[2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96
[2007] SASC 327
Burke v Burke (2015) 13 ASTLR 313
[2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317
[2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646
Source
Original judgment source is linked above.
Catchwords
[2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96[2007] SASC 327
Burke v Burke (2015) 13 ASTLR 313[2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317[2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646[2007] WASCA 235
Diver v Neal (2009) 2 ASTLR 89[2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635[2010] VSCA 195
Geoghegan v Szelid [2011] NSWSC 1440
Goodman v Windeyer (1980) 144 CLR 490[1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grant v RobertsSmith v SmithRoberts v Smith[1918] HCA 73
Pilotto v Cosoleto[1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808[2008] UKHL 52
Re Estate of Moss, deceasedWilliam Wardy v Gordon SalierPalffy v Rogan (2013) 85 NSWLR 253
Judgment (33 paragraphs)
[1]
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)
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).
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.
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…"
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).
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.
[4]
Some formal matters not in dispute
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.
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").
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.
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."
(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.)
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.
[5]
Some background facts
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.
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.
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.)
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.)
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).
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.
[6]
The estate of the deceased
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.)
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).
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.
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.
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).
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.
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.
[7]
The Costs of the Proceedings
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.
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.
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."
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.
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)."
[8]
The nature of the provision to be made if the Plaintiff is successful
It may be helpful to next note the manner in which any provision may be made for the Plaintiff.
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).
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.
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.
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.
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.
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.
[9]
Clause 6 of the deceased's Will
I have referred to Clause 6 of the deceased's last Will already.
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].)
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).
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."
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."
[10]
The Plaintiff's medical condition
As there is really no dispute about the Plaintiff's medical condition, it is necessary, next, to set out the evidence about that condition.
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."
[11]
Claim for a Family Provision Order - the Statutory Scheme
I shall next discuss the statutory scheme and what I have described as general principles. I have discussed these matters in many cases.
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.
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.
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.
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).
"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".
[12]
Some Additional Principles
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.
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].
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.
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."
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."
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."
[13]
Claim by an adult child
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.
[14]
Qualifications on "Principles"
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."
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.
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.
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]."
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.
[15]
Additional Facts
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.
[16]
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
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.
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."
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".
[17]
(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
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.
[18]
(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
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.
[19]
(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
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.
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.
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".
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).
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.
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.
[20]
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person
The Plaintiff is not cohabiting with any other person.
[21]
(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
The Plaintiff's medical condition has been outlined earlier in these reasons.
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".
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)".
[22]
(g) the age of the applicant when the application is being considered
The Applicant was born in January 1985, and is almost 35 years old.
[23]
(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
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.
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.
[24]
(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
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.
[25]
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
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.
However, in the 2003 Will, she had left the whole of her estate to him.
[26]
(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
The Plaintiff was not being maintained by the deceased before her death.
[27]
(l) whether any other person is liable to support the applicant
There is no other person liable to support the Plaintiff.
[28]
(m) the character and conduct of the applicant before and after the date of the death of the deceased person
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.
[29]
(n) the conduct of any other person before and after the date of the death of the deceased person
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.
[30]
(o) any relevant Aboriginal or Torres Strait Islander customary law
This is not applicable.
[31]
(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
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.
[32]
Determination
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.
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.
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.
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.
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.
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.
[33]
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
There was no evidence that any of the subsections applied in the present case. At the commencement of the hearing, during discussions between Bench and Bar, counsel agreed that there was no property that could be designated as notional estate: Tcpt, 28 October 2019, p 2(12-29). It follows that it is only necessary, hereafter, to refer to the estate of the deceased. (Of course, it may be necessary to bear in mind any of the withdrawals acknowledged by the Defendant to have been made for his own benefit as provision received during the lifetime of the deceased.)
The only eligible persons are the parties in the proceedings. Even though the Defendant has not commenced proceedings under the Act, he has given evidence of the bases of his claim as the only beneficiary named in the Will of the deceased, on the bounty of the deceased. He has raised his financial circumstances. He was cross-examined. The Act specifically provides that his interests, as a beneficiary, cannot be disregarded, even though he has not made a claim: s 61. He is entitled to rely upon the terms of the deceased's Will and his competing claim as a chosen object of the deceased's testamentary bounty.
The deceased suffered a cerebrovascular accident, or a stroke ("a left sided acute infarct in the left basal ganglia") in July 2017, following which she sustained right sided weakness, with a right sided facial droop. She was in and out of hospital after that time.
The Defendant was born in December 1958, in the United Kingdom, and is now almost 61 years old. He was married, but the marriage ended in about 1995. There were two children of the marriage, each of whom is an adult. There was no evidence that either child is dependent, wholly or partly, upon the Defendant.
The Defendant, following completion of his Higher School Certificate, was employed as a boilermaker from the age of 18 in the family business. He worked in that business between about 1975 and 2004. He had other jobs, between 2004 and 2008, but appears not to have worked in paid employment, since that time. It will be necessary to refer to some of the evidence about his medical conditions later in these reasons.
The Defendant says that he was living in a de facto relationship with the deceased from about March 2004 until her death in January 2019. It may be that the de facto relationship commenced in about 2008, when the Defendant moved into the Albion Park Rail property. It may be that it commenced later. (The reason that the date of the commencement of the de facto relationship is not entirely clear is that in February 2019, the Department of Human Services determined that the Defendant had been (with editorial corrections for ease of reading) (Ex. PB/244):
"paid more than you were entitled to and you need to pay the money back.
…
As you were a member of a couple on 15 March 2011, you were entitled to the partnered rate of payment of Disability Support Pension from 09 August 2011 to 12 June 2018. You have, therefore, been overpaid $36,790.44. We are required to recover this amount."
(Some criticism was made of the Defendant in not disclosing the fact of the de facto relationship to the Department of Human Services until after the death of the deceased: Tcpt, 28 October 2019, p 79(47) - p 80(27). Whilst I have borne this omission in mind, once it was disclosed, both the Defendant and the estate of the deceased have been required to repay the amount of the overpayments, made as a result of the failure to disclose the existence of the relationship earlier. This militates against making the omission being unduly significant in determining what provision that ought to be made for the Plaintiff.)
In any event, the date of the commencement of the de facto relationship is not determinative, as, undoubtedly, it existed at the date of the deceased's death and had existed for no less than 7 years, and probably a little longer. Furthermore, in the Will of the deceased, the Defendant was referred to as "my spouse".
The deceased made an Enduring Power of Attorney on 18 May 2018, in which she appointed the Defendant as her sole Attorney. On the same date, she appointed him her Enduring Guardian: Ex. PA/Tab 2.
As will be read, the total of the costs of the parties is estimated to be $128,210. It follows that if the estimates prove accurate, that the value of the estate out of which an order could be made will be between $225,000 and $255,000. It is clearly an estate of modest value.
(The type of agreement referred to in s 181 is a "conditional costs agreement" which provides that the payment of some or all of the legal costs and, in this case, the disbursements, is conditional on the successful outcome of the matter to which those costs relate.)
Section 182 of the Legal Profession Uniform Law provides that a conditional costs agreement may provide for the payment of an uplift fee.
At the commencement of the hearing, the Court was informed, without objection from the Bar table by counsel for the Plaintiff, that the conditional costs agreement, and therefore, the calculation of the Plaintiff's estimate of costs and disbursements, had included a term for an uplift fee, but that the uplift fee was not being sought: Tcpt, 28 October 2019, p 7(48) - p 8(8).
Counsel for the Plaintiff also stated, from the Bar table, that the Plaintiff's costs and disbursements, calculated on the ordinary basis, without any uplift fee, were estimated to be $86,000. Those costs and disbursements, calculated on the indemnity basis, without any uplift fee, were estimated to be $103,000: Tcpt, 28 October 2019, p 22(28-29).
Although the Court was informed that an affidavit from the Plaintiff's solicitor would be available later in the day, no affidavit from the solicitor was provided to the Court: Tcpt, 28 October 2019, p 8(15-18), p 22(39-44). However, on 5 November 2019, an email was sent to my Associate, from the solicitor for the Plaintiff, attaching a copy of an electronically filed affidavit of Ms Walsh, sworn and filed on 4 November 2019. That affidavit stated the revised estimate of the Plaintiff's costs as follows:
"[m]y revised estimate of the plaintiff's costs and disbursements on the basis that the plaintiff will not be charged an uplift, inclusive of Counsel fees on an indemnity basis are $100,615.97.
…
I estimate the plaintiff's costs and disbursements on the ordinary basis to be $91,210.97."
(This further revised estimate was about $5,000 more than the revised estimate given to the Court at the hearing.)
Mr F T Mathey, the solicitor with the carriage of the matter on behalf of the Defendant, in an affidavit made on 24 October 2019, disclosed that the Defendant's costs and disbursements, up to and including the conclusion of the proceedings, are $37,000. No moneys have been paid on account of the Defendant's costs.
The Court, on many occasions, has emphasised the necessity for parties to bear in mind the proportionality of costs, the importance of making appropriate settlement offers, and that if one wishes, or both wish, to adopt an approach that may have the effect of reducing the value of the estate, then they should not proceed on the basis that all of the costs and disbursements will necessarily be borne by the estate: Geoghegan v Szelid [2011] NSWSC 1440 at [21]-[24].
Furthermore, s 60 of the Civil Procedure Act, which applies equally to a claim for a family provision order, refers to "the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".
In Forsyth v Sinclair (No 2), it was said by the Court of Appeal (Neave and Redlich JJA and Habersberger AJA) at [27]:
"We consider that it is a matter of concern that in many family provision cases the amount available for distribution amongst the competing beneficiaries is significantly reduced by legal costs. Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate. Every effort should be made to resolve the dispute before the costs get out of proportion. However, it takes two to settle a dispute and unless sensible offers of settlement are made in a form which can be referred to subsequently, it is very difficult for the Court to allocate responsibility for the dispute not settling. All that can be done is to conclude that where costs have been incurred unreasonably, as here, they must be borne personally." (Omitting citation)
More recently, Ward CJ in Eq has delivered reasons for judgment in Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, in which she wrote, at [172]-[174]:
"…There is an understandable concern that costs incurred in proceedings of this kind not be disproportionate to the nature of the proceedings and the size of the estate (see for example the recognition by Basten JA in Page v Page [2017] NSWCA 141 at [20], in the context of the family provision jurisdiction, of the need not to encourage litigation where costs often reach a high proportion of the value of the estate; and his Honour's concern expressed in Harris v Harris [2018] NSWCA 334 … (at [18]) that what his Honour regarded as the Court's 'willingness to entertain comparatively expensive litigation of this sort" might well have encouraged the pursuit of such claims). It is no secret that the Family Provision List judge pays close attention to the control of costs, particularly in small estates, for that reason.
The present is yet again a case where, regrettably, the costs (which, I have to say, are eye-watering in amount compared to the size of the estate (even if notional estate is taken into account) will inevitably have a significant impact on the outcome of the proceedings. I say this without criticism of Counsel appearing at the hearing (who readily acknowledged the problem posed by the level of costs in this case and broadly accepted the inevitability of cost-capping at the end of the day); and, without knowing what transpired in the attempts to resolve the case between the parties, it would be inappropriate to level criticism at one or other of the parties as to the position now facing all of the parties in terms of costs. Nevertheless, there are certainly aspects of the proceedings which did not assist in the containment of costs (most notably, the failure to serve the prescribed form of notice of the proceedings on Julie as an interested party)."
The Defendant submitted that the amount to be allowed for the Plaintiff's costs, if he were successful, should be capped. The quantum of those costs, if capped, was not adverted to in the submissions.
Recently, in Detheridge v Detheridge [2019] NSWSC 183, Slattery J wrote at [174]-[177]:
"And it is well settled that the Court can make orders for capping costs in family provision cases, based on the express powers conferred under Uniform Civil Procedure Rules 2005 ('UCPR'), Pt 42.4(1) and the Civil Procedure Act 2005: see Nudd v Mannix [2009] NSWCA 327 ('Nudd'), (at [26] and [27]); and Baychek v Baychek [2010] NSWSC 987 ('Baychek'), (at [17]). The discretion to cap costs in family provision cases is exercised in other jurisdictions: see, for example, Sweaney & Anor v Bailie [2017] QDC 295; Askew v Askew [2015] NSWSC 192 ('Askew'), (at 126); Sergi (bnf Solowiej) v Sergi [2012] WASC 18 (at [51]); DW v RW (No 2) [2013] QDC 189; Cangia v Cangia [2008] VSC 455.
Moreover Ball J noted in Baychek, (at [25]), some relevant considerations to the exercise of cost capping jurisdiction as follows:
'In fixing costs as a cap rather than as a substitute for an assessment, it seems to me that the court should take into account the same matters that it takes into account in determining an appropriate cap. That is, what the court must be satisfied of is that the costs are excessive having regard to matters such as the nature of the case, the size of the estate and the amount that the costs applicant has recovered and could reasonably be expected to have recovered at the time proceedings were commenced. If the court is satisfied that the costs are excessive, then it will need to determine what amount to fix. But, as I have said, the nature of that enquiry seems to me to be no different from an enquiry concerning what amount to fix as a cap.'
This Division's own practice notes recognize costs capping orders may sometimes appropriately be made in family provision cases - see Practice Note No. SC Eq 7, which states:
'24. Orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than $500,000.'
As Rein J said of this Practice Note in Askew, (at [126]), although the value of the estate is of particular relevance, estates of over $500,000 may also be subject to a costs capping order."
The parties agreed that the Court could deal with how the burden of costs should be borne. They agreed, also, that there were no documents that would be relevant to this issue, and whatever the result of the case, what might be regarded as the usual order for costs could be made.
Subject to hearing from counsel after these reasons for judgment are delivered, it seems to me that the way in which the costs of the Plaintiff should be dealt with is to allow the parties an opportunity to reach agreement on the quantum of his costs after these reasons are published. If agreement cannot be reached, any application for the capping of the Plaintiff's costs can then be made. Regrettably, this may delay the completion of the final administration of the estate and incur further costs. However, that is in the hands of the parties and their legal advisers.
Even though no specific application was made, I may be prepared to make a gross sum costs order for the Defendant's costs, calculated on the indemnity basis, of $37,000, to be paid out of the estate. In the circumstances of this case, that estimate is extremely reasonable, and, in my view, to make that order does justice to both parties. The Court's power to make such an order is found in s 98(4)(c) of the Civil Procedure Act, which section provides that the Court may, at any time before costs are referred for assessment, order that a party to whom costs are to be paid is entitled to a specified gross sum instead of assessed costs. I shall wait until after these reasons, and after hearing submissions from counsel, before deciding whether to do so.
Finally, on this topic, it should be mentioned that every effort was given to the parties to resolve their dispute, including permitting a court annexed mediation conducted by a Registrar of the Court, as well as conducting a judicial settlement conference before me. As there is no evidence that either party served an Offer of Compromise, or a Calderbank offer, the Court cannot determine whether obstinacy and unreasonableness, by one or both parties, has contributed to the failure to resolve the proceedings. It is most regrettable that so much by way of costs has been incurred.
As stated, the estate essentially consists of the Albion Park Rail property, which must be sold if the Plaintiff succeeds. The liabilities to be deducted have been identified (although they may change), and there may be further liabilities, reasonably incurred, which are not yet known. Furthermore, as stated above, at the date of hearing, the Plaintiff's costs of the proceedings, if ordered to be paid, have not been formally assessed or agreed.
I am satisfied that the percentage method of determining the lump sum provision to be made in favour of the Plaintiff, if an order is to be made for his provision, is an appropriate way to proceed. That the parties both agreed to this course of determining the quantum of the provision made for the Plaintiff is also an important consideration.
In the Will, the deceased appears to have weighed the testamentary claims upon her in an apparently sensible way, and by considering the principal persons who may have had a claim on her bounty, being the Plaintiff and the Defendant. It appears to be a case where she did "expose to the world the delicate, and perhaps indefinable, relations that exist[ed] within [her] family circle" and where she "felt quite justified from [her] own standpoint in limiting [her] family benefit, and for reasons which sufficiently appealed to [her], but which no one else could mentally measure or appreciate": Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, per Isaacs J, at 527.
However, whilst the Court will consider any explanations given by the deceased in the Will, or elsewhere, for excluding a particular person as a beneficiary, such explanations do not relieve the Court from engaging in the enquiry required by the Act: Slack-Smith v Slack-Smith [2010] NSWSC 625, per Ball J, at [27]. What an explanation by the deceased may do is cast light on the relationship between her, or him, and that person, at least from the deceased's perspective.
Where the truth of the statements made by the deceased is admitted, or where the facts asserted in the statements are corroborated by other evidence, due weight should be given to the statements. However, there are often difficulties faced by a trial judge grappling with evidence about disputed allegations that are contained in such statements.
I have borne in mind that the Court must exercise caution in determining whether to accept the statements of the deceased, and that, if accepted, the Court must carefully consider the weight to be attached to them. In Benham v Benham [2004] NSWSC 416, Master McLaughlin made the point, at [81], that:
"[T]he Court should not, however, overlook the fact that testators are human. A statement by a testator (which, by definition, cannot be tested under cross-examination), although admissible in evidence, need not be accepted by the Court unquestioningly or uncritically."
As I have written in other cases in relation to statements by the deceased, the Court should also bear in mind what was said by the Court of Appeal of New Zealand in In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 at 141 (which passage was approved by the majority of the High Court in Hughes v National Trustees Executors and Agency Company of Australasia Ltd, at 152):
"If reasons are given by the testator reflecting on the character or conduct of that child, the court must, in considering the sufficiency or otherwise of the reasons, endeavour to decide upon the truth or otherwise of the allegations. But the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting a claim. In our opinion, the reasons given by a testator for excluding a child (or a widow) go no further than to concentrate attention on the question whether there is or has been character or conduct operating to negative the moral obligation that would otherwise have lain upon the testator."
Thus, a statement made by the deceased does not, necessarily, mean that it must be accepted, unquestionably, as true. Such a statement may be just as inaccurate, or as unreliable, as a statement of a living witness, whether as the result of mistake, or failure of memory, or deliberate untruth: Worsley v Solomon [2008] NSWSC 444, per McLaughlin AsJ, at [35]. Ultimately, allegations by the deceased, given as a reason for the exclusion of an applicant from any provision out of her, or his, estate should not be accepted as precluding the making of a family provision order merely because the applicant fails to establish that the allegations are false.
In relation to Clause 6 of the deceased's last Will, the Plaintiff denied that there had been no contact between the deceased and him for many years, stating in cross-examination that the statement was "untrue": Tcpt, 28 October 2019, p 42(13-16). The Court must bear in mind that his response is that of a person who is deeply interested in the result of the case.
There was some evidence about the circumstances in which the Will came to be prepared and signed. This evidence came, principally, from the contents of a letter dated 20 August 2019, addressed to Mathey Solicitors, seeking particulars and the letter, dated 26 August 2019, in response.
The letter requesting the particulars was in the following terms:
"We refer to the abovementioned matter and to your email advising that you have no Will file in respect of Erika Felse
We are instructed to request that the solicitor that drafted the Will of Erika Felse dated 18 May 2018 answer the following questions pursuant to the U.K. decision of Larke v Nugus [2000] WTLR103, the principles of which are now embodied in a Practice Note of the Law Society of the United Kingdom.
(a) How long did you know the deceased?
(b) Who introduced you to her?
(c) The date instructions were received.
(d) From whom [sic] were the instructions received?
(e) Whether contemporaneous notes of all meetings of telephone calls were made and retained by you?
(f) Where were the instructions were taken and who else was present?
(g) How the instructions were expressed?
(h) If capacity was in doubt, what indication the deceased gave you that she knew she was making a will?
(i) What indication she gave you that she knew the nature and extent of her assets?
(j) What indication she gave you that she knew the identity of the persons who had a claim on her bounty?
(k) Whether she exhibited any signs of confusion, loss of memory or ill health effecting [sic] her mental faculties?
(l) Whether someone close to her said something concerning her mental health?
(m) Whether, and to what extent her earlier wills were discussed, and what attempts were made to discuss departures from any earlier will of hers, and what reasons she gave for making such departures?
(n) How the provisions of the will were explained to her?
(o) Other than the attesting witnesses, who else was present at the execution of the will.
(p) Where when and how did execution take place?
(q) Who paid your costs?
(r) Who retained the original will and who was provided with copies of it?
The purpose of this request, and indeed the principle underlying the decision in Larke v Nugus and the Practice Note, is to prevent costs being incurred on futile litigation, so there is an onus on you to reply within a reasonable period."
(The reference to Larke v Nugus is a reference to the decision of the English Court of Appeal in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033. It is not necessary to refer to that decision, but it has been referred to, in detail, by Lindsay J, in Re Estates Brooker-Pain and Soulos [2019] NSWSC 671, at [82]-[88].)
The letter from the solicitors, in response, was in the following terms:
"We refer to your letter dated 20 August 2019 in the above matter.
We are instructed to respond as follows:
(a) The deceased was not previously known to Tara Mathey;
(b) Scott Spicer contacted Tara Mathey to attend Erika at the hospital;
(c) 18 May 2018;
(d) Scott Spice provided instructions over the phone and Erika confirmed instructions in person on the same date;
(e) No;
(f) Over the phone and in person. The people present were Tara Mathey, Karina Gardner (witness), Scott Spice and Erika Felse;
(g) Verbally;
(h) - (j) Capacity was not in doubt;
(k) No;
(l) No;
(m) Earlier will was not discussed;
(n) Provision of Erika's will were read aloud to her by Tara Mathey and explained verbally;
(o) Scott Spicer;
(p) At Wollongong Hospital on 18 May 2018;
(q) Erika Felse;
(r) Our firm retained the original will and copies were posted to Erika at her home address."
Counsel for the Plaintiff criticised the response, submitting that its author was not the solicitor who saw, and took instructions from, the deceased. However, bearing in mind the seriousness of the request for information, and the fact that the response was signed by the principal of the firm of solicitors, I infer that the author of the letter would have sought the necessary information from the solicitor who had taken the deceased's instructions, and who is described as a "Senior Associate". It is unsurprising that the letter in response was signed by the principal of the firm of solicitors.
The statement made in the response, that the deceased "confirmed instructions in person on the same date" and that "the [P]rovision of Erika's Will were read aloud to her by Tara Mathey and explained verbally", taken with the deceased's execution of the Will, satisfies me that she knew and understood its terms and considered the contents of Clause 6 of the Will to reflect her testamentary intentions.
It is next necessary to consider the evidence of the Plaintiff on this topic. He did not dispute that he did not live with the deceased after about July 2011. At that time, he moved into campus accommodation at the University of Wollongong. He admitted that he did not tell the deceased his address: Tcpt, 28 October 2019, p 26(1-14). Even when he moved off campus, to his current accommodation, in 2015, he did not did not tell the deceased his address: Tcpt, 28 October 2019, p 26(25-37).
In cross-examination, the Plaintiff said he "did give my mobile number to my mother" but also said he "never" called the deceased on her mobile phone number. He could not remember the deceased's mobile phone number. When questioned by counsel for the Defendant, he responded that he did telephone the deceased on her landline telephone number. He admitted that he did not telephone her very frequently in the period before 2017 and after 2011: Tcpt, 28 October 2019, p 51(12) - p 51(15). No phone records going to this assertion were tendered in evidence: Tcpt, 28 October 2019, p 26(43) - p 27(17), p 32(34-47).
In his first affidavit, the Plaintiff stated that after he moved out of the Albion Park Rail home, he visited the deceased "a number of times each year", although from about 2015, "my visits to Erika became less frequent". He maintained that "Erika and I still had a good relationship. There was no issue between us." In his affidavit in reply, sworn in June 2019, the Plaintiff stated that he visited the deceased in the morning when the Defendant was not there.
The Plaintiff admitted that he did not see the deceased from soon after she suffered a stroke in 2017 until January 2019. He acknowledged that he had found out that she suffered a stroke because the Defendant had telephoned him. He also acknowledged, in his oral evidence, that he did not telephone the deceased after she suffered the stroke and made no attempts to contact the Defendant to find out about her state of health: Tcpt, 28 October 2019, p 30(32-36). He admitted that to do so would have been appropriate and would possibly enable her "to know that you were showing an interest in her medical condition": Tcpt, 28 October 2019, p 50(38) - p 50(44).
In answer to questions from the Bench, the Plaintiff gave the following evidence (Tcpt, 28 October 2019, p 35(40) - p 36(24):
Q. Mr Koellner can you tell me, doing the best you can, on how many occasions between 2011 and I think your evidence is you never went there after 2017, is that right?
A. That's - after the stroke, yes, until January of this year.
Q. Between 2011, that is when you moved out of the home and the time she had a stroke, on how many occasions do you say you visited your mother at her home in Albion Park Rail?
A. Between 2011 and 2017?
Q. Yes?
A. So, roughly six or so times - probably to give a rough number, possibly 30 times in total.
Q. Thirty times, in six years you visited her on five occasions a year on average, is that what you're saying?
A. Yes.
Q. When was her birthday?
A. 20 June.
Q. But you cannot recollect any occasion when you actually visited her on her birthday?
A. No, even while I was still living there, we simply did not celebrate birthdays. It just wasn't a done thing.
Q. What about Christmas or other special occasions? I've asked you about this, I'm trying to understand your evidence. You say five times a year on average, which is 30 times over the six year period. I'd just like to know when you visited her, that's once every two and a half months or thereabouts?
A. Mm.
Q. Surely you remember the times of the year you visited her?
A. Well see the, the - I - it was - my visits weren't really for any special occasion. It was just like a general thing, just going down there to the house.
The Plaintiff gave evidence that he told his doctor about having visited the deceased. He also gave evidence that the doctor's records had been produced to, and inspected by, his solicitors. However, no such medical records were tendered.
I shall refer to the medical record, a copy of which is annexed to the Plaintiff's affidavit in which there is a reference that the Plaintiff's "background history indicated severe family dysfunction…". The nature of the family dysfunction was not disclosed in this, or in the other medical reports that formed part of the Plaintiff's evidence, or otherwise in his written evidence.
Linda Bauer, the deceased's sister, made an affidavit on 2 July 2019, and was cross-examined. She gave evidence about her observations of the deceased, both before, and after, the deceased suffered the stroke. Her evidence related principally to conversations said to have occurred about the Defendant. Her only evidence about the deceased's conversations about the Plaintiff was:
"Erika was very proud of Danny, she mentioned a few times when I asked about Danny, that he was doing a double degree. Her mood changed to happy when we would talk about him, her eyes would light up."
Ms Bauer gave no evidence about any conversation with the deceased in which the deceased referred to visits to her home by the Plaintiff, except one, which conversation had occurred when the deceased was in hospital.
The Defendant says that he met the Plaintiff a few years after meeting the deceased. Of course, they were both living in the Albion Park Rail property between 2008 and 2011. He says that "Erika never really spoke to me about her relationship with the Plaintiff, however, for the three years or so that were lived together, I did not witness the Plaintiff and Erika to have a close relationship". He went on to state:
"38. After the Plaintiff moved out, I did not see him visit Erika once, although it is possible he may have visited when I was not at home. However, Erika never once mentioned to me that the Plaintiff had come and visited her.
39. As far as I am aware, Erika did not go and visit the Plaintiff either.
40. I did not witness or hear Erika speaking on the phone to the Plaintiff. As far as I am aware, after he moved out, the Plaintiff and Erika hardly spoke to or saw each other.
41. The Plaintiff did not spend Christmas, birthdays, Mother's Day or other special days with Erika and I.
…
47. In or about July 2017 Erika suffered a severe stroke. I called an ambulance which came and took her to Wollongong Hospital.
48. I called the Plaintiff that night to let him know what had happened.
49. I went up to Wollongong Hospital the next morning to see Erika. I recall that the Plaintiff turned up at the Hospital at some point during that first day to visit Erika. He only stayed for a short period of time.
50. Erika remained in Wollongong Hospital for about 6 months.
51. I visited Erika every day while she remained I Wollongong Hospital.
52. After seeing the Plaintiff at the hospital on the first day, I saw him only two or three times after this for the whole time Erika was in hospital.
…
63. I did not witness the Plaintiff visit Erika once in those last few weeks leading up to her passing.
64. Erika did not mention or ask about the Plaintiff at all.
65. I do not believe that the Plaintiff saw Erika in the last 12 months of her life."
Merryn Donna Martin, who swore an affidavit on 23 September 2019, which affidavit was filed in Court on 28 October 2019, and who was not cross-examined, gave the following evidence:
"12. In the time that I knew Erika, she only mentioned her son once to me as she was providing me with advice on my own personal matters.
13. Erika had told me that she had no relationship or involvement with her son and that she had tried to reach out to him once but was heartbroken when he did not respond.
14. When I was visiting Scott and Erika regularly to help them I had never met Erika's son or known of him to have been visiting."
The statements said to have been made by the deceased to Ms Martin confirm the contents of Clause 6 of the deceased's Will. There is no reason not to accept Ms Martin's evidence.
Overall, I am satisfied that Clause 6 of the deceased's Will is, for the most part, accurate. Yet, I accept that there was some, albeit extremely limited, contact, between the Plaintiff and the deceased between 2011 and 2017, and then virtually no contact after the deceased suffered her stroke in July 2017. Prior to that time, their relationship does not appear to have been very close or loving.
I am of the view that the Plaintiff exaggerated the amount of his contact with the deceased between 2011 and 2017. I do not accept that during this period he visited her at the Albion Park Rail property on about 30 occasions, as he stated in cross-examination.
However, the Plaintiff gave evidence that because of his medical condition, to which I shall next refer, he was unable to have regular contact with the deceased. Whilst it is clear that his medical condition may explain some of his behaviour, it does not explain, entirely, his lack of contact with, and apparent lack of interest in, the deceased, after she suffered her stroke in July 2017.
In answer to questions from counsel for the Defendant, in relation to the Plaintiff's contact with the deceased following her stroke in July 2017, the Plaintiff gave the following evidence, at Tcpt, 28 October 2019, p 41(1-43):
"Q. Between 2017 and when your mum died in January this year, you never went and saw her at Port Kembla, you knew she was there, right?
A. Yes.
…
Q. You could have gone to Port Kembla Hospital and checked with the nurses about your mother, whether she was still there or not?
A. I suppose I could have.
Q. Yes, there's no reason why you couldn't have gone, you just chose not to?
A. At that time I - I, I just couldn't do it.
Q. You couldn't bring yourself to go and see her at home, go past the house, knock on the door, see if she's home?
A. I guess that's correct.
Q. And you couldn't bring yourself to send her a card, a get well card perhaps, whilst in hospital?
A. Well, I, I, I guess.
Q. Sorry, you guess you could have done it or you couldn't have done it, sent her a card?
A. It's - well, it's something that I don't normally do anyway, because that's not the kind of thing that I do, but I'm not sure how to answer your question, that's, that's something I could have done.
Q. Could you have rung the hospital and asked to speak to your mother at Shellharbour?
A. Speak to my mother?
Q. Yes.
A. My mother couldn't - could barely speak. That wouldn't be possible.
Q. But you could have rung and asked to speak to your mother. She could hear you, couldn't she? Hear your voice?
A. She would have been able to hear my voice, yes.
Q. When your mum says in her will, that she made 2018, that she's had no contact with you for years, she was telling the truth, wasn't she?
A. I dispute that."
The Plaintiff gave one other reason for his failure to contact the deceased by telephone was that he did not want to speak with the Defendant. I do not accept that this provides an adequate reason for his lack of telephone contact with her. In this regard, it is to be remembered that it was the Defendant who had telephoned the Plaintiff to tell him of the deceased's stroke.
Another report, dated 27 January 2016, from Dr Young, reveals that her clinical contact with him started in January 2009; that he has "no family and no social support network … Daniel has revealed excessive fear of travel other than from home to appointments with me or to Essential Personnel".
There is also a report dated 11 February 2016, from Professor Tony Atwood, who, with Dr Young, saw the Plaintiff on that date. The report provides:
"Daniel has had a very unusual developmental history with quite considerable adversity during his childhood. These experiences have obviously had a very detrimental psychological effect on Daniel but there has also been a question has to whether he has the profile of abilities of an Autism Spectrum Disorder. Having met Daniel, I can confirm that he does indeed have an Autism Spectrum Disorder - Level 1 (Asperger's syndrome). This is invaluable information in explaining his profile of abilities which is a combination of an Autism Spectrum Disorder and adversity throughout childhood. I am actually amazed at how well Daniel is considering the challenges that he faces.
…
The first priority is in terms of his significant clinical depression and chronic anxiety disorders. Unfortunately, medication has not proved effective for his depression and anxiety. Therefore, he suffers greatly from significant mental illness.
Daniel also has an Autism Spectrum Disorder - Level 1, and although he is a person of considerable intellectual ability, he has very significant social and emotional challenges in his daily life.
There is an additional dimension of impaired executive functions which has an impact on his daily living skills. He also lacks a social and family network for support and guidance. Thus, he has a very unusual profile of abilities, challenges and circumstances. My clinical opinion is that these combine to create sufficient characteristics for him to need and benefit from a temporary Disability Support Pension. This is needed to help Daniel gradually recover from his depression to restore the energy that he will need for eventual successful employment. My clinical opinion is that he has great potential for successful employment but at this stage, there needs to be a focus on professional support and guidance. It is my opinion that at this stage, even part-time employment would have a significant detrimental effect on his mental health.
Daniel has shown his intellectual ability by completing a degree in philosophy. This proves his intellectual ability but is in an area of specialisation not associated with a particular career path. I think the next challenge for him is in terms of developing his social skills which will obviously be necessary for successful employment. Unfortunately, where he lives, there are no social skills programs that would be relevant for his diagnoses but I intend to pass on to Dr Robyn Young, strategies to help young adults with Asperger's syndrome, not only in the treatment of depression, the primary concern, but also strategies to develop his social skills.
…
During the appointment, we also explored the positive qualities of Daniel and we recognise that he is a very intelligent person but also his personality includes someone who is resilient, brave, determined, at times has great wisdom, is very observant, with a great sense of humour and is an articulate person that has many qualities from which society will benefit."
There is also a report dated 7 April 2016 from the Australian Government Department of Human Services, described as "Health Professional Advisory Unit Opinion - 4431", which relevantly states:
"It is stated the customer is inflexible to routine changes. He demonstrates decompensation when faced with a problems such navigating changes in his enrolment or changes in his rental situation in the absence of support (b).
It would seem that the customer demonstrate a lacks the capacity for planning within the context of his own needs and requires a substantial amount of support for routine tasks such as grocery shopping, attending essential appointments, and where this is absent would typically display avoidance until the activity (c).
It is stated the customer demonstrates a long history of social isolation and avoidance, has no support network, and lacks the capacity to read social cues and develop friendships and relationships. He shows a background of being unable to engage in more than casual interactions and throughout university accessed additional student support in addition that which has been provided on a weekly basis by Dr Young. He is inflexible to changes and is at risk of decompensation with suicide (d). To some degree this would also seem to relate to deficits in self-awareness."
There were no recent medical reports relied upon by the Plaintiff. However, in his affidavit of 16 October 2019, he referred to the death of Dr Young in July 2018, and, subsequently, having had "counselling" with Olga Lavelle, having "recently commenced seeing a new GP, Dr Frank Goderie at Woonona who has referred me to a new psychologist, Mr Gareth Quinlan". There was no evidence from either Dr Goderie or Mr Quinlan.
Despite the lack of more recent medical evidence, I am satisfied that the Plaintiff does continue to suffer from the medical conditions, and disabilities, referred to. It was not submitted that he did not continue to suffer from those conditions or disabilities.
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5 Aust J Leg Hist 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235, at [72] and [77] (Buss JA), which seems to invite more subjective criteria.
In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ, at [19], pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration:
"The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J wrote, at 502:
"…the words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote:
"…the use of the word 'proper'… implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here… The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
White J (as his Honour then was), in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, wrote, at [123]:
"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case including 'the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse (1994) 181 CLR 201 at 210)."
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him or her, out of the estate, should be the dominant consideration. The existence, or absence, of "needs" which an applicant cannot meet from her or his own resources will always be highly relevant, and quite often decisive, as the statutory formulation, and therefore, the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for her or his proper maintenance, education and advancement in life: Singer v Berghouse at 227; Bkassini v Sarkis [2017] NSWSC 1487, per Robb J, at [296]-[297].
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA wrote:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial need: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
No doubt, this has prompted White J (as his Honour then was) to write, in 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 at [147], that "the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others". Respectfully, I agree.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45]. It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]:
"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530; [2014] SASC 86 at [41], David J added:
"'Need' is not so synonymous with 'want' such that the two are interchangeable."
However, no narrow view of what is encompassed by the concept of "need" is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1, Bryson J commented that "[I]t does not seem possible to give a complete or exhaustive statement of the concept".
As Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
If the Court is satisfied that, 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, it determines whether to make an order for provision and what provision ought to be made.
Section 60 of the Act provides:
"(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, at [7], Basten JA wrote:
"Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based.
Furthermore, the section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently.
The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court's determination under s 59(1)(c) and s 59(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: Slack v Rogan; Palffy v Rogan at [127].
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:
"It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that:
"Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As has recently been written by White JA 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."
This passage confirms that the Act is to be applied according to its terms, and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA in Steinmetz v Shannon, at [97]:
"The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom."
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).
In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse:
"… strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox at [21] and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].
But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]-[108]:
"As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox:
[19] …the real provenance of the 'principles' is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance
Similarly, Barrett JA explained:
[67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply "the feeling and judgment of fair and reasonable members of the community" in cases of the present kind.
Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency."
(In relation to Steinmetz v Shannon, I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that "the appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave": Shannon & Anor v Steinmetz [2019] HCASL 332 (16 October 2019).)
In addition, the formulation of principles, whilst not intended to "constitute a fetter upon the discretion not intended by the legislature", may assist in avoiding arbitrariness and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act.
Also in his affidavit made 22 October 2019, the Defendant identified his liabilities as totalling $34,699, consisting of a Centrelink debt. (This debt had also been referred to in his affidavit made 25 June 2019). In his affidavit made 25 June 2019, the Defendant confirmed his Centrelink debts were "currently being deducted from my Disability Support Pension", which, deducting the debt, totals $783 per fortnight (as at 22 October 2019, the date on which the Defendant made his most recent affidavit). This is the Defendant's only source of income, as he is unemployed.
The Defendant states that his monthly expenditure totals $1,825 consisting of electricity, water, council rates, groceries, motor vehicle insurance, petrol, telephone, internet, medication, entertainment, home insurance, paper delivery, lawn maintenance, and dog food and care.
In relation to the withdrawals from the deceased's bank account, which withdrawals totalled about $40,000, the Defendant did not dispute that he had made the withdrawals. He suggested that the deceased knew of the withdrawals and, in any event, half of the money in the account, was his. He also suggested that some of the withdrawals were made to repay debts that she owed to him.
It is difficult to know whether the evidence in this regard is correct. However, I shall bear in mind that the Defendant received these amounts out of the bank account.
Having considered the matters I am required to consider, the Plaintiff has satisfied the Court that he has been left without adequate provision for his proper maintenance, education and advancement in life. I am also satisfied that an order for provision for the Plaintiff should be made. The Plaintiff is not in a strong financial position, he has a debt that is not insignificant, when compared to his income, and bearing in mind his age, he needs a capital sum for exigencies of life for his proper maintenance and advancement in life.
The more difficult question then arises, namely what provision "ought to be made for her, or his, maintenance, education or advancement in life", having regard to the facts known to the Court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359, at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, similar considerations as are set out above often arise.
In coming to the conclusion on the quantum of the provision to be made for him, the deceased's entitlement to testamentary freedom is, of course, important and I have given weight to this in reaching my conclusions.
Importantly, it is also clear that what is regarded as "proper" will depend, amongst other things, upon the nature and duration of the applicant's relationship with the deceased. That relationship, particularly after 2011, does require some restraint on the amplitude of provision to be made for him.
Having considered the matters I am required to consider, and remembering that what is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that a capital sum for exigencies of life should be made.
In my view, the Plaintiff should receive a capital sum that equates to 35 per cent of the net value of the estate. Using the current estimates as a guide, this would provide a lump sum of between about $78,000 and about $89,000 (although this is calculated by way of estimate only). That lump sum will enable him to pay his debt and provide him with an amount for exigencies of life. In this way, his material situation will be improved.
Needless to say, the Defendant's share of the estate will bear the burden of the provision made for the Plaintiff. Of course, the Defendant will still receive a lump sum that equates to 65 per cent of the net value of the estate. On the current estimates, this would be between about $146,000 and about $166,000 (although this is only calculated by way of estimate). This share of the estate will provide him with a capital sum and should provide a small amount of additional income. Needless to say, the Albion Park Rail property should be put on the market for sale as soon as reasonably possible.
Interest should not be payable on the lump sum if it is paid within 7 days of completion of the sale of the Albion Park Rail property. If it is not paid then, interest at the rate prescribed in the Probate and Administration Act 1898 (NSW), on unpaid legacies should be paid, calculated from that date until it is paid. As the only beneficiary who can cause the payment of the legacy to be made is the Defendant, if interest is payable, it should be paid out of his share of the estate.
I shall allow the parties a period of 7 days to provide short minutes of order that reflect these reasons. They should also agree upon the precise manner in which the "net value of the estate" will be calculated. If possible, they should agree on the quantum of costs. I shall stand the proceedings over for mention on a date to be arranged at the time these reasons are delivered. If agreement is unable to be reached, I shall list the costs, and any other, argument, for a short hearing. If I am provided with short minutes of order that have been agreed and that deal with all matters, I shall deal with the matter in Chambers.