of age at the date of the hearing; and Steven, born in 1976 and 45 years of age at the date of the hearing. In or about 1978, the deceased and her ex-husband acquired a property at Yattalunga. The family moved around the Central Coast region before settling in Bateau Bay in 1984.
Lee lived in the family home until about 1983 or 1984, when he moved out at around the age of 17 or 18 to live in Cammeray. Lee says that he made regular visits every other week to the family home around that time, on which occasions he would assist with gardening and household maintenance.
It can be seen from the chronology of the brothers' dates of birth that, at the point that Lee left the family home, Steven would have been only 7 or 8 years of age and still living in the family home. Steven says that he was grateful for Lee's visits to their home after Lee had moved out and that they had a warm sibling relationship. Steven was grateful for Lee's visits for the further reason that they served as a reprieve from their parents' shouting matches, which clearly affected Steven as a child.
In or about 1986 or 1987, the deceased's ex-husband suffered a heart attack. At this time, Lee says that he took a proactive role in assisting with household maintenance at his parents' home when he visited. Lee says that he would make his home in Sydney available to his parents when they came for hospital visits. These visits were generally for the deceased's medical appointments.
Lee explains that the deceased took steroids for a long period of time to help with thyroid and muscular issues. It appears to be Lee's view that the deceased's steroid use coincided with the family's move to the Central Coast in 1978, at which time the deceased appeared to him to become highly strung and combative. Lee and Steven agree that the steroid medication caused the deceased to gain weight, but Steven denies Lee's characterisation of their mother's attitude, though Steven's affidavit evidence appears to have misunderstood the date at which Lee says the deceased became combative and nothing turns on this divergence.
In or about 1988, Lee says that the deceased's and her ex-husband's marriage began to break down. Steven recounts the acrimony that marred their parents' marriage in the two years leading up to this point. Steven's perception of his father at this time was one of an angry and goading man who would spend nights absent from the family home. Lee says that the deceased resented her ex-husband for his period of unemployment ensuing from his heart attack.
Lee's and Steven's father departed the family home at some point in 1988 or 1989, though the parties differed on the details of this change. According to Lee, in December 1989, whilst away from Sydney on holiday, he received a phone call from his father saying that the deceased had told the father to leave their home in Bateau Bay, and that he would be moving to Lee's home in Cammeray. He recounts that, following Lee's and Steven's father's departure from the family home, the deceased moved to a house owned by her father in McMahon's Point while she organised the sale of the family home at Bateau Bay. Steven's account differed in that he said the family moved together to McMahon's Point, and that the father stayed there for a few nights before leaving for good, saying: "I want to stay but your mother won't let me."
Lee's father stayed with Lee in Cammeray for the next twelve months in what Lee describes as a state of despair and depression. In evidence was a 1989 letter from the Lower North Shore Area Community Health Services to the Family Law Court Counselling Service in which a social worker reports having provided the father with supportive counselling for six months after his separation from the deceased, and that the father suffered an understandably intense grief reaction to his wife leaving him but had come to terms with his new living circumstances.
Lee recounts that he spent regular time with the deceased during the year that his father lived with him in Cammeray.
In 1989, the deceased's father died and the family provision litigation over his estate, set out above, ensued. In the same year, Lee married his wife Caroline. The deceased, Lee's and Steven's father, and Steven all attended Lee's and Caroline's wedding.
Before marrying, Lee moved out of the Cammeray unit in which he had been living with his father to live with Caroline. Lee's and Steven's father remained in the Cammeray unit until moving into a housing commission unit in Kirribilli in 1999, where he resided until his death in 2006.
In or about 1990, the deceased and her ex-husband sold the Bateau Bay home and split the proceeds equally. Their divorce was finalised in the same year. Lee's and Steven's parents departed their marriage each with little funds and each in declining health.
In around 1995 or 1996, the deceased's mother died and the family provision litigation over her estate, set out above, ensued. Steven says that the deceased was very upset that she and Steven were not notified of her mother's death until after her funeral, which Lee had attended.
In December 2004, the deceased and Steven moved to the Middle Cove property. She moved into an aged care facility in 2017.
Lee says that, between Caroline suffering a stroke in May 2004 and his father's death in 2006, and because of the length of the commute between their then home in Wentworth Falls and Sydney Airport in Mascot where he worked with the Australian Border Force, he would often stay at his father's unit. This, Lee says, served not only the function of allowing him easier access to his work, but also to assist his father by attending to his chores and errands in his later years.
It is helpful at this point to break from the strict chronology of events just relayed to focus on a number of events that defined the tenor of Lee's relationship with the deceased. As will be seen, the overriding impression of that relationship is one in which the deceased identified Lee with her own acrimony towards her ex-husband for Lee having taken him in when he was told to leave the matrimonial home.
In the wake of her separation from her ex-husband, the deceased began to impress upon Lee her dissatisfaction with his association with his father, which she apparently perceived as incompatible with the maintenance of a relationship with her. Lee recounts a conversation that took place in about 1989 to the following effect: Deceased: Come and live with me. Don't support your father. Come and live with me. Lee: Dad needs support as well.
Lee also recounts heated phone conversations in which the deceased expressed her dissatisfaction. One flashpoint that the parties focused on at the hearing was a phone conversation had on Mother's Day of 1990. Lee says that Caroline called the deceased to wish her happy Mother's Day, to which the deceased responded by shouting words to the following effect: "Why are you calling?" "Who are you?" "Why is Lee not calling? Put him on the phone."
Lee says that he stopped calling the deceased and that she stopped calling him after this event. Steven agreed that the phone calls were often heated and that the deceased would become upset during these conversations, though he did not recall the deceased shouting as Lee had described.
There appears to have been silence between Lee and the deceased until around 1997 when Lee contends that he contacted his mother and arranged to meet so that he could introduce her to his son, Drew, who was then aged 5. In cross-examination, Lee acknowledged that no such arrangement was made. However, Lee says that he and Drew had a chance encounter with the deceased and Steven at Chatswood shops, and that a subsequent meeting took place at the deceased's house. Lee describes the latter meeting as having been reasonably cordial. However, the following day, Lee says that the deceased called him and asked him to come over to her house again, to which he responded that he was not available to visit her that day. The deceased apparently berated Lee for having turned down her invitation. Lee says that this was the point after which he did not call his mother again, and at which she did not call him. Steven acknowledges that Lee visited the deceased at home the day after their encounter at Chatswood Chase but does not appear to accept that the deceased later called Lee in the way that Lee describes.
Lee says that he spoke to the deceased and Steven at their father's funeral in 2006. Steven says that he and the deceased suggested that they all see each other again sometime, an offer which Lee accepted in cross-examination he did not take up.
After the funeral, Lee says that he otherwise had no contact with his mother and brother until shortly before the deceased's death when Steven alerted Lee that the deceased had had a stroke and had been hospitalised. In the intervening period, Steven had married his wife Michelle but had not invited Lee to attend his wedding. Lee recounts that he visited his mother in hospital in her final weeks but that the deceased was unresponsive.
Steven does however recount interactions with Lee in that intervening period, namely that Lee called Steven to discuss the finalisation of their father's affairs around six months after their father's funeral; that, after acquiring Lee's number from the deceased's granddaughter benefited in her will, Steven called Lee to inform him that the deceased had suffered a heart attack in around 2011 or 2012; and that Lee called Steven in 2014 to ask about Steven's life and to suggest meeting for a beer. It is Steven's view that in these latter two interactions Lee showed little regard for the deceased's wellbeing by ending the conversation about the deceased's heart attack shortly, and by not asking about the deceased at all in the final conversation.
There is evidence of parallel discomfort in the relationship between Steven and his father in the context of the deceased's and the father's marriage breakdown. Steven recounts that in about 1991 he and his father spent some time together in which the father said to him that Lee did not want anything to do with the deceased anymore, which upset Steven greatly and which caused him to ask the father to take him home.
It is clear that Steven and the deceased enjoyed a very close relationship. Steven lived with the deceased for almost his entire life, moving out of her home shortly before his marriage to Michelle, and as her only permanent household member since he was about 12 years old. He dutifully assisted her in her old age with household maintenance, care visits, and attendance on the deceased's finances. Steven paid significant expenses for the deceased, about half of which was reimbursed in the deceased's lifetime.
An implication drawn from Steven's evidence is that the relationship between Lee and the deceased deteriorated around the time of - if not because of - Lee's marriage to Caroline. Steven says that Lee's visits to the McMahons Point home decreased in frequency as Lee's wedding to Caroline approached and then after their honeymoon. The deceased told Steven that Lee and Caroline told her that they would not be associating with "our" side of the family anymore and that Lee had chosen Caroline over the deceased. This justification recurred when Lee and Caroline were brought up in conversation. Steven recounts that, on the evening prior to the deceased's funeral, his uncle Graham told him that Caroline refused to marry Lee unless he stopped speaking to "us", ostensibly referring to either the Kitteridge family as a whole or the deceased's side of the family.

Circumstances of the parties

As stated, Lee was born in 1966 and was 55 years of age at the date of the hearing. Lee currently works as an officer with the Australian Border Force within the Department of Home Affairs and has worked there for 30 years. As of December 2021, Lee was earning $85,272 per annum. As of March 2021, Lee's gross monthly income was in the order of $6,275.49 and net monthly income in the order of $3,462.72 owing to the costs of his commute.
Lee says that he requires further provision out of the deceased's estate in order to buy a house with his wife in the suburb of Northmead, the financing of which he says is made more difficult by his approaching the retirement age. He also seeks further provision by way of an emergency fund.
Lee lives with his wife Caroline. Caroline was 63 or 64 at the date of the hearing. Caroline is also employed with the Australian Border Force on a casual basis and as of March 2021 she was earning $36,000 per annum. Caroline suffered a stroke in 2004, which left her unable to work for a time, and is diabetic. She continues to suffer from stroke symptoms occasionally and has suffered with endometriosis for much of her life. She takes a number of medications.
Lee says that Caroline has limited mobility owing to a workplace injury suffered in 2017 which requires Lee to drive her to work and the shops. This has caused difficulties because Lee has been relocated to Villawood for work, whereas Caroline works at Mascot. Caroline is on restricted duties and works 3 to 4 days a week on average.
Lee and Caroline have two children, Drew aged 29 and Imogen aged 22, who live out of home. Drew has a young son.
Lee and Caroline have never owned real property. As of December 2021, Lee had accrued $597,185.46 in superannuation, and Caroline had accrued $25,388.39 in superannuation. Steven is of the view that Lee expects to access his superannuation entitlements soon, but Lee says that he intends to continue working for at least another 10 years. Moneys in Lee's and Caroline's personal and joint bank accounts are nominal. As of December 2021, Lee's and Caroline's joint liabilities of approximately $53,563.22, which included a $15,906.92 personal loan, surpassed their joint assets of approximately $38,000, comprising household contents and a motor vehicle.
Lee is hopeful that any further provision ordered by the Court will go towards the purchase of a 3-bedroom home. The reason for this is to accommodate Drew and Drew's young son. Drew's son spends one weekend per month, the first week of the short school holiday period, and half of the longer Christmas school holiday period, with Drew. Drew splits his time between a shared unit near his place of work and the house of Lee and Caroline, and Drew already pays $200 to his parents on a fortnightly basis to assist them to maintain a space for Drew to spend time with his son away from his shared unit. Lee put in evidence that, as of July 2021, 3-bedroom houses in Northmead ranged in price from about $830,000 to $1,200,000; and that, as of December 2021, they ranged in price from about $1,200,000 to $1,660,000.
Also as stated, Steven was born in 1976 and was 45 years of age at the date of the hearing. Steven currently works as a financial analyst. As of May 2021, his net monthly income was in the order of $6,700. Steven is in good physical health but has suffered periodically from asthma and sinusitis and is concerned for his prospects of employment owing to his social anxiety disorder.
Steven lives with his wife Michelle and their two young children in the deceased's Middle Cove property. Michelle's name in Korean is Ae Kyoung Kim, but I will refer to her by her Anglo-Saxon name as the parties have. Michelle was 48 at the date of the hearing. Michelle currently works as a revenue operations manager and, as of May 2021, her net monthly income was in the order of $6,000. Michelle has a history of severe respiratory issues for which she has been hospitalised on four occasions in the last three years. Michelle expects to have to reduce her work hours to care for her children moving forward and because of the effect of her long work hours on her physical health.
Steven says that he wishes to remain in the Middle Cove property with his family. Steven and Michelle are also joint owners of a residential property in St Ives which, as of December 2021, Stephen estimated to be valued at $790,000 and which was, at that same time, subject to a $673,952 mortgage. Lee contends that comparable 'mid-range' properties in St Ives are valued at $937,000 to $980,000, however there was no independent evidence as to the true valuation of Steven and Michelle's property. In cross-examination, Steven acknowledged that the value of the St Ives property could be greater now than at the time the estimate was first given by Steven in May 2021. The net expenditure in respect of the St Ives property runs at a loss of $1,629 per month.
As of December 2021, Steven had assets owned solely in the order of $253,798, largely comprising $238,415 in superannuation, and assets owned jointly with Michelle in the order of $863,356, the most significant asset of which is the St Ives property. Michelle had assets owned solely in the order of $111,773, that being her accrued superannuation. Their combined net monthly income just covered their monthly expenditures at May 2021. Steven and Michelle have had the benefit of living rent-free in the deceased's home alone with their children since the deceased moved into aged care in 2017.
In cross-examination, counsel for Lee put to Michelle that she is the registered owner of two parcels of land, title search documents of which were tendered at the hearing. The name appearing in the First Schedule of each title search is Kyoung Ae Kim. As has been explained, Michelle's name in Korean is Ae Kyoung Kim. Counsel for Lee did not appear to put the point any higher than that Michelle's Korean name and the name appearing on the title searches were incredibly similar. The suggestion that the title searches were evidence of Michelle owning these properties, on the ostensible basis that where two people have almost the same name, they are the one person, was, to say the least, bold. That suggestion was, quite unsurprisingly, denied by Michelle in her cross-examination.

The deceased's estate and the costs of the proceedings

It is not in dispute that, at the date of the hearing, the deceased's estate consisted of the deceased's real property at Middle Cove and a sum of cash.
There was some dispute as to the value of the Middle Cove property. At 12 November 2020, the stated value of the Middle Cove property in the inventory of property annexed to the deceased's last will was $1,600,000. This was assumedly an estimate. At 5 May 2021, Steven estimated the value of the Middle Cove property at $1,575,000, apparently without reference to a valuation of the property. Each of the parties later caused an independent valuation of the Middle Cove property to be completed, of which Steven's is dated 2 December 2021 and Lee's is dated 14 December 2021. The two valuations place the property at $2,250,000 and $2,420,000 respectively. Given the only brief period of time between the two valuations, it is not possible for the Court to simply rely on the greater of the two on the basis that the difference is explicable by reference to some reasonable difference in time. The most prudent course for the Court to take is to estimate the Middle Cove property at the midpoint of the two valuations, that being $2,335,000.
As to the sum of cash, as of May 2021 the sum was stated at $200,648.39. The evidence of Steven's solicitors is that, by 17 December 2021, Steven's costs of the proceedings to that point in time would be paid from the sum. Those costs were $52,781.16, so the sum was reduced to $147,867.23.
It appears that Steven also met a cost of $10,227.54 associated with legal fees for estate administration and probate, which has not been paid by the estate. It therefore stands as a debt against the estate.
Prior to 22 January 2021, the deceased's motor vehicle also comprised part of her estate. On that date, the motor vehicle was transferred to Steven. Steven estimated its value at $8,000. It is the only part of the deceased's estate that has been distributed in accordance with her last will. It no longer comprises part of the deceased's actual estate, and there was no issue raised as to the motor vehicle being designated as notional estate.
Therefore, the value of the estate at 17 December 2021 was $2,472,639.69.
Steven's further costs of the proceedings are estimated at $49,000 including GST on the indemnity basis to be paid from the estate. The most current estimate of Lee's costs, provided by his solicitor's affidavit of 14 December 2021, is stated to be calculated on the indemnity basis at $40,054.80. That estimate ought to have been calculated on the ordinary basis as Lee is the plaintiff in these proceedings. I intend to proceed on the footing that the words "indemnity basis" in the most current estimate are a typographical error and that the words "ordinary basis" were intended, given that the value provided was not drastically high. The $40,054.80 accounted for costs up until that point, and Lee's further costs of the proceedings were estimated at $38,000 not including GST.
Accounting for Lee's and Steven's costs to be paid out of the estate, the net distributable estate from which the Court could make an order for further provision is $2,345,584.89.

Relevant legal principles

The Court must be satisfied that adequate provision for the proper maintenance, education or advancement in life of Lee has not been made by the deceased's will before it may make an order for further provision out of the deceased's estate: Succession Act, s 59(1)(c). If the Court is so satisfied, then the Court has jurisdiction to make an order under s 59(2) of the Succession Act, which provides: (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
Section 60(2) of the Succession Act sets out a series of matters to which the Court may have regard in assessing whether to exercise its discretion in Lee's favour. Section 60(2) relevantly provides: (2) The following matters may be considered by the Court - (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, … (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, … (l) whether any other person is liable to support the applicant, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
There is a due level of respect to be accorded to the deceased's testamentary intentions as expressed in her will. In Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330, Macfarlan JA (with whom McCallum JA agreed at [190]-[193]) adopted the following observations of White JA, at [72]-[73]: [72] So far as the testamentary intentions of the deceased are concerned (see factor (j) referred to at [69] above), the following observations of White J (as his Honour then was) in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] are pertinent: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." [73] To similar effect were his Honour's observations (made with the concurrence of McColl and Payne JJA) in Sgro v Thompson [2017] NSWCA 326 at [86]: "I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate" (see also at [6] per Payne JA).
That is not to say, however, that the respect accorded to the deceased's testamentary intentions should render the Court altogether reticent to exercise its power to order further provision. Brereton JA (with whom White JA agreed at [52]) emphasised this point in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [96] where his Honour stated: "the Act is to be applied according to its terms, and not confined by notions of reluctance to interfere with freedom of testation."
A significant consideration in the Court's determination of whether adequate and proper provision has been made for an applicant is what has been termed the "moral duty" of the deceased to the applicant or, alternatively, those contemporary accepted "community standards and expectations" that underpin the relationships between a testator and those persons enumerated in s 57(1) of the Succession Act. As Meagher JA (with whom Macfarlan JA and Simpson AJA agreed at [1] and [47] respectively) expressed it in Squire v Squire [2019] NSWCA 90 at [10]: [10] … The evaluation involved in deciding whether "adequate" provision has been made is to be guided by applying the Court's assessment of what would, in the circumstances, be right and appropriate, according to prevailing community standards and expectations.
Other statements to this effect have been made by the Court of Appeal in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [16] (Allsop P, as his Honour then was, and with whom Basten JA and Barrett JA made concurring statements at [35]-[38] and [95]-[97] respectively); Sassoon v Rose [2013] NSWCA 220 at [12] (Meagher JA, with whom Gleeson JA agreed at [29]); and Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [11]-[14] (Basten JA), [62]-[64] (Barrett JA).
It is clear, however, that, as Emmett JA observed in Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313 at [124] (citation omitted): [124] While community expectations and the feelings and the judgment of the fair and reasonable man in the community are to be adopted as criteria, it is never self-evident what the community would expect or what its standards are or values would be. The expectations of individual members of the community may well vary widely. …
Yet, any difficulty posed by the variability of community standards is no reason to deny their applicability in a given case. The reality is as Sackville AJA put it in Bates v Cooke [2015] NSWCA 278; (2015) 14 ASTLR 221 at [69] (with whom Meagher JA and Leeming JA agreed at [1] and [2] respectively), that: [69] The criteria in the Succession Act make it inevitable, as the authorities recognise, that a court will have to take into account "community values" at some level. This is so notwithstanding that, in the absence of empirical evidence, reasonable people, including reasonable judges, are likely to differ as to what those values are and how they should be applied in a particular case. …
Community standards bear relevantly on this case in at least two ways. The first encompasses those considerations applicable to family provision claims by adult children, which were recently restated by Hallen J in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473]: [473] I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out: (a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). (c) Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). (d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) at 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. (e) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ). (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.
The second concerns the relevance of the estrangement between the deceased and Lee, and any attempts at rapprochement between them during the deceased's lifetime. Hallen J set out the relevant considerations recently in Kemperman v Antonenas [2021] NSWSC 1555 at [107]-[110]: [107] I next repeat part of what I wrote in Underwood v Gaudron, at [231]-[233]: "Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: '... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.' (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility': Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): 'If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.' (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102]. In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows: 'As explained by the primary judge, the term "estrangement", which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the "natural" process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience.' His Honour added: 'The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. ... Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of "love and support" from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.'" [108] In Rogers v Rogers at [152] - [154], I added: "Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal [2009] NSWCA 54 at [27]. … As Allsop P (as his Honour then was) wrote in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [7]: 'Inevitably in such a case, the rhetorical question is asked: Why should a mother leave anything to an adult daughter who has drifted away over a long period and become estranged? The word "should" in the question embodies various suppressed [premises] based on parental, filial and moral duties. If no articulation can be made as to why any parental duty recognised by society has been breached, why should the court intercede and interfere with the expressed testamentary wish?'" [109] I also note the concise observations of Doyle J (Vanstone and Parker JJ agreeing) in Tiburzi v Butler (2017) 17 ASTLR 1; [2017] SASCFC 89 at [106]: "… how a period of estrangement affects a claim will depend upon the circumstances of the particular case. Depending upon the nature and extent of the estrangement, and in some cases the reasons for it, it may in some cases be of little moment, or operate merely to restrain the level of provision to be made. In other cases it may go as far as defeating the moral claim of a plaintiff, or terminating the moral duty of the testator towards the plaintiff." [110] Ultimately, although the relationship of parent and child is important and carries with it a moral obligation reflected in the Act, nevertheless, it is an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.
To that overview should be added his Honour's observation at [160] that: "… a wise and just testator would not be blinded by intergenerational disappointment, or disharmony, to the needs of her, or his, child. As a parent, she, or he, ought to recognise that family disharmony, and disappointment in the conduct of a child, are commonplace in family relationships."

Consideration

I am satisfied that all of the witnesses gave their evidence in a candid and satisfactory manner to the best of their recollection. As many of the most significant events happened in the late 1980s and through the 1990s it is not surprising that recollections differed. Lee and Steven witnessed the destructive collapse of their parents' marriage. As they found themselves on different sides of the matrimonial dispute, they naturally viewed the events from different perspectives. They were involuntary parties to tumultuous emotional events that led to their own estrangement.
Both Lee and Steven were obviously and understandably emotionally upset by their participation in the hearing which brought them face-to-face with the consequences of the fracture of the family bonds at about the time of their parents' separation and divorce between 1988 and 1990.
The deceased's bitterness as a result of these events is obvious, most clearly from her 12 May 1997 statement where she said, as recorded above: "My ex-husband used and abused me in every possible way, mentally & physically - to achieve his chosen way of life - as Lord & Master and me as his servant." The Court has no way of judging the fairness of the deceased's feeling towards her ex-husband. The deceased also expressed the belief that Lee conspired with her ex-husband in 1988 to try to persuade her doctors that the deceased was mentally incapable in order to have her committed to a mental institution. There is no evidence to support the deceased's apparently passionate belief that she had been betrayed by Lee, but it is clear that she harboured that belief.
Whatever may have been the rights and wrongs of the collapse in the relationship between the deceased and her ex-husband, it is clear from the evidence that the separation and divorce caused him extreme grief. That is shown by the reference in the Community Health Services' 1989 letter which referred to the ex-husband's intense grief reaction to the separation. It is also established in the most poignant way by the following evidence given by Steven in re-examination of his experience of weekend access with his father shortly after the separation that led within 18 months to 2 years to Steven ceasing to have contact with his father [T 87.19]: A. I would visit my father every week. He lived in a small flat in Cammeray. He, he would cry uncontrollably, every week, every week. Not, not, not a tear, not a whimper, but he would cry uncontrollably for at least half an hour to an hour, every week, and it went on for a long time. I told mum; mum knew what was happening; she spoke to, she spoke to one of my brothers about it; I don't remember which brother it was.
It is clear that, in navigating the fraught relationship with their parents, both Lee and Steven had to deal with intense emotional reactions that would have left them with little room to manoeuvre.
I accept Lee's evidence that he regularly visited his parents' home on the Central Coast at weekends up to the time of their separation. The difference in the parties' recollections as to whether their parents separated when they were living on the Central Coast or after they had moved to Sydney is immaterial. I also accept that Lee had a satisfactory emotional relationship with his mother up to this time. Most significantly, I accept Lee's evidence that in about 1989 the deceased asked him to live with her and not to support his father. While Steven could not remember hearing that conversation specifically, he said that he did not deny that the deceased had said that to Lee.
The reality of the situation was that the deceased ejected the parties' father from the matrimonial home and Lee found his father on Lee's doorstop with nowhere to live, and Lee complied with his filial duty to care for his father both in respect of the immediate emotional and practical consequences of the separation and divorce and for the balance of his father's life.
Lee said in his oral evidence in chief [T 21.1-21.45]: Q. A few further questions. First of all, I take you back to the year in which your father lived with you in Cammeray. Did you have any contact with your mother during that year? A. During that year? Yes, I did. Q. How did you have that contact? A. I went down to the house. She was living in McMahons Point at the time. Q. When you saw her, did you have any conversations with her? A. Yes, I did. Q. What did she say to you during those conversations? A. She, she attempted to get me to come and live with her in the house. I was, I was living in my own place up in, that I rented, up in Cammeray. She tried to ask me to come down there, and I said, "No, I'm looking after Dad, I'm staying with Dad up there." Q. Did she say anything to you about your father? A. She belittled him at every opportunity. She said he was no good, he was - did all these things to us. … Q. But as his Honour just said, do you remember what the substance of it was? A. The substance, the substance is "Why are you staying with dad? Why don't you come down and live with us?". I feel as if the family was there, and I should be there with that family, and I shouldn't be with my father. Q. If I take you back, you've just said she also said things to you about your father. What was the substance of those statements? A. That he was no good, that he had destroyed the family. She also said that he walked out on us which wasn't true at the time. It was pretty much you're either with me or you're not. Sorry.
This evidence was obviously heartfelt, and it was necessary for the Court to give Lee a short time to compose himself.
I accept Lee's evidence that the breach with the deceased started with Lee feeling obliged to care for and not to forsake his father notwithstanding the deceased's pressure.
I do not accept Steven's case, which I infer was derived from claims made to Steven by the deceased after the beginning of her estrangement from Lee, and which is confirmed in some of the statements of testamentary justification made by the deceased, that Lee had told the deceased that he had chosen shortly after his marriage to Caroline to give his affection to Caroline's family and to abandon the deceased and Steven.
Apart from the fact that I accept without hesitation the evidence given by Lee and Caroline denying the reality of the deceased's apparent belief, I can think of no reason to support the probability that Lee verbally abandoned his own family. There was simply no objective reason to do so. It is an exceedingly rare matter that human beings of ordinary emotional sensibility abandon the bonds of their birth family without objective reason. I am satisfied that the level of care that Lee gave to his father over his remaining years is entirely inconsistent with Lee having made a spontaneous decision to ally himself with his wife's family and to abandon his own. The evident distress in the witness box that Lee displayed about the consequences of what was in fact his own abandonment by his mother fortifies my judgment that Lee did not become estranged from the deceased as a matter of his own choice.
It is a sad judgment to make, but I am satisfied that, for her own confused emotional reasons, the deceased gave Lee a form of ultimatum and that Lee declined to abandon his father as the quid pro quo of maintaining his relationship with the deceased.
I accept the evidence given by Lee and Caroline about the circumstances in which Caroline, as Lee's new wife, decided to pay her respects to the deceased by calling her on Mother's Day in 1990 to wish her well. The deceased's intemperate and vituperative response had such an emotional effect on Lee and Caroline that it created an indelible breach in their relationship with the deceased.
Steven gave the following evidence about the Mother's Day call in cross examination [T 66.22-66.29]: Q. I put it to you that your mother said to Caroline during that telephone conversation "Why are you calling? Who are you? Why is Lee not calling? Put him on the phone." Do you agree? A. Yes. Q. I put it to you that at least from your mother's side, which was all you could hear, the conversation became very heated and she was shouting down the phone? A. Mum was crying and shouting at the same time. She certainly was not screaming as was documented. Q. But you agree that her voice was raised? A. Yes.
The Mother's Day conversation should not be considered in isolation. It occurred in the context of the deceased having criticised, or, as Steven agreed in cross examination, "bad-mouthed" her ex-husband during Lee's visits with her, and Lee having to deal emotionally with the state of despair and depression that his father was experiencing while living in Lee's home.
I am satisfied that the deceased was unrestrained in the intensity of her emotional demands on Lee, which put him in an untenable position as the son of both the deceased and his father. It is likely that the tenor of the words used by the deceased matched what was written in her testamentary statements.
There is no evidence of any conduct by Lee that justified the extreme views stated by the deceased in her testamentary statements which were, in my view, irrational in so far as they attributed fault to Lee for the estrangement.
It is significant that the deceased cut Lee out of his inheritance from her first known will on 22 February 1993. That was done on the expressed basis that Lee had conspired with his father to have the deceased committed to a mental institution and because Lee had allegedly stated that he would not associate with his own family but would prefer Caroline's family. This is not a case where a series of wills has shown that a particular potential beneficiary's inheritance has diminished over time proportionally to the length of an estrangement. It was not the length of the estrangement per se that led the deceased to disinherit Lee. The deceased made her decision to do so because of the involvement of Lee in the collapse of her marriage.
The evidence suggests that the breach between Lee and the deceased was exacerbated by Lee's involvement in the family provision application made by the deceased in relation to her own mother's will, which occurred after the mother's death in 1995 or 1996. It was no fault of Lee's that his grandmother decided for the reasons that she expressed in her own testamentary statement to make a gift in her will to the deceased's children rather than the deceased. It appears that the deceased formed the view that Lee should have deferred to her and not participated in the executor's defence of his grandmother's will, notwithstanding his own need as a young married man for some capital to assist him to establish himself in life. Whatever view may be taken about the deceased's response to the predicament in which Lee found himself, nothing that Lee did justified the extremity of the view formed by the deceased about the significance of Lee's conduct. I have set out extracts of the deceased's 14 June 1996 testamentary statement above. Those extracts show that, in an entirely irrational way, the deceased conflated the actions of one of her brothers, the executor, Robert her ex-husband, and two of her children, one of which was Lee. There was no basis for believing that the brother, her ex-husband and two of her sons had "joined forces" for the purpose of her sons gaining a benefit under their grandmother's will, and the consequent exclusion of the deceased from any inheritance under that will.
The Court should infer that the deceased was consumed by these consistently expressed attitudes to the conduct of Lee, and his brother Robert.
Lee readily conceded that he had only made limited attempts to reconcile with the deceased after the initial estrangement. Lee gave the following evidence in cross-examination of meetings with the deceased in 1996 or 1997, after an encounter with the deceased outside of Coles [T 24.48-25.40]: Q. Can you remember if you visited your mother at her house the following day? A. Yes, I did. Q. There was no hostility at that meeting, was there? A. There, there was, there was hostility, there was. It wasn't a sweet, have a chat, there was, there was still hostility towards my father from my mother. Q. The length of that meeting when you went to your mother's house was around four hours or so, is that correct? A. I, I don't recall the exact length of time. It, it might have been longer. I - it's a long time ago. Q. Following that meeting in 1996 or 1997 you made no further attempts to contact your mother, did you? A. We made contact the, the following day after the, after the meeting. Q. Is this two days after running into each other at Coles? A. Yes, it is, yep. Q. Was that a telephone conversation, on your evidence, that your mother contacted you, asking if you would like to come over again that day? A. It, it was a request for me to come over that day, yes. Q. I think your response was, "Sorry, Mum, I have a lot on today. I'm sorry, I'm not available today"? A. Words to that effect, yes. Q. But in that conversation you made no attempts to organise a date in the future to meet up with your mother, did you? A. Well, I didn't get a chance to. Q. And following that conversation you made no further telephone calls to your mother, did you? A. No, there wasn't. Q. Was it the case that no such telephone conversation took place? A. No, there was definitely a conversation. Q. And that your mother did not scream at you down the telephone in that conversation? A. When, when I said that I couldn't get over there was, there was screaming happening after that.
Lee also gave the following evidence concerning a conversation with the deceased and Steven at his father's funeral in 2006 [T 26.20-26.48]: Q. Sorry, 2006, apologies. You approached your mother at the funeral and had a short conversation with her, didn't you? A. Yes. Q. And Steven, your brother, was also present for that conversation, was he? A. I believe so. Q. Did Steven say to you that, "We," being he and your mother, "would like to see you sometime"? A. I, I don't know who said it but it was said. Q. And your response to that was, "Yeah"? Is that something that you can remember? A. I, I can't remember exactly what I said but I, I, I do remember my emotion at the time and my emotion was I'd just buried my father and any conversation with them at the time I, I just couldn't deal with. Q. But following that conversation - do you need a moment? A. No, I'm okay. Q. Following that conversation between you and your mother and Steven you made no attempt after your father's funeral to connect with your mother, did you? A. I, I made attempts to connect through Steven a couple of times, not directly with my mother, no. Q. So just following on from that response, you didn't make any telephone calls to your mother following your father's funeral, did you? A. No.
The fact is that no rapprochement occurred between Lee and the deceased. Lee made limited attempts to reconnect with the deceased, but I am satisfied that this was likely a result of the intensity of the original breach and the circumstances in which it happened. My judgment, based upon the way Lee gave evidence, is that he is not a heartless person and would have resumed a relationship with the deceased if her emotional circumstances were conducive to that outcome. Although the deceased said in some of her testamentary statements that she had made offers to Lee to visit her, those offers were limited in number and appeared to have primarily been directed at meeting her grandchildren. While the issue does not depend upon notions of fault, in my view it is reasonable to have expected the deceased to recognise that her attitude to Lee was unwarranted and to make positive approaches to Lee in a way that may have alleviated the emotional barriers that the deceased created with her emotional imposition upon Lee in response to her separation from her husband. The deceased did not do that, and I consider that the absence of a rapprochement between Lee and the deceased is a neutral factor for the purpose of determining his application for further family provision out of the deceased's estate.
For the following reasons, I consider that Lee has made out his case for the Court to make an order for further provision for him out of the estate.
I believe that contemporary community standards would, except in relatively extreme circumstances, require a parent engaged in even a bitter marriage breakdown to go to lengths to spare their children from the need to choose between their parents, and to recognise and accept that their children may feel an obligation out of love and filial duty to split their devotion between their parents and to not take sides. It would be expected that each parent would understand the likelihood of emotional injury that their children would innocently suffer because of the marital breach and the consequential upheaval in established family arrangements.
A parent who provokes an estrangement with their child who is forced to make an unsatisfactory choice between their parents should recognise that it is expected of the parent to take the responsibility to break down emotional barriers created by the parent's conduct, and not to rely upon the child to do so.
The deceased has made no provision at all for Lee in her will. To entirely exclude a child from one's testamentary dispositions after requiring the child to choose between oneself and one's former husband is not the act of the wise and just testator.
The deceased's estate is a reasonably substantial one that is sufficient to accommodate a reasonable testamentary provision for Lee, while leaving a balance that is sufficient to provide Steven with a substantially greater gift that is commensurate with the deceased's closer relationship with him.
Although Lee and Caroline between them have a reasonably substantial superannuation fund, the fund will not be sufficient to provide them with a secure residence as well as sufficient income, and their mutual need to continue to work until their retirement ages will prevent them from having access to their superannuation for a period in the order of a decade.
Lee and Caroline have always lived in rental accommodation without the security of their own home. Although community expectations of a wise and just testator in the position of the deceased would not necessarily extend to the deceased providing Lee with the title to a suitable residential property, Lee is not seeking such provision on this application. Lee has given evidence of exploring the conditions that he and Caroline will have to satisfy before they are able to borrow an amount that will be necessary for them to buy a suitable home so that they have the security of ownership into their old age. Lee has only asked for an amount that he believes will be sufficient to provide equity for the purchase that will enable him to borrow commercially the balance of the price.
Steven submitted that Lee's aspiration to buy a three-bedroom house so that Lee and Caroline could periodically provide accommodation for their son and grandson was unreasonable in the circumstances, as if they were able to purchase a two-bedroom residence it would be sufficient to enable the son and grandson to share a bedroom when staying with Lee and Caroline. I am satisfied from the evidence that the aspiration that Lee and Caroline have to provide regular accommodation to their son and grandson in a reasonably comfortable way to facilitate their own relationships with both and to permit their son to enjoy his access with his own son is not inherently unreasonable. However, the real point is that Lee is not asking to be provided with a bequest sufficient to enable him to buy a three-bedroom home. I consider that his request has been reasonable and reflects a measured understanding that, whatever his innocence of the cause of his estrangement from the deceased, it is reasonable for Steven to expect to inherit a much greater proportion of the estate then Lee seeks. It is not clear that the amount that Lee has asked for will be sufficient to enable him and Caroline to buy a three-bedroom home, or if they are able to do so that it will be in a desirable location. Although Lee has disclosed his aspiration to buy a three-bedroom home, in reality the application is for a provision measured as a lump sum that is reasonable in the circumstances, and is not directly connected with the acquisition of a three-bedroom home.
It is also of some moment that it appears that most of the deceased's estate was inherited from her parents, and that the deceased, by her family provision application in her own mother's estate, secured for herself the inheritance of an amount in the order of $74,000 that would otherwise have been given to Lee. I accept Lee's evidence that the deceased informed him that he could expect to receive his full inheritance from his grandmother on the deceased's death.
In these circumstances, in my view, community expectations of a wise and just testator would require the deceased to have realised that she had become, in a sense, the custodian, for her lifetime, of Lee's intended share of the testamentary bounty of her own parents. Whatever the amount may have been that Lee would have inherited under his grandmother's will if the deceased had not made her family provision application, it is probable that Lee would have had a much greater chance than he has in fact enjoyed to acquire his own home over the ensuing decades.
I am satisfied that Lee has demonstrated a need for further provision. The financial circumstances of he and his wife, though not dire, are certainly strained. Their financial stability is threatened by Caroline's medical conditions and injuries and by the difficulties posed by their current working arrangements. They have not insignificant financial liabilities yet to be addressed and do not have the security afforded by owning real property.
I have also considered the substantial competing claim of Steven, whose filial bond to the deceased throughout her life is indisputable. The effect of these reasons will be that Steven's share of the deceased's estate will be in the order of $1,688,026.40. That amount is calculated by deducting from the net distributable estate of $2,345,584.89 the $10,000 legacy, an assumed legacy of $460,000 payable to Lee, and the 10% of the residue given to the deceased's granddaughter. Steven remains the beneficiary of the lion's share of the deceased's estate, though the effect of these reasons will be that he will face the choice of parting ways with the Middle Cove property or raising the capital to cover Lee's order. Steven and Michelle's likely equity in their St Ives property would not suffice by itself to pay Lee out in order to retain the Middle Cove property, but the sale of the St Ives property will save them the $1,629 deficit that they presently carry each month, some of which should be available to service any loan that Steven and Michelle may take out to keep the Middle Cove property.
Being satisfied that adequate provision has not been made for Lee's proper maintenance, education or advancement in life, the Court's power to make such order for provision as the Court thinks ought to be made is enlivened: Succession Act, ss 59(1)(c), 59(2).
Having regard to the foregoing, I accept Lee's submission that further provision in the sum of $460,000 ought to be made in Lee's favour. That sum comprises an amount of $400,000 intended to bolster Lee's ability to purchase a house that will accommodate the needs of him and his family, and an amount of $60,000 intended as a contingency fund.
In principle, the Court should make the conventional costs orders, being that Lee's costs be paid out of the deceased's estate on the ordinary basis and that Steven's costs be paid out of the estate on the indemnity basis. As Steven should be given an opportunity to consider with Michelle whether they wish to retain the Middle Cove property and whether the St Ives property should be sold and money borrowed to pay out the other beneficiaries under the deceased's will, which steps would take some time to implement, I will not formulate the appropriate orders now, but will give the parties an opportunity to discuss what orders should be made, and if agreement can be reached, short minutes of order should be provided to my Associate. If agreement cannot be reached, then the matter should be relisted by arrangement with my Associate.

Orders

Subject to the observations that follow, the Court will in due course make orders that include the following: 1. Orders, pursuant to s 59 of the Succession Act 2006 (NSW) that the plaintiff receive, by way of provision, a lump sum of $460,000 out of the estate of the deceased. 2. Orders that the provision made for the plaintiff be provided out of the residuary estate of the deceased. 3. Orders that the plaintiff's costs and disbursements of the proceedings, calculated on the ordinary basis, be paid out of the estate of the deceased. 4. Orders that the defendant's costs and disbursements, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.
In accordance with s 65(3) of the Succession Act, it is common, where an order for provision is made for payment of a lump sum to a plaintiff, for an additional order to be made requiring that interest be paid to the plaintiff if the lump sum is not paid within a stated period, usually 14 days. In the present case, there is insufficient money in the estate to enable the lump sum to be paid promptly. It will be necessary for Steven to decide what steps he should take, as executor, to comply with the order. That may involve the sale of the Middle Cove property, or alternatively, Steven may decide with Michelle to sell the St Ives property to assist with the raising of finance to pay out all other parties entitled to share in the deceased's estate. It is reasonable that the Court gives Steven some time to consider his position and to take appropriate steps to enable him to pay the other parties their shares in the deceased's estate.
The parties should consider the final orders that should be made and either submit agreed short minutes of order to my Associate or arrange with my Associate for the matter to be relisted for further consideration.
I will also hear any application for any special costs order that may be appropriate.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2022

Family Provision Act 1982(NSW)

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