Koellner v Spicer

r v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Michael John Askew v John Paul Askew [2015] NSWSC 192 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto [2019] NSWSC 1454 Poletti v Jones [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033 Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 Salmon v Osmond [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 & Anor [2014] NSWSC 473 Sgro v Thompson [2017] NSWCA 326 Shannon & Anor v Steinmetz [2019] HCASL 332 (16 October 2019) Singer v Berghouse (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson [2015] NSWCA 297 Steinmetz v Shannon [2018] NSWSC 1090 Steinmetz v Shannon [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Tobin v Ezekiel [2012] NSWCA 285 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Zagame v Zagame [2014] NSWSC 1302 Texts Cited: R Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Australian Journal of Legal History Category: Principal judgment Parties: Daniel Koellner (Plaintiff) Scott Spicer (Defendant) Representation: Counsel: Mr K Morrissey (Plaintiff) Ms R Kako (Defendant)

Solicitors: Turner Freeman Lawyers (Plaintiff) Mathey Solicitors (Defendant) File Number(s): 2019/87097

Judgment

1. HIS HONOUR: These proceedings involve the estate of Erika Felse ("the deceased") and a claim for a family provision order, under Chapter 3 of the Succession Act 2006 (NSW) ("the Act"), made by her only, now adult, child, Daniel Koellner ("the Plaintiff"). The Plaintiff also seeks an order for interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). At the commencement of the hearing, counsel for the Plaintiff stated that the claim for interest was not pressed and that interest was sought pursuant to s 84A(3) of the Probate and Administration Act 1898 (NSW): Tcpt, 28 October 2019, p 1(16-31).
2. The deceased died on 6 January 2019, leaving a Will dated 18 May 2018. This Court granted Probate of that Will, on 6 May 2019, to Scott Spicer ("the Defendant"), a person with whom she was living in a de facto relationship at the time of her death. By her Will, she left the whole of her estate to the Defendant. Had the Defendant failed to survive her, the deceased left her estate to her brother, Tom Bauer, or, if he predeceased her, to his children in equal shares.
3. The deceased explained her failure to provide for the Plaintiff in Clause 6 of the Will, in the following terms: "Having considered the extent of my estate and my responsibility to provide for my son DANIEL FELSE, I have determined to make no provision for him as there has been no contact between the said Daniel Felse and me for many years and there is no relationship of love and affection between us. My responsibility for his welfare ended many years ago, and I have no moral or legal duty towards him and have made no promises to him in respect to my estate. In these circumstances any gift to him would be contrary to the nature of our relationship…"
4. The Plaintiff disputed the assertions made in this Clause of the Will so it will be necessary to return to his evidence later in these reasons. He maintained that the instructions for the Will were not provided by the deceased but by the Defendant. He stated that if the deceased had given the instructions for Clause 6, then she was not telling the truth about his contact with her: Tcpt, 28 October 2019, p 42(8-24).
5. The allegation that it was not the deceased who gave instructions for the Will, if established, may be relevant to determining whether the statements made in Clause 6 are likely to be true or not. I shall return to this topic later in these reasons.

Some formal matters not in dispute

1. The Plaintiff commenced the proceedings by Summons filed on 19 March 2019. The proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
2. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. As a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person").
3. As the deceased had dealt with all of her estate in her last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
4. A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Part 3.3 of the Act: s 63(5). In the submissions made on behalf of the Plaintiff, counsel wrote: "8. According to documents produced under subpoena, the Defendant seems to have withdrawn approximately $40,000 from the deceased's CBA Access account from around the time she was admitted to hospital after suffering a serious stroke on 25 July 2017."
5. (It became clear, from the cross-examination of the Defendant, that the amount of $40,000 was not a single amount withdrawn from the deceased's bank account, but the approximate total of a number of different withdrawals, by the Defendant, over a period of time, from her account.)
6. Be that as it may, the written submissions did not go on to explain the basis of the claim that the total amount, or any part of it, could be designated as notional estate of the deceased. Nor did the submissions refer to s 88 of the Act, which provides that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.

Some background facts

1. It is next convenient to set out some facts that are either not in dispute or, where stated, are facts in dispute. To the extent that any of them are in dispute, the facts stated should be regarded as the findings of the Court.
2. The deceased was born in June 1950 in Austria. She was one of three children, the others being Linda Bauer, who was a witness in these proceedings, and Tom Bauer, who played no part in the proceedings. The family migrated to Australia in about 1958.
3. She married Stephen Felse, who is the father of the Plaintiff, in November 1976, and remained married to him until his death in December 2002. Mr Felse left the whole of his estate to the deceased. (Although this matter was raised with the parties at the commencement of the hearing, a copy of Mr Felse's Will, and/or the Probate of that Will, did not form part of the evidence read in the proceedings.)
4. Other evidence revealed that Mr Felse's estate consisted of a home at Albion Park Rail ("the Albion Park Rail property"), in New South Wales, the value of which, at the date of his death, was not disclosed, and about $220,000. The Plaintiff acknowledged that he had received $20,000 from the estate of his father. (The Plaintiff did not make any claim under the Family Provision Act 1982 (NSW) for a family provision order, in relation to the estate of his father.)
5. The Plaintiff was born in January 1985. He is now almost 35 years old. He is single, lives alone, and does not have any dependants. In October 2013, he changed his last name from "Felse" by Deed Poll. The reasons for doing so, and the circumstances in which he changed his name, were not the subject of his written evidence. However, in answer to questions from the Bench, he stated that he had adopted his maternal grandmother's maiden name "that linked something to my German heritage" and that he "kind of wanted a more European sounding name": Tcpt, 28 October 2019, p 51(17-32).
6. Following the death of her husband, the deceased made a Will on 1 May 2003. In that Will, she appointed the Plaintiff as her sole executor and trustee, and after the payment of her debts, funeral and testamentary expenses, left the whole of the residue of her estate to him absolutely. However, this Will was revoked by the deceased's last Will, to which reference has already been made.

The estate of the deceased

1. In the Inventory of Property, a copy of which was attached to, and placed inside, the Probate document, the deceased's estate was disclosed as having an estimated, or known, value of $551,119. The estate was said to consist of the Albion Park Rail property ($535,000) and the proceeds of superannuation ($16,199). (I have omitted and shall continue to omit a reference to cents.)
2. The deceased's estate, at the date of hearing, was said to consist of the Albion Park Rail property (which has not been sold) and cash ($12,901) in the trust account of the Defendant's solicitors: Tcpt, 28 October 2019, p 3(29-39).
3. A copy of the plan of the house built on the Albion Park Rail property was tendered as Ex. PC. It is a property with a land size of 562m²: Ex. A/Tab 1. The house built on the land comprises 3 bedrooms, a renovated bathroom and toilet, a kitchen, dining room and living room. There is a large backyard with a shed.
4. At the commencement of the hearing, counsel indicated that there was no agreement on the current value of the Albion Park Rail property, although it was agreed that its value may be between $430,000 and $460,000: Tcpt, 28 October 2019, p 3(24-27). They also agreed that there was cash of $12,901.
5. There was no dispute that there were liabilities of the estate, comprising a debt owed by the deceased to the Department of Human Services ($76,516), being the debt owed for the overpayment of benefits made to her, and also the legal costs and disbursements of the proceedings (to which I shall refer).
6. Whilst the Defendant stated that he wished to retain the Albion Park Rail property, in which he has lived since 2008, the parties agreed that if it were necessary to sell it, the estimated costs and expenses of sale would be about $13,000: Tcpt, 28 October 2019, p 5(8-23). In the event that the Plaintiff received an order for provision, and an order for his costs, it was also accepted that the Albion Park Rail property must be sold.
7. It follows that the liabilities of the estate, other than the costs of the proceedings, total $89,516. Assuming the value of the Albion Park Rail property is between $430,000 and $460,000, and that there is $12,901 in cash, the value of the deceased's estate, before any costs of the proceedings are deducted, will be between $353,385 and $383,385.

The Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
3. As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
4. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35. I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value.
5. Ms M Walsh, a partner in the firm of solicitors representing the Plaintiff in these proceedings, in an affidavit sworn on 5 September 2019, disclosed that "[i]n the event that the plaintiff's summons is dismissed, the plaintiff would not be required to pay the legal representatives' professional costs and disbursements. The plaintiff has entered an agreement of the type referred to in Part 4.3, Section 181 of the Legal Profession Uniform Law 2014 (NSW)."

The nature of the provision to be made if the Plaintiff is successful

1. It may be helpful to next note the manner in which any provision may be made for the Plaintiff.
2. As stated, there was a dispute about the current value of the deceased's estate, and, in particular, the value of the Albion Park Rail property and also the quantum of the Plaintiff's costs. Following discussion, the parties accepted that if the Plaintiff were successful (it not being conceded that he should be), the Court should make an order that will result in him receiving a lump sum, calculated as a percentage of the net value of the estate following the sale of the Albion Park Rail property and the deduction of the debts, funeral and testamentary expenses of the estate, including those costs that are ordered to be paid out of the estate: Tcpt, 28 October 2019, p 4(17-37), p 23(42) - p 24(1).
3. In this way, the parties will benefit if the Albion Park Rail property is sold for a price greater than has been estimated, and each will be detrimentally affected if it is sold for less than the estimate.
4. McDougall J, in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], raised the concern that "to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs". Whilst this may be true, it seems to me that, in some cases, to make a lump sum order will not be the most appropriate way of determining what is "proper" in all the circumstances of the case, particularly in a case where the principal asset is real estate, the value of which is estimated, and in dispute, and which estimate, ultimately, may prove inaccurate.
5. It cannot be forgotten that the actual value of the distributable estate out of which an order may be made is a relevant consideration in determining the adequacy and propriety of the provision.
6. Furthermore, s 65(1) of the Act does not inhibit the Court as to the form of orders that can be made. Section 65(2), which specifies the ways in which provision may be made, includes, in s 65(2)(f), "in any other manner the Court thinks fit", thereby leaving unconstrained the Court's power as to the nature of the order for provision that may be made.
7. I have made a similar order in a number of decisions including Zagame v Zagame [2014] NSWSC 1302, Charlwood v Charlwood [2017] NSWSC 1033, and more recently in Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto [2019] NSWSC 1454, as has Rein J in Michael John Askew v John Paul Askew [2015] NSWSC 192.

Clause 6 of the deceased's Will

1. I have referred to Clause 6 of the deceased's last Will already.
2. The relationship of each of the parties with the deceased is, of course, an important consideration. As will be read, the Act specifically provides for consideration of "the character and conduct of the applicant" and "the conduct of any other person". (Although the reference to conduct does not expressly refer to the conduct of the deceased, "that must be a relevant factor in assessing the relationship of the deceased and any other person": Poletti v Jones [2015] NSWCA 107, per Basten JA, at [25].)
3. Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. A statement in the section "includes any representation of fact whether or not in writing": s 100(1).
4. Sub-section (5), (6), and (8) of s 100, provide: "(5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it. … (8) In estimating the weight, if any, to be attached to evidence of a statement tendered for admission or admitted under this section, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including: (a) the recency, or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement, and (b) the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement."
5. Many years before the inclusion of the section, Gibbs J had written in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134, at 150; [1979] HCA 2: "… in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court."

The Plaintiff's medical condition

1. As there is really no dispute about the Plaintiff's medical condition, it is necessary, next, to set out the evidence about that condition.
2. In the first report dated 27 August 2015, from Dr Robyn A C Young, who is described as a "Psychiatric Medical Officer", the Plaintiff is described as having "not gained employment due to major general and social anxiety disorders with poor communication and social skills". The report goes on to state: "When first seen, Daniel presented as anxious, with shuffling gait, poor eye contact and delayed, brief responses to questions or discussion (no psychotic thought disorder). His background history indicated severe family dysfunction, with lifelong emotional deprivation, social isolation and unrelieved bullying through high school. He had gained HSC (low score, 2002) and a TAFE diploma, IT Support (2005), but anxiety and poor communication skills had severely impaired social development/networking abilities and employment opportunities. He spent most time at home, alone - occupancy limited to one room; no social network. His father had died suddenly, six years earlier, at home, with Daniel present. He had no history of violence, alcohol, drug or gambling problems, police charges or medical reports. The history and presentation (eg difficulties with social relationships, problems with communication, narrow interests and comorbid anxiety/depression) indicated a diagnosis of Autism Spectrum Disorder (ASD) without intellectual impairment - DSM 5 299.00 (F84.0). Severity Level 1, "Requiring Support". Clinical Psychologist, Ross Backen, Connexions, reviewed/agreed with diagnosis. Daniel commenced one-hour weekly appointments designed to reduce anxiety, improve social skills and self-esteem, and set appropriate goals for independent living (including occupation and lifestyle). This approach included psycho-education, psychotherapies (Brain-Based, Cognitive Behaviour and Acceptance/Commitment), anxiety-reduction exercises (Mindfulness), Circadian Rhythm sleep patterns, and time management. He attended regularly and showed interest and ability in academic studies. He; gained UOW Entrance, July 2010 (subject average 84%) and began BA Philosophy, July 2010 on an Austudy grant. He attended additional counselling sessions with senior psychologists at the Student Support Service (George McGulski and Dr Jocelyn Harper - current manager) and moved into Weroona residential College, July 2011. He achieved outstanding results (e.g. Deans Merit Awards 2011/12/13/14; Deans Scholar 2014) and gained tutor respect. He made significant progress with verbal exchanges and facial expression in familiar settings. However, apart from casework and casual interactions with fellow college students, he remained socially isolated, uninvolved with campus activities, sensitive to changes in routine and prone to continuing anxiety and depressed moods."

Claim for a Family Provision Order - the Statutory Scheme

1. I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these matters in many cases.
2. Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied as to matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; and 2. At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased.
3. Only if satisfied of each of those matters, can the Court then 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.
4. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.
5. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment (Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40; White v Barron (1980) 144 CLR 431 at 434-5, 443; [1980] HCA 14).
6. "Provision" is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54, at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".

Some Additional Principles

1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
2. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].
3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
5. In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
6. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs, but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."

Claim by an adult child

1. I have, in many cases, referred to some general principles in relation to a claim by adult child of the deceased. I repeat the principles that I have set out: 1. 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. 2. 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, 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 his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond [2015] NSWCA 42, at [109]. 3. 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]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. 6. 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; [1979] HCA 2 at 149.

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
3. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
4. As Lindsay J wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
5. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; Yee v Yee [2017] NSWCA 305, at [172]; and, recently, Steinmetz v Shannon [2019] NSWCA 114, per White JA, at [37]. They must be remembered.

Additional Facts

1. I next set out some facts, by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59": Verzar v Verzar, at [124], but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

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

1. The Plaintiff is the child of the deceased. As has been referred to earlier in these reasons, there was a period of little contact between the Plaintiff and the deceased from at least 2011 until the deceased's death. I have concluded that their relationship was not a particularly close one.
2. However, as Sackville AJA noted in Foley v Ellis [2008] NSWCA 288, at [102]: "Care should be taken, however, 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 the raw emotions experienced at the time."
3. I also bear in mind in this regard, the Plaintiff's medical conditions and the fact, as Basten JA recognised in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [39], that "indifference, irritation or even outright hostility are also "natural" characteristics of some family relationships".

(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

1. In written submissions, counsel for the Plaintiff wrote that the "primary obligation [of the deceased] is to her only child, the Plaintiff". I do not accept this submission. Whilst I am of the view that she did have some obligation or responsibility to make provision for the Plaintiff, she also had an obligation or responsibility to make provision for the Defendant. Certainly, as the sole beneficiary named in her last Will, the deceased recognised her obligation, or responsibility, to the Defendant.

(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

1. As discussed earlier in these reasons, the value of the estate out of which an order could be made, taking into account the costs of the proceedings, will be in the order of $225,000 and $255,000. It is a modest estate.

(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

1. In his updating affidavit made on 16 October 2019, the Plaintiff outlined his financial resources as follows: his assets comprise of $16,400 in savings, and his net monthly income is $2,321 (being an amount he receives by way of the Disability Support Pension). He has a balance of $654 in superannuation. His monthly expenses total $2,288, and include rent, electricity and gas, clothing, telephone and internet, food, medical expenses, chemist expenses, hobbies and personal items/incidentals.
2. He is currently unemployed although he gave evidence of his tertiary education and his hopes of obtaining employment. I am satisfied that he does have some earning capacity.
3. In written submissions, counsel for the Plaintiff identified the Plaintiff's financial needs as totalling $200,000, consisting of: "a sum to be used towards providing him with some security of accommodation, including rent, bonds, and other related accommodation expenses; to repay the H.E.L.P. debt; towards the cost of health services; [and] towards superannuation".
4. In his oral submissions, counsel for the Plaintiff was a little more realistic. He submitted that proper and adequate provision for the Plaintiff would be a sum of $120,000, and an additional $20,000 to assist repaying the Plaintiff's H.E.L.P. debt - that is, provision totalling $140,000: Tcpt, 28 October 2019, p 96(49) - p 97(4).
5. The Defendant also identified his financial resources. In his affidavit made 25 June 2019, he identified the balance of his superannuation as $73,207. However, by affidavit made on 25 October 2019, the Defendant confirmed he had been granted access, and subsequently used, $10,000 from his superannuation account for vet fees, tree lopping services, water and council rates, bills, and living expenses, and indicated he had lent a friend $1,000. This, naturally, leaves a balance of $63,207. Also in his affidavit made 22 October 2019, and in written submissions by his counsel, it was confirmed the Defendant is, or intends to, use his superannuation to reduce his Centrelink debt.
6. In his affidavit made 22 October 2019, the Defendant identified the following, other, financial resources: a motor vehicle (estimated to have a value of $4,000); furniture (estimated to have a value of $2,000), and funds in an IMB bank account ($2,000). The Defendant's financial resources, including the superannuation, totals $71,207.

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

1. The Plaintiff is not cohabiting with any 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

1. The Plaintiff's medical condition has been outlined earlier in these reasons.
2. In his affidavit made on 29 April 2019, the Defendant gave the following evidence in relation to his health issues: he has a long-term back injury which causes him significant pain, and he is no longer able to work; he is required to take regular nerve medication to relieve the pain in his back; he has "a heart problem" and is required to take blood thinners and blood pressure medication; he is "taking four different medications daily at the moment" and his doctor has advised he "may soon need to start taking another medication as well".
3. In his updating affidavit made 22 October 2019, the Defendant elaborated in respect of the nature and extent of his medical needs, annexing a copy report of Dr Verman Dela Cruz. These conditions were also summarised in written submissions by counsel for the Defendant: "[the Defendant] has significant medical issues (multilevel moderate to severe degenerative spondylosis of the lumbar spine and disc protrusions with spinal canal stenosis and narrowing on L4/L5 and Ld/S1 with compression of L4/L5 nerve roots, osteoarthritis of both hands and knees, limited mobility (walking distance limited to 50 metres), pain in both legs, from which he will not improve and for which he takes multiple medications and may require surgery)".

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

1. The Applicant was born in January 1985, and is almost 35 years old.

(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

1. Subject to one matter, I am satisfied that the Plaintiff did not contribute, in any material way, to the estate of the deceased, financially or otherwise. In his reply affidavit made 24 June 2019, at par 12, he indicated that when he was living with her, and when requested, he would give the deceased "around $150.00 at a time" when the deceased asked him to contribute to household bills. No further evidence was given in relation to this, and I do not think much turns on it.
2. I am also satisfied that he did not contribute to the welfare of the deceased, before the deceased's death in the years from 2011.

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

1. As has been discussed earlier in these reasons, the Plaintiff was dependent on the deceased until around 2011, when he moved out of her home. The deceased did not make any provision for him otherwise.

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

1. As has been discussed earlier in these reasons, the deceased did not make any provision, in her Will, for the Plaintiff. In Clause 6 of that Will, she expressly indicated her reasoning for her wish to not make provision for the Plaintiff in her Will.
2. However, in the 2003 Will, she had left the whole of her estate to him.

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

1. The Plaintiff was not being maintained by the deceased before her death.

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

1. There is no other person liable to support the Plaintiff.

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

1. The details of the Plaintiff's conduct after he left the home of the deceased, and the nature and quality of their contact with each other prior to the deceased's death, has been discussed earlier in these reasons.

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

1. It is not necessary to discuss, in detail, the character and conduct of the Defendant as he is the sole chosen object of the deceased's bounty. There was some criticism of his conduct, such as (in broad terms) the quality of his relationship with, and behaviour towards, the deceased. I have considered the evidence of Ms Bauer in this regard. However, I am satisfied that the Defendant contributed to the welfare of the deceased by caring for her, particularly in the period when she returned home from hospital, following her stroke in July 2017, and between her subsequent hospitalisations. After her death, the Defendant played a substantial role in arranging, and paying for, the deceased's funeral. This evidence was, largely, unchallenged.

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

1. This is not applicable.

(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

1. The only other matter that I consider to be relevant is that the Plaintiff made no application for a family provision order in respect of his father's estate. Whilst I do not suggest that any such application would have been successful, it is clear that the major asset held in the deceased's estate at the date of her death came to her from the Plaintiff's father. It is not suggested that the Defendant made any contribution to its acquisition.

Determination

1. Having established eligibility and that his application was made within the time prescribed by the Act, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the Will of the deceased. In this regard, advancement in life may be seen as provision that will improve and enhance the material situation of the Plaintiff, particularly in his younger years.
2. What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.
3. Claims for a family provision order present particular difficulties where the estate is modest and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased's bounty.
4. As is obvious, there was no provision in the deceased's Will made for the Plaintiff. However, this does not, automatically, mean that he will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for them in the deceased's Will.
5. Judged by quantum, and looked at through the prism of the financial circumstances and the needs of the Plaintiff, I am satisfied that adequate provision for his proper maintenance, education or advancement in life has not been made by the last Will of the deceased. The test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
6. The Court is required to make, and I have made, an assessment of the financial position of the applicant, the size and nature of the deceased's estate, the relationship between the Plaintiff and the deceased, and the competing claim of the Defendant, as the only other person who has a legitimate claim upon her bounty, and the circumstances and needs of both the Plaintiff and the Defendant: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel [2012] NSWCA 285, at [70]. I also take into account that the deceased made a previous Will, in 2003, in which the Plaintiff was the sole beneficiary.

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: 18 November 2019