Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian

Supreme Court of NSW|2015-03-20|Before: Robb J

thony Marras [2014] NSWSC 915 Jordan-Watt v Riordan; In the estate of Jordan [2013] NSWSC 1132 Kay v Archbold [2008] NSWSC 254 Lo Surdo v Public Trustee [2005] NSWSC 1186 Luciano v Rosenblum (1985) 2 NSWLR 65 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Nicholls v Hall [2007] NSWCA 356 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Raiola v Raiola [2014] NSWSC 967 Scott v Scott [2009] NSWSC 567 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 Walker v Walker [1996] NSWSC 188 Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths) Category: Principal judgment Parties: Mirta Lilian Lado Causillas (plaintiff) NSW Trustee and Guardian (defendant)

Marcel Lucien Bentancor Lado (plaintiff) NSW Trustee and Guardian (defendant) Representation: Counsel: J Armfield (plaintiff) A Hill (defendant)

Solicitors: Navarro Associates (plaintiff) NSW Trustee and Guardian (defendant) Gordon Cavanagh (plaintiff) NSW Trustee and Guardian (defendant) File Number(s): 2013/49894 2013/49905 Publication restriction: None

Judgment

These proceedings involve separate but related applications by each plaintiff, Mirta Lilian Lado Causillas, and her son, Marcel Lucien Bentancor Lado, for family provision orders under s 59 of the Succession Act 2006 (NSW) (the Act) in respect of the estate of the deceased, who was respectively her husband and his father.
For convenience, and without meaning any disrespect, I will refer to the plaintiffs and the witnesses by their first names.

The deceased

The deceased, Luciano Angel Bentancor was born on 21 May 1944 at Montevideo, Uruguay. Without meaning any disrespect, I will also refer to the deceased as Luciano.
Luciano died on 23 February 2012 at the Huntingdon Nursing Home, Bexley. He was then 67 years of age. He had resided in Australia for a period of 42 years.
Luciano's death certificate records that he had suffered with early onset dementia for a period of three years. His actual cause of death was a suspected malignancy, but no investigation was undertaken.
The death certificate recorded Luciano's marital status as being divorced. That was not correct. The informant for the death certificate was Ms Teresita Velasco, who was one of Luciano's sisters.

The deceased's will

Luciano left a will dated 16 January 1981. He appointed what was then the Public Trustee as his executor. In due course, probate of the will was granted to the NSW Trustee and Guardian, as successor to the Public Trustee. I will refer to the executor, which is the defendant in these two proceedings, as the NSW Trustee.
Luciano's will is simple and was apparently prepared using a standard form. Clause 5 was added. Relevantly, Luciano left his estate to his sisters Maria Julia Repetto and Teresita Velasco, then called Bentancor, and if either of the sisters was not living at his death, Luciano left the sister's share to any of her children who attained the age of 18 years.
The will makes no provision for Mirta or Marcel, and does not acknowledge their existence.
The terms of Luciano's will are curious, as even though Luciano did not live regularly with Mirta after late 1977, he did not become entirely estranged from her and Marcel until 1988. At the time he made his will, Luciano was still in relatively regular written communication, albeit occasional, with Mirta. He also communicated from time to time with his son, Marcel. There is some evidence that Luciano began to see other women in 1979. Luciano visited Mirta and Marcel in Montevideo for short periods in 1986 and 1988, and resumed a semblance of a fleeting family relationship with them.
The evidence provides no explanation as to why Luciano left Mirta and Marcel out of his will in January 1981. That is particularly inexplicable in the case of Marcel, as the evidence discloses no reason at all why Luciano would, at that time, in the event of his death, have wanted to provide nothing for his son. As it must be assumed on the evidence that Luciano intended his will to have the effect of excluding Mirta and Marcel from his testamentary bounty, the conclusion must be drawn that Luciano had formed the intention to abandon them financially as early as 1981, when Marcel was about three years old. I note, however, that Mirta gave evidence that, between 1986 and 1988, Luciano sent 8 remittances of US$100 each to Mirta for her upkeep and that of Marcel.

The available estate

By an updated affidavit sworn on behalf of the executor on 10 February 2015, the NSW Trustee has estimated that the gross value of the assets of the estate is $2,100,005.52. From this sum must be deducted liabilities of $175,993.81, and the NSW Trustee's commission of $18,850.11, and an estimated taxation liability for the year ending 30 June 2013 of $6000. The net distributable estate, without making allowance for the costs of the proceedings, is therefore $1,899,161.60.
The principal assets in the estate are real properties at 18 Pimsoll Street San Souci and 10/35 Gannon Avenue Dolls Point, and a substantial nursing home bond.
The NSW Trustee's costs and disbursements of the proceedings, calculated on an indemnity basis, are estimated at $193,026.79. Mirta's costs and disbursements, calculated on the ordinary basis, are estimated at $130,208. Marcel's costs and disbursements, calculated on the same basis, are estimated at $112,840.73.
Accordingly, if the costs and disbursements of the parties to the two proceedings are paid out of Luciano's estate on the usual basis, the remaining value of the estate will be $1,463,086.08.
That calculation assumes that the real properties are sold for their estimated value, and does not make any allowance for the costs of realising the properties, such as agents' commissions and legal costs.
As the principal assets in the estate are unrealised real properties, the court cannot be certain that the calculations that have been set out above on an estimated basis will accurately reflect the final realised value of the estate. I will return to the significance of this issue, if I determine that a family provision order ought to be made in favour of one or both of the plaintiffs.

Mirta's evidence

It will be convenient to begin with a consideration of the evidence given by Mirta. Mirta affirmed her principal affidavit on 8 February 2013. She affirmed two affidavits in reply to the affidavit evidence filed by the NSW Trustee, and an updating affidavit on 9 March 2015.
A number of aspects of the evidence given by Mirta were contentious. Mirta said that she reached a mutual agreement with Luciano in September 1977 that she would return to Uruguay for the imminent birth of their child, as she could be cared for properly by her family, whereas, if she stayed in Australia, Luciano would have to go out to work, and there would be no one to care properly for Mirta and their child. The NSW Trustee suggested that, in fact, Mirta did not want to live in Australia any more, and her decision to return to Uruguay was unilateral and permanent. Secondly, Mirta said that, although Luciano bought her a return air ticket between Sydney and Montevideo, before Mirta left to return to Uruguay, Luciano in fact agreed that he would travel to Montevideo at a suitable time in order to assist Mirta to return to Australia with their child. Mirta said that she extended the duration of the return ticket on a number of occasions, and ultimately cashed it in because she was in need of money to care for Marcel. Mirta added in cross-examination that, at the time, it was originally contemplated that she would return to Australia, but she was unable to do so because the wound from her Caesarian section had opened. Again, the NSW Trustee suggested that the couple did not agree that Luciano would travel to Montevideo to accompany Mirta and Marcel back to Sydney. Rather, it said, Mirta unilaterally decided to remain in Uruguay, because that suited her more than living in Australia. Thirdly, Mirta said that, when Luciano returned to Uruguay for short periods in 1986 and 1988, he stayed with Mirta and Marcel in Mirta's villa, and the couple lived there effectively as man and wife, including in engaging in sexual intercourse. This was only for a matter of weeks on the first occasion, and days on the second. She also said that the family attended a birthday function for one of Luciano's family, as if the couple were man and wife. The NSW Trustee's case was that Luciano did not act as if he was married to Mirta, during the brief occasions when he returned to Montevideo.
The NSW Trustee was not in a strong evidentiary position to contradict Mirta's evidence. Its counsel cross-examined Mirta on these matters, but counsel was properly circumspect, given the limitation on his instructions.
I will consider the limited correspondence written by Luciano that has survived below. However, I observe, at this stage, that in my view Luciano's own statements do not suggest that it was his belief that Mirta had unilaterally left him, or that she was residing in Uruguay against his will. As Marcel, his son, was living with his mother in Montevideo, which had the effect that Luciano was entirely deprived of access to his son, it is highly likely that Luciano would have complained in his correspondence with Mirta, if he believed that Mirta's conduct conflicted with her obligations to him as his wife. He did not do so. Rather, he suggested from time to time that he was looking forward to being able to recommence an ordinary family life with Mirta and Marcel, whether that be in Sydney or Montevideo.
As I have said, it was Mirta's evidence that she welcomed Luciano back into her home in 1986 and 1988, albeit for short periods, in accordance with Luciano's wishes, and they lived briefly as husband and wife. Mirta said in her principal affidavit that she has not established a relationship with any other man, and she has not lived with any other man ever since she returned to Uruguay in 1977. She said that "I loved Luciano very much. His death and having to initiate these legal proceedings have been painful to me. I have had to relive painful episodes of my life and confront Luciano's conduct towards me and our son. I have spent all available time to me in raising and looking after Marcel. For many years, I thought that my husband would return to Uruguay and to us".
That evidence was not contradicted in cross-examination. That may be understandable, as it would be a difficult subject for cross-examination. However, it was not put in submissions that I should not accept the evidence.
Mirta's evidence on this issue requires careful consideration. The fact is that Mirta remained married to Luciano for the rest of his life. There is no basis for the court to reject her evidence that she did not establish a relationship with any other man. The issue was not explored in the cross-examination of Marcel.
Mirta's evidence was that she and Luciano were friends and neighbours from their teenage years in Montevideo. They lived in the same street. She said that the couple became boyfriend and girlfriend in 1968. At that time Mirta was at technical school, and Luciano was working in the machine room of an oil tanker. Luciano was a fitter and turner.
Luciano moved to Australia in the late 1960s or early 1970s. He was away for about one and a half years.
When he returned Mirta and Luciano resumed their relationship as boyfriend and girlfriend, and spent a lot of time together, almost every day. Luciano spent several months in Uruguay. He returned in about August 1974, and the couple resumed their relationship. Mirta said that she continued to be in love with Luciano and welcomed him with open arms.
A couple of days after his return, Luciano proposed to Mirta, saying: "Would you like to marry me and live in Australia with me?" Mirta accepted his proposal.
The couple married on 21 October 1974, and they left for Australia on 5 December of that year. The couple commenced cohabitation on the day of their wedding. Mirta had a small amount of savings from her work, which she gave to Luciano, who managed the finances.
For the first 2 to 3 months after they came to Australia Mirta and Luciano stayed with one of Luciano's sisters, Maria, who lived at Mascot with her husband.
They then rented a furnished unit in Edith Street, Leichhardt, to be closer to Luciano's work as a fitter and turner in a factory.
Mirta engaged in home duties, and enrolled in English classes at Leichhardt. She then began an English course for which she received $36 per week financial assistance from the Australian government. She gave most of that money to Luciano.
Mirta said that soon after the couple moved to Leichhardt, she and Luciano started attending government auctions at which they purchased goods for resale. Mirta assisted Luciano with that business by entering the goods into a book, packing them for resale, and attending markets and fairs where Luciano on sold the goods.
A few months after moving to Leichhardt, Mirta secured work in a sweets factory, working 6 to 8 hours per day, Monday to Friday, and occasionally on Saturdays. Luciano managed Mirta's salary, as well as his own, and all of the earnings from sales at fairs and markets.
After a while, Mirta secured better paid work in a factory manufacturing traffic lights. She was employed as a process worker on a full-time basis.
Most of the couple's spare money was paid into a bank account in the name of Luciano, so that the couple could save to purchase a home.
Mirta said that she and Luciano liked Australia. They planned to live in Australia for many years, learn English, work, save money, and eventually return to Uruguay for good.
During the couple's third year in Australia they decided to start a family. Mirta became pregnant in early 1977. She was retrenched from her job. After that Mirta took care of all household duties at home, and continued to work with Luciano at fairs and markets.
When Mirta was about 18 weeks pregnant, in late August 1977, she and Luciano agreed that Mirta should have their child in Uruguay, as her mother and brothers were there, and she could stay with them, whereas in Sydney she had no one to assist her before and after the birth. Mirta said that the following conversation occurred: Luciano: It would be good for you and the baby to have your mum there to help you. I've got to continue working so that we can buy our house; I won't be able to be around much for you. Once our child is born, you will come back here or I'll go over there to get you both, and will travel back to Australia together". Me: "Yes it's a nice idea. I miss my family, but you must come and get us soon". Luciano: You can stay in Uruguay for a few months until the doctors say its okay for the baby to travel to Australia".
Mirta and Luciano bought a return ticket with Alitalia, which was open for one year. The price of the ticket was paid out of the couple's savings, and Mirta took with her US$2000 to cover initial expenses.
Mirta left Australia on 16 September 1977, and arrived in Uruguay on 19 September 1977. From then on she lived with her parents. Her parents' home did not have a phone; a phone was a luxury at the time, and communication overseas was normally done in writing.
Before Marcel's birth the couple communicated regularly and affectionately, normally by aerogram. Just before Marcel's birth, Mirta received an audio cassette tape from Luciano. The tape contained messages to Mirta and other members of the family. It ended: … I have explained to Mirta why I am not able to go (this time) as I am working, but there will be other opportunities. For you Negra [a term of endearment for Mirta], hugs and kisses, be strong, particularly as you are waiting for our heir. Imagine that we are together, like we have been for the last 3 years. Merry Christmas, we'll have another opportunity to spend time together, let's not worry about this occasion. Let's see what happens and I might be there shortly.
These statements suggest that the couple expected that Luciano would travel to Uruguay, but he said he could not do so because of his work.
Marcel was born via Caesarean section on 24 December 1977.
Mirta's family advised Luciano immediately about the birth. Earlier Luciano had suggested the name Marcel if the baby was a boy. Mirta said that she chose as Marcel's second name the name Lucien, because it was the French version of Luciano's name.
Following Marcel's birth, Luciano sent a telegram and a card. The card contained the words: "Happiness is a baby boy" and said: "Dear Negra and Marcel. I send this card to tell you that I am very happy by the arrival of the boy of the house and I hope that 1978 brings health and happiness for us in our home. Bye. Luciano". "Negra" translates as darling, or sweetie.
Mirta paid for her six-day stay in hospital with Marcel with part of the money that she had brought from Australia.
Mirta said that Marcel's birth was a time of joy, and Luciano and she wrote to each other regularly. Aerograms, letters and postcards were the normal way of communicating at the time. Neither Luciano nor Mirta had a phone at home, and international calls were expensive.
Mirta also said that she has not retained all of the aerograms and letters sent by Luciano, as she moved homes after arriving in Uruguay, and her current home suffered water damaged twice, and she had to dispose of many documents that were damaged.
After Marcel's birth she received an aerogram from Luciano that included the statement "as soon as I can, I'll come over to get you". Mirta no longer has the aerogram. She said that a paediatrician recommended that she should not travel with Marcel until he had all of his vaccinations. She said that Luciano continued to communicate with her, saying among other things, that he would come and get her and Marcel after he had sorted out some things, that he was looking for a house, and he was working a lot. In mid-1978 Luciano said in a letter that he had "bought our house at 11 Clement Street Guildford". Mirta asked when Luciano would be coming to collect her and Marcel, and asked Luciano to send some money. Luciano replied: "At the moment I can't send any money. Why don't you come over with our son"?
Mirta said that she was unwilling to return to Australia with Marcel by herself, and needed Luciano to accompany her. At that time there were several stopovers in various countries; her English was very limited, and Marcel was very young.
By the time of Marcel's first birthday, when Luciano sent him a postcard, Luciano's letters started arriving about once a month.
Luciano did not send any money to Mirta, save for an amount of US $500, which was Mirta's tax refund for the last year she worked in Australia.
Mirta and Marcel lived with Mirta's parents, and the parents and her brothers met all of the needs of Mirta and Marcel. Mirta had spent all of the US $2000 that she took with her to Uruguay a, primarily on Marcel's needs after his birth.
When, on a couple of occasions, Mirta asked Luciano: "Why aren't you sending any money for Marcel?", and said that they needed his help, he eventually replied: "I've got enough problems with paying for the house; I can't send any money now".
Mirta said that Luciano confirmed to her in the late 1970s that the house at Guildford was their family house: saying on at least one occasion: "The location of the house is very good. It is in a quiet street and Marcel can ride his bike there without any trouble. It has a garden and plenty of room to store goods I will buy at actions".
Mirta said that she extended the validity of the return air fare with Alitalia as much as she could until, on 7 May 1979 she requested a refund of the unused portion to assist her to cover Marcel's upkeep. She was reimbursed US$349. She said that, until this time, she had her and Marcel's suitcase packed at all times, ready to travel to Australia when her husband came to collect them. The evidence included a receipt that proved the refund.
Mirta said that, as time passed, she continued to reside with her parents, who helped her to raise Marcel, and she and Luciano continued to correspond, although his letters did not come as often as in the early years. She said that she resigned herself to the fact that she would have to wait until Luciano was ready to come over to collect her and Marcel.
When Marcel was 3 years old, Mirta obtained employment with Montevideo's Local Council, initially as a very junior clerk, working 5 days per week, Monday to Friday. Her wages were low, and not enough to live on her own with Marcel.
Luciano wrote to Mirta in an irregular fashion, and his letters became short and less warm.
As I have noted above, Luciano made his will on 16 January 1981. He did not leave any of his estate to Mirta or Marcel.
After Mirta's father's death in 1981, Mirta's family home was in due course sold, and Mirta's mother and her brother, Rodolpho, assigned their share of the house proceeds to Mirta, which enabled her to purchase her present home on 24 November 1984. It is a one-bedroom villa at Camino Castro 481/483 Villa 04, Montevideo. Mirta's mother moved in with Mirta and Marcel, until her death on 27 March 1985.
Thereafter Mirta had significant difficulties in managing work and Marcel's before and after school care. He was 7 years old at the time.
From about 1986, Mirta managed to secure some overtime. That enabled her to pay half of the cost of Marcel's private primary school, and Rodolpho paid for the other half. Rodolpho also bought the family groceries every week.
Mirta became a full-time Council Inspector, which is the position that she has held to the present day, although her duties have changed recently because of health problems.
In about February 1986, Luciano visited Uruguay unannounced, with a traditional Uruguayan dance troupe from Sydney, called Murga La Bacana, of which he was a member. Mirta said that Luciano said to her: "Mirta I can see you've spoken well about me to Marcel. I made such a big mistake in letting you come over here on your own and pregnant". Luciano spent every afternoon with Mirta and Marcel for about 5 days in a row, and then he asked whether he could stay with both of them until he had to leave. Before Mirta could reply, Marcel asked her to let his father stay. Mirta said that Luciano lived with them for the following 2 to 3 weeks, and they had a happy time together.
Mirta recounted the following conversation: Me: "What happened, why did you wait 8 years to meet our son?" Luciano: "I made a mistake Mirta, but I'm on my way to the US to visit Teresita who lives there, then I'll return to Australia, sell everything and come here to live with you and Marcel on a permanent basis. These weeks together have been very beautiful".
Mirta said that, on Luciano's departure, he said that he would send her some money as soon as he could.
The evidence includes a part of a Murga La Bacana program, which Luciano signed for her and Marcel. It contains the statement: "To Marcel and Mirta. With much love, Luciano, February 1986", (written in Spanish).
Mirta said that, while Luciano lived with her in the villa, they behaved like any loving couple. Mirta cooked for Luciano, washed his clothes, attended to all his whims. They had sexual intercourse. Mirta was hopeful that they could resume their life as husband and wife on a permanent basis. She said that she loved him then, and still loves him now.
Luciano sent a postcard to Mirta and Marcel a few days after he returned back to Australia. He said that he "remembered the happy time spent together" and that he hoped he could "sort out (his) affairs in Australia and return to live with (us) in Uruguay".
An aerogram sent by a Luciano dated 15 April 1986 included: Negrita and Negrito Miss you Making plans to see you again Had very happy times with you I tell you I want to be with you on a permanent basis … We talked about me returning to Uruguay or you coming over or buying a block of land. I said that once back in Australia I could think about it. I see that we have to be together, us three. It's the best for Marcel, you and I, and perhaps the girl you wanted when I was with you. Let me have your thoughts on this. … Dad misses you [Marcel] a lot, every day. I remember when we played, walked around and ate (Uruguayan bread) Many kisses to both.
There are a number of photographs in evidence from this time which depict Luciano with either Mirta or Marcel, apparently participating in ordinary family activities.
Time passed, and Marcel became sad and depressed because his father did not return.
Luciano sent Mirta a total of US$800 for her and Marcel's upkeep in 8 remittances of US$100 each.
Marcel began to suffer from gastritis and anaemia. Mirta arranged to telephone Luciano by borrowing a phone at a friend's house. The call took place on 3 April 1987. Mirta told Luciano that Marcel needed him and that she needed money. Luciano said that he could not do anything about it as "I've got such serious problems myself. I've got problems with taxes". He said: "I can't send you any money now. As soon as I can, I'll go over there, I can't do it now. Give him a kiss for me and another for you. Bye".
Mirta continued to struggle to make ends meet, particularly concerning the costs associated with Marcel's diet and medical care.
Luciano send an aerogram to Mirta and Marcel on 23 September 2007, which was primarily addressed to Marcel. Luciano asked Marcel how everything was going, how school was, and whether he was preparing for exams. He advised: "Study hard so you can get good marks and Dad will be happy". After discussing a number of subjects which appear to have been of personal interest to Luciano and Marcel, the aerogram ended: "Ok Marcel, a big kiss from Dad".
In mid to late 1987, Mirta wrote to Luciano seeking confirmation that he would be coming. The evidence includes an aerogram dated 12 November 1987. It said: Dear Marcel and Mirta, Wishing time goes quickly to be close to you again. I got a letter from you, it made me happy. So Marcel was sick… You are asking me to tell you the date and flight number (for my trip). I want to make is (sic) a surprise. I'll spend summer with you. Okay at work, should be okay with airfare. I'll be there by January. Kisses for both of you until next (letter) Bye, Luciano
The aerogram also included a message addressed to Marcel which ended with" "Kisses, Dad".
Luciano sent a birthday card to Marcel for his 10th birthday on 24 December 1987. It included: As a gift, daddy will give you a surprise at the beginning of the coming year. A big kiss, bye, Dad".
In January or February 1988, Luciano returned to Uruguay for a visit which lasted many weeks. When he was not visiting relatives, he lived with Mirta. The relationship was initially hesitant, but, Mirta said, after a short while Luciano started behaving like any husband would towards his wife and son. They lived together as man and wife, and had intercourse several times.
One day Luciano said that he would "be leaving soon". She confronted him. The following conversation occurred: Me: "Are you coming back to live with us, as you promised?" Luciano O: "No, I won't, listen to me; a son won't tie me down and he shouldn't tie you down either. Do the best you can on your own". Me: But he is our son; it's the father and mothers role to provide love and financial support to him. Will you help me pay for his schooling? Luciano, with disdain: What is he going to study here Mirta? You work for the Local Council, don't you? Maybe Marcel can work as a garbage collector? Me: Look Luciano; if Marcel wants to study when he grows up, and become a professional or a technician, I'm going to help him. What an ugly thing to say; being a garbage collector is as dignified as any other job. Do you believe that you have fulfilled your obligations as a father by sending $800 in two years? Do you believe this is enough contribution as a parent? Luciano got angry and said: "I'm not coming back to live in Uruguay for good".
Mirta said that that day Luciano left the house without saying goodbye to Marcel or her. They did not see him again.
As Luciano had refused to assist Mirta and Marcel financially, Mirta sought legal advice, and applied for an order of a court in Uruguay to prevent Luciano from leaving the country until he agreed to pay maintenance for Marcel. Mirta said that she believed a restraining order was granted by a court, but Luciano still left Uruguay.
The evidence includes a translation of what appears to be an application made by Mirta to a Family Court in Uruguay, in which she applied for an amount of no less than US$500 per month for maintenance for Marcel, as well as an order preventing Luciano from leaving the jurisdiction until he had provided a guarantee to support his maintenance obligation in a manner satisfactory to the court.
It appears that, on the 3 March 1988, an order was issued from the office of a judge of the Family Court, called a prevention of departure order, and summoned both parties to a hearing as a matter of urgency, which appears to have been fixed for 21 March 2018.
There is another document in evidence that was translated from Spanish, which I infer was addressed by the Director of the Migration Department to the Family Court judge, which advised that, on 7 March 1988, an order had been issued to prohibit Luciano's departure from the country.
In September 1988, Mirta sought advice from the Australian Embassy in Buenos Aires, Argentina, as to whether she could apply for child maintenance for Marcel in Australia. She was advised that it would be necessary to commence proceedings in the Family Court of Australia. Mirta was advised by the Uruguayan Foreign Affairs Department that she could not commence proceedings in Uruguay for an order for maintenance against Luciano, because Uruguay did not have an agreement with Australia that would have permitted the enforcement of any maintenance order. Mirta realised it would be impossible for her to prosecute maintenance proceedings against Luciano in Australia, because she did not have sufficient money to pay for the application.
There is in evidence a translation of a letter that Luciano apparently wrote to his brother, Ricardo, on the 2 November 1988. The letter contains references that are not easy to understand out of context. It included the following: … Ricardo, from now on if you receive any official documents send them back because you are under no obligation and you are nobody's messenger. The only thing I would ask you is, if I need any papers from there please send them, and remember you do not need to give your brothers' addresses to any one and if you need to contact anyone you can contact Theresa. And in relation to the solicitors you saw, thank you for what you asked. I already have a solicitor here so you can disassociate yourself from me; if anything comes up I will try to resolve it from me… On 26/9/88 I sent you a letter addressed to Pocha sent to the PO Box and with it I also sent a cheque for 100 [currency illegible due to photocopy] which I hope you can use to help you resolve the thing with a solicitor. If you did not receive it write to me straight away and I will recall it from here. I'll repeat: do not mention anything to anyone over the air war over here. NO ONE except for Theresa. Someday I will be able to tell you the reasons. I have the receipt for the return trip that I paid for her and if they check her passport they will see she has an entry visa so they can be sure she has not abandoned her home. One more thing: I was helping her from 85 until I went on that last trip and it happened because she kicked me out of the house and did not let me say goodbye to the kid. And the thing where they say I fled, [illegible] came on 21/03/88 and I left on 14/3/88. If you want I can send you a photocopy…
Mirta gave evidence that the condition of Marcel's health made it necessary for her to devote herself to her work and looking after Marcel. In around 1987 Marcel was found to be suffering from depression and anxiety. Mirta paid for Marcel's treatment and medication. She was also depressed but she had no money or time to seek treatment for herself. She concentrated on Marcel's health. In around 1988 or 1989 Marcel was in hospital with pneumonia for a week. In around 1989 Marcel was diagnosed as suffering from phimosis (tightening of the prepuce) and right criptorchidism (non-descending testicle), which required surgical intervention for both conditions.
Mirta's wages were not enough to pay for Marcel's needs. Even with financial assistance from Rodolfo, Mirta did not have enough to pay for their basic health, food, clothing and educational needs. They did not go on holidays for many years. Mirta relied on credit cards, short-term loans and advances on her future wages to pay bills for healthcare, electricity, water, taxes, clothing, food and Marcel's schooling. Mirta's level of indebtedness grew, and in 1990 she had to remove Marcel from his private school, and enrol him in a public secondary school, which provided a lower level of education than he had previously enjoyed. From time to time Mirta was forced to sell household goods such as furniture, personal clothes and white goods, to make ends meet.
In around 1993, Marcel was also diagnosed with scoliosis and his doctor prescribed swimming. Mirta therefore paid for Marcel's membership in a health centre for close to 5 years.
From 1992 onwards, Marcel has required ongoing dental and ophthalmic care, and has worn prescription glasses since that year.
I will deal with Marcel's educational achievements when I consider the evidence that he has given in his case. It is sufficient to note for the present that Marcel has always lived with his mother in her villa. He apparently sleeps in the single bedroom, and Mirta sleeps in the dining room. Mirta said that, with her limited income, she has supported Marcel financially and emotionally throughout his studies. She paid for Marcel's education from preschool to university. While enrolment in the university was free, Mirta had to pay for his books and equipment. Mirta also paid for the English courses that Marcel needed for his degree between 1998 and 2002.
Mirta apparently did not attempt to contact Luciano directly after he left Uruguay in 1988. She had a telephone installed in her villa in 1994. Thereafter, she would call or receive calls from relatives of Luciano in Australia about twice a year, and would regularly ask about her husband.
Early in that period one of the relatives said to Mirta: "From time to time we visit him at Guildford. Once he was on his own, working on his car, and I said to him: "Why don't you fix this situation with your wife and son? You wouldn't have to be on your own then' and he told me: 'Mind your own business'".
In around 2006 or 2007 the same relative said to Mirta: "We've heard nothing from Luciano for some time. We haven't seen him and don't know where he lives. He has moved out."
Luciano's relatives in Australia did not tell Mirta that Luciano had been living in a nursing home for the last three years of his life, or that he was suffering from Alzheimer's disease.

Mirta's present circumstances

For the last 20 years or so of her employment with Montevideo's Local Council, Mirta has worked an average of 12 hours a day, including most Saturdays.
In her affidavit dated 9 March 2015, Mirta said that she continues to be employed as a Council Inspector for Montevideo Local Council on a full-time basis. However, as she suffers from dysphonia her duties have changed, and since mid-2013 she has worked within the Council premises and does not do outdoor inspections, because she cannot communicate verbally with the public on a prolonged basis.
Mirta's gross wage is 23,328 Uruguayan pesos, which is about US$945 per month. She also receives an additional allowance for the number of years she has been working at the Council (35 years) and an allowance for working on Saturdays. In order to make ends meet, she works an average of 10 hours a day now plus Saturdays and some overtime, and her earnings vary significantly from month to month. Mirta currently receives an average wage of US $1881 per month after taxes and deductions, but this is variable.
As I have noted above, Mirta and Marcel have resided in Mirta's villa in Camino Castro, Montevideo, continuously since approximately 1984.
Mirta's and Marcel's salaries are, according to Mirta, insufficient to cover their cost of living, so they are compelled to pool their resources together to pay their frugal living expenses. Marcel and Mirta are, by necessity, inter-dependent on each other. Mirta does not wish to continue to live in this manner, as Marcel is an adult who needs to establish his is own home and family.
Marcel's net salary is currently US$838 per month. At present he also receives a scholarship of US$814 per month. In addition, Mirta's brother, Rodolfo, regularly provides Mirta with approximately US$200 per month to meet the shortfall between earnings and expenses. The total amount received by Mirta and Marcel per month is therefore about US$3688.
Mirta listed the total joint monthly expenses of herself and Marcel as being US$3028. The expenses look reasonable (as much as it may be possible for me to assess the reasonableness of expenses for two people living a frugal existence in Montevideo). The NSW Trustee did not suggest that the expenses were unreasonable. No allowance was made for public transport for Mirta (whilst she is employed by the Council for the next 3 years), for dental care for Marcel, for prescription glasses for Mirta or Marcel, and nothing was allowed for holidays.
Mirta said that she and Marcel have managed to save some funds for emergencies, by depriving themselves of other basic needs. However, they had spent US$31148.90 for their legal expenses up to the time the hearing commenced. As at the date of her final affidavit, Mirta and Marcel had US$2003.44 in their bank accounts.
As a result of surgery to her thyroid, Mirta suffers from hypothyroidism and hypoparathyroidism. She suffers from type 2 diabetes, and she is not able to retain calcium in her body. She also suffers from chronic diverticulitis, arthrosis, diabetes, osteoporosis and laryngeal polyps. As she loses calcium easily, Mirta cannot exert herself much or otherwise she perspires and loses calcium through perspiration, which results in dehydration and loss of calcium. This can lead to muscular paralysis as her body contracts severely and her muscles become stiff. Due to hormonal changes related to her age and her medical condition, Mirta's skin is sensitive to the sun and deteriorates quickly. She has to be treated by a dermatologist on a regular basis, and requires medication. On 12 January 2015 Mirta saw her ophthalmologist, and paid the equivalent of US$113 from her own funds for the consultation. She has not been able to change her glasses due to the cost involved.
Mirta's doctor has recommended that she do exercises and attend the gym, but she cannot afford the fees charged by gyms.
Since mid-2012 Mirta has been suffering from dysphonia which has become more and more severe. This is an impairment in the ability to produce voice sounds. She has consulted an ear, nose and throat specialist, who referred her to a speech therapist. The speech therapist believes that Mirta's loss of voice has an emotional component. Mirta attends weekly therapy sessions with her speech pathologist, as not being able to speak properly prevents her from carrying out her work as a Council Inspector and that, in turn, places her employment at risk.
Mirta believes that she also suffered from depression following Luciano's second trip and that she should have had treatment. She did not do so, as she could not afford to pay for the treatment.
Mirta's current health conditions restrict the number of hours that she is able to work; therefore she only does some overtime. She fears that once she retires at age 65, her standard of living will deteriorate further as she will have less income and more expenses due to her health needs. At age 65, Mirta will have to rely only on the retirement pension provided by the government of Uruguay, which will be significantly less than her current monthly wages.
Mirta's villa is comprised of a bedroom, a dining area, a bathroom and kitchen. There is no car space or storage area. The total area of the villa is 32 m².
Mirta and Marcel have converted the dining room into a bedroom for Mirta. Marcel occupies the only bedroom.
Mirta and Marcel cannot entertain at all at home, as Mirta's bed is located in the dining area.
The villa is affected by severe dampness on all walls and floors; there is extensive cracking of the walls and the rendering is falling off; there are broken roof tiles and a leaking toilet.
Mirta estimates that, in its present condition, her villa is worth approximately US $19,500.
Mirta also estimates that she would require about US$265,000 to purchase an existing two-bedroom unit in a better condition and in a more secure suburb. Mirta provided evidence of two two-bedroom units of about 70 m² with asking prices of US$245,000. Mirta would like to have two bedrooms so that her son and his possible future family could come to stay with her, and she could look after future grandchildren.
Mirta would like to have a small car to move around independently, do her shopping, and go to work and travel. She cannot carry heavy loads, and having a car will allow her to transport her shopping effectively. A small hatchback would cost between US$20,100 and US$22,800.
The transaction costs for buying a new home unit would be about US$19,000.
Mirta provided the following estimate of her needs to the age of 85 years, which totalled US$746,878.20 as at 8 February 2013. Mirta said in her 9 March 2015 affidavit that these expenses have been increasing over and above the inflation rate of 8.5% per annum. 1. Purchase of an existing two-bedroom unit US $259,700 including legal expenses and duties. 2. Ongoing maintenance and council rates and taxes over 23 years: US$7027.65. 3. Funds for medical expenses (medication, medical investigations, private health care, dental care, optical care, emergency care) for 23 years: US$199,225.55. 4. Funds to cover retraining to assist with a career change to a less strenuous job, in administration or computer work: US$4000. 5. Funds to cover a basic English course for work purposes: US$4805. 6. Funds for a holiday every two years within Uruguay or to bordering countries for the next 23 years: US$41,400 at US$1800 each year. 7. Funds to cover her funeral services: US$8000. 8. Funds to invest to supplement her age pension during her retirement, as there is no superannuation scheme in Uruguay: US $70,000. 9. Public transport for the next 23 years: US$13,800. 10. Motor vehicle (including taxes) for an initial outlay of US$22,000-US$23,000 and to be replaced once: US$46,000. 11. Ongoing maintenance of the vehicle including registration and fuel for 23 years: US$33,120. 12. Funds for social outings at US$50 per week; approximately US$59,800 for the next 23 years.
Mirta said that, when she retires, she will become entitled to a pension of 30,000 Uruguayan pesos per month. At an exchange rate of 1 US$ equals 1363 pesos, the pension is about US$1360 per month.

Effect of Uruguayan Court order in 1993

Initially, there was an issue between Mirta and the NSW Trustee as to whether an order made by a Family Court in Uruguay on 20 March 1993 had the effect of dissolving the marriage between Mirta and Luciano. As I have recorded above, the NSW Trustee abandoned this argument on the first day of the hearing.
Nonetheless, the NSW Trustee maintained an issue concerning the effect of the order made by the Family Court.
Hallen J made an order appointing Ms Luz Calvo de Gross, a Uruguayan lawyer and lecturer, as joint expert to report to the court on the following questions: (a) Whether or not the legal effect of the documents (annexed hereto and marked as A, B and C, respectively), under Uruguay in law, is to effect a divorce between the plaintiff and the deceased; and (b) Whether or not there was a property settlement between the plaintiff and the deceased, and if so, the nature of that property settlement.
I note that the letter of instruction written by the NSW Trustee to Ms de Gross dated 21 May 2014 asked questions (a) and (b) in the order made by the court as questions 1 and 2, and then asked the following additional questions: 3. Do the documents affect the property rights of the deceased and [Mirta]? 4. If the documents affect the property rights of the deceased and [Mirta] in what way are they affected? 5. If the documents do not affect the property rights of the deceased and [Mirta] then what is the purpose of such documents?
Ms de Gross provided a report addressed to Hallen J dated 27 June 2014, which materially said: Before answering the questions item by item, I consider it illustrative to make a brief review of the marital regime in Uruguay. Our system sets forth that the property regime can be established as agreed by the parties before the marriage. This, is called marriage articles, prenuptial agreement, by which the property regime is set to take effect in the future marriage. Should this not be established, in a supplementary manner, the legal regime of participation in marital property is in force. This will last from the time the marriage is celebrated until the dissolution of the marital partnership, which, according to Section 1999 of the Civil Code can operate due to the death of one of the spouses and divorce (when the marriage is also dissolved) and physical separation, judicial separation of property and declaration of absence (those cases where marriage subsists). Either party may request the dissolution of the marital partnership (change of marital regime of community for the regime of absolute separation of property) through judicial separation of property, pursuant to Section 1985 of the Civil Code… The judgment dissolving the marital partnership terminates the regime of community provided for by law, in which case the marital regime changes to absolute separation of property. The dissolution of the marriage for judicial separation of property only has to do with the property regime of marital property and in no way affects the other effects that the marriage produced, which are as valid as before.
Ms de Gross answered question 1 by saying that the documents that were the subject of her advice do not mean that Luciano and Mirta dissolved their marriage by divorce.
I will paraphrase the answer to question 2 by noting that Ms de Gross said that if, as in the present case, a couple gets married without a marriage contract, then "the legal regime governing is that of community property". She said that the law allows spouses to request the modification of the regime of community property to that of separation of property. Uruguayan law allows either spouse to request, without explanation, "the dissolution of the marital partnership". Ms de Gross explained the process whereby notice of the application is given to the other spouse, and notice of the application is published so that creditors of the community property can appear on the application. If they do not appear to satisfy their claims out of the community property, they can only subsequently prosecute their claims against the separate property of the spouse who has contracted the obligation.
Ms de Gross said, in answer to question 3, that the marital property regime between the spouses was modified.
She said, in answer question 4, that the marriage continued to exist for all purposes. Up until the order made by the Uruguayan court the property of the spouses "was a marital community partnership and from then on the system of absolute separation of property".
Ms de Gross effectively repeated the answer to question 4 in her answer to question 5.
Apparently, following comments made by Hallen J at a directions hearing on 4 July 2014, Ms de Gross was asked to give a more specific answer to question (b) contained in the previous orders of the court, as to whether there was a property settlement between Mirta and Luciano, and if so, the nature of that property settlement.
Ms de Gross provided a supplementary report dated 29 July 2014. She explained again that, under Uruguayan law, "if there is no prenuptial agreement … the equity property system governing the marriage is … a legal community property regime". However, one or both spouses can, by a court filing, change that regime to that of separation of property, as was done in this case at the request of Mirta. She said that there was no agreement regarding the spouses' assets.
Ms de Gross was questioned by the parties during the hearing by video conference. She adhered to the evidence that she had given in her reports. She said that Uruguayan law recognised prenuptial agreements. In the absence of a prenuptial agreement, when the parties to a marriage acquire assets, they do so communally. The parties did not explore the relationship between communal ownership and what is known as joint ownership under New South Wales law. Either party can unilaterally and at will terminate what Ms de Gross described as "conjugal society", by making an application to a Family Court, and without necessarily giving prior notice of the application to the other party to the marriage. After the order is made, any property acquired by a party to the marriage with that party's own money is owned by that party separately. New property that is acquired with money that remains subject to community of assets will also be owned in common.
The order does not affect the continuation of the marriage. It does not affect the obligation of one spouse to provide maintenance to the other. There is no connection between the issue of community or separate ownership of assets on the one hand, and the continuation of the marriage and the maintenance obligation on the other.
Partners to a marriage do not have complete testamentary freedom under the law of Uruguay. The surviving spouse may have a right to receive part of the property owned separately by a deceased spouse. That right depends upon the application of what Ms de Gross described as "a complex mathematical equation". The application of the equation depended in part on the value of the assets of the surviving spouse. The amount to which the surviving spouse becomes entitled is the difference between the amount calculated by applying the formula and the value of that spouse's own assets. Ms de Gross said: "And if that person does not have anything, that person is entitled to the entire asset".
Mirta's evidence was that she purchased her villa on 24 November 1984. She said that she was advised by her lawyer to make the application to the Family Court in 1993 in order to ensure that the ownership of the residence was not at risk if, to use my words, Luciano became insolvent as a result of his business activities. She pointed in particular to the business that she had assisted him to operate while she was in Australia whereby he bought items at auctions and resold them at fairs.
It was my impression that the effect of Ms de Gross's evidence was that an order for separation of property only worked prospectively. If that is so, then the making of the order in 1993 would not have affected the community of property in relation to an asset purchased in 1984. The parties did not explore this issue in detail with Ms de Gross.
I am satisfied that this issue is immaterial to the matters that I am required to decide in these proceedings. It is now accepted that the order did not have the effect of dissolving the marriage between Mirta and Luciano. It was not a final settlement of matrimonial property. It did not affect Luciano's obligation to provide maintenance to Mirta and Marcel. While it appears that the order had the effect that Mirta now has sole title to her villa, that is simply one factor to be taken into account in the application of ss 59 and 60 of the Succession Act.

Marcel's evidence

Although Marcel has instituted separate proceedings to Mirta, the evidence in one case has been treated as evidence in the other. Marcel affirmed his principal affidavit on 8 February 2013. He prepared two affidavits in reply and an updating affidavit on 14 March 2015. Marcel and Mirta have dealt with many of the same issues in their principal affidavits. I will approach the evidence given by Marcel on the basis that, where possible, I will avoid duplicating some aspects of Marcel's evidence that have been dealt with in Mirta's evidence. Some degree of repetition is, however, inevitable.
The evidence presented by both Marcel and Mirta is entirely consistent. I attribute that consistency primarily to the fact that I regard both witnesses as having told the truth. I have borne in mind, however, that Marcel had to assist his mother in preparing her affidavits in English. The plaintiffs had to prepare their affidavits primarily in Uruguay, and their straitened financial circumstances did not permit them to engage independent interpreters.
Marcel noted in his primary affidavit that his father's death certificate is incorrect, because it fails to disclose his existence and the fact that, at the time of his death, his father was still married to Marcel's mother. That discovery must have been hurtful to Marcel.
Marcel is the only child of Mirta and Luciano, having been born on 24 December 1977.
On about 18 September 1978, Luciano provided an authority to the Consulate of Uruguay in Sydney for a passport to be issued to Marcel as a minor, so that he could travel outside of Uruguay without him.
I have set out above the extracts from Luciano's correspondence to Marcel and Mirta that are principally relevant to the issues in this matter. I will not repeat them, although I note that Marcel has referred to them in his affidavit.
Marcel claimed, particularly by reference to the audio cassette, that Luciano sent to Mirta in December 1977 that Luciano referred to Marcel as his heir. He made that statement in the context that he had recently become aware that Luciano's will made in 1981 did not include Marcel as a beneficiary. Marcel gave evidence of his first meeting with his father in 1986, when Marcel was 8 years old. Luciano knocked on the door of Mirta's villa unannounced.
Marcel said that he can recall his father spending just under a month with his mother and himself living with them during that visit to Uruguay. Luciano took Marcel to meet some of his friends and to visit Marcel's uncle, Ricardo Bentancor. They also attended a cultural event where Luciano was singing and dancing with a carnival troupe called "Murga La Bacana". Marcel referred to the program that Luciano had given him, on which Luciano had written: "For Marcel and Mirta with much love. Luciano".
Marcel said that he started his third year of primary schooling at the time of his father's visit, and that Luciano took him to, and collected him from, school several times. Marcel was very proud of being able to introduce his father to his friends. Marcel said: As an adult, I believe the pride and happiness I felt at the time must have been because up to then there was emptiness in my life. My mother worked hard at being both mother and father to me, and my maternal uncle Rudolfo tried to play the role of the father figure, but I wanted my father to be part of my life; I wanted him to be actively involved in my life and when he came, I enjoyed his company thoroughly and he enjoyed my company and that of my mother. We were a family. Once I met my father, I felt my life would improve in every sense.
After Luciano returned to Australia, Marcel kept in touch with him via letters. Marcel understood that his father intended to return to Uruguay to live with Marcel and his mother on a permanent basis.
Luciano included in his letters statements written in capital letters intended for Marcel, as Marcel was not then capable of reading cursive writing.
Marcel said that, from 1986 until approximately 1988, he sent his father between 30 and 40 letters, and received a similar number of letters to himself and his mother. Marcel has only been able to find a couple of those letters.
When Luciano visited Uruguay 1988, Mirta allowed him to take Marcel to visit Luciano's friends at Carmelo, a city in the hinterland of Uruguay. Marcel said that once again this visit by his father was full of activities, and he and his father spent a lot of time together, taking rides on trains, dining out, teaching Marcel to ride a bike, and once again Luciano stayed at the villa with Marcel and his mother.
Marcel gave evidence of an incident in which he recalled his mother asking his father to purchase a small electric hot water element so that she could warm up water for Marcel's bath. There was no hot water at the villa, and Marcel used to bathe in a tin container, and Mirta would pour warm water on him using a jug. Luciano did not purchase the electric hot water element. Marcel said that he could recall his father constantly saying words to the effect: "It is important to save and not to spend anything unnecessarily". Marcel gave evidence of another incident in which the family went to the butcher, and Mirta wanted to buy a good quality cut of meat for Marcel. Luciano said: "The other cut (which was the cheaper and a lower quality) will do".
Marcel said that, after Luciano stopped being in contact with Marcel and his mother, particularly after his second visit, Marcel felt a great loss and felt betrayed by his father and abandoned. Marcel could not understand why his father seemed to be so happy when they were together, but afterwards he would not return to see Marcel or live with him.
In approximately March 1988, at the end of his second visit, Luciano left without saying goodbye to Marcel, and Marcel had no contact with him since. Marcel said that he has never been able to understand why his father was not interested in keeping in touch with him, and helping him or his mother, as even a letter from time to time and a small amount of child maintenance would have made Marcel's life much better and eased the burden of bringing Marcel up that fell on Mirta.
Marcel related a number of illnesses that he has suffered, which he partly attributed his to being abandoned by his father.
In approximately 1986, Marcel started having stomach pains. He lost significant weight after his father's first departure, and Mirta took him to a paediatrician. Marcel was diagnosed with anaemia and chronic gastritis. Marcel felt like he had a fist stuck in his stomach, and sharp pain in the area. The pain could be so severe that he had difficulty breathing and he would frequently vomit. He did not have any appetite for food, and he was a very skinny child. Marcel was on a special diet for many years, prescribed by a dietician. Marcel could not have any fried foods, fast foods, sweets, soft drinks, citric food or drinks. Mirta had to cook fresh food every day, using steamed and roasted liver, chicken, fish each at least once a week; eggs, dairy products, creams, jelly etc. Marcel's diet was very restrictive and expensive to maintain for any worker in a society where the staple food was pasta and where meats were expensive.
All of Marcel's basic needs were met by his mother as a child, but his special diet and ongoing medical treatment put extra financial demands on Mirta, s she had to pay for additional medical services. Marcel had radiological investigations, medication, frequent medical consultations with general physicians, paediatricians and nutritionists and other health professionals.
Marcel said that, at the same time as he was having these medical problems, he started to become sensitive and teary and cried frequently, and eventually became deeply sad. This was followed by strong headaches. Marcel was required to have a series of tests including a CT scan and an electroencephalogram.
During the school years in 1987, 1988 and 1989 Mirta was on many occasions called to collect Marcel from school, as he was suffering from severe headaches. He did not feel like eating, and his weight was below the minimum weight for his age.
Marcel was referred to an urologist, and then to therapy with a psychiatrist, who was also a psychologist. He was treated for depression, migraines and anxiety linked to a digestive disorder. He was severely underweight, and was prescribed medication. All of the treatments were paid for by Mirta. In 1988 Marcel was hospitalised with pneumonia. He was looked after in turn by his mother and his uncle Rodolpho.
Marcel's chronic gastritis slowly improved over the years. He ceased treatment in late 1989, although he has not completely recovered. The cost of treatment was a heavy toll on Mirta.
In his teenage years Marcel was diagnosed with scoliosis of the back. His doctor prescribed regular swimming as a treatment. Mirta paid the fees to a health centre where Marcel had access to a pool. Marcel attended the centre regularly for about 5 years, but Mirta could not afford the fees any longer, so he stopped.
Mirta financed all of Marcel's medical, educational and personal needs on her limited earnings. She would often obtain loans or rely on a credit system which did not use credit cards, as she was unable to pay for all their basic monthly expenses from her wages. She relied heavily on credit cards, multiple loans and private credit. She obtained advances against future wages, she got food and other items on credit from the local grocer, chemist and kiosk, and uncle Rodolpho frequently contributed money. From time to time, Mirta would sell pieces of furniture, clothes and bits and pieces they had at home to cover the cost of utilities. On weekends, Mirta and Marcel used to go to uncle Rodolpho's house for lunch and dinner. Rodolpho would also provide some food and groceries to take home for the week.
Marcel said that a telephone was installed at home in 1994. Marcel called his uncle Elbio and his wife Mary, who lived in Sydney, and they telephoned Marcel and Mirta. Around 2006 to 2008, Marcel enquired about his father with his aunt Mary, but she said words to the effect: "We don't know where he lives and we haven't heard from him for a long time".
As a result of these proceedings, Marcel has learned that his father died in a nursing home and that at the time of his death, Marcel's aunt Teresita was his guardian. Teresita did not contact Marcel to let him know about Luciano's condition or death.
Marcel referred to the huge gap his father's absence has left in his life. Marcel believes that Luciano chose not to fulfil his obligations as Marcel's father, guide, mentor and companion.
When Marcel started his secondary schooling in 1990, Mirta enrolled him in a public high school, as she could not afford private school fees. Marcel completed his secondary education and university studies in public educational institutions. Marcel said that in Uruguay public education is of lesser quality when compared with private education; there are more students per classroom, fewer teachers, less resources, fewer subjects are offered and the infrastructure is poor.
With the exception of one textbook that Marcel was able to buy, all other books he needed to read as part of his secondary education were borrowed from various libraries, as Mirta could not afford to purchase them. In university, Marcel also relied heavily on books from libraries as he could not afford to buy them until later, once he started working part-time at university.
While he was in secondary education, Marcel put a great effort into achieving good marks at school. Generally, he was amongst the top 5% of students.
After he completed his secondary education, Marcel enrolled in Biochemistry at the University of La Republica in Montevideo, Uruguay. That is a public university. Since he completed his degree, Marcel has been required to make compulsory contributions to the University, which are paid into a fund to provide grants to other students.
Between 1998 and 2002, Mirta paid for several English courses for Marcel. That was essential as in Marcel's field of work. It is expected that any publications will be presented in English, particularly experimental results, and technical bibliographies are mainly in English.
Marcel completed his bachelor degree in Biochemistry in 2006. It took Marcel several years longer than for other regular students, as Marcel had to work whilst he was studying at university. Usually it takes five years to complete an undergraduate degree as a full-time student, and then additional time is required for practical laboratory work, and the preparation of a written thesis and oral examination. It took Marcel 10 years to complete his degree, as he had to work part-time. Marcel was also not able to commence intensive English classes until 2001. It took Marcel four years to complete the level of English required by scientists.
After completing his bachelor's degree in Biochemistry, Marcel commenced a Masters in Cellular and Molecular Biology, which he completed in 2009. Marcel is currently pursuing a doctorate of philosophy in Plant Molecular Biology at his university. Marcel has participated in national and international congresses, and published some articles in international scientific publications. The evidence includes a list of those publications.
Marcel said that he has been able to achieve a high degree of expertise and learning in his field of science. However, remuneration for academics and researchers is not commensurate with the degree of expertise achieved, but rather with the grade in which they work. Marcel said that he has a strong vocation with science.
Marcel said that he would like to complete his Ph.D. and live in Uruguay. He would like to pay back his mother for her support in educating him, as well as his country, Uruguay, through his work, for having given him the opportunity to become a professional.
The scientific community in Uruguay is very small, and it is necessary for Marcel to travel overseas to meet with colleagues and learn from them. In that context, in addition to several conferences, courses and research activities which he has attended in the bordering countries of Argentina and Brazil, Marcel has travelled for short periods of time to a number of other places. He was able to attend the conferences by competing with other candidates for scholarships which paid for those trips. In order to win the scholarships, Marcel was required to prepare a full and detailed schedule of his work and attendance at the conference, and then prepare and submit a report on his return for the approval of the sponsoring entity.
Marcel gave the following employment history. During his undergraduate years he commenced working at his University. In 1999, Marcel started working for his University on a permanent part-time basis. He worked less than a full week and had an employment contract which expired annually. Accordingly, each year he had to compete with other candidates for his job. Marcel was only paid for 4 hours per day, although his duties included laboratory work that might require him to spend on average between 6 and 10 hours per day, and sometimes more.
In 2001, Marcel moved to the plant molecular biology laboratory in the Science School of his University. In 2011, Marcel was able to secure a permanent part-time position at the University for 6 hours a day. Marcel described this as a Grade 2 position. He often worked between 7 to 10 hours a day in the laboratory, although he only gets paid for 6 hours a day Marcel had to compete for his position. Promotions are based on expertise and performance in practical and theoretical tests. Marcel's job involves research and teaching undergraduate students, postgraduate students and teachers who are upgrading their qualifications. Marcel also makes presentations on scientific topics.
Marcel is currently employed as a researcher with the University. He is a Grade 2 employee in a grading going from 1 to 5, with grade 1 being the least senior and lowest paid position, and 5 a senior and highest-paid position. Grade 5 is normally restricted to the highest authorities within the University, and only for those who have had a lengthy and most distinguished career.
There are few opportunities of promotion in Marcel's position as it is rare, in academia in Uruguay, for openings to occur. If the position is advertised, there are many applicants for the one position, and therefore any promotion is contested. Marcel's position expired in May 2013, but he won a reappointment. Marcel expects that his position will continue to be short term, and he will have to win regular reappointment.
It took Marcel 12 years to obtain promotion from Grade 1 to Grade 2, due to limited opportunities available. He was appointed Grade 2 on 16 May 2011.
Marcel's current monthly salary (as at the date of his 8 February 2013 affidavits) was US$838, after payment of taxes. Marcel does not receive any automatic increase in his salary, as the rate of pay is set by the University, and depends upon economic factors. In addition to receiving pay for working 6 hours per day, Marcel works overtime when he can, but overtime is not frequent. Marcel also receives a scholarship valued at an average of US$814 per month. Provided he satisfies the conditions to the receipt of the scholarship, Marcel will receive the scholarship from April 2014 to April 2016.
After paying his share of the legal costs for these proceedings to the commencement of the hearing, Marcel had US$288.52 in his bank account as at 14 March 2015.
Marcel is now 37 years of age. He lives, as he always has, with his mother, and since its purchase he has lived in the villa. The size and condition of the villa have been described above in recounting the evidence given by Mirta.
Marcel said that, even though he loves his mother, he would like to live in his own home, modest but dignified, but he does not have the financial resources to secure a home.
The villa has access to basic utilities such as water, electricity and phone. It does not have access to cable TV or gas. In winter Marcel and Mirta rely on a small electric heater. For the last 6 years Marcel has paid for access to the Internet. That is very important for his work and his postgraduate studies.
Marcel hopes to finish his Ph.D. within about two years. He does not expect to secure any work promotion for many years, as there is heavy competition from other scientists for limited positions.
Marcel has over his life suffered a number of health conditions, in addition to those that have been mentioned above. 1. In his teenage years he underwent two operations. First, in 1989 he underwent double surgery to correct a condition known as phimosis affecting the foreskin of the penis, and a non-descending right testicle. Subsequently, in 1998 he underwent surgery to treat varicose veins in the left testicle. 2. A test carried out on 23 December 1997 showed that he suffers from terato-asthenozoospermia Grade I-II. This condition is one of the major causes of infertility or reduced fertility in men. 3. Marcel has been advised that he will probably encounter difficulties in procreation, and he might need to resort to assisted fertilisation treatments. His present financial circumstances prevent him from using those treatments. Marcel has had a sperm count study which indicates low sperm count and poor quality sperm. In future, Marcel would like to have children, although he has not attempted this yet due to his limited financial standing. Marcel provided evidence that the cost of the treatment will vary but on average is about US$8000 plus the cost of medication. The rate of success of the treatment varies from 15% to 40%, so it is common for the treatment to be repeated twice or three times before conception is achieved. 4. Marcel has poor dental health and gum disease. He does not receive any dental care or financial assistance to fix this dental problem. 5. Marcel suffers from atopic dermatitis and seborrheic dermatitis. In particular, his skin flakes and he has red sores. His skin ducts become blocked and infected, and this infection is recurrent, especially on his eyeballs. When his eyelid becomes infected Marcel needs to seek surgical intervention with a skin specialist. Marcel has had this treatment a few times already. 6. Marcel depends mainly on the public health system, but he is sometimes able to consult private medical practitioners when he receives a voucher from his University employer. The number of vouchers Marcel receives is limited, and issued on salary pro rata basis. The vouchers enable Marcel to consult only those medical practitioners who accept these employer issued vouchers. Only generic medicine is issued on presentation of the vouchers. 7. Marcel wears prescription glasses and regularly needs to have his eyes checked and spectacles updated.
Marcel does not own a car. He would like to purchase a small car so that he could reduce his travelling time to work, which is currently three hours each day. Marcel would also like to take his mother for occasional holidays in Uruguay, as she has only taken one holiday in the last 20 or so years. Public transport at night in Montevideo is very unreliable, and taxis are too expensive.
Marcel would like to take an annual holiday each year, and travel to a beach or the hinterland in Uruguay. He estimates this would cost between US$2000 and US$4000 each holiday.
Marcel from time to time is able to attend conferences, courses and research activities overseas by securing subsidies and scholarships. He would like to be able to pay for such activities himself, and would need around US$6000 to pay for overseas courses of one or two month's duration per year. That will be necessary for Marcel's professional development.
Marcel said that during his two visits, Luciano brought as presents for him some T-shirts, socks and some toys. He also paid for dinners when he took Marcel and Mirta to restaurants or on outings. He sent Marcel a raincoat and a pair of pyjamas from Australia. Marcel has received no other assistance or gifts or benefits from his father. He and Mirta have had to lead a frugal life due to their limited financial resources.
As at the date of his affidavit Marcel had assets with a total estimated value of US$3000.
Marcel gave evidence of his and Mirta's income and outgoings that is the same as the evidence given by Mirta.
Marcel gave the following evidence as to his future needs, and the claim that he makes on his father's estate. The total amount is US$924,261. 1. Marcel is required to pay a total debt of US$3020 over 25 years as a compulsory contribution to his university fund. 2. A three-bedroom house with a garage would cost approximately US$350,000 plus legal expenses and duties. 3. Ongoing maintenance and council rates and taxes over 25 years would cost US$10,000. 4. Three attempts at assisted fertilisation treatment plus medication would cost US $24,000. 5. Funds for medical expenses including healthcare insurance would cost US$40,000. 6. Work equipment would cost US$15,725. 7. The amount necessary to fund the advancement of Marcel's career by attending professional development conferences for the next 25 years would cost an estimated US$125,000. 8. Fast Internet access necessary for Marcel's study and work for the period until his retirement in about 25 years would cost US $19,350. 9. There is no superannuation scheme in Uruguay. Uruguay only provides a low retirement pension, which is not income tested and is insufficient to cover living expenses. The amount estimated as necessary to cover Marcel's retirement is US$123,231. 10. The estimated cost of public transport for the next 25 years is US$27,930. 11. The cost of a motor vehicle is an initial outlay of US$22,000 to US$23,000, and it would be necessary to replace the vehicle every 10 years. 12. The estimated cost of ongoing maintenance of the vehicle including registration and fuel for 25 years is US$70,000. 13. Funds for social outings and holidays at $50 per week for the next 25 years are estimated at approximately US$65,000. 14. Funds for replacing Marcel's computer and laptop and software every five years for 25 years are estimated at US$16,000. 15. Funds for language courses including maintaining and improving Marcel's English and acquiring German as a language which is used in scientific research are estimated at US$12,000.

Julia's evidence

Ms Maria Julia Repetto is Luciano's sister, and one of his two beneficiaries. She uses her middle name, Julia. She was born on 3 August 1935, and is now 77 years old. She is married to Juan Carlos Repetto, who she married in 1959.
Julia was nine years old when Luciano was born, and used to look after and care for him. The family was poor but close and Julia formed a loving relationship with Luciano.
Luciano migrated to Australia in 1970. He returned to Uruguay from November 1971 to March 1972. He persuaded Julia's sister, now called Teresita Velasco, to migrate to Australia soon after Luciano returned. Julia also immigrated to Australia with her husband and two children in December 1973.
Julia gave evidence that in 1974 Luciano returned to Uruguay for a few months, and during that time he married Mirta. The couple travelled to Australia on 7 December 1974. Julia said that Luciano said to her: "It was on the spur of the moment and she was happy to come and live in Australia".
Julia said that the couple lived in a spare room in the home in which she and her husband resided, between December 1974 and February 1975. Julia and her husband then moved into a unit at Eastlakes that they had purchased, and Luciano and Mirta moved to a rented unit in Leichhardt. After that Julia had little contact with Mirta, and saw Luciano less often than she previously had, until Mirta returned to Uruguay in 1977.
Julia said that, as a result of the couple of months that Mirta lived with her, Julia formed the view that Mirta was not comfortable or happy in Australia. She could not speak the language, understand the culture, the food was different, and she had no friends. She said that Mirta often spoke to her about her discomfort with living in Australia and her wish to return to Uruguay. Julia said that Mirta made comments to her, such as "I want to go back to Uruguay", "I cannot see myself staying here" and "I am homesick."
Julia also gave evidence that, at the time Mirta fell pregnant in 1977 and returned to Uruguay to have her baby, Luciano said to Julia words such as: "I have my doubts that Mirta will return as she has become obsessed about moving back to Uruguay, but if it is meant to be she will return", "I will never consider returning to live in Uruguay", and "My wife has abandoned me and forgotten me. I feel like I have disappeared from this planet".
According to Julia, in late December 1977, Luciano told her that he had received a telegram advising him of the birth of his son. About a month after the birth, Luciano said: "I am now certain that Mirta will not return as she is making excuses and keeps on extending her departure. I know she is playing games with me and trying to make me return".
At a later time, when Julia asked Luciano whether he planned to go to Uruguay and get his wife, Luciano said: "She has a return ticket and gave me her word that she would return, so if she does not want to come back to Australia I will happily accept it. She has not been happy here in Australia since she arrived and has not made an effort to integrate".
Julia did not speak to Mirta after she left for Uruguay in 1977.
Julia gave evidence concerning Luciano's purchase in 1978 of the property at Clement Street Guildford, and his later purchase in about 1990 or 1991 of a very old house in Sans Souci. Julia said that she, and the rest of Luciano's family in Australia, provided substantial help to Luciano in renovating his properties.
Julia gave evidence, that, sometime in 1979, Luciano started to have relationships with other women.
Julia travelled with her husband and Luciano to Uruguay in 1986. She said that she stayed at her late father's house with her brother, Ricardo, and her sister, Minga. She said that she did not meet Mirta on that occasion. She did meet Marcel. Julia claimed that Luciano did not stay with Mirta. She also said that one night during the 1986 trip Luciano came back looking distressed. He said: "As soon as she [referring to Mirta] received the money, she threw me out".
Julia said that in 1988, Luciano travelled to Uruguay with a mutual friend, Carmen Casas. After they returned to Australia they lived together between 2000 and 2008 at Luciano's home at Sans Souci.
According to Julia, after he returned from Uruguay in 1988 Luciano, said to her in a disappointed tone: "Mirta did not allow me to say goodbye to Marcel". At this point in her evidence, Julia annexed a copy of Luciano's letter to his brother Ricardo dated 2 November 1998, which I have referred above.
Shortly after Luciano's relationship with Carmen ended in 2008, he began to deteriorate mentally. Luciano was diagnosed with dementia in 2009. Julia cared for Luciano in her own home, with the assistance of her husband, for approximately 2 months until her own health started to suffer. She was then aged approximately 74. Teresita then took Luciano to her house, and cared for him until he became so unwell that his condition needed to be monitored by a doctor. The decision was made to put Luciano into a nursing home.
On 9 February 2009, Teresita was appointed Luciano's private manager by the Guardianship Tribunal.
Luciano was admitted into a nursing home called Huntingdon Gardens in Bexley. Julia said that it was necessary for them to secure a loan of approximately $120,000 for the deposit of the nursing home bond of $359,000.
Julia gave evidence of the daily care that she and Teresita gave to their brother over the next three years of his life. She said that "every day he deteriorated a little more". He passed away on 23 February 2012.
Julia said that she and her husband have assets valued at $471,011.94 (as at the date of her 30 May 2013 affidavit). The principal asset is a home unit at 7/62 Mascot Drive, Eastlakes, which has a value of $450,000, and is owned by Julia and her husband. The couple had small amounts of money in bank accounts and shares, and a motor vehicle valued at $8000.
The couple could not live in the unit because they could not negotiate the four flights of stairs. Accordingly, the unit was rented out for a total rent of $8000 per annum. The rent works out to be approximately $820 per fortnight. The couple have to pay all of the property related costs for the unit.
Julia and her husband are both pensioners. The pension was $1059.70 per fortnight.
They live in a house at Rockdale which is owned by their son, Carlos, and daughter, Cecilia. I infer from the evidence that Julia and Juan will be able to live in the home as long as they need to.
Julia's and her husband's expenses were $1829 per fortnight. That included personal expenses, household expenses, vehicle expenses, and the expenses associated with the maintenance of the Eastlakes and Rockdale properties.
It follows that Julia's and her husband's income was just sufficient to meet their expenses.
Juan is in good health, but Julia suffers from and requires medication and regular treatment for the following; high cholesterol, high blood pressure, calcium deficiency, arthritis in her right knee, hands and toes, gastric reflux, heart problems, spurs in her feet, fallen arches, cysts on her left kidney and hyperthyroidism. Julia needs special shoes that last for about 8 months, but in recent years she has not been able to afford them. Julia had brain surgery for a sudden cerebral aneurysm in February 2000, and had a titanium plate implanted on the right side of her skull. Julia requires a biannual endoscopy to monitor polyps in her intestine. In about 2011, she was treated for macular degeneration and required 6 months intensive treatment so that she would not lose her sight. The treatment caused cataracts that had to be removed. Julia is on medicine for hyperthyroidism for life, which costs approximately $50 per month.
While Julia understands that she and Juan can reside in the house at Rockdale for life, it may become necessary to modify the house to meet their needs as they get older. There is also the possibility that the arrangement with their children might come to an end, in which case they will need to find another place to live.
Julia gave the following evidence as to the likely future needs of her and her husband. The total amount is $1,355,000. 1. Private medical insurance at $5000 per annum, giving a total of $40,000 to age 85. 2. $10,000 for dentures for Julia and Juan at $5000 each. 3. $30,000 for home care assistance for 3 years at $10,000 per annum. 4. $50,000 to make alterations to the Rockdale house to make it safe and to restore it. 5. A nursing home bond of $600,000. 6. Nursing home fees of $6000 per annum per person for 5 years, giving $600,000. 7. Funeral plot and funeral expenses of $25,000.

Juan's evidence

Julia's husband, Juan Carlos Repetto, swore a brief affidavit. Relevantly, he said that when Mirta returned to Uruguay, Luciano said to him: "I've sent some money to Mirta". He also said that, when he visited Uruguay in 1986 with Julia and Luciano, the three of them stayed at Luciano's parents' house in Montevideo. Juan stayed for two days, and then went to the city of Carmelo by himself. Julia visited Carmelo and stayed one or two days with Juan. When Juan returned to Luciano's parents' house, Luciano was staying there the same as when Juan had left. Juan could not recall Luciano speaking of Mirta, and he did not see her or Marcel.

Teresita's evidence

Teresita Velasco is Luciano's other surviving sister. Teresita was born on 4 April 1938 and is now 77. She is divorced and has no children.
Teresita said that she had to leave school at the age of 12, after completing primary school, to stay home and help her mother. She started to earn an income when she was 16. Like her other siblings, she supported Luciano while he was in high school and technical college.
Inspired by Luciano's stories of life in Australia, Teresita also migrated to Australia in 1972. It appears that Teresita lived with Luciano until about 1973.
Teresita said she first met Mirta when Mirta came to Australia in 1974, after her marriage to Luciano. Teresita gave evidence to the same effect as Julia concerning her observations that Mirta was not happy in Australia, and wanted to return to Uruguay. She said that she witnessed many arguments between Mirta and the deceased over the subject of returning to Uruguay. Apparently, at some time in 1974, Luciano said to Teresita that he was going to move out of Julia's home to give Mirta time to adjust to living in Australia. Thereafter, Teresita only visited the couple once before Mirta fell pregnant.
Teresita said that, in about 1977, Luciano said to her: "Mirta is going back to Uruguay. She is pregnant and she wants to be with her family. I think it's an excuse to go back. I have made it clear to Mirta that I do not want to be in Uruguay." She also said that, at a later time, when she asked Luciano when Mirta was returning, he replied: "I bought her a return ticket but now she wants me to go pick her up". Even later, Luciano said: "Mirta has cashed the ticket and does not want to return. I will never go back to live in Uruguay. It's over". Teresita said that she never heard Luciano speak of Mirta again.
Teresita gave evidence of her close relationship with Luciano after 1986, when she returned after a period of living in Los Angeles since 1981. She also repeated in substance the evidence given by Julia concerning the onset of Luciano's dementia, which was noticed in about 2009, and the care that she and her sister gave to Luciano in their homes, and while he was living at the Huntingdon Garden retirement village.
Teresita gave evidence that she had assets valued at $626,786.56 (as of the date of her 30 May 2013 affidavit). Her assets consisted primarily of a home unit at 5/36 Archbold Avenue Brighton le Sands worth $550,000. She also had bank accounts with slightly less than $70,000.
Teresita was on a pension of $734 per fortnight, and she earns some interest on her savings and investments. She had no liabilities. Teresita listed her average fortnightly expenses, which totalled $734.
Shortly before she swore her affidavit, Teresita underwent open heart surgery, as a result of which she is required to take a number of medications, which she listed.
Teresita estimated her total future needs to age 85 would be $789,500, which she itemised as follows: 1. Private medical insurance is $2500 per annum, with a total of $27,500. 2. A car costing $22,000. 3. Dentures costing $5000. 4. Home care and assistance for 6 years at $10,000 per annum, costing $60,000. 5. Alterations to house to make it safe $50,000. 6. Nursing home bond of $300,000. 7. Nursing home fees at $60,000 per annum for 5 years, costing $300,000. 8. Funeral plot and funeral expenses of $25,000.

Carlos' evidence

Carlos Gustavo Repetto is the son of Julia and Juan. He was born in Uruguay on 31 March 1964. He came to Australia with his parents in December 1973.
Carlos gave evidence of a visit to Uruguay in March 1999 during which he met Marcel. Carlos said that, before he left Australia, Luciano is said to him about Marcel: "Let him know that I have written but have never heard from him. Please give him my address as I would like to have contact with him".
Carlos said that he met Marcel at a restaurant called La Pasiva on 18 de Julio in Montevideo with a cousin called Pablo Clavjio. The three men shared a meal of hotdogs and had a few beers.
According to Carlos, he said to Marcel words to the effect: Luciano has written to you over the years and has never had a response. You should meet Luciano now that you are a man. To make contact is very easy. All it takes is a letter. If you want to live here that is okay, but you should know the possibilities that are available to you in Australia.
Carlos said that Marcel did not respond.
Later in the evening, before parting, Carlos said to Marcel: "Here is Luciano's phone number as well as my phone number and my e-mail address. The doors are always open. All that it takes is to make contact or respond. I leave it in your hands". Carlos said that he handed to Marcel a piece of paper with telephone and e-mail addresses written on it. According to Carlos, Marcel responded: "I have no interest".
Carlos also annexed to his affidavit documents that he claimed were issued by a Family Court in Uruguay, and had the effect of dissolving the marriage between Mirta and Luciano, and severing the assets that they jointly held. Carlos said that, in about March 2012, he looked through old papers that belonged to Luciano, and among those papers he discovered what he described as "an application for the Dissolution of Marriage and severance of marital assets" made by Mirta. He also said that he discovered a document described as "Notification of the decrees for the Dissolution and Severance of the Assets jointly held by the spouses" Mirta and Luciano. That issue has been considered above in relation to the effect of Ms de Gross' evidence.

Pablo's evidence

Pablo Clavijo swore an affidavit in which he gave evidence concerning the dinner that took place with Marcel and Carlos. Pablo said that, during the evening, Carlos said to Marcel: "Your father has tried to contact you over the years but you've not responded. All it takes is a letter to him. You should know the opportunities in Australia". Pablo said that Marcel did not say anything. Later Carlos said to Marcel: "Here is your father's telephone number, my number, and e-mail address. You can make contact, it's up to you". According to Pablo, Marcel replied: "I'm not interested".
The dinner occurred some 16 years ago. It must be noted that the manner in which both Carlos and Pablo have claimed to recall the relevant parts of the conversation with Marcel are substantially the same.

Marcel's response to Carlos and Pablo

It will be convenient to record at this point Marcel's response to this evidence. As I have already set out above, Marcel gave evidence that he wrote to his father many times, and he did not receive letters from his father. He wrote two letters to his father after 1988, and did not receive any response.
In relation to the conversation at the restaurant, Marcel said that the conversation at the restaurant did not occur in the terms stated by Carlos and Pablo. Marcel said: I went to the meeting with the expectation of finding out about my father and listening to anything [Carlos] could say and tell me about my father. However Carlos never mentioned my father in our conversation. We talked for about three hours, about each of our respective activities, women, tastes and stories. It was quite enjoyable, but as the night progressed I did not want to be the one to take the initiative of going into the subject of my father. When we said goodbye to each other, we agreed that if he came back to Uruguay we should meet, and I said words to the effect: "It has been a pleasure to meet you."

Elena's evidence

Elena Rodic Radavenjic was born in Montevideo on 25 October 1939. Elena was looked after when she was a child by Luciano's mother, and grew up with Luciano and his siblings. She said that she became an inseparable friend of Luciano and his siblings. She said that each time Luciano came to Uruguay, he would live and sleep at his paternal home where his brother, Ricardo lived. That was about 100 m from where Elena lived. She said: "He would come with friends or by himself but always slept at his paternal home… I saw him just about every day at his paternal home". Elena also said that Mirta and Luciano were not together before Luciano immigrated to Australia, and that it was a very quick wedding when he returned from Australia in 1974. She also said that, after Mirta returned to Uruguay to have her baby, Elena said to Luciano: "What's happened?", and he said: "Nothing, she wanted to have the baby here so that I would come here to live in Uruguay, but I'll never come to live here ever".

Credibility of witnesses

Both Mirta and Marcel were cross-examined through an interpreter. That process often introduces difficulties for both the witness and the cross examiner, although, in this case, it was my impression that the interpreter was very competent.
I formed the view that Marcel is a reliable witness, and gave his evidence candidly. I generally accept his evidence, although some allowance must be made for the fact that much of his evidence concerned events when he was a child, and which took place many years ago. It is necessary to weigh against that consideration, however, the great importance of the matters that were the subject of Marcel's evidence, and the likelihood that they would stay in his memory.
I also accept that Mirta attempted to give her evidence truthfully, although she had a marked tendency to respond to questions in cross-examination in a manner that was not invited by the questions, and on a number of occasions it was necessary for me to strike out her answers on the ground that they were not responsive.
I have referred at some length above to the various types of correspondence that Luciano sent to Mirta and Marcel before his last visit to Uruguay in 1988, and also to the photographs that were taken during his two visits to that country. I find that both the content and the tenor of the correspondence provides substantial support for the evidence given by Mirta and Marcel, so that I am generally prepared to accept their evidence, even though it related to events between 30 and 40 years ago.
So far as the evidence given by the witnesses called by the NSW Trustee in respect of this early period is concerned, I adopt the following observations by McClelland CJ in Eq (albeit in a different legal context) in Watson v Foxman (1995) 49 NSWLR 315 at 319: Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
I am not prepared to place significant weight on the evidence such as that given by Julia, Teresita and Elena as to the relationship between Mirta and Luciano before they were married, or the relationship between Luciano and Mirta and Marcel between Marcel's birth in December 1977 and 1988. Nor am I prepared to place significant weight on the evidence given by Carlos and Pablo, concerning a single meeting in 1999 in Montevideo during which they had a meal with Marcel, and drank beer for some three hours or so. In the case of Carlos and Pablo the distinct similarity of their evidence after a period of about 16 years significantly undermines its reliability.
The evidence concerns subjects that must have appeared mundane to the witnesses at the time that the events occurred, and they would have no reason to try to recollect those events until after Mirta and Marcel commenced these proceedings in 2013.
Furthermore, in the case of Julia, Teresita and Carlos, they have a strong self-interest in defeating the present claims. I do not find that any of these witnesses have consciously failed to tell the truth, but it would only be human for them, when struggling to recall the relevant events from their deep memory, to have been inclined to see those events from a self-interested perspective.

Principal findings

It is necessary for the court to make findings concerning the principal matters in issue between the parties. However, it is generally not necessary for the court to make detailed findings concerning precise issues of fact, particularly in relation to events that occurred decades ago. Largely, the outcome in the two cases that are before the court depends on the broad and obvious facts and circumstances relevant to each case.
I accept Mirta's evidence, at least in broad terms, that she and Luciano had a relationship that lasted for a number of years before Luciano first emigrated to Australia. I do not accept that the decision made by the couple to marry was entirely on the spur of the moment after Luciano returned to Uruguay. It is not an important issue, and it is not necessary to make any precise findings concerning the nature and the strength of the relationship before Luciano left Uruguay to immigrate to Australia. I do not place great weight on the recollection of witnesses who cannot remember the couple having any significant relationship in the years leading up to 1974. They do not have any strong reason for recollecting what happened, and they may not have taken particular notice about what the couple were doing together.
It is plain that the couple decided to marry in the period after Luciano returned on the first occasion to Uruguay, and to immigrate together to Australia.
I do not place much significance on the evidence given by Julia and Teresita, that Mirta expressed some unhappiness living in Australia in the first couple of months after she arrived in this new country. It would be surprising if Mirta did not find the change in her cultural circumstances disturbing. Neither witness had much to do with Mirta and Luciano for the subsequent 3 years, when the couple were living in Leichhardt together. There is no reason for me to doubt the truth in general terms of Mirta's evidence that the couple found a way to live together satisfactorily in Australia, particularly as they decided to start a family in 1977.
I accept that the couple mutually decided that it would be better for Mirta to return to her family in Uruguay for the birth of their child. It is common for women to want the assistance of their mothers and immediate family at the time of and following the birth of their children. I accept that the couple decided that there was no one available in Australia to provide Mirta with adequate assistance, and that Luciano was too busy with his work to do so.
The fact that the couple bought a return ticket for Mirta suggests that they were in agreement that in due course Mirta would return to Australia with their child. I do not accept that Mirta left Australia with a fixed intention not to return, and to attempt to manoeuvre Luciano into returning permanently to Uruguay. I accept Mirta's evidence in this respect, and my finding is reinforced by the fact that I cannot discern anything in Luciano's correspondence up to 1988 that would support a finding that Luciano believed that Mirta had deserted him by staying in Uruguay.
The evidence does not permit me to make any comfortable finding about the exact nature of the agreement between Mirta and Luciano concerning the practical arrangements for Mirta to return to Australia with the child. On balance, I accept Mirta's position that she had a reasonable expectation that Luciano would return to assist her to bring Marcel back to Australia. I accept that a young Spanish-speaking Uruguayan woman with a new baby and little experience of international travel would, at that time, have found the flight from Montevideo to Sydney daunting.
It is not easy to follow how it happened that time passed and neither Mirta nor Luciano acted in any decisive way to trigger a resolution as to whether or not Mirta and Marcel were to travel to Australia, and if so, what practical arrangements were to be made for that purpose. It is a fact that Mirta extended the validity of the return ticket, until she sought a refund on 7 May 1979. I am prepared to accept her evidence that by that time, she was in great need for money to look after her and Marcel.
There is evidence that, on about 18 September 1978, Luciano gave an authorisation to the Uruguayan Consulate in Sydney for the issue of a passport to Marcel. However, the significance of this evidence is entirely unexplained. It is equally consistent with the two possibilities that Luciano was to return to Uruguay to bring his wife and son back to Australia, and that Mirta would return alone with Marcel. The evidence does, however, support a finding that Luciano believed in late 1978 that Mirta and Marcel would travel to Australia. There is no other apparent reason why Marcel would require his own passport at less than one year old. The evidence is inconsistent with Luciano having a belief at the time that Mirta had returned to Uruguay with no intention to return.
I have come to the conclusion that the court should be very circumspect about drawing conclusions concerning the intentions and motivation of this Uruguayan couple in the period immediately after Marcel's birth on 24 December 1977, as it is likely to fall into error, if any view is taken that depends upon contemporary Australian understandings or expectations. It should be recognised that there are societies in this world where people struggle for their livelihoods, and where it is not uncommon for one person in a marriage to live apart from the other in another country for economic reasons. It is probably generally true that a contemporary Australian couple would not expect the husband to live for years in one country, while the wife and child lived in another, particularly if the husband did not remit money for maintenance to the wife. However, it may be that a couple brought up in another culture could value the ultimate benefit of the husband establishing an economic base in a new country, including the acquisition of a home for the family, that could justify the couple living apart for a period of years, that would generally seem strange and unacceptable to a contemporary Australian couple.
I have not ignored the evidence given by Julia and Teresita concerning statements they say that Luciano made to the effect that Mirta had effectively deserted him and left him on his own in Australia. However, people do not always act and speak consistently. I have placed greater weight on the surviving correspondence from Luciano to Mirta and Marcel, and particularly Marcel's evidence concerning Luciano's conduct when he returned to Uruguay in 1986 and 1988. The tenor of Luciano's correspondence was warm and affectionate, and he generally wrote as if he was an absent husband and father, but a husband and father nonetheless.
I should confess that I find Luciano's conduct strange, as equally I find Mirta's acceptance of the status quo strange. However, I have come to the view that the correct response is to not let my own world view govern my characterisation of the relationship between Mirta and Luciano over the period up to 1988. It is, ultimately, not greatly significant to the resolution of the present dispute, and the appropriate course is simply to accept the relationship as it was, as demonstrated by the objective evidence.
I have not ignored Julia's evidence that Luciano started to have relationships with other women from 1979, so that Luciano may have been content with the separation, and may have been playing a double game with Mirta. There is no necessity to make any particular findings on this subject.
I generally accept the collective evidence given by Mirta and Marcel concerning what happened when Luciano visited Uruguay in 1986 and 1988. It may be that their recollections are imprecise in relation to such matters as the period during which Luciano stayed at Mirta's villa, but the events would have been very significant, particularly to Marcel, and I have no reason to believe that Mirta and Marcel have made up this story. It is supported by Luciano's correspondence in late 1987 concerning the surprise he was going to give Marcel, and the various photographs that show Luciano in the company of Mirta and Marcel, particularly the latter.
I am satisfied that Mirta devoted herself to working to support herself and Marcel in the absence of receiving any maintenance from Luciano, and that she lived a hard scrabble existence, that gave her very little time to contemplate taking steps that may have put her marriage on a more conventional footing. I do not think it cuts against the grain of modern conceptions of the equality of the sexes for me to proceed upon the basis that, as time passed, and Luciano did not act decisively either to return to Uruguay, or to collect his family so that they could live in Australia, Mirta was in practical terms stuck with her existence in Uruguay. Given her straitened financial circumstances, it increasingly became less realistic to expect her to quit her job, collect her child, buy an airline ticket and fly to Australia in the hope that she would be warmly welcomed by Luciano.
I accept Mirta's evidence that, at the end of his 1988 visit, Luciano decided to abandon his family, and told Mirta so. That is consistent with his subsequent conduct. I find that Mirta demanded of Luciano that he provide maintenance, at least for Marcel. Mirta was entitled to take that course, as would be done by most self-respecting wives and mothers. It is not necessary to make any precise findings as to whether Luciano simply left Montevideo without saying goodbye, particularly to Marcel, or whether Mirta effectively threw Luciano out of her house. It does not matter for the purpose of deciding the present proceedings. As I accept that Luciano refused to provide maintenance to Marcel, I could not hold it against Mirta if she, thereupon, ordered him out of her home.
Mirta instituted proceedings in a Family Court in Uruguay in March 1988 in an attempt to obtain an order that Luciano pay her at least US$500 per month for the maintenance of Marcel, and that she also sought an order that Luciano be prevented from leaving the jurisdiction until he had provided some security to support his maintenance obligation. That was a perfectly reasonable course for Mirta to take following Luciano's abandonment of his family and refusal to pay maintenance. It seems that Mirta's application was ineffective because Luciano had already left the jurisdiction. It also appears from Luciano's letter to Ricardo later in the year that Luciano had been made aware of Mirta's application, and that he took steps to suppress information concerning his whereabouts, to avoid having to pay any maintenance to Mirta.
The order made by the Family Court in Uruguay in 1993 only had the effect of ending the community of assets between Mirta and Luciano, and was obtained by Mirta to protect her ownership of the villa in which she and Marcel lived. It did not dissolve the marriage, and it did not take effect as a property settlement between the married couple.
It appears from Carlos' evidence that a copy of the 1993 court order found its way into Luciano's possession. No witness gave any evidence of any statements made by Luciano that would suggest that Luciano understood the court order as having effected a dissolution of the marriage. The evidence does not support a finding by the court that Luciano believed that his marriage to Mirta was dissolved in 1993, or that a Spanish speaker such as Luciano could reasonably interpret the Uruguayan court's order as having had that effect.
I accept Mirta's evidence that she has remained true to her marriage until Luciano's death.
I am also satisfied that, at least up until the time in 1988 when Luciano abandoned Mirta and Marcel, Mirta would have been open to rapprochement with Luciano, if Luciano had sought that result, and taken reasonably practical steps to permit his wife and son to join him in Australia, or live with them in Uruguay.
It is difficult to make any precise findings concerning what happened at the dinner attended by Marcel, Carlos and Pablo in 1999. As I have indicated above, I prefer Marcel's version of what happened, in large part because the event would have been more significant to him than it was to the other two witnesses, and I have formed the view that I should generally accept Marcel's evidence. The court could not be confident in accepting evidence given by witnesses of the detail of what happened at a meeting with a stranger, albeit in the case of one of the witnesses a relative, at an unexceptional dinner some 15 years earlier, in which the persons present had drunk an unquantified amount of beer.
Marcel gave some evidence that he made attempts to find Luciano's whereabouts by making Internet searches, and that he was unsuccessful. I accept that evidence. The important point is, however, that Luciano effectively abandoned his son from birth, and did so absolutely from 1988. That must have been crushing to Marcel and I have no difficulty in accepting his evidence to that effect. Given that Luciano continued to have relatives in Montevideo, he could at any time have tried to establish some form of relationship with Marcel. He did not do so. I would not hold it against Marcel that he did not go to great lengths to establish a relationship with his father, as he had no basis at all to believe that any approach would have been welcomed by Luciano.
It is not necessary for me to set out the findings in detail, and I will simply record that I accept all of Mirta's and Marcel's evidence, as outlined above, concerning the way they have lived their lives in Uruguay since Marcel's birth, and their present circumstances and aspirations.
I accept the evidence of Julia and Teresita that they had a very close and loving relationship with Luciano from the time of his birth until he slipped into dementia, and even after the onset of Luciano's illness, both sisters attended to him with great love and care.
I also accept the evidence of Julia and Teresita concerning their present circumstances and aspirations, save that I feel unable to give significant weight to their evidence concerning the likely cost of their need for nursing home services. The evidence went no further than bare estimates of the cost of nursing home bonds and recurrent payments for Julia, Juan and Teresita. There was no evidence to establish the likelihood that any or all of these three persons would need nursing home care, nor was there any evidence of the nature of the nursing home care that they might require. There was no explanation for the costs that had been estimated, and in particular there was no examination of the issue of whether the estimates assumed any particular disabilities, especially whether it was assumed that the relevant persons would suffer the same form of dementia as had Luciano. I accept as a real contingency that each of the three persons may require nursing home accommodation at some stage, but the evidence does not permit me, with any confidence, to estimate the cost that may be involved.

Legal principles

Mirta, as the wife of the deceased, is an eligible person under s 57(1)(a) of the Act. Initially, as I have recorded above, the NSW Trustee challenged Mirta's claim to have been married to Luciano at the date of his death, on the basis of the effect of orders made by a Family Court in Uruguay in 1993. The NSW Trustee now accepts that Mirta was married to the deceased.
Marcel, as a child of the deceased, is an eligible person under s 57(1)(c) of the Act.
The NSW Trustee accepts that Mirta's and Marcel's applications for family provision orders were commenced within the time stipulated in s 58(2) of the Act.
I am satisfied by the evidence that the NSW Trustee has served notice of the two applications before the court on all other persons who may have been entitled to make an application for a family provision order in respect of Luciano's estate, so that s 61(2) of the Act has been satisfied. Four of those persons, being Mirta, Marcel, Julia and Teresita, have in any event taken part in these proceedings.
Section 59 of the Act governs the circumstances in which a family provision order may be made. It provides, relevantly: (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of"eligible person" in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
Section 60(1) permits the court to have regard to the matters set out in subsection (2) for the purpose of determining whether to make a family provision order, and the nature of any such order. Subsection (2) provides: (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (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.
An issue has arisen in the authorities concerning the steps that the Act requires the court to take in determining whether it can make a family provision order under s 59(2), on the basis that it is satisfied for the purposes of s 59(1)(c) that adequate provision for the proper maintenance, education or advancement in life has not been made by the will of the deceased in favour of the relevant eligible person.
From no later than the time of the decision of the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, it was thought that the Act required a two-step process. First, the court had to determine under s 59(1)(c) that the deceased's will did not make the necessary adequate provision, and only then would the court make a family provision order under s 59(2) for the provision that the Court thinks ought to have been made. The decision of the Court of Appeal in Andrew v Andrew [2012] NSWCA 308 introduced some doubt as to whether the correct process involved more than one single step. The source of the doubt appears to be s 60(1)(b), which permits the court to have regard to the matters set out in subsection (2) both for the purpose of determining whether to make a family provision order (which is the s 59(1)(c) question), and as to the nature of any such order that ought be made (which is the s 59(2) question).
I have expressed my own view on this issue in Gardiner v Gardiner [2014] NSWSC 435 at [126]. That view, in essence, is that the court should follow the separate steps prescribed in s 59(1)(c) and s 59(2). The appropriateness of conforming to the express requirements of the statute is not obviated by the fact that s 60(1)(b) permits the court to take into account the matters listed in s 60(2) at each stage of the process. The identification in s 60 of matters that are permitted to be taken into account in connection with each of the two steps does not compel the conclusion that the two steps have been collapsed into one. However, I have also accepted that, in particular cases, the process of thought that is involved in establishing satisfaction that adequate provision for the proper maintenance, education or advancement in life has not been made in favour of the eligible person may directly determine the provision that ought to be made. The considerations that are involved in each step may overlap to such an extent that, for practical purposes, the court can properly conclude at the end of its consideration of all relevant matters, at the same time, that adequate provision has not been made as well as the provision that ought to be made.
As I understand it, the approach that I favour is consistent with the views that have generally been expressed by judges who have determined applications for family provision orders under the Act following Andrew v Andrew, although different judges have preferred different degrees of emphasis concerning the likelihood that the two steps will meld into one on the facts of particular cases: see [Dodds v Dodds [2013] NSWSC 1933 per Hallen J; In the Estate of the late Anthony Marras [2014] NSWSC 915 at [15]]. .
It will be appropriate for me to set out a number of principles that have been considered in the authorities, concerning how the statutory provisions should generally be applied.
Section 59(1)(c) does not include any explanation or definition that governs how the court is to decide whether the provision made in the will is adequate for the proper maintenance, education or advancement in life of the applicant for a family provision order. No criteria are prescribed in the Act for that purpose: Aubrey v Kain [2014] NSWSC 15 per Hallen J at [48].
As Hallen J noted in Aubrey v Kain at [50], in cases identified by his Honour, judges of this court have used the following expressions to describe the mental process involved in deciding whether a provision made by a testator is relevantly adequate and proper; being that the state of satisfaction "depends upon a multi-faceted evaluative judgment" (Basten JA); it involves "an intuitive assessment" (White J); and it is "an evaluative determination of a discretionary nature, not susceptible of complete exposition"; and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific" (Stevenson J).
The time at which the court must give consideration to the question whether the will has made an adequate and proper provision is the time when the court is considering the application.
Hallen J has reviewed the authorities that deal with the meaning of the terms "provision", "maintenance" and "advancement in life" at [52]-[70] of Aubrey v Kain. The present case is relatively simple, in that Luciano made no provision in favour of Mirta or Marcel. The term "maintenance" usually refers to a provision for the supply of the necessaries of life: Hallen J at [54]. In Alexander v Jansson [2010] NSWCA 176, Brereton J (with whom Basten JA and Handley AJA agreed), said at [18]: 'Proper maintenance' is not limited to the bare sustenance of a claimant...but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility.
In JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths), at 542, the following comment is made concerning the difference between the concepts of maintenance and advancement: The essential difference between 'maintenance' and 'advancement' is that 'maintenance' denotes a periodical payment or a payment which could validly be made periodically, whereas 'advancement' denotes a definite unique outlay for a specific purpose….
Section 59(1)(c) requires that the court determine whether the will has not made adequate provision for the proper maintenance, education or advancement in life of Mirta and Marcel. The question is not simply whether the provision is adequate. The meaning of the terms "adequate" and "proper" are crucial. As Hallen J stated in Aubrey v Kain at [63]: The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 W.A. are 127, per Buss JA, at 145 [72], [77].
Hallen J sets out extracts from authorities that consider the difference in meaning of the two words at [63]-[70].
The meaning of "proper" in this context was considered in the judgment of Dixon CJ and Williams J in McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572: It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent.
The court must assess the provision made by the testator from the perspective of whether it is "wise and just". Testamentary power lies principally in the testator. The size of the estate available is an important consideration, because the testator is limited in his or her determination of what is wise and just by the extent of the property available for distribution, and accordingly a provision may be "proper" in the circumstances of a particular estate, when that would not be so if the testator had available more assets for distribution.
In Burke v Burke [2014] NSWSC 1015 at [35] to [37], Rein J has recently analysed the judgment of the Court of Appeal in Andrew v Andrew in its consideration of the significance of prevailing community standards of what is right and appropriate to the determination of applications for family provision orders. Rein J said: [35] Mr Wilson contended that Andrew effectively changes the law in relation to the Court's approach from that which earlier applied and which I summarised, correctly, it was agreed, in Goldberg v Landerer [2010] NSWSC 1431 at [29] to [40] in respect of the earlier legislation. He submitted, that it would be only the most egregious conduct of a child of the deceased (such as murder) (see T63.09-14) that would deprive even an adult child of a right to have his or her needs taken into account by a Court and to have an appropriate provision made in his or her favour where it is established that he or she is impecunious or of very limited financial means. I am unable to accept that proposition for reasons which I shall explain. [36] Basten JA did not, as did Allsop P (and Barrett JA) make reference to the need for judges to take into account community standards in assessing what provision should be made. Allsop P put it this way: [16] If I may respectfully paraphrase Sheller JA in Fraser at 46, the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made. This, Sheller JA said, referring to Mahoney JA in Kearns v Ellis (New South Wales Court of Appeal, Glass, Mahoney and McHugh JJA, 5 December 1984, unreported), involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering the application and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This is another consideration which makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court. And Barrett JA put it this way: [95] Because, in this case, Lynne, as plaintiff, failed at the first stage (by reason of a finding that the testatrix, in giving a legacy of $10,000, did not fail to make adequate provision for her), it is appropriate to say something more about the judicial function at that first stage. It has been recognised by this Court that "community expectations" play a role in the decision whether provision made by a testator is adequate in the relevant sense. Reference may be made to Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. In the McCarthy case, Young JA said (with the concurrence of Tobias and Macfarlan JJA): So long as he complies with community expectations and what is sometimes called "moral duty", the deceased is able to leave his property as he wishes. [96] In Evans v Levy, the same judge said (with the concurrence of Campbell JA and Sackville AJA): It was open to the primary judge to form a judgment that the nature of the continuing relationship was not such that it created a moral duty on the deceased to provide for the appellant or that the community would have expected him to do so. [97] Particularly since the decision of the High Court in Vigolo v Bostin (above), however, concepts of "moral duty" must be approached with considerable care: see Lloyd-Williams v Mayfield [2005] NSWCA 189 ; (2005) 63 NSWLR 1 at [25]. But the clear need for the court, in addressing the first-stage question, to recognise community expectations is undiminished. The task is to make a determination "according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is and must be the court itself": Kearns v Ellis (unreported, NSWCA, 5 December 1984, BC8400149 at 8 per Mahoney JA). [37] Although Barrett JA was in the minority, having regard to what Allsop P said and to the earlier Court of Appeal authorities, I think I must regard what Allsop P said at [16] and the cases to which Barrett JA referred at [94]-[97] as still applicable to the task at hand.
I respectfully adopt these statements as to how the court should be guided and assisted by "perceived prevailing community standards of what is right and appropriate" or, put differently, "the feeling and judgment of fair and reasonable members of the community", particularly in regard to determining the significance of what has been called "estrangement".
If the requirement in s 59(1)(c) is satisfied, then the court is empowered by s 59(2) of the Act to "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." It is clear that the effect of the inclusion of the word "may" is that the court has a true discretion as to whether any order should be made, and if so, what order ought to be made: Singer v Berghouse at 212 per Mason CJ, Deane and McHugh JJ.
Section 60 of the Act sets out a list of factors that the court "may" consider in determining whether to make a family provision order and the nature of any such order. I will return to the terms of s 60 below. The matters that are listed in s 60 are a helpful list of factors that may be taken into account, but the section makes plain that the court can have regard to any other matter that it considers relevant, and the factors are not necessarily determinative in any case.
The court has not been given power to endeavour to achieve "an overall fair" disposition of the deceased's estate: Gorton v Parks (1989) 17 NSWLR 1 at 6, per Bryson J (as his Honour then was). It is instructive to refer to the following observations by White J in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253 at [127]: In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and the courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or even years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed...
In the present case, the factor that is most obviously significant to the two issues of whether the deceased did not make adequate provision in his will for the applicants, and if not, what provision ought to have been made, is the extremely long period of some 24 years during which neither applicant had any contact with the deceased between 1988 and his death in 2012, added to which there was almost no contact during the 10 years preceding 1988.
I do not think that it unduly oversimplifies the way Mirta put her case to say that she claimed that she was the wife of Luciano at the date of his death, and was entitled to a provision from his estate in the same way as if the couple had lived together as man and wife from the date of their marriage. Marcel also put his case on the basis that his long-term estrangement from his father should not derogate from his claim to share in the bounty of his father's estate, but further, Marcel submitted that his claim is all the stronger because of the fact of, and the consequences of, his father's abandonment of him.
The NSW Trustee's response was in each case to rely upon the length and the completeness of the estrangement to submit that, in their respective cases, Mirta was relying upon "bare" widowhood, and Marcel was relying upon "bare" paternity, so that their relationship to Luciano did not entitle them to the benefit of any family provision orders.
Mirta and the NSW Trustee have each relied upon decisions that place different emphasis on the significance of the applicant for a family provision order being a wife of the deceased, who was separated from him at the date of his death. Marcel on the one hand, and the NSW Trustee on the other, have relied upon various decisions by different judges of the court that have considered the significance of what has been called "bare paternity" as a factor bearing upon the question of whether provision made by a parent in his or her will in favour of a child was adequate and proper.
I have carefully considered all of the decisions upon which the parties have relied, but the most significant effect of that review has been to reinforce my own view that little is to be gained by any attempt to decide the issues raised on the facts before the court by comparison with the decisions in other cases, which involved, at the one time, facts in common with the present case, and facts that are quite different. A careful analysis of the process of reasoning used to decide the various cases usually shows that no single circumstances was decisive, and even the significance of important circumstances is affected by the relationship between those circumstances and all others that are relevant.
The observation made by White J in Kay v Archbold [2008] NSWSC 254 at [95], in a case where the applicant had been estranged from her deceased mother from 1995 to May 2006, when the mother died, is very pertinent. The plaintiff only had minimal contact with her mother during this period. White J said at [95]: [95] Their estrangement is certainly a factor to be taken into account in determining what provision should be ordered. However, cases are infinitely various. There is no rule that irrespective of a claimant's need, the size of the estate, and the existence or absence of other claims on the estate, a claimant is not entitled to "ample" provision if he or she has been estranged from the testator… (My emphasis)
I will deal first with the significance of the separation and estrangement between an applicant wife and her deceased husband, before I consider the relevance of estrangement between the deceased person and his or her child.
Mirta relied primarily on three decisions; Bladwell v Davis [2004] NSWCA 170, Scott v Scott [2009] NSWSC 567, and Jordan-Watt v Riordan; In the estate of Jordan [2013] NSWSC 1132.
In Bladwell v Davis, Bryson JA (with whom Ipp JA and Stein a JA agreed) said at [13] to [19]: [13] Observations on the claims of widows were made by Powell J in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69-70 in these terms: It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. These observations were not made in the context of a competing claim or proved need by another eligible person, and were introduced by a guarded reference to a general rule and the absence of special circumstances. However they are frequently, almost universally cited in applications where provisions for widows are under consideration. [14] In Golosky v Golosky NSWCA 5 October 1993 (unreported) the widow, second wife of the testator, was the applicant and the sons of the first marriage, the will beneficiaries whose interests were affected, were well off and did not assert financial need. The majority (Kirby P, Cripps JA concurring) ordered further provision for the widow, and Kirby P referred to Luciano v Rosenblum briefly for comparison, but also said: Matters such as these rule out an inflexible rule that every spouse or every widow is entitled, as of right and in every case, to look to a testator to provide accommodation for life. Such inflexible rules used to exist in this area, as for example the previous rule that an "able bodied son" was disentitled to a claim under the predecessor to the Act for that reason alone. That rule has now been abandoned in this State. See [Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA) 575f], 580f; cf Anderson v Teboneras and Anor [1990] VR 527. So should inflexible rules about spousal provision.
Mirta appeared to put her case as if she was a widow who was entitled to the benefit of the "broad general rule" propounded by Powell J (as his Honour then was) in Luciano v Rosenblum (1985) 2 NSWLR 65. However, her long separation from Luciano is an obvious special circumstance that would tend against the application of the broad general rule. In any event, Bladwell v Davis establishes that, even in the case of a conventional marriage, involving long-standing cohabitation and mutual support, the fact of widowhood must always be considered as one of the factors that must be taken into account, at both stages in the process of determining whether a widow is entitled to a family provision order. For reasons that are relatively obvious, there may be many cases where the widow has a very strong, if not paramount, claim relative to other persons who have legitimate claims on the bounty of the testator.
In Scott v Scott, Ward J (as her Honour then was) was concerned with an application made by a wife who was separated from her deceased husband. The couple had cohabited for some 23 years, excluding the periods of separation. Ward J said at [136] to [142]: [136] What then is the position of a spouse, separated from her husband, in circumstances where an informal division of assets has taken place and where it would seem the marital relationship is to all intents and purposes at an end? [137] Considering the above authorities, it seems to me that, while Mrs Scott remained the deceased's wife even after their separation, and hence was a person for whom the community might expect the deceased to have made some provision for her continued support and maintenance in life (in recognition of the long marriage and her contribution to the building up of their joint assets and to his welfare in life), the community might also consider that a testator in the deceased's position had done "the right thing" by effecting an amicable division of their assets prior to his death and had limited, if any, further moral duty to support his widow. [138] In Kalmar v Kalmar [2006] NSWSC 437, White J noted (at [50]) that the bond of matrimony, prima facie, gave rise to a testamentary obligation, citing Re Clissold (dec'd) [1970] 2 NSWR 619 at 621, and that it could not be assumed that that obligation would come to an end on the parties separating without their being divorced at least where there had been no disentitling conduct by the claimant (again citing Re Clissold, as well as Re Mercer (dec'd) [1977] 1 NZLR 469 at 472-473 which had been cited with approval in Palmer v Dolman [2004] NSWCA 361 at [118]). [139] In Armstrong v Sloan [2002] VSC 229, Harper J in the Supreme Court of Victoria, noted (at [43]) that: [A]rrangements made by a husband during his lifetime which on his death leave his widow in comfortable financial circumstances would ordinarily discharge his moral duty to make in his will adequate provision for her proper maintenance and support. That would (again, generally speaking) only not be so if, although comfortable, her circumstances did not allow her as a widow to maintain a standard of living comparable to that which she enjoyed as a wife. [140] His Honour noted that a settlement reached under the Family Law Act does not necessarily preclude a claim by a former spouse for family provision but that in those circumstances different considerations come into play. [141] In Armstrong v Sloan, Harper J considered that Mrs Armstrong's position was as close to that of a divorcee as could be in the absence of a divorce. There, his Honour considered that Mrs Armstrong was not left by the deceased without adequate provision for her proper maintenance and support but that, if she was, he would have exercised his discretion against the claim for further provision stating (at [56]) that "by giving effect to the settlement, Mr Anderson discharged his moral duty to his wife, and thereby removed the "legislative justification to abridge freedom of testation": Grey v Harrison [1997] 2 VR 359 at 365 per Callaway JA. [142] On balance, I consider that Mrs Scott's position comes very close to that of Mrs Armstrong in that the marital bond had come to an end and the deceased had taken steps to effect what seems to have been an amicable and relatively fair (though not precise, having regarding to their unequal entitlements to the Long Jetty property) division of all of their assets so as to terminate any moral claim the deceased might have had to the spouse from whom he was separated (and with a degree of finality appreciated by both parties from at least six months before his death). Nevertheless, I accept that the deceased himself appeared to recognise that there was scope for Mrs Scott to regard their financial dealings as not finally resolved and I am prepared to accept that from a community perspective there was some moral claim remaining, given the length of this marriage and the subsistence of an amicable relationship between the couple for some period after their separation.
The applicant in Jordan-Watt v Riordan was a woman who separated from her deceased husband, after approximately 25 years of marriage, about 2 ½ years before his death. When he died they were in the course of negotiating a matrimonial properly settlement, but no formal orders for financial settlement had been made by the Family Court of Australia. The deceased made no provision in his will for the applicant, and divided his whole estate between his five children. Slattery J said at [118] to [122]: [118] Next Marea submits she is the category of spouse referred to in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 in which Powell J stated a broad general rule that in the absence of special circumstances the testator's duty to his widow is "to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provided her with a fund to enable her to meet any unforseen circumstances". But the executrix says that in a case such as this where the parties had separated two and a half years before his death in circumstances of acrimony and where negotiations for property settlement were taking place, that Luciano v Rosenblum principles do not apply. [119] The authorities on this kind of situation make a range of observations which are all very dependent upon circumstances. The bond of matrimony prima facie give rise to a testamentary obligation and it cannot be assumed that the obligation will come to an end upon the parties separating, without them being divorced: Re Clissold (dec'd) & Testator's Family Maintenance Act [1970] 2 NSWR 619 at 621 and Kalmar v Kalmar [2006] NSWSC 437 per White J and Palmer v Dolman [2005] NSWCA 361 at [118]. But a testator's obligation to a spouse may be regarded as discharged by affecting an amicable division of assets prior to death thereby limiting any further duty to the surviving spouse: see the discussion in Scott v Scott [2009] NSWSC 567, per Ward J at [136] to [142] and Sturits v Nicholls (No 2) [2011] NSWSC 865. [120] This case in my view lies somewhere between Luciano v Rosenblum and Scott v Scott. I do not regard unilateral severance of the joint tenancy by the deceased's correspondence with Marea as an amicable and reasonable settlement of his obligations to her. I accept her evidence as to her extensive home making activities and that throughout the marriage she brought a regular and substantial income into the household which enabled the children to be well educated and for the family to have many of life's comforts; so, receiving half of Double Bay property was not necessarily a fair settlement for her. It was certainly neither consensual nor amicable. The solicitors' correspondence after their separation indicated that such a result was certainly not the limit of her expectations. [121] In my view the appropriate result here is not to be measured solely on Luciano v Rosenblum principles. Marea has in my view been left without adequate provision. Unless the will is changed the Double Bay property will need to be sold. The executrix has adduced evidence that she could use the proceeds to buy a comfortable apartment in the same area and still have funds left over. But that case does not take proper account of the fact that with her two younger children still making use of the Double Bay property, with her own attachment to the place, and with the need for continuity and security for her, requiring the sale of the property just now would not be to make proper provision for her. [122] On the other hand, given that she was on the threshold of divorce from the deceased, on any view of the situation, it would not be realistic in addition to providing her with the security of the home to also ensure that she has an income sufficient to permit her to live in the style to which she was accustomed, or to provide her with a fund to enable her to meet any unforeseen circumstances. Consistent with this reasoning, the approach that I take in this case is therefore to order sufficient provision to allow her to keep the Double Bay property, and give her a small additional sum to meet her short to medium term needs.
In both of these cases, the applicant and the deceased had cohabited for a substantial period of years before their separation. It appears that in both cases the applicant had made a substantial contribution during the course of the marriage to the marital property and circumstances. In Scott v Scott, there had been an informal division of assets, and the relationship between the parties to the marriage was tantamount to their being divorced at the time of the husband's death. In Jordan-Watt v Riordan the parties to the marriage were in the course of negotiating a matrimonial property settlement. The reasoning in these cases suggests that, the circumstances contemplated in Luciano v Rosenblum, justify a particular approach in the case of conventional marriages of long standing, but the circumstances of other marriages may invoke different considerations, depending upon the nature and length of the relationship between the parties to the marriage, the contribution made by the applicant, and the extent to which, before his or her death, the deceased has made proper provision for the applicant, whether formally or otherwise, measured by reference to the arrangements that would be considered appropriate to be made in conjunction with the formal dissolution of the marriage.
While these authorities are helpful and throw considerable light on the issues that require consideration in the present case, those issues are quite different to those considered by their Honours. In the present case, there was no long period of cohabitation and mutual support. On the other hand, Luciano entirely abrogated his responsibility to Mirta and Marcel. By the time of Luciano's death there had been nothing resembling a settlement of Luciano's matrimonial obligations to Mirta. I will return to these matters when I deal with the application of s 59 and s 60 of the Act to Mirta's claim.
I will now turn to consider the authorities that have dealt with the position of an applicant child who was estranged from his or her deceased parent at the time of the parent's death.
The effect of an estrangement between parent and child on the right to provision from the deceased parent's estate has been considered in some detail by the Court of Appeal in a number of cases. Those decisions require careful analysis. It is appropriate to start with the judgment of Ipp JA in Palmer v Dolman; [2005] NSWCA 361 at [105] to [112]. His Honour, with whom Tobias JA and Basten JA agreed said: [107] Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 is a case where an estranged son failed, but the circumstances were extreme. The testator was 86 when he died and the plaintiff was aged 50 years. The testator had not seen his son for 46 years. His son had no recollection of his father and had never attempted to communicate with him. He was not a person in need. By a majority the High Court overturned the decision of the trial judge who had made an order in the son's favour. Dixon CJ at 18 remarked: In truth there is the bare fact of paternity and no other mutual relation. He said at 20: If one really considers the situation of this old man in the closing stages of a long life in which his son has played no part at all, a son to whom his father has meant nothing and who did not even know him, it is hard to see why the testator, in the interest of his son, should be deprived of his complete freedom of testamentary disposition. The present is a substantially different case to Scales. The differences are obvious and I do not think that I need to detail them.
It should be observed at this stage that the present case is also not one where the son had no recollection of his father and had never attempted to communicate with him, and was not a person in need.
Ipp JA continued: [108] In Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Holland J set out various circumstances that might give rise to a moral obligation on a testator to provide for a child in need. He said at 540: One of the circumstances must be the size of the testator's estate because a man cannot be expected to give what he cannot afford but, if he can well afford it, he should provide adequately for those for whom the statute expects him to provide. If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. [109] In Gorton v Parks (1989) 17 NSWLR 1 Bryson J (at 9-10) made what Young J in Walker v Walker (unreported, NSWSC, 17 May 1996) described as "a statement which has become a favourite for counsel appearing for what might be called 'non-dutiful children' in applications under this Act". Bryson J said (in a passage that has often been quoted): The observations [of Dixon CJ about paternity in Scale's case] seem to involve a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community; the view involved seems to have been that the moral obligations of a parent can be limited, and can possibly be escaped, by steadfastly maintained repudiation or evasion. Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been large changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he had no duty towards them … The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962. [110] I agree, generally, with these remarks and would add that the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act. [111] In Walker v Walker Young J said at [30]-[31]: … I reject the approach that all an applicant under this Act [Family Provision Act 1989 (NSW)] has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at 19. [112] I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paras (a) or (b) of the definition of "eligible person" in s 6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds.
In my view, in this case, for the reasons that I will develop below, the observation by Bryson J (as his Honour then was) in Gorton v Parks, concerning whether the obligations of a parent can be limited, or can possibly be escaped, by steadfastly maintained repudiation or evasion, are relevant in this case.
In Palmer v Dolman, the deceased and his appellant daughter's mother divorced in 1990. In 1993 or 1994, when the appellant was 22 or 23 years of age, she took the initiative to cut off any further overtures to her by the deceased. She did so by writing a letter to him. The deceased died in April 2003. Concerning the circumstances of the estrangement between the appellant and the deceased, Ipp JA said at [95] to [104]: [95] I would add that, in setting out the evidence supporting Fiona Dolman's assertion that she was fearful of her father, I do not intend to make any judgment as to whether such fear was justified or as to whether the deceased's conduct involves any moral disapprobation... [96] There is another factor, and an important one, relevant to the breakdown of the relationship, to which the Master also did not refer. That is the parsimonious attitude of the deceased in providing financial support to Fiona Dolman and her mother. [97] In 1991, after Mrs Dolman and Fiona Dolman had moved from the family home in Drummoyne to Rodd Point the deceased left Mrs Dolman a note to the effect that he was leaving her $25 for Fiona Dolman and that Mrs Dolman should "make an appointment to see Social Security". In effect, he provided irregular payments of $25 a week to Mrs Dolman for the maintenance of Fiona Dolman. [98] Over the relevant period Mrs Dolman lived in relatively straitened circumstances. She said that $25 per week was insufficient to maintain Fiona Dolman's living, educational, health and recreational needs. Mrs Dolman said that there was only one occasion from 1984 onwards on which additional assistance was provided, (when the deceased paid for dental treatment for Fiona Dolman). It was difficult financially for Mrs Dolman to provide dinners on celebratory occasions such as Christmas or Fiona Dolman's birthdays. According to Mrs Dolman, "[v]ery rarely from 1984 to 1991" could she afford to purchase clothing or shoes for Fiona Dolman. From 1984 to 1991 she and Fiona Dolman only ate at restaurants when neighbours offered to pay for their meals. When Fiona Dolman was in her teens, she received invitations to parties but she rarely went because Mrs Dolman could not afford to pay for a present and sometimes the invitations required that she pay for her meal. From 1984 until Fiona Dolman started work in August 1991 she did not buy clothes. She received hand-me-downs from neighbours. She would wear her clothes until they "either fell apart or [she] outgrew [them]". She wore her shoes "until they were ruined". She had to be careful with her school uniform because her mother could not afford to purchase any new items for her. [99] The financial circumstances of Fiona Dolman in this period have to be seen against the context of the deceased (according to the statement of financial circumstances he filed on 7 March 1991 in the Family Court) spending $34,450 in the year ended 30 June 1990 on entertainment. [100] In my view, it was understandable for a young person in Fiona Dolman's position, observing the financial difficulties of her mother and experiencing financial difficulties herself, to have feelings of resentment towards her father. These are matters that should have been taken into account in determining the totality of the circumstances relevant to the jurisdictional question. As the Master made no mention of them I infer that he did not take them into account… [103] In the light of the breakdown that had occurred, and the deceased's own conduct, it is not difficult to understand Fiona Dolman's reluctance to visit the deceased when he was in hospital, dying. By that I do not suggest that her behaviour was morally justified. Rather, it seems to me, her conduct - understandable as it is - has little significance in determining whether she passes the jurisdictional hurdle under the Act. I would add that Fiona Dolman's evidence as to what occurred when she did visit her father suggests that there was a reasonable reconciliation between the two immediately prior to his death (she visited him in hospital on three of the last days of his life). [104] When regard is had to the totality of the circumstances, I think that the Master erred, with respect, in finding that the estrangement between Fiona Dolman and the deceased was attributable entirely to her. The estrangement resulted from circumstances for which both the deceased and Fiona Dolman were responsible. Furthermore, although the estrangement continued during Fiona Dolman's early adult years, its roots were in her childhood and it is difficult to pass judgment in respect of such matters.
Ipp JA set out his conclusions at [114] to [116] as follows: [114] Having regard to the totality of the circumstances, I do not think that Fiona Dolman's conduct should preclude the Court from being satisfied, under s 9(2) of the Act, that the provision made for her in the deceased's estate (namely, nil) was inadequate for her proper maintenance, education and advancement in life. [115] In my view the totality of the circumstances to be taken into account in relation to s 9(2) are, at least, the following: (a) Fiona Dolman grew up in the deceased's house (as his daughter) as part of a family involving the deceased, her mother and her brother until 1984, when the deceased and her mother separated and the deceased went to live upstairs, segregated from his wife and daughter. (b) The deceased provided some financial support to Fiona Dolman after 1984. (c) There was little demonstrable affection between Fiona Dolman and her father. (d) The perceived lack of affection on the part of the deceased, Fiona Dolman's feelings of fear and anxiety regarding criticism and lack of approval from him, her feelings of loyalty and affection to her mother, and his parsimonious attitude towards Fiona Dolman and her mother, contributed to a breakdown in relations between Fiona Dolman and the deceased. (e) The breakdown in relations continued from 1991 to 2003 (until three or four days before the deceased died). (f) Fiona Dolman is a person in need. (g) The deceased's estate is relatively large (without taking into account the costs of the litigation) being between $4m and $5m. (h) Apart from Fiona's brother, Gregory Dolman, and Mrs Dolman, none of the other beneficiaries nominated in the deceased's will had any claim on his bounty or demonstrated need. [116] In all these circumstances, I am of the opinion that the estrangement between Fiona Dolman and the deceased is not a matter that prevents Fiona Dolman from satisfying the jurisdictional question. On the contrary, in my opinion, the totality of the circumstances compels a finding that the jurisdictional question should be answered in Fiona Dolman's favour.
Ipp JA reached the following conclusion at [121]: [121] There is evidence that supports a finding that Fiona Dolman's reasonable need is as follows: Acquisition of unit: $500,000 Fees for an interior design course to enable her to qualify as an interior designer: (about) $ 35,000 Year's travel: $ 20,000 Two years living expenses while studying: $ 50,000 Buffer or cushion: $ 50,000 ________ Total: $655,000
Although every application for a family provision order will depend upon its own particular facts, I consider this decision to be illustrative of the proper approach to take in the present case. The Court of Appeal did not place substantial weight on the mere fact of long estrangement. It analysed the reasons for that estrangement, and discounted it as a significant factor when it determined that the applicant's conduct in relation to the estrangement was reasonable and understandable, as a result of the actions of her father. It considered the significance of estrangement in the context of all relevant factors, including the circumstance that the applicant was a person in need, and the beneficiaries under the father's will were not in significant need, and did not have a substantial call on the deceased's bounty.
I must also be guided by the latest word of the Court of Appeal, on the significance of "bare paternity", in Nicholls v Hall [2007] NSWCA 356; where the Court of Appeal said in a joint judgment at [40] to [48]: [40] In considering whether error is shown in the primary judge's approach to the question of "bare paternity" and in his finding that the appellant had established "very little more than bare paternity", it is necessary to say a little about the concept of "moral duty" or "moral obligation" in relation to applications under the Family Provision Act, particularly when statements are made, as in para [44] of the primary judge's judgment, that freedom to dispose of one's property at one's death is a right to be interfered with only "to the extent necessary to comply with the testator's obligations to eligible persons under that Act". The point that we wish to make is that, although the concept of "moral duty" or "moral obligation" is relevant, it is not determinative and can be misleading. It can be misleading, in our opinion, for at least two reasons: 1. In considering the question posed under s 9 of the Family Provision Act 1982, as to whether provision for an applicant is inadequate for his or her proper maintenance, education and advancement of life, the evaluation of what is "adequate" and what is "proper" may depend partly on circumstances not known to the deceased; so even if, on the basis of circumstances known to the deceased, there was no non-compliance with any moral duty or obligation, a claim may still succeed. 2. The question posed by s 9 is to be decided having regard to facts as they exist at the time of the hearing, not at the time of death: thus, for example, if there is a financial or health catastrophe occurring between the date of death and the hearing, a claim may succeed where on no view was there any non-compliance with any moral obligation of the deceased. [41] For those reasons at least, it is in our opinion more satisfactory to approach the question of what is "adequate" and what is "proper" having regard to what might be characterised as the claim of an applicant on the estate of the deceased: this more readily accommodates objective facts rather than just the facts known to the deceased, and it also accommodates events occurring after the death of the deceased. In saying this, we are not suggesting that the Court cannot give weight to the deceased's own assessment of moral claims on the deceased and of the deceased's moral obligations: this can be taken into account in assessing the strength of moral claims. [42] In assessing the strength of moral claims, the Court can have regard to (1) all aspects of the relationship between the applicant and the deceased, and (2) all aspects relating to needs of the applicant. These matters would be considered having regard also to (3) the size and nature of the estate, and to (4) other legitimate claims on the estate, each of which would also involve some consideration of the relationship of a claimant to the deceased and the needs of that claimant. When a moral claim has been assessed in that way, that does not determine whether an order should be made, but only informs what the Court would find to be "adequate" and "proper". Certainly, in our opinion, a finding that an applicant has been left without "adequate provision" for "proper maintenance" does not necessarily mean that the deceased failed in any obligation; although it can loosely be expressed in terms that there was a moral claim that, in the event, was not met. [43] There are some statements in the cases that could be understood as meaning that, if there is nothing more than "bare paternity" in factor (1), the relationship between the applicant and the deceased, then the applicant cannot succeed. In our opinion, such an understanding would be plainly wrong. Even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors (that is, needs, size of estate and lack of competing claims), a court could find that that child was left without adequate provision for proper maintenance. [44] Such a view is supported by what Holland J said in Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 540: If it is a case of a parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned for the child's welfare. We should make it clear that, in this discussion of "bare paternity", we are not intending to include a mere sperm donor: in terms of Holland J's statement, it is the persons who make use of the sperm rather than the sperm donor who are responsible for bringing a child into the world. [45] Our view is also supported by what Bryson J said in Gorton v Parks (1989) 17 NSWLR 1 at 9-10, to the effect that "the bare fact of paternity" is "of very great importance in morality". We agree with Bryson J's justification for departure from what Dixon CJ said on the matter in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 18-20, as conforming to changing beliefs in the community about moral duties to children. [46] It is supported also by what Ipp JA (with whom Tobias JA and Basten JA agreed) said in Palmer v Dolman [2005] NSWCA 361 at [112], to the effect that where an applicant is a child, proof that the applicant is a person in need will often be sufficient to justify an order. [47] We accept there is a suggestion to the contrary in Hughes v Hughes (NSWCA 6 June 1989) where Meagher JA (with whom Hope JA and Samuels JA concurred) said this: Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case: namely, parenthood, the performance of normal filial duties in the ten years after she left school and in the two periods between her early trips and in her professed and continued willingness to be of whatever assistance to her father she could be. [48] We do not understand an applicant to have a "right" in any clear sense, in any event. It is only if an applicant satisfies the Court that he or she has been left without adequate provision for proper maintenance, and satisfies the Court that provision ought to be made, that it then can be said, in a loose sense, that the applicant has a right to an order. However, that right must depend, not merely on matters concerning the relationship between an applicant and the deceased, but on matters concerning the other three elements that we referred to, namely the applicant's needs, the nature and extent of the deceased's estate, and other legitimate claims. We do not think the passage from Hughes v Hughes should be read as meaning that entitlement can never be established if the only factor that appears in the relationship aspect of the claim is the bare fact of parenthood.
In Nicholls v Hall, the Court of Appeal described the relationship between the appellant and the deceased at [33] in the following terms: [33] The eldest was the appellant, who was aged 47 at the time of the judgment below. He was conceived during a relationship in 1958 between the deceased, a European, and an Aboriginal woman. The relationship ceased before the appellant was born. The appellant and the deceased first met on 17 April 1995, when the appellant was 36. So far as the evidence went, the deceased had not been aware he had fathered the appellant until shortly before this meeting, which was arranged after the appellant had tracked down his father. Their meeting on that day and the following day were the only face-to-face meetings they had. Apart from that, there were five phone calls initiated by the appellant, and six by the deceased, and the last contact was a phone call from the appellant to the deceased on his 73rd birthday, 18 September 2003.
The Court of Appeal set out the primary judge's consideration of the question whether biological paternity was sufficient to base a claim for a family provision order at [16]. At [42] of his judgment, the primary judge made the following observations concerning the relationship between the son and the deceased: I have difficulty with finding for the plaintiff at the first stage. It seems to me that the plaintiff has established very little more than the mere fact of paternity. He has exaggerated his case. On the facts, he did not have a close relationship with his father at any time. I do not consider 11 phone calls in eight years with no exchange of presents or cards for birthdays or Christmas, and not even attending the funeral, as showing that there was such relationship. I know that the plaintiff says that his mother talked of the deceased about the plaintiff, but that information must be second hand and is no substitute for the plaintiff making his own personal contact.
The primary judge also considered the following question at [45]: The question asked is whether an able-bodied adult son earning a better than average income who only had slight contact with the testator, who was left nothing under his father's will was left an adequate provision.
The primary judge considered, at [46], that a wise and just testator would have weighed up the competing claims of his daughters and his son. The daughters had lived with the deceased all their childhood lives, and had been in contact with him regularly up until his last days, and two of the daughters had cared for him during the period of his illness.
The Court of Appeal set out its findings at [49] to [52] in the following terms: [49] Turning to the present case, so far as the applicant's relationship to the deceased is concerned, his moral claim depended on paternity, and on some additional factors. The appellant did not place weight on the absence of provision by the deceased for the appellant in his early years: so far as the evidence went, this was no fault of the deceased, because it was not shown that the deceased was aware of the existence of the appellant in those years. Still, it was an objective fact that the appellant did not have the benefit of assistance from a person responsible for bringing him into the world. As we have said, this was not relied on by the appellant, and we do not consider it a substantial factor in this case, particularly when it appears that the appellant has achieved reasonable success in his life so far. Another aspect is the appellant's search for and finding of his father, and then taking steps to establish a relationship with him. This relationship was established, not to a great extent, but to some extent; and it was a relationship that also involved re-establishing some relationship between the deceased and the appellant's mother, and establishing some relationship between the appellant and the deceased's daughters. The relationship between the appellant and the deceased clearly could have been greater and more satisfactory, and as found by the primary judge, its extent was exaggerated by the appellant. However, there is no suggestion that the failure of this relationship to blossom was the fault of the appellant any more than that of the deceased. [50] Turning to other aspects of the moral claim of the appellant, the bare facts of his financial situation were set out by the primary judge. In addition, there was evidence of some health problems of both the appellant and his wife involving depression and anxiety, and there was evidence of problems with their employment that to some extent raised a question as to whether employment into the indefinite future was assured. We have already indicated that we would not consider that the primary judge's assessment of his position as "comfortable" amounted to appealable error, but it is not an assessment this Court would itself have made. [51] As regards the other two aspects, we agree with the primary judge that, by reason particularly of their relationship with the deceased, as well as the financial position of at least two of the daughters, their moral claims on the deceased's estate were stronger than that of the appellant. However, the estate was one of moderate size, and provision of (say) $175,000.00 to the appellant would have left available $350,000.00 for each daughter. [52] On that analysis, in our opinion the primary judge's finding that the appellant established "very little more than the mere fact of paternity" was an error. As regards the relationship aspect of his claim, he established some matters of substance. As regards the needs aspect of the claim, in our view he established needs, particularly those associated with the large mortgage on his house and concerns about the future health and employment of himself and his wife. As regards the size and nature of the estate, and competing claims, he established that the estate was of a size and nature that could make reasonable provision for competing claims as well as some provision for himself. We would comment also that the primary judge's dismissal of the relevance of a case of disinheritance was not entirely apposite: there is a sense in which the appellant was disinherited because, but for the will, he would have shared the estate on intestacy equally with the deceased's daughters.
It is not appropriate to draw any general rule from these authorities. However, they provide support for the proposition that a child will not necessarily fail to establish the threshold test in s 59(1)(c) of the Act, or be disentitled to a proper provision under s 59(2), in cases where the relationship between the applicant and the deceased parent is only one of "bare paternity", where that term is used to describe a situation where the parent has been responsible for the conception and birth of the child, but there has been no true relationship between the parent and child for a considerable period before the death of the parent, if ever. The parent's responsibility for bringing the child into the world leads to the assumption of a duty to be concerned for the child's welfare that may entitle the child to the making of a family provision order, even in an extreme case where the parent did not become aware of the birth of the child. The entitlement to an appropriate family provision order does not, however, flow from the mere fact of a parental relationship. All relevant circumstances must be taken into account, and there may be occasions when the responsibility of the child for the estrangement between the child and the parent will diminish or negate the parent's duty to be concerned with the welfare of the child.
The NSW Trustee relied upon a number of decisions in which the court found that the deceased was justified in declining to make any provision in the deceased's will for the applicant child. In my view, most of these cases are distinguishable from the present, because the court found that the conduct of the child justified the deceased in making the decision that was made as to how the deceased would treat the child in his or her will.
In deference to the submissions made on behalf of the NSW Trustee I will refer briefly to these decisions.
In Walker v Walker [1996] NSWSC 188, the plaintiff was the son of the deceased father by his first marriage. The plaintiff was born in 1950. The deceased left the matrimonial home and his family in about 1964, when the plaintiff was 14 years of age. The plaintiff did not see his father or socialise with him for the next 33 years until his death, and only saw his father on a number of occasions when they bumped into each other by chance. The father justified his will on the basis that he did not want anything to do with his children, because they had not contacted him or visited him for 30 years.
Young J (as his Honour then was) rejected the submission made by counsel for the plaintiff that "the mere fact of paternity and the abrogation of the testator's duty to the plaintiff when he was an adolescent means that there must be an order for the plaintiff". His Honour concluded: "The fact of paternity is something to take into account, but it must be taken into account with all the other facts and circumstances of the case and the question asked, would the community think in all the circumstances that a wise and just testator would have made provision for his child?"
His Honour concluded: However, the plaintiff is now 46 and virtually unemployable. Once his mother dies or is unable to cope with the house, the plaintiff will have very real accommodation problems particularly if this occurs before his son Luke leaves school. He has no financial buffer at all. The separation from his father has had an effect on his financial well-being in that his father has never assisted him. Further, there are no other kin who are within the class whom the testator would be expected to have in mind for benefaction… In the ultimate, I have reached the view that in all the circumstances, the testator ought to have made provision for the advancement in life of the plaintiff. In view of the relative smallness of the estate the only provision that can be made is the provision of a capital sum to assist the plaintiff with accommodation in the future and to act as a buffer against the vicissitudes of life. I believe that $35,000-$40,000 would be close to an appropriate sum in the circumstances.
Young J accordingly decided that the applicant was entitled to some provision out of his father's estate, notwithstanding the length of the estrangement between the applicant and his father.
A family provision order was not made in Lo Surdo v Public Trustee [2005] NSWSC 1186. This decision is perhaps the hardest one on the facts to reconcile with the approach that I believe should be adopted in the present case. The deceased gave birth to the plaintiff, a son, in 1940. The deceased died in 2000. After the birth, the deceased gave the plaintiff up to an orphanage in Sicily. The plaintiff only had sporadic contact with the deceased during her life, and did not form a close bond. The plaintiff lived in Italy for most of the time, and only visited Australia in circumstances where he could see his mother on a few brief occasions. Hamilton J found at [52] that there was virtually no contact between the deceased and the plaintiff during his residence in Australia in the 1960s. Hamilton J also found at [54]: … Bearing in mind my view of the plaintiff's credibility and lack of corroboration, I decline to find that any relationship of any substance was continued or re-established between the plaintiff and the testator on this visit [between April and June 2000]. In coming to this conclusion, I do not rely on the defendant's evidence which I am not prepared to accept as reliable concerning this period. There is simply no acceptable evidence as to what occurred. It should also be borne in mind that the time spent by the plaintiff with the testator during this two-month visit to this country was on any account very short.
Hamilton J reached the following conclusion at [63] and [64]: [63] In coming to this conclusion I have made the assessment required in Singer v Berghouse supra. I have also taken fully into account what has been said by Bryson J in Gorton v Parks supra to the effect that the bare fact of parenthood is of very great importance. I have also taken into account that the courts have said that that bare fact does not of itself generate a right, but is to be considered in the context of the whole relationship between the parties. Here, the testator gave birth to the plaintiff and then felt constrained to give him up. She was overjoyed at the reestablishment of contact, but upon his coming to Australia in 1964 the relationship between them did not flourish. It does not seem to me that on the evidence this failure can be attributed to her rather than to him; on the exiguous evidence the relationship just did not work and really did not exist in any substantial way during the only period in his adulthood in which they lived in the same country for any protracted period. I have found that no real contact was maintained between them during the 23 years before he returned to Australia. Again, I am unable to find what passed between them and whether there was any establishment or reestablishment of a relationship during his return in the year 2000. [64] On the evidence, I have been unable to reach the conclusion that a relationship between the plaintiff and the testator during adult life really came into existence or subsisted in any real way. Nor am I able to come to any conclusion as to who out of mother and son was responsible for this situation. Nor am I able to come to any satisfactory conclusion as to the extent or value of his assets. This is a case where what is established is the bare fact of parenthood. Viewing that fact in all the circumstances of the case (including those mentioned in this paragraph), it does not seem to me that it would be expected by the community that the testator would have to make a benefaction to constitute proper or adequate provision for the plaintiff. It is my conclusion that the plaintiff's claim fails.
If the decision in this case was made upon the basis that a child will not be entitled to provision out of the parent's estate if the child was abandoned by the parent soon after birth, and no parent and child bond developed during the life of the parent, I would respectfully disagree with his Honour. I note, however, that Hamilton J was unable to come to any satisfactory conclusion as to the extent or value of the applicant's assets, and it appears that this was a factor that led to his Honour concluding that all that had been established in the case before him was the bare fact of parenthood.
The plaintiff in Kay v Archbold had been estranged from her deceased mother from 1995 to May 2006, when the mother died. The plaintiff only had minimal contact with her mother during this period. White J said at [94] to [96]: [94] Senior counsel for the defendant submitted by reference to observations of Bryson JA (with whom Santow and McColl JJA agreed) in Wheatley v Wheatley [2006] NSWCA 262 at [37] that the poor state of the relationship between the deceased and the plaintiff, illustrated by their lack of communication between 1999 and 2006, even when the plaintiff was aware that her mother was ill and seriously so, operated to "restrain amplitude in the provision to be ordered". [95] Their estrangement is certainly a factor to be taken into account in determining what provision should be ordered. However, cases are infinitely various. There is no rule that irrespective of a claimant's need, the size of the estate, and the existence or absence of other claims on the estate, a claimant is not entitled to "ample" provision if he or she has been estranged from the testator. Bryson JA was making observations appropriate to the facts in Wheatley v Wheatley. He was not espousing any general principle as to the relevance of amplitude. The very general directions in ss 7 and 9 of the Family Provision Act require close attention to the facts of individual cases. It is an error to seek to extract statements of general principle from observations directed to the facts of a specific case. [96] The present is not a case of "bare paternity" or "bare maternity". But even in such cases, the fact of parenthood is highly material to the existence of a duty to make provision. In this case, some provision was made. The question is as to its adequacy. I consider that the estrangement between the plaintiff and the deceased is a material matter, although for at least the early years of the estrangement, I do not consider that it has any effect on the provision the plaintiff should have. Nonetheless, even though the plaintiff was reasonably distressed at her mother's failure to accept the proffered olive branch in 1995 and was understandably upset by her mother's rejection of her attempts for a reconciliation, or more accurately, the establishment of a normal mother/daughter relationship, one would expect the plaintiff to have made a further attempt to re-establish that relationship when she knew her mother was seriously ill. Of course, because of the plaintiff's own disabilities, it was not open to her to travel to see her mother at her home in Mona Vale. Driving the distance between Belfield and Mona Vale was also difficult. Nonetheless, the absence of any further attempt to telephone her mother or to write to her is a material consideration to be weighed against her very strong claims based on her financial need.
In Ford v Simes [2009] NSWCA 351 the applicant child had unilaterally abandoned his father for 14 years from when he was aged 76 until he died at age 90, with a single abusive encounter in that period. Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed, considered that the child had treated the parent "callously, by withholding without proper justification, their support and love from them in their declining years" and the "callousness [was] compounded by hostility". A family provision order was not made.
In Burke v Burke there was no communication between the applicant son and the deceased mother between 1990 and her death in 2012. The deceased took the view that her son had decided he wanted nothing to do with her or the rest of the family, and the deceased wrote a letter, intended to support her will, which stated: "This estrangement has caused a great deal of pain and upset to the entire family and given the length of time since our last contact I decided to divide my estate to reflect the fact that [the plaintiff] (through his own choosing) is no longer connected with my life". A family provision order was not made.
In Raiola v Raiola [2014] NSWSC 967 at [11], Black J was concerned with applications for family provision orders by a daughter and one of two sons of the deceased. It appears that both applicants had grown up in the household of the deceased in the conventional way, before they left home in Australia and returned to Italy from whence the father had emigrated. The daughter had not been in contact with her father for 21 years. Black J was not persuaded by substantial parts of the daughter's evidence concerning her explanation for her estrangement from her father. In declining to make a family provision order in favour of the daughter his Honour found, concerning the position of the daughter, at [47]: [47] I give weight to the fact that Imma and the deceased were estranged for a significant period and I think it possible that Imma exaggerated, possibly substantially, the extent of their rapprochement with him in the period prior to his death. I am satisfied that Imma is presently unemployed and will have difficulty in finding employment given her age and the economic environment in Italy and that she depends on sharing a property with her husband, from whom she is separated and not divorced. At the same time, it does not seem to me that there was any suggestion in this case that Imma is not secure in present accommodation in that property, in which she has now lived for a considerable period, although her evidence is that she would prefer to reside in separate accommodation.
It appears that Black J, in also declining to make a family provision order in favour of the deceased's son, was influenced by the fact that the son's relationship with the deceased had begun to deteriorate shortly after he married in 1986: see [55]. The deceased died in December 2011. However, it seems that Black J was primarily influenced by the following finding, at [70]: Massimo has plainly had substantial success in his professional and business affairs and has accumulated substantial assets for his family. He fairly accepted in cross-examination that he had no need for provision.
As Marcel is an adult child, it will be useful to set out the principles that Hallen J has collected in Butler v Morris [2012] NSWSC 748 at [106] as generally applying to applications for family provision orders made by adult children: "In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, 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 children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary 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 a parent 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. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. (Re Buckland Deceased [1966] Vic Rp 58; [1966] VR 404 at 41; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505). But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons. (Re Buckland Deceasedat 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]). (e) 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) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) 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 (28 August 2003) at [181] and [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, financial security and a fund to protect against the ordinary vicissitudes of life, is 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]. (g) 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 at 149. (h) Although some may hold the view that equality between children requires that "adequate provision" not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case."

Did Luciano make adequate provision for Mirta in his will?

At this stage, the question is whether Luciano made adequate provision for the proper maintenance, education or advancement in life of Mirta in his will, having regard to all relevant present circumstances?
It must be remembered that, while the answer to this question will involve a consideration of the rightness and appropriateness of Mirta's and Luciano's conduct, based upon prevailing community standards, with the court acting as a proxy for the community, the question must be answered upon the basis of all considerations made relevant by the statute, and does not involve the enunciation of any general moral rules or principles of conduct. The answer to the question is sensitive to all of the relevant facts. For example, if Luciano's estate had a value of a quarter of what it in fact has, or Julia and Teresita were in grave financial difficulty, or Luciano had left a de facto wife and a number of infant children, it is most likely that the question would receive a different answer to that which it will be given on the facts of the present case. That would be so even though those changes in circumstances would have little bearing on the appropriateness of Mirta's conduct.
In the present case, Luciano left a relatively substantial distributable estate of about $1.5 million, after allowing for expenses and legal costs. Although both of his sisters, Julia and Teresita, were worthy of Luciano's benefaction, as a result of their respective ages and relatively comfortable circumstances their needs were not so substantial as to prevent Luciano, having sufficient assets, to properly address the entitlement of Mirta to an adequate provision for her proper maintenance and advancement in life.
The obvious question is whether it was proper for Luciano to leave Mirta nothing in his will because, notwithstanding that he remained married to her, they had been separated and had no conjugal relationship since 1988, and relatively little association for the decade before that. This case does not involve the consideration, referred to by White J in Slack v Rogan, where the court should give respect to a capable testator's judgment as to who should benefit from the estate, where it can be seen that the testator has duly considered the claims on the estate. Luciano made his will in 1981. At that time Marcel was 3 years old, and Luciano was not entirely estranged from Mirta, although they were living apart. On the evidence, Luciano's failure to provide anything for his son, Marcel, is entirely inexplicable. It cannot be known why Luciano did not reconsider the terms of his will before the commencement of his dementia. The unexpected onset of Luciano's dementia precluded him from giving due consideration to the claims on his estate.
In my view, the decisive factor is that Luciano chose to remain married to Mirta. The order made by the Family Court in Uruguay in 1993 did not dissolve the marriage. Although Luciano obtained a copy of the court's order, the evidence does not establish that Luciano believed that he had become divorced from Mirta, and there is no ground for the court to find that the wording of the order would have conveyed to a Spanish speaker that the marriage had been dissolved.
I accept Mirta's evidence that, for the few years that she worked while she was in Australia, she gave all of her wages to Luciano. There is evidence that Luciano was very careful with his money. Mirta may not have contributed a large sum of money in absolute terms to the matrimonial property, but she did so at the beginning, some 40 years ago. While it cannot be known what Luciano did with the money contributed by Mirta, the contribution should not be regarded as insignificant, given the substantial inflation in Sydney real estate prices over the last 40 years.
There is no reason to believe that Luciano could not have obtained an order from an appropriate court dissolving his marriage to Mirta, if he had chosen to face that issue. However, it is almost certain that if Luciano had sought a divorce from Mirta, he would have had to subject himself to some order for separation of marital property and maintenance of Mirta and Marcel, or at least the latter.
Luciano did not enjoy the assistance of Mirta, even in the capacity of a homemaker, after he finally separated from her. Nor did he enjoy her company and support. All of this was a matter of Luciano's own choice.
The effect of Luciano's abandonment of Mirta and Marcel was that he unilaterally abrogated his duty to both of them, in Marcel's case from the day of his birth. Not only did that deprive Marcel of his father's support, but it consigned Mirta involuntarily to the need to devote her life as a single mother to supporting Luciano's son as well as herself. In doing that, she de facto made a considerable contribution to Luciano's financial circumstances by carrying the burden that was in large part Luciano's.
I consider that Mirta's entitlement to maintenance and advancement in life out of the will of Luciano should be approached on the basis that she was legally his wife, that it was Luciano's own choice not to avail himself of the benefits of his marriage to Mirta, and that Mirta by reason of her sole support and maintenance of herself and Marcel provided a substantial financial benefit to Luciano over the years, by carrying a burden that was properly Luciano's, and the release of Luciano from that burden must have facilitated his ability to acquire the assets that he did. Furthermore, the depletion of Mirta's own assets by reason of her unassisted expenditure on the support and maintenance of herself and Marcel will necessarily have contributed substantially to her present inadequate financial circumstances.
I would echo the sentiment expressed by Bryson J in Gorton v Parks, to which reference has been made above, when I say that moral obligations cannot be limited or escaped by steadfastly maintained repudiation or evasion.
Luciano made no provision at all for Mirta in his will. Given Mirta's present circumstances, as set out above, no provision is clearly not a proper or adequate provision. Accordingly, the requirements of s 59(1)(c) of the Act are satisfied.

Did Luciano make adequate provision for Marcel in his will?

It will be instructive to begin the consideration of whether Luciano made adequate provision for the proper maintenance, education or advancement in life of Marcel in his will, by revisiting the list of principles stated by Hallen J in Butler v Morris, which I have set out above. It will immediately become apparent that Hallen J has addressed the entitlement of an adult child to a provision from the parent's estate on the assumption that the parent has, during the child's upbringing, supported and maintained the child in a manner consistent with community expectations. Hallen J's principle (a) refers to the change in the relationship between parent and child when the child leaves home. That reflects the universal social expectation that the parent will have provided a home for the child. The reason why the relationship changes is a social expectation that, once the parent has provided nurture to the child during childhood, the child will be equipped to act independently in maturity.
It is worth restating Hallen J's proposition (b) in part, as it succinctly states the expectation that it would generally be expected that the community would have of a parent in respect of a child: (b) Thus, 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 their children up in a position where he, or she, 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 (McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801).
It follows directly from this proposition, with which I respectfully agree, that Luciano's performance of his moral paternal obligation to Marcel was the antithesis of what the community would expect, and the opposite of that to which Marcel was entitled. Again, I respectfully adopt the observation of Bryson J in Gorton v Parks at 9: "The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age". I should observe that my reliance upon the observations made by Bryson J is not meant to suggest any general principle, but is merely a reflection of the extremity of the circumstances of the present case. Marcel was deprived by Luciano's conduct of virtually everything that a child is entitled to expect of a father, save perhaps for the child's existence.
The only thing that could be said against Marcel is that he did not take significant steps to find and establish a relationship with Luciano after Marcel achieved adulthood. In my view, in the present case, Marcel's conduct does not disentitle him to the level of provision that the available assets in the estate enable the court to make in his favour. Luciano chose to walk out of Marcel's and his mother's life. It has plainly been a hard struggle for both of them, and the need to fend for themselves has obviously consumed most of their attention. Given the difficulties he has faced, Marcel's achievements are highly commendable. I do not think it can be expected of Marcel that he should have devoted any substantial time to attempting to establish a relationship with his father. It is understandable that Marcel would have thought ill of his father, not only because of his own total abandonment, but because of the suffering that Luciano inflicted on Mirta, which was constantly in Marcel's view. The evidence does not, in any event, establish to my satisfaction that Luciano, having abandoned Marcel, would have particularly valued receiving occasional correspondence from Marcel.
Luciano made no provision for Marcel in his will, and in my view that is inadequate for the purposes of s 59(1)(c) of the Act .

What order for provision should be made in favour of Mirta and Marcel?

It is necessary for the court to consider the orders, if any, that should be made in favour of Mirta and Marcel under s 59(2) of the Act at the same time, because in practical terms, the application by each of them is in competition with the other, and each is in competition with the provisions made by Luciano in his will in favour of Julia and Teresita.
It will be appropriate first to make some preliminary observations about the practical considerations that are involved in the present case in considering the questions raised by s 59(2) and s 60(2) of the Act.
First, the amount of the estate that will be available for distribution after the payment of the estate's expenses and the making of the usual costs orders, if Mirta and Marcel succeed on their applications, will be about $1.5 million. I have recorded above the claims that each of Mirta and Marcel has made, as well as the equivalent statements of present and future needs by Julia and Teresita. It is necessary to revisit the total amount of the respective claims (using an exchange rate of 75 US cents to the Australian dollar for the sake of comparison). The total claims are Mirta ($1,000,000); Marcel ($1,250,000); Julia, including Juan, ($1,355,000); and Teresita ($790,000). The total of these claims is $4,395,000. The total of the claims made by Mirta and Marcel is $2,250,000, which substantially exceeds the amount available for distribution.
As will be seen, I have formed the view that each of Mirta and Marcel has an entitlement to an order that makes a substantial provision in their favour, but as that is true for both of them, they are unavoidably in competition for the available assets. I have also found that, by reason of the love and support that Julia and Teresita gave to their brother during his lifetime, and particularly when he was in extremis in his final years, they are worthy beneficiaries of Luciano's bounty in his will. This is one of the many cases where the assets in the estate are not sufficient to make provision in favour of all proper claimants in satisfaction of their justifiable claims or entitlements.
To varying degrees, each of the items that compose the claims made by Mirta and Marcel may be justifiable; though some are plainly more essential than others. The same may be said for the needs expressed by Julia and Teresita. As the available assets are insufficient to support all of the claims and entitlements, there will be no point in the court attempting some minute analysis of the justification or quantification of all of the items that have been claimed. The reality is that, in each case, the amount of the provision that can be made will fall far short of the total that has been claimed, so that it will be a matter for each applicant to decide upon appropriate priorities in respect of how the amount that is received will be applied.
The amount of the provision that can reasonably be made for both applicants falls so far short of the total claimed, that it is not realistic for the court to attempt to justify the amount of the provision by an arithmetical consideration of the cost of legitimate components of the claims. Practical considerations limit the exercise to a broad attempt to determine the appropriate provisions by considering the primary requirements of the applicants.
It should be added that both Mirta and Marcel have provided to the court a list of items of need that they perceive will be required over the balance of their lives. Many of the items require recurrent expenditures in relatively small amounts or more substantial expenditures at various times in the future. The court has only been given an absolute total, and there has been no consideration in the evidence of the effect of investing the assets for the period of each applicant's life, and no account has been taken of the capacity for the investments to earn income.
Furthermore, I think it is necessary for the court to proceed upon the basis that Mirta's primary need is for more satisfactory accommodation than is afforded by the villa in which she presently lives with Marcel, and that any new residence, together with the remainder of any investments that she makes to provide income and a buffer against contingencies, that remains at her death, will be left to Marcel in Mirta's will. It is highly likely that at least a substantial part of the provision that may be made in favour of Mirta will ultimately be enjoyed by Marcel.
There was an incipient dispute in these proceedings concerning the suitability of the accommodation to which each of Mirta and Marcel aspired. Mirta wishes to acquire a two-bedroom home unit valued at about US$260,000 (AU$350,000) and Marcel would like to buy a three-bedroom house with a garage for about US$350,000 (AU$450,000). There were claims in the NSW Trustee's evidence that the accommodation that Mirta and Marcel wished to acquire consisted of property in the more salubrious parts of Montevideo, which were not in keeping with their proper entitlement for provision in Luciano's will. It is not clear to me how committed the NSW Trustee ultimately was to fight this issue, as there was no cross-examination in respect of the valuation evidence. I do not think it matters, as the amount that could be given to each of Mirta and Marcel out of Luciano's estate, while making appropriate provision for Julia and Teresita, to give some effect to Luciano's own wishes, will leave relatively little, if anything, over if Mirta and Marcel choose to acquire new accommodation. It is likely that each will have to make do with less than what they considered to be desirable, so there will be no point in the court trying to make essentially impossible judgments about the desirability of particular types of accommodation in Montevideo.
I add that, as seems to be common in family provision applications, the applicants in the present case have each identified a single type of desired property; they have provided a range of values solely for those types of property; and they have tried to justify the making of family provision orders that provide them sufficient funds to acquire the desired properties. They have not provided evidence of the cost of alternative, new accommodation, which may be less desirable than the preferred property. That has had the result in this case, as it generally does, that once the court reaches the conclusion that the available estate, and the legitimate claims of other eligible persons or beneficiaries, does not permit the court to make a family provision order that would allow the applicant to buy the desired property, the court is thrown on the need to engage in guesswork.
So far as Mirta is concerned, I am not satisfied that community expectation would have required Luciano in his will to treat Mirta as if she was not only his wife, but had been his life's companion from the date of their marriage to his death. Notwithstanding Luciano's separation from and abandonment of Mirta to look after their child, the fact remains that they lived separate existences for the best part of 34 years. Luciano's failing, from the perspective of community expectations, was that he did not face the need to divorce Mirta lawfully, and to comply with any legal requirements that may have been imposed upon him, as part of the divorce process, in respect of matrimonial property and maintenance, particularly in the case of maintenance in respect of Marcel. In a practical (though by no means legal sense) Luciano deferred his obligations. That is the legal effect of his remaining married to Mirta, so that she remained an eligible person under s 59(1)(a) of the Act at his death. At that time, although it is entirely impossible to measure the consequences in any arithmetical way, Mirta's personal and financial circumstances continued to reflect the consequences of Luciano's abrogation of his responsibilities as a husband and father. The period of 34 years is so long that even relatively small contributions by Luciano of capital and income over the period, particularly during Marcel's childhood and student years, should have enabled Mirta to substantially improve her material circumstances when compared to those to which she is currently subject.
So far as Marcel is concerned, he is entitled to be treated as a son who has been completely abandoned by his father, and who has received none of the emotional and material assistance that is the due of any child. On an application such as the present, I believe the court is entitled to find on the probabilities that Luciano's abandonment of Marcel was at least a significant contributor to some of the health and medical difficulties that he has suffered. It is also of some significance that the need to support himself and his mother has caused a delay in Marcel's graduating in his university degrees. The absence of Luciano from Marcel's life, both in emotional and material respects, has probably affected Marcel's personal and material development in a myriad of ways that cannot separately be identified or valued.
The circumstances of the two applications for family provision orders that are before the court are relatively exceptional, which makes it difficult to apply the matters set out in s 60(2) of the Act in a conventional way. I will mention only the paragraphs in s 60(2) that have some apparent significance to the present case.
For the purposes of par (a), the applicants are respectively wife and son of the deceased. A consideration of the nature and duration of the relationship shows, as appears above, that the relationship in this case is almost the exact opposite of that which would usually be expected, so that Luciano's testamentary obligation to the applicants arises in proportion to his failure over some 37 years to perform his obligations to them.
The obligations or responsibilities that arise in this case, for the purposes of par (b) consist in practical terms of the reparation that the community would expect from Luciano for his failure to meet his obligations to the applicants.
I have already indicated, so far as the matter in par (c) is concerned, that Luciano's estate is sufficient to provide a significant provision to each of Mirta and Marcel, but not one that is fully commensurate with their needs, particularly considering the entitlement of the beneficiaries under the will.
I have, above, accepted the evidence given by Mirta and Marcel concerning their financial resources and needs, for the purposes of par (d), at least in general terms, as I have in relation to the beneficiaries under the will (save that I have not found that the evidence before the court justifies the amounts claimed by Julia and Teresita in respect of future nursing home costs).
Paragraph (e) has an application in the present case that may be inverted from that which would ordinarily be expected, because Mirta and Marcel are cohabiting with each other out of necessity, which is something that they should not have to do. At this stage in their lives they should not have to bear the burden of supporting each other.
All of Mirta, Marcel, Julia and Teresita have various physical disabilities, which have been considered above, and will require medication and treatment over time: par (f).
Mirta is near the age of retirement and is in need of some level of financial assistance to support her in retirement: par (g).
Mirta indirectly contributed to the acquisition of Luciano's estate by entirely carrying his obligation to provide maintenance and support to her and Marcel: par (h). Additionally, she gave him her wages for a number of years while the couple were living together in Australia.
So far as par (i) is concerned, Luciano has made no provision of any substance to Mirta since the beginning of 1978, and no provision to Marcel during his lifetime.
There is no person who is liable to support either Mirta or Marcel: par (l).
For the purposes of par (m), I find that there is no aspect of the character of Mirta or Marcel that would this disentitle them for any provision out of Luciano's estate, or reduce that entitlement.
I find in respect of each of Julia and Teresita that they are moderately comfortably off, albeit that they subsist on pensions. Each owns a home unit (in Julia's case jointly with Juan). In my view each is entitled to have a substantial fund to provide at least for the more important needs that each beneficiary listed, and to provide a buffer against contingencies. I would expect that each beneficiary's home could be used to support the payment of any deposit for any nursing home requirements. The evidence provided by Julia and Teresita in support of their claims that they would require nursing home deposits of $300,000 each (plus one for Juan) plus equivalent amounts in total annual nursing home fees, did not explain at all the basis for the calculation of those amounts.
I have decided that the only realistic way that is available to the court to determine the provision that ought to be made for the maintenance, education or advancement in life of Mirta and Marcel is to do so by means of a single legacy that should be provided to each of them out of Luciano's estate.
In Mirta's case, I have been influenced primarily by her stated need for better accommodation and a fund to assist her to make provision for her retirement. She wishes to buy a two-bedroom home unit, which she values at the equivalent of about AU$350,000. I frankly think that she will need to lower her expectations in respect of a new home. If she buys the home she wishes to acquire, she will have insufficient reserves.
The same problem arises in Marcel's case, albeit more acutely. He wishes to acquire a three-bedroom home with a garage which he estimates would cost him about AU$450,000. It will probably be necessary for Marcel to lower his aspiration, or to acquire a mortgage. In this respect, Marcel has the expectation, to which I have referred above, of ultimately inheriting his mother's estate.
I have come to the conclusion, having regard to the age of Julia and Teresita, and their relatively comfortable circumstances, but giving due weight to the length and strength of their relationship with their brother, that each should receive a fund of $300,000 out of Luciano's estate, assuming that the property of the estate is sold for prices that have the result that the distributable estate is only slightly less than $1.5 million.
I have given considerable thought as to how the balance of the estate should be divided between Mirta and Marcel. There are arguments that can be made in favour of each having the greater call on Luciano's bounty. However, I have come to the conclusion that each applicant has needs that are more than can be met out of the balance of Luciano's estate, and that it would be invidious for the court to make a more favourable order to one than the other. I am confident that the mutual love and respect that exists between Mirta and Marcel will cause them, in any event, to reach some satisfactory arrangement concerning the use to which their shares of the estate are put.
Accordingly, the balance of the estate, after payment of the amounts that will be paid to Julia and Teresita, should be distributed equally between Mirta and Marcel, also upon the assumption that the distributable estate is about $1.5 million, which would lead to each receiving $450,000. As I have suggested above, a provision of this order may only provide modest but separate accommodation for Mirta and Marcel, and a relatively small amount to meet contingencies. Notwithstanding the strong case that each of Mirta and Marcel made concerning their needs for maintenance, education and advancement in life, the duration of their separation from Luciano was so long that prevailing community standards could not ignore, and reasonable members of the community would recognise the entitlement of Julia and Teresita to receive significant provisions, having regard to their family bonds with Luciano and their material circumstances.
It is notorious that Sydney real estate prices tend to rise significantly over relatively short periods. There is no way that the court can know what the ultimate distributable estate will be. I consider that the fairest and most reasonable course is for the court to make orders that will have the effect that the applicants and the beneficiaries all share proportionally in any increase in the distributable value of the estate (or decrease, if that should occur).
The orders should have the effect that the final distributable estate is distributed on the basis that Mirta and Marcel each receive 30% and Julia and Teresita each receive 20%.
The NSW Trustee's costs should be paid out of the estate on the indemnity basis, and the costs of Mirta and Marcel should be paid out of the estate on the ordinary basis. My view as to the payment of costs is, however, provisional, and I will hear any submissions that the parties wish to make on costs.
Mirta and Marcel should submit short minutes of order to give effect to these reasons for judgment, after discussion with the NSW Trustee.

The deceased, Luciano Angel Bentancor was born on 21 May 1944 ...

changed from 21 May 2014 23 September 2015 - In matter 2013/49894 the plaintiff's solicitor firm name amended from Navorro to correct spelling Navarro 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: 23 September 2015

Provision Act 1989(NSW)

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Judgment (27 paragraphs)

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Cases Cited (51)

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