Lalic v Lalic

Supreme Court of NSW|2021-06-25|Before: Henry J

Judgment

This is an application by the plaintiff, Anthony (Tony) Lalic, for further provision out of the estate of his late mother, Zorka Lalic (deceased).
The deceased died on 15 October 2019 at the age of 86. Her husband, Edward (Edo) Lalic, predeceased her. She is survived by her four adult children: the plaintiff, who is now aged 66; Robert (Bud) Lalic who is aged around 68; the defendant, Anne Lalic, who is now aged 49; and another son, Johnny Lalic, who is now aged 48. Without any disrespect intended, I refer to members of the Lalic family by their first name in these reasons.

Background facts

The deceased was born in 1935. She and Edo were married in the former Yugoslavia in about 1953. Bud and Tony were both born there - Bud in around 1953 and Tony in June 1955.
In 1956, Edo migrated to Australia. The deceased, Bud and Tony remained in Yugoslavia before migrating to Australia to join Edo in 1963 or 1964.
After arriving in Sydney, the deceased, Edo, Tony and Bud lived in a rented house at Bonnyrigg Heights. Several years later, they moved into a two-bedroom house on five acres of land located on Cowpasture Road, Bonnyrigg Heights (Cowpasture property) which Edo had bought with money that he borrowed.
Edo operated a carting business that involved collecting produce (such as tomatoes and cabbages) from growers in Western Sydney and carting them to the food markets at Haymarket and, later, in Flemington (carting business). Edo also sometimes worked at the markets helping agents to sell produce. By the time that Tony was in high school, Edo had three trucks in operation. Family members, including the deceased, assisted Edo with the carting business. The work involved long hours, usually from the early evening into the night.
Tony and Bud assisted Edo with the carting business from when they were in primary school. Edo would drive the truck around the farms and Tony and Bud would assist in loading the boxes of produce onto the truck and unloading them when they arrived at the markets. When Tony got his truck licence at the age of 17, he and Bud would drive one of the trucks and load and unload the produce on their own. Tony continued to assist Edo in the carting business after he left school in 1973 and started working as a mechanic.
Anne and Johnny were born in May 1972 and June 1973 respectively. After Anne's birth, the deceased stayed at home and did not work as much in the carting business.
In 1977, Tony married Frances (who I refer to by her first name, with no disrespect intended) and moved out of the Cowpasture property. In 1978, Tony started driving trucks for a living. He purchased his own semi-trailer within a couple of years.
In 1979, Bud got married and moved out of the Cowpasture property.
Tony gives evidence that he continued to work in the carting business after he was married and also worked as a mechanic and then as a truck driver. Tony's evidence, which I accept, is that he usually worked about three nights a week in the carting business, and on Saturdays when Edo's trucks needed servicing, until late in 1989 when Edo gave up the carting business. He gives evidence that Sunday night was the busiest night for carrying produce to the markets and that he would leave home at around 5.00 pm and sometimes did not return home until around 2.00 am, when he would either go straight to his other work or grab a few hours' sleep before leaving for work on Monday morning. Tony was not paid for his work in the family carting business and gave evidence that he did not expect to ever be paid.
Johnny gives evidence that during his childhood and teenage years, he also worked in the carting business with Edo. He would travel in the truck and assist him with loading and unloading produce. Anne gives evidence that all the children helped with collecting the produce, travelling to the markets and unloading the truck, and that she assisted from around the age of eight until her parents retired in about 1990. By contrast, Tony deposes that Anne never assisted with loading and unloading the truck, that she would sometimes go along to the markets "for the ride", and that Johnny helped in the business but not from the age of seven. It seems reasonable to believe that, like Tony and Bud, Johnny and Anne were expected by their parents to work in the carting business from when they were young, and I accept their evidence that they did so. However, due to their age and the timing of Edo's retirement, I also accept that Johnny and Anne's contributions to the carting business over the years were less significant than those of Tony and Bud.
In 1989, Edo sold the Cowpasture property to developers for $550,000. The sale terms provided for Edo and the deceased to receive three of the newly subdivided blocks that were to be developed from the land. It is common ground that, prior to the sale of the Cowpasture property, Edo and the deceased had very little money and the sale improved their personal circumstances significantly. The sale enabled Edo and the deceased to purchase and furnish a house on Minto Close, Bonnyrigg Heights (Minto Close property) and buy a new car and Edo to retire from the carrier business at the age of 65.
In November 1989, the deceased and Edo moved into the Minto Close property with Anne and Johnny, who were in high school at the time.
Anne deposed that Bud and Tony continued the carting business after Edo retired and characterised the business as a gift to Tony. Tony disputes this. In cross-examination, he gave evidence that the carting business basically ceased in 1989, that he no longer worked in the business from that time and that Bud carried out work for one grower which Tony had no part in. I prefer Tony's evidence to that of Anne, who I expect is unlikely to recall details of the scale and scope of the business at that time. There is also no evidence, and no submission advanced, that the carting business had any value at the time of Edo's retirement or that Tony derived any money from working in it.
Tony and Frances separated in 1990 or 1991. Tony's evidence is that the strain of working long hours, little money and three young children contributed to the breakdown of their marriage. After they separated, Tony moved out of the house they were building in Raleigh Place, Bonnyrigg Heights (Raleigh Place property) and into the Minto Close property with the deceased and Edo.
Tony and Frances divorced in February 1994. Tony moved back into the Raleigh Place property where he has continued to live on his own. I deal with Tony's circumstances in more detail below.
The Cowpasture property remained empty for a number of years. Sometime in 1994 [1] , after the sub-division of the Cowpasture property was completed, Edo and the deceased transferred the three blocks of land they obtained as part of the sale of the property to their children. Tony and Bud received one block of land each. The third block of land was given to Anne and Johnny in equal shares. Tony and Bud have sold their blocks of land. Anne and Johnny continue to own their block of land, which is located on Middlehope Street, Bonnyrigg Heights (Middlehope land).
On 14 July 1995, Edo died at the age of 71, having suffered a stroke on 10 July. He did not leave a will. All of Edo's assets, including his interest in the Minto Close property, were transferred to the deceased. At the time of Edo's death, Anne and Johnny, who had both left school and were working, were living at the Minto Close property with the deceased.
Edo's death was unexpected and a shock to the family, particularly to the deceased. She did not leave the house for six months and Anne and Johnny both give evidence of a noticeable decline in her behaviour and health. The deceased became increasingly dependent on her children, especially Anne and Johnny, and did not want to be left alone. While the deceased was capable of being on her own and undertaking household tasks such as cooking, she did not drive and was reliant on Anne and Johnny to take her on outings, such as to medical appointments, to attend on Edo's grave and to visit friends. Anne and Johnny give evidence that, after Edo died, they organised their time so that the deceased was not left alone except when they were both at work. Anne's evidence is that the deceased did not want Anne to leave her, which Anne agreed to by continuing to live with the deceased even when she was married and declining social invitations and holidays away from her. I accept Anne's evidence that this impacted Anne's personal relationships from when she was in her twenties.
In December 2005, Anne married Robert Hayek (who I refer to as Robert in these reasons without intending any disrespect). After their marriage, Anne and Robert lived at the Minto Close property with the deceased and had two children. Anne's evidence is that, before she was married, she told Robert that she had to remain living with the deceased while she was alive, which he agreed to. In February 2015, Anne and Robert separated. Anne and her children remained living at the Minto Close property with the deceased.
In September 2013, Johnny moved out of the Minto Close property. He was married in 2017 and has no children.
The deceased suffered from a range of health issues over the years. In the early 1990s, she was diagnosed with diabetes which was managed initially with tablets and later by insulin injections twice a day, which were given to her by Anne or Johnny. From around 2000, Anne and Johnny prepared and administered the deceased's medications and monitored her blood sugar and blood pressure levels on a daily basis. By the mid- to late-2000s, the deceased also suffered from hypertension, a cardiac condition, reduced kidney function and mild osteoporosis.
In 2017, the deceased's health declined significantly. She was diagnosed with a cancerous pelvic cyst which caused her significant pain and largely confined her to her bed. In about February 2018, the deceased suffered an infection to her finger which required various medical procedures and led to gout. Following a hospital admission in 2018, an assessment by Palliative Home Care Services recommended that the deceased be provided with additional care and be admitted to Braeside Hospital (which specialises in palliative care). The deceased refused these options and relied on Anne to look after her. At this time, Anne was still lived at the Minto Close property with the deceased and had ceased working in April 2012.
During the last 18 months of her life, the deceased required constant care. Each of her adult children spent time with her. Johnny would usually spend time with the deceased each weekday between 5 and 7 pm and be with her during other times, including on weekends, when Anne needed to undertake activities for her children. Tony's evidence is that Bud would usually visit the deceased in the morning and afternoon while Anne took her children to and from school and would sometimes stay until around 5.30 pm. Tony also deposes that, during this period, he visited the deceased every day, arriving at around 9.30 am and staying with her until 3.30 pm, except when he was sick and could not go. Anne and Johnny accept that Tony spent time with the deceased but dispute that he was there every day.
Tony does not accept that Anne and Johnny were the deceased's primary caregivers from when Edo died, and gave evidence that the siblings shared equally in giving personal support and attention to the deceased. He also gives evidence that the deceased was able to care for herself, was independent until the last few years of her life and did not rely on Anne and Johnny.
While each of the deceased's adult children spent time with her during her final years, I accept Anne and Johnny's evidence that the deceased relied on them after Edo died, they provided the bulk of care and support to the deceased and Anne was the deceased's primary caregiver in her last few years. Their evidence is supported by the fact that Anne and Johnny continued to live with the deceased after Edo died, the documentary records kept by Anne that record daily monitoring of the deceased's blood sugar and pressure levels, the letters relating to the deceased's medical condition that are addressed to Anne (Ex 5) and the matters referred to at [25] and [28] above. It is also supported by Tony's evidence that Anne bore "a heavy burden" looking after the deceased and attended to the deceased's personal hygiene and other requirements, organised doctors and medications, and cooked meals for her. In cross-examination, Tony also accepted that Anne and Johnny provided day‑to‑day care for the deceased, which is consistent with the effect of Anne and Johnny's evidence.
The deceased died in hospital on 15 October 2019. All of her children were with her when she died.

The deceased's Will and her estate

Under her Will, the deceased left the Minto Close property and her motor vehicle to Anne and Johnny in equal shares as tenants in common: cl 3. The residue of the deceased's estate, after payment of debts and expenses, was to be divided equally amongst Bud, Tony, Anne and Johnny: cl 4.
The Will contains, at cl 5, the following explanation for the dispositions made by the deceased: I have made greater provision for Anne Helen Lalic and Johnny Ivan Lalic as both Robert Lalic and Anthony Lalic received a block of land from my late husband and myself and I have resided with and been given emotional and material support by the aforesaid Anne Helen Lalic and Johnny Ivan Lalic since the death of my late husband Edward Lalic in 1995.
The deceased left an estate with an estimated value, for probate purposes, of $913,188.74. At that time, the estate comprised the Minto Close property (valued at $760,000), cash assets (funds in Westpac bank accounts of $122,188.74 and cash at home of $21,000) and a 1987 Holden Calais motor vehicle (valued at $10,000), less a liability for an electricity account in the amount of $216.51.
Thus, at the time of probate, Tony's entitlement under the Will was valued at around $35,743.
The estate has paid probate costs of $9,802.59 and an amount of $361.90 relating to a medical report obtained for the proceeding.
The value of the deceased's estate as at the date of the hearing (excluding legal costs) is agreed at $996,204. This comprises the Minto Close property (agreed value of $875,000), cash assets (funds in a Westpac bank account of $113,502.09) and the Holden car ($10,000), less liabilities owing to Anne (totalling $2,298.15).
Anne does not make any claim for commission as the executrix of the deceased's estate.
Based on the above (and excluding legal costs), as at the date of the hearing, Tony's entitlement under the Will (and that of Bud) was approximately $28,375 (based on a quarter share of the residue, namely the cash assets), whereas Anne and Johnny's entitlements had a value of approximately $470,875 (based on a half share of the Minto Close property and motor vehicle and a quarter share of the residue).
Tony's costs of the proceedings are estimated to be $85,000 on an ordinary basis and $97,750 on an indemnity basis, of which he has paid $3,457. Anne's costs of the proceedings are estimated to be $55,000 on an ordinary basis and $85,000 on an indemnity basis.
The parties' costs may reduce the value of the deceased's estate that is available for distribution. Assuming that Tony is successful with his claim and orders are made that his costs are to be paid on an ordinary basis ($85,000) and Anne's costs (as the executrix) are to be paid on an indemnity basis ($85,000), the net value of the deceased's estate is $826,204. This amount is less than the current value of the Minto Close property and means there will be no residue cash left in the estate available for distribution for Tony (and the other children).
Tony seeks an order for provision from the deceased's estate by way of a lump sum payment in the amount of $547,000 in lieu of the provision already made for him under the Will. Tony submits that the burden of this lump sum payment should be borne primarily by Johnny. Tony accepts that the Minto Close property, or some other property owned by Johnny or Anne, would have to be sold if he receives the amount of provision he seeks.
It was agreed that the estimated costs and expenses of sale of the Minto Close property would be $25,000, assuming a sale price of $875,000. If another property jointly owned by Anne and Johnny at Nineteenth Ave, Hoxton Park (Hoxton Park property) is sold, the estimated sale costs and expenses was agreed at $21,700.

Legal principles

Before making an order for provision out of the deceased's estate, the Court must be satisfied, at the time when the Court is considering the application, that adequate provision for the proper maintenance, education or advancement in life of Tony has not been made by deceased's Will: Succession Act, s 59(1)(c). If the Court is so satisfied, it may make such order as the Court thinks ought to be made for Tony's maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made: Succession Act, s 59(2).
In this case, having regard to Tony's age and circumstances, the relevant objects of the order for provision are for his maintenance and advancement in life.
Pursuant to s 60(1)(b) of the Succession Act, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, whether an order for provision should be made and if so to what amount: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7]; Chan v Chan [2016] NSWCA 222 at [21].
The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education or advancement in life of a person, nor does it allocate relative weight to any of the various matters set out in s 60(2) to which the Court may have regard.
While adequacy is concerned with quantum and the word "proper" prescribes the standard of the maintenance and advancement in life, they are relative concepts with no fixed standards. The Court is left to form opinions on those matters on the basis of its own general knowledge and experience of current social conditions: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] (Gummow and Hayne JJ), [114] (Callinan and Heydon JJ); Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 (Limberger v Limberger) at [423].
A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the claimant's proper maintenance, education or advancement in life: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [6] (Payne JA), [86] (White JA, McColl JA agreeing). The relevant circumstances will include a claimant's needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any assessment of a claimant's needs also requires consideration of the size of the estate and others' claims on it: Chan v Chan [2016] NSWCA 222 at [22].
Thus, the concepts of adequate provision and the proper level of maintenance and advancement are to be assessed in the context of all of the circumstances of the case, including the claimant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the claimant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on the deceased's estate. Attention may also be given to how the claimant lived and might reasonably expected to have lived in the future: Blendell v Blendell [2020] NSWCA 154 at [7]-[8]; Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114].
The determination of what is adequate provision for the proper maintenance, education and advancement in life of a claimant is to be guided by applying the Court's assessment of what is considered to be right and proper according to contemporary accepted community standards or what is considered to be the moral duty of the deceased: Squire v Squire [2019] NSWCA 90 at [10]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 (Steinmetz v Shannon) at [44] (White JA), [109] (Brereton JA).
In appropriate cases, if the deceased was capable of and did give due consideration to what provision for a claimant's maintenance, education or advancement is proper, the Court should give considerable weight to the deceased's testamentary wishes. This approach recognises that a testator or testatrix is in a better position than the Court to make such an assessment, although the application of s 59 of the Succession Act is not confined by notions of reluctance to interfere with freedom of testation. The Court's assessment of whether there has been adequate provision for the claimant's proper maintenance and advancement in life must be made when the Court is considering the application, rather than at the time of the deceased's death or will, and requires an evaluative judgment of all of the circumstances: Megerditchian v Khatchadourian [2020] NSWCA 229 (Megerditchian) at [33], [35] (Payne JA, Macfarlan JA and Emmett AJA agreeing); Steinmetz v Shannon at [52]-[54] (White JA), [96] (Brereton JA); Sgro v Thompson at [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [126]-[127].
Tony makes his claim as an adult child of the deceased. There is no predisposition for or against making orders for provision for adult children. Thus, Tony's application must be dealt with on its merits based on the evidence before the Court: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [166]-[169]; Steinmetz v Shannon at [37] (White JA).
That said, guidelines in relation to claims by adult children have developed in the authorities. They provide a useful touchstone as they constitute a reflection of community values which assists with decision-making: Steinmetz v Shannon at [106]-[108]. Hallen J recently referred to such guidelines in Limberger v Limberger at [473], which I respectfully adopt as follows (citations omitted): (a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation". (c) Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute". (d) There is no need for an applicant adult child to show some special need or some special claim. (e) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant. 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. (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim.
The interests of other beneficiaries entitled to a share of the deceased's estate under the Will are relevant to the Court's consideration of the propriety and adequacy (or inadequacy) of any provision for Tony, both for the purpose of s 59(1)(c) and in determining whether provision should be made and the nature of any such order.
Where, as here, Anne has adduced evidence of her financial position, the Court will consider her financial resources and needs as a relevant circumstance of the case: Succession Act, s 60(2)(d).
The Court must also take into account the interests of the other beneficiaries (Johnny and Bud) even though they have not adduced evidence of their financial circumstances and needs as they are entitled to rely upon the terms of the deceased's Will and the fact that they are chosen objects of the deceased's bounty. However, in the absence of such evidence, the Court may draw an inference that they have sufficient income and resources to meet their needs: Succession Act, s 61(1); Blendell v Byrne; Estate of Blendell [2019] NSWSC 583 (Blendell v Byrne) at [113]-[118], citing Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94].

Additional facts and matters: s 60(2) of the Succession Act

The relationship between Tony and the deceased: s 60(2)(a)

Tony had a close relationship with the deceased. He remained with her in Yugoslavia before coming to Australia and regularly visited her after he married and moved out of home. He lived with the deceased and Edo for a period after he separated from Frances, visited the deceased following Edo's death and helped with maintaining the Minto Close property over the years. He also spent time with the deceased after she became bedridden in 2017.
Overall, Tony was a loving and dutiful son. In general, the Lalic family was a close and loving family, who came together for important events, such as birthdays, Christmas, Easter and other family occasions. As Tony put it, members of the family did what they could to help each other. There is no evidence of any disharmony in the family until these proceedings were commenced by Tony.

The nature and extent of any obligations or responsibilities owed by the deceased to Tony and to any beneficiaries: s 60(2)(b)

The Will recognises Tony and the deceased's other children as natural objects of her testamentary bounty. Each of them is recognised as beneficiaries, although the bulk of the deceased's estate has been left to Anne and Johnny.
There is no presumptive testamentary entitlement of an adult offspring: Underwood v Gaudron [2015] NSWCA 269 at [73]. The question of the extent, if any, of a continuing moral obligation or responsibility owed by the deceased to Tony or to the other beneficiaries can only be considered in the context of all the circumstances in this case.
Tony's submissions suggest that the deceased owed a moral obligation to him in circumstances where he is not well-off, he has health issues and his marriage has broken down. He contends that as he is a child that has fallen on hard times, the deceased, as his parent, was expected to provide him with a buffer against contingencies if she had assets available or provide something to assist in his retirement where he would otherwise be left destitute because he has been unable to accumulate superannuation, citing Taylor v Farrugia [2009] NSWSC 801 at [58].
Anne submits that the deceased owed a moral obligation to her and Johnny as the children who cared for the deceased after Edo died, particularly Anne who lived with and cared for the deceased during her last years. This is said to be superior to any moral obligation the deceased owed to Tony.

The deceased's estate: s 60(2)(c)

As outlined above, taking into account the costs of the proceedings, the value of the deceased's estate out of which an order could be made is approximately $826,204. This will be reduced to between $801,204 and $804,504 if the Minto Close or the Hoxton Park property must be sold.
At the hearing, Tony did not contend that any property should be designated as comprising the deceased's notional estate.

Tony's personal and financial circumstances (including earning capacity) and needs, and the financial circumstances of any person with whom he is cohabitating: ss 60(2)(d), (e), (f) and (g)

Tony is currently 66 years of age, divorced and single. He is no longer employed and is on a disability pension.
Tony has three adult children from his marriage to Frances; David, Melanie and Jeremy, who were born in 1978, 1981 and 1983 respectively. They are not financially dependent on Tony and were not involved in the proceedings.

Background

Tony left school prior to completing his school certificate and undertook an apprenticeship as a motor mechanic. As noted at [14] above, from 1978, he worked as a truck driver and continued to assist with the carting business until 1989. In 1998, Tony bought another truck and engaged a driver to assist with his trucking business.
After they were married, Tony and Frances lived in rented accommodation in Canley Heights. In 1979, they bought a house in Mount Pritchard and lived there until they sold it in around 1986. They then bought land and built the Raleigh Place property. Edo assisted with its construction. While the Raleigh Place property was being built, for about one month, Tony and Frances lived at the Cowpasture property. They moved into the Raleigh Place property before construction was completed. The Raleigh Place property is a two-storey, four-bedroom house with a double garage.
Following their separation and divorce, Tony and Frances did not have a property settlement. At the time they separated, they owned the Raleigh Place property which had a mortgage of $110,000. Tony and Frances both give evidence (about which they were cross-examined) that, around the time they divorced, they agreed that Tony could remain living in the Raleigh Place property in order to be close to the deceased and Edo and, if Frances ever needed her half-share, Tony would buy her out or they would sell the house. That agreement is not documented. Tony moved back into the Raleigh Place property in 1994 and, since then, has lived there on his own.
In 1995, Tony sold the block of land he received from Edo and the deceased for $120,000. He used the funds to reduce the mortgage on the Raleigh Place property and bought a Porsche car for $50,000. According to Tony's evidence, he has contributed to regular mortgage payments over the years and has also drawn down on the mortgage to pay expenses. In cross-examination, Tony could not recall how much he had drawn down on the mortgage, but gave evidence of a "few occasions" where he had to rebuild a motor or repair a broken-down truck and that the amounts were in the "thousands", but not "tens of thousands", of dollars.
In 2015, Tony sold his Porsche car for $130,000. He used that money to pay off the balance of the mortgage on the Raleigh Place property (in an amount of around $77,574) and other debts.
Tony and Frances both give evidence that, over the years, Frances has made lump sum payments totalling $170,000 towards the mortgage on the Raleigh Place property, comprising a payment of $60,000 in 2001 (from the sale of a property she owned), $86,916 in 2006 (from the sale of another property she owned), and $24,000 in 2010 (having drawn down on accrued long service leave). Frances also gives evidence that she has assisted Tony to maintain the Raleigh Place property over the years by contributing funds for replacing appliances, other household items, land rates and household insurance.
In 2002, Frances and Tony purchased a property on Petersham Street, Bonnyrigg Heights as joint tenants which they sold in 2013 for $490,000. According to Frances' evidence, which I accept, Tony's name was put on the title as Frances could not get a loan in her name only, they purchased the house with the intent that their son, Jeremy, would pay for it, and Tony did not contribute to the purchase price or receive any money from the proceeds of sale.
Tony has not re-partnered since his divorce. He and Frances remain on good terms. He speaks to her often and she regularly stays at the Raleigh Place property with Tony when she and her school-aged daughter from her subsequent relationship are in Sydney. Frances currently lives in Kelso, NSW. She gives evidence that, in 2023, she anticipates she will need her 50% share of the Raleigh Place property and expects to be paid back her lump sum mortgage contributions in order to a purchase property in Sydney when her daughter commences university.

Tony's health and employment

Tony had triple by-pass surgery when he was 44 years old. At the end of 2013, he developed a skin disorder which is treated with high doses of steroids. In October 2014, he was diagnosed with bullous pemphigoid, an autoimmune disease. He has had sepsis on four occasions (which required hospitalisations) and has high blood pressure, diabetes, gout, kidney stones, osteopenia, a persistent cough and sleep apnoea.
Tony receives treatment for his autoimmune disease from a specialist located in Kogarah, which involves monthly injections. He is also treated by a cardiologist, respiratory physician and endocrinologist for his diabetes. He has trouble walking, experiences shortness of breath from exertion and is on a range of prescription medications which are detailed in a doctor's report dated 3 June 2020.
Due to the decline in his health, during 2014-2015, Tony was unable to work as a truck driver and had no income. He worked shorter hours in 2016. In 2017, Tony ceased working and has not worked since then. He was approved for the disability pension in September 2017.

Tony's current financial circumstances and claimed needs

Tony has no income other than his disability pension. He has no superannuation or interests in shares or trusts and has only nominal savings.
Tony's disability pension is $2,064 per month. His current monthly expenditure is estimated to be $4,344.40, which exceeds his income by about $2,280 each month (about $27,364 per annum). Those monthly expenses include $1,190 on groceries and food, $676.35 on car and travel related expenses and $729.50 on medical expenses.
Frances estimates that, between 2017 and August 2020, she has given Tony around $110,000 to assist with his daily living expenses, although Tony did not ask her to do so. Tony accepts that he has received payments from Frances over that period, although his evidence in cross-examination was that he was not aware that Frances made deposits into his bank account. He also gives evidence that Frances has paid on his behalf or deposited into his savings account the amount of $16,329 since June 2020.
Tony's current assets are his 50% interest in the Raleigh Place property (the other 50% is held by Frances) which he values at $462,500, a Mercedes Benz 2006 model valued at $20,000, savings of $1,899 and a burial plot that he purchased in 1995 and estimates is worth around $11,000.
Tony's valuation of his 50% interest in the Raleigh Place property is based on a market appraisal dated 15 May 2021 which values the Raleigh Place property at between $900,000 and $950,000 and adopting a mid-point of $925,000. Anne relies on a market appraisal dated 16 May 2021 which values the Raleigh Place property at between $1,050,000 and $1,100,000. For the purposes of assessing Tony's asset position, I have adopted a mid-point between the lowest and highest values of the market appraisals, which results in a value of $1,000,000 for the Raleigh Place property and $500,000 for Tony's 50% share.
Tony's evidence is that he has paid out all his debts.
Thus, overall, Tony's current position is that he has assets valued at around $532,899 and not enough income to meet his monthly expenses.
There is evidence that Tony had other cars which he has given away or sold. In 2016, he gave his prime mover truck to his son, Jeremy, which Tony accepts was worth around $25,000 at that time. In April 2021, Tony sold a Holden Utility vehicle for $44,500. He used the proceeds of that sale to pay debts and other expenses, including an amount of $15,000 to his daughter for a loan she gave Tony in 2018 and $11,000 to Frances as part repayment for monies which she had contributed to his living and medical expenses. The evidence also indicates that Tony retains two motor vehicles (the Mercedes Benz vehicle and a Morris Minor ute that his children bought for him, although no value was given to that ute).
Initially, in his affidavit evidence and written submissions, Tony identified that he had the following needs: 1. an amount of $511,922 to buy out Frances's estimated half share of the Raleigh Place property so that he can remain living in the property, or if the Raleigh Place property must be sold, approximately $430,335 to purchase alternative accommodation in the Bonnyrigg area. The amount of $511,922 is calculated based on Tony's valuation of the Raleigh Place property at $925,000, sale costs of $26,450, repayments of $170,000 to Frances and $77,000 to Tony on account of lump sum mortgage repayments and each of them receiving a 50% share of the balance. From this, Tony calculates that Frances would receive around $495,775 from a sale and he would also need to pay stamp duty of $16,147. The amount of $430,335 is calculated based on Tony receiving around $402,775 from the sale of the Raleigh Place property and a suitable property in the Bonnyrigg area costing around $800,000; 2. a lump sum of $465,698 to cover the $27,000 annual gap between Tony's income and expenses. This amount is based on Tony having a life expectancy of 19 years and the application of a factor of 869.9 on 3% discount tables; 3. private health fund costs of $63,955 (based on $309 per month over 19 years), dietician and hydrotherapy costs of $47,397 (over 19 years) and painting costs of $4,500 on the Raleigh Place property; and 4. a lump sum for contingencies that was unquantified.
On the second day of the hearing, Tony revised his financial needs. Tony's counsel accepted, appropriately in my view, that Tony could no longer stay at the Raleigh Place property and would have to downsize to a smaller place. He also indicted that he could reduce his yearly expenses by about $10,000 and did not press the items referred to [89(c)] above.
In summary, Tony's revised needs were identified as the following: 1. a lump sum amount of $227,000 to enable Tony to purchase alternative accommodation. This amount is calculated as the difference between what Tony says he could expect to receive on the sale of the Raleigh Place property (that amount being $402,775 calculated as per [89(a)] above) and the purchase of a two or three-bedroom villa in the Liverpool area, which he estimates would cost around $630,000 including expenses and stamp duty [2] ; 2. a lump sum amount of $270,000 to cover the annual gap between his income and expenses (calculated to be $17,000 per annum based on the anticipated reduction of $10,000 per annum, and applying the same discount rate as [89(b)] above over 19 years); and 3. a lump sum amount of $50,000 for contingencies, such as replacing his car.
Pausing here, Tony's calculation of a lump sum of $227,000 (at [91(a)] above) is based on the Raleigh Place property having a value of $925,000 and makes certain assumptions about credits for lump sum payments by Tony and Frances towards the mortgage of that property over the years.
For the reasons set out at [85] above, I consider that the Raleigh Place property should be valued at $1,000,000, which would increase the share that Tony can expect to receive.
Anne's counsel submits that the Court should assume that if the Raleigh Place property is sold, the proceeds would be divided largely equally between Tony and Frances. It was submitted that this was a more appropriate assumption as Tony has paid more than $77,000 on the mortgage. Reference was made to Tony contributing from not only the sale of his block of land in 1995 and his evidence that he made regular interest and capital repayments over the years. Anne's counsel also submits that a 50-50 division would give Tony sufficient, or close to sufficient, funds to purchase alternative accommodation, referring to an advertisement for a two-bedroom villa in Liverpool with an asking price of $499,950 to $549,950.
Tony's counsel submits that the evidence is unclear as to the amount paid by Tony to reduce the mortgage when he sold his block of land in 1995. It was also submitted that any reduction of the mortgage at that time should not be characterised as a direct contribution by Tony as it was made 26 years ago, when Frances enabled Tony to contribute to the carting business as she had the burden of raising the three children.
In my view, there is force to Anne's submissions. While this Court is not in a position to determine the outcome of any property settlement, it seems appropriate to start from the position that Tony should expect to receive an equal share from any sale of the Raleigh Place property based on the evidence of the agreement struck by him and Frances at the time of their divorce (as referred to at [72] above).
While Tony's evidence does not refer to the specific amount by which he reduced the mortgage when he sold the block of land in 1995, in my view, the natural inference to be drawn from his evidence that he received $120,000 and "reduced [his] then mortgage and bought a collectible Porsche car for $50,000" is that Tony paid the balance of the money he received for the land in the amount of $70,000. I see no reason not to characterise that payment as a direct contribution by Tony to reducing the mortgage and take it into account in the calculations for the purposes of these proceedings, given it was also made after Tony and Frances separated and divorced. Adopting a 50-50 approach and giving credit to Tony for the lump sum and other mortgage payments he made is also consistent with Frances's evidence in cross-examination, where she accepted that it was reasonable for Tony to recover other sums he had paid towards the property, Tony had made monthly mortgage repayments and she could get a better return on her money by making lump sum payments towards her shared asset.
Accordingly, and for the purposes of this proceeding only, I have assumed that Tony's share of the Raleigh Place property is valued at around $486,000. This is based on Tony receiving a 50% share of the Raleigh Place property (with a value of $1,000,000) and sale costs of $26,450. Based on the property valuations tendered at the hearing (Ex F), Tony would have close to sufficient funds to purchase alternative accommodation.
At the hearing, Tony was questioned about his spending habits and financial choices. He was cross-examined on certain debits referred to in his bank statements, such as amounts relating to motor vehicle expenses, groceries and dining out. He was also questioned about his decision in 2016 to give away his truck to his son, the choice to remain living in the Raleigh Place property by himself (rather than selling and downsizing after his divorce) and the decision to maintain various cars over the years rather than taking out private health insurance and building up assets for his retirement.
A submission was made by Anne that Tony has not sufficiently explained his financial position. Reference was made to the fact that Tony has lived in the Raleigh Place property in the same co-ownership since 1994. Although Frances deposes that she wants to realise her share in the property soon, Anne raises the fact that the current arrangements have been in place for 27 years and no steps have been taken to end Tony's occupation of the property. It was also said to be unclear from the evidence why $110,000 was owing on the mortgage in 1994 yet Tony and Frances had paid $248,490 to reduce the mortgage between 2000 and 2015.
Tony accepted that he did not organise his financial affairs to provide for his retirement during his working life. His explanation was that he did not expect to get ill in his early 60s and thought he would be able to work until he was 65 or 67. He also gave evidence that he remained in the Raleigh Place property as it was the "family home" where his family could gather for Christmas and other occasions and that he had previously tried to obtain a loan to buy out Frances's interest in the Raleigh Place property, but could not do so as he was a sole trader. Tony further accepted that he had taken some holidays in Australia with Frances prior to and since the death of the deceased, that some of the groceries and dining charges on his bank statements related to family events or outings with family or friends, and that he had drawn down on the mortgage (as referred to at [73] above).
In my view, the totality of the evidence suggests that Tony's current financial circumstances have been caused, in part, by some of his lifestyle choices. His choice to remain living in the Raleigh Place property, rather than downsizing some years ago, has likely impacted his financial position, as has his continued interest in buying and maintaining multiple cars and keeping two large dogs, given the evidence of the costs relating to those interests, and his spending on trips and entertaining family. The fact that he needed to draw down on the mortgage over the years and the evidence that he had difficulties meeting the mortgage payments on occasion suggest that Tony was likely living beyond his means before his serious health issues in 2014 or 2015.
That said, the evidence does not support a finding that Tony has lived a particularly extravagant or luxurious lifestyle. Nor do his choices disentitle him from making a claim for provision out of the deceased's estate. They are but one of the various factual matters to be taken into account in the context of the available estate and a consideration of the effect on the competing claims of the other beneficiaries: Bates v Cooke [2015] NSWCA 278 at [66]-[68].
I also accept that there is a lack of detail and a degree of generality about Tony's evidence regarding his financial position. For example, there are no past tax returns or documents relating to the mortgage payments and financial arrangements between Tony and Frances in evidence. Tony's evidence that he was unaware that Frances deposited money into his bank account is surprising and Frances's evidence that they increased the mortgage loans many times after they separated to complete the house is not consistent with Tony's evidence. Tony could not recall the amount of an insurance payout he received when he had his heart attack, although he rejected it was $180,000 and did not accept it was $120,000, and he did not disclose the value of his Morris Minor ute.
However, no submission was made that Tony's disclosure was so inadequate that his claim should be dismissed. While it is incumbent on an applicant for provision to make full and frank disclose to the Court of all details of their financial and material circumstances (see, for example, Blendell v Byrne at [561]-[564] and the authorities there cited), I have concluded that it is possible to form an adequate view of Tony's current financial circumstances so as to be able to assess his claim for provision.

The personal and financial circumstances and needs (if in issue) of the other beneficiaries: ss 60(2)(d) and (f)

Anne

Anne is currently 49 years old. She has two children, Jaelan (born in 2008) and Ariana (born in 2011). As noted above, Anne is separated from Robert and continues to live in the Minto Close property with her children.
Anne completed high school and undertook a business degree which was paid for by the deceased and Edo. She worked full-time in the public service for many years.
Following Edo's death, Anne took a month of leave to spend time with the deceased. She subsequently used her flex leave to attend medical and other appointments with the deceased. Between October 2008 (when she gave birth to her son) and September 2010, Anne remained employed without working and received half pay based on accrued leave. In April 2012, Anne accepted a redundancy package and remained out of paid employment until after the deceased's death. Anne was the deceased's primary care giver during the last few years of her life but did not receive any financial benefit or payment as her carer.
Anne did not pay rent while living at the Minto Close property with the deceased (and Edo before he died). From the time of Edo's death, Anne, Robert (while he lived there) and Johnny (until he moved out in 2013) shared the household expenses and food costs with the deceased.
Anne has been diagnosed with prolonged bereavement following the deceased's death and in the context of the current legal proceedings. She exhibits ongoing distress and rumination and is socially isolated. During cross-examination, she was visibly upset when she gave evidence about the deceased. Apart from this, Anne is in good health.
Since 12 May 2020, Anne has been working as a part-time accounts payable officer. She currently works four days each week, between 8 am and 2.30 pm. She deposes that she would work five days per week if this was offered to her but intends to remain working in part-time employment to accommodate caring for her school-aged children.
Anne's combined monthly income is $6,137.56. This comprises wages of $2,474, child support payments from Robert of $2,167 (no spousal support is paid), rental income of $996.67 (from the Hoxton Park property) and family assistance tax benefits of $499.89.
Anne's monthly expenditure is estimated to be $7,366.50, comprising her living expenses of $4,266.50 and expenses of around $3,500 [3] relating to her children. Anne's expenses are anticipated to increase in 2023 when Ariana starts high school. Anne's assets and liabilities, as at the date of the hearing, are as follows: Assets Estimated value 50% share in Hoxton Park property $371,875 Current value agreed at $743,750 (MFI-2). Purchased with Johnny in 1997 for the sum of $158,000. Mortgage paid out in 2018. 50% share in Middlehope land $350,000 Current value is $700,000. [4] Gifted by Edo and deceased in 1994. Superannuation $184,438.50 2004 Holden motor vehicle $10,000 Burial plot at Liverpool Cemetery $11,235 Westpac bank accounts (100% share) $16.83 Other bank accounts (50% share of $160.96) $80.48 Sub-total $927,645.81 Liabilities Personal loan $12,000 Credit card $1,106.36 Sub-total $13,106.36 TOTAL $914,539.45

Anne and Robert are not divorced and there has not yet been a property adjustment between them. In around 2008, Robert purchased a house in his name. Anne's evidence in cross-examination was that she did not contribute to the purchase of that house and has no interest in it.
In closing submissions, it was submitted that Anne's asset position (excluding what she receives under the Will) is "in the magnitude of $600,000" with only a difference of around $100,000 between her and Tony. I do not accept that submission. Based on the above, Anne has assets of over $900,000 and the gap between her net asset position and that of Tony is more than $400,000.
Anne deposes that her current primary need is to be secure in the Minto Close property as a home for her and her children. Anne wishes to continue to reside in the Minto Close property where she has lived for over 30 years.
Anne relies on the rental income from the Hoxton Park property to pay her monthly expenses. She deposes that she would incur substantial agent's fees, legal costs and capital gains tax if she were forced to sell that property. She also deposes that she does not wish to sell the Middlehope land because of the strong emotional connection between her family and the land and the capital gains tax that she would incur if it were sold.
Anne seeks a fund of $30,000 for a vacation with her children to her parents' hometown in Croatia when travel is available again and to take them to Disneyland. She also seeks funds to upgrade her car and to purchase a V6 Kia Stinger motor vehicle, at a cost of $68,000, which is similar to the car she currently owns.

Johnny and Bud

Johnny is currently 48 years old. He was married in 2017 and has no children. Johnny lived with the deceased until he was 40 years old. As noted above, during his childhood and teenage years, Johnny worked with Edo in the carting business, assisting with loading and unloading produce.
After Johnny finished high school, he was employed by QANTAS as a collections officer. He used some of his travel entitlements for the deceased to enable her to travel around Australia. He left QANTAS in October 1999 and is currently employed as a credit officer at Kennard's Hire.
Johnny did not pay rent while he lived at the Minto Close property. After Edo's death, Johnny shared in paying for the household expenses with Anne, Robert (while he lived there) and the deceased. Johnny deposes that he paid for the deceased's medications during the period after Edo's death until he moved out of the Minto Close property in 2013. He also mowed the lawns, undertook general cleaning of the outside of the Minto Close property and arranged his affairs so that the deceased would not be left alone other than when he and Anne were at work.
In September 2013, Johnny purchased a house in Elizabeth Hills, Sydney, a suburb that is close to the deceased. In addition to the Elizabeth Hills house and the properties he jointly owns with Anne, Johnny gave evidence in cross-examination that he also owns two other properties in Middleton Grange and Hinchinbrook. Johnny gave evidence that he is a "very tight saver" and described himself as living a "normal life" compared to Tony, who Johnny said lived "the high life". According to Johnny, unlike Tony, he does not go out to restaurants or go on holidays and has had only three cars his whole life.
When asked in cross-examination whether he would be able to help Anne raise money so that the Minto Close property would not have to be sold, Johnny referred to having his own bills to pay but accepted that he would try to do his best to help Anne as "respect for my parents" and to honour the deceased's intention in her Will. I understood this to mean that Johnny may assist in providing the finance for any provision for Tony if such an order was made and may not require Anne to sell the Minto Close property to enable her to remain living there with her children.
As for Bud, there is evidence that he considers himself to be in a financially sound position and that he sold the block of land gifted to him by the deceased and Edo around the same time as Tony.
Although Johnny and Bud have not raised their financial circumstances and have not made their own claim, as observed at [59] above, their interests as beneficiaries cannot be disregarded.

Tony's contributions to the deceased's estate or welfare: s 60(2)(h)

From the mid-1960s to around 1989, Tony assisted with the carting business. From the age of 17 when he left school, he worked on average between 25 and 30 hours each week for the business. As noted above, Tony was not paid for his work and gave evidence that he never expected to get paid. Tony's counsel submits, and I accept, that Tony's contribution to the carting business was significant. He worked long hours from a young age and his contributions would have assisted the deceased and Edo and the rest of the family in a material way.
Tony gave evidence that he concreted paths around the Minto Close property, laid a slab for the garden shed, helped with the lawns and serviced the cars.
Tony provided some assistance in caring for the deceased by visiting her in the last few years of her life. However, for the reasons already referred to, I am satisfied that Anne and Johnny played a greater role in the care and welfare of the deceased after Edo died than Tony, and that Anne was the deceased's primary care giver in the last few years of her life.

Any provision made by the deceased for Tony during the deceased's lifetime or made from the deceased's estate: s 60(2)(i)

I have already referred to the provision made for Tony under the Will and what he received during his lifetime by way of the block of land that was given to him from the deceased and Edo which he sold in 1995 for $120,000. Tony was also provided with free accommodation by the deceased when he and Frances were first building the Raleigh Place property and later when they separated.
Anne deposes that the deceased gave Tony $5,000 in December 1991 to pay off a third-party debt and a new fridge in 1999, which evidence was not disputed by Tony.
Tony contends that the Court should infer that Tony was given the block of land in consideration for the 25 to 30 years of Tony's unpaid labour and service and not as a gift. It was submitted that the grant to Tony and Bud of one block of land each, when compared to one block given to Anne and Johnny, suggests that the deceased and Edo recognized that Tony and Bud's contributions to the carting business were much greater than any contributions made by Anne and Johnny.
Anne disputes this. She submits that the gifts of the blocks of land by the deceased and Edo represented a substantial division of their assets at the time, akin to an early inheritance, and the Court would not draw the inference sought by Tony in the context of the terms of the deceased's wills (which I discuss below). She also points to Tony's acceptance in cross-examination that the transfer of the blocks of land to the children represented a significant portion of the assets of the deceased and Edo in 1994.
Anne also submits that the provision of the block of land to Tony provided a greater benefit than a testamentary gift as he was able to sell it and use the proceeds to his advantage, which he did at the time by reducing his mortgage and buying the Porsche which he later sold for a profit.

The deceased's testamentary intentions, including evidence of statements made by the deceased: s 60(2)(j)

The deceased's testamentary intentions are made clear by the Will, particularly cl 5 which is set out at [35] above.
The deceased had made a previous will on 27 July 1995 soon after Edo died (Ex 1). The July 1995 will is in similar terms to the deceased's last Will.
Under the July 1995 will, the deceased gave the Minto Close property and its contents and her Holden Commodore vehicle to Anne and Johnny in equal shares as tenants in common (cl 4), another vehicle (a 1989 Nissan Pulsar) to Johnny (cl 5) and the residue of the estate to the four children in equal shares (cl 6). Clause 7 included a statement declaring that a larger provision had been made for Anne and Johnny as the deceased had "provided more" for Bud and Tony "during [her] lifetime".
Johnny gives evidence that the deceased said to him and Anne words to the effect that she would give the Minto Close property to the "younger two" (namely Anne and Johnny) as Tony and Bud got their blocks of land and Johnny and Anne "only got a half each". This was said by the deceased to be "fair". Anne and Johnny also give evidence that the deceased said to Tony, Johnny, Anne and Anne's children words to the effect that no one should "kick" Anne or her children out of the Minto Close property when she was "gone". It is not difficult to accept Johnny and Anne's evidence of the deceased's statements in light of the contents of her wills.

Whether Tony was being maintained, either wholly or partly, by the deceased before her death: s 60(2)(k)

Tony was not being maintained by the deceased before her death.

Whether there is anyone else liable to support Tony: s 60(2)(l)

As noted above, Tony receives the disability pension. While Frances is not liable to support Tony, she has provided him with significant financial support for his daily living expenses since his health issues in 2015.

Tony's character and conduct: s 60(2)(m)

I have already dealt with the details of Tony's conduct and the nature and quality of his relationship with the deceased.

Conduct of the other beneficiaries: s 60(2)(n)

There is no criticism of the conduct of any of the other beneficiaries or of the nature and quality of their relationship with the deceased. As noted above, Tony accepts that Anne bore the heavy burden of the deceased's care in the last years of her life.
It was submitted, and I accept, that the conduct of Anne and her relationship with and care of the deceased gives rise to a strong competing claim on the deceased's estate

Any other matter considered relevant: s 60(2)(p)

The parties did not identify any other matters that are relevant to Tony's application.

Consideration and determination of the claim for provision

As there is no dispute that Tony is an eligible person, the issues that arise on this application are whether the Court is satisfied, at the time of considering Tony's application, that the deceased's Will failed to make adequate provision in life for Tony's proper maintenance or advancement and, if so, what provision ought to be made.
Whether the deceased made adequate provision for Tony is a question of objective fact to be determined as at the date of hearing. In making that determination, the role of the Court is not to achieve an overall fair disposition of the deceased's estate or seek to rewrite the Will based on notions of equality, even if Tony believes that he has been treated unfairly. The Court's role goes no further than determining whether adequate provision for Tony's proper maintenance, education and advancement in life has been made by the Will and, if not, the making of provision taking into account all the circumstances of the case: Steinmetz v Shannon at [95]-[97] (Brereton JA); Meres v Meres [2017] NSWSC 285 at [114].
Tony submits that adequate provision for his proper maintenance or advancement has not been made under the Will in circumstances where he was left with only a quarter share of the residue of the estate which, at the date of the hearing, was valued at $28,375 (excluding legal costs). I observe that, having made his claim and due to the costs of these proceedings, Tony's bequest now has no practical value to him. Unfortunately, Bud is in a similar position.
The order for provision sought by Tony, by way of a lump sum payment, is $547,000 plus costs. The amount of the claim is based on Tony's revised estimate of his needs, which is set out at [91] above.
Anne submits that the Court should make no further provision from the deceased's estate in favour of Tony and should dismiss his claim. Alternatively, if any provision is to be made, it was submitted that a modest sum of around $80,000 in lieu of the existing provision would be appropriate in the circumstances.
Having undertaken an evaluative assessment and weighed all of the evidence and submissions, I have concluded that, considered at the time of the determination of Tony's application, the deceased's Will did not make adequate provision for his proper maintenance and advancement in life and that further provision for Tony should be made.
In submissions, Tony's counsel referred to Tony's lack of reserves to meet demands, particularly for his ill health, and his need for a fund to protect against the ordinary vicissitudes of life. Reliance was placed on the principles referred to at [56] and [64] which may apply where a child falls on hard times or has been unable to accumulate superannuation or make other provision for their retirement.
As outlined at [81]-[102], Tony is not in a strong financial position. His only income is a disability pension, his monthly expenses exceed his pension (even assuming he reduces his expenses in the future), he has no savings or superannuation to fall back on, and his only significant asset is his 50% interest in the unencumbered Raleigh Place property.
It is evident that, overall, Anne and Johnny are in a better financial position than Tony. Anne retains a share in two properties, one of which produces income, and has already accumulated some superannuation. While Anne's current monthly income is less than her expenses (which include those of her two dependent children), unlike Tony, Anne has the capacity to earn income over a number of years to enable her to continue to build on her superannuation and capital before her retirement. The same can be said about Johnny, although the Court does not have details of his financial position other than that he has an interest in five properties and is currently employed.
The assessment of whether Tony was left with adequate provision and what is proper for his maintenance and advancement is not made only on the financial position of the relevant parties: Megerditchian at [33], quoting Sgro v Thompson at [6] (White JA). The Court must consider all the circumstances.
In support of his claim, Tony's counsel also points to the quality and duration of Tony's relationship with the deceased, Tony's contributions to the deceased's estate, particularly his 25 years of work in the family carting business and handyman work at the Minto Close property, and the relatively comfortable positions of Anne and Johnny. It was submitted that, in comparison to Tony, Anne and Johnny had more opportunities in life. It was said that, unlike Tony who left school before completing his school certificate, moved out of home when he married at the age of 22, had little opportunity to build up assets and has health issues rendering him unable to work, Anne and Johnny were able to complete high school, received the benefit of free accommodation that enabled them to retain the Middlehope land and acquire another property, and have good jobs and earning capacity.
While there was some dispute about the regularity of Tony's visits to the deceased in her final years, Tony was a caring and loving son who spent time with the deceased. Tony assisted the deceased and Edo throughout their life with tasks at the Minto Close property and undertook significant unpaid work in the carting business. While he received the block of land from the deceased and Edo and the benefit of free accommodation for periods in the 1980s and 1990s, Tony has otherwise been financially independent of the deceased.
I accept that Anne and Johnny benefitted financially from living at home rent-free, but they contributed to the deceased's estate during that time by paying for household expenses and Johnny paying for the deceased's medications. They provided the deceased with significant care and support during her lifetime, which was expressly acknowledged in the deceased's Will. As I have found (at [28]-[30] above), the deceased's needs increased substantially over the years and Anne bore the heavy day-to-day burden of her care.
Anne's claim to her share of the estate is also based on a need for secure accommodation. Her need and desire to remain at the Minto Close property are not, in my view, unreasonable, given her contributions to the deceased's welfare, the fact that the Minto Close property has been her home over 30 years, her current financial position, and the statements made to her by the deceased (as outlined at [137] above). Her position regarding the Minto Close property is also supported by Johnny, the other beneficiary who would receive an interest in that property under the Will.
Anne's counsel submits that the Court in this case should give due consideration and weight to the deceased's wishes and acknowledge that she was in a superior position as a testatrix who was capable of assessing the competing claims to her estate in accordance with the principles at [54] above. There is some force to that submission. I do not accept Tony's contention that the deceased forgot or overlooked the reason for transferring the subdivided blocks of land some 14 years before she made the Will, or that the deceased's statement in cl 5 of the Will regarding provision and the block of land was misconceived. The terms of the deceased's July 1995 will, which was made shortly after Edo died and only a year after the block of land was transferred to the children, aligns with the deceased's last Will.
The deceased considered the claims of her children on her estate when she made the Will. The provision made for Tony in the Will is the same as that made for Bud. The reasons given by the deceased in the Will for the difference in the dispositions between Tony and Bud on the one hand and Anne and Johnny on the other are not without foundation. While they do not refer to the block of land received by Anne and Johnny, they acknowledge that Tony and Bud received greater provision by the gifts of whole blocks of land and the contributions to the deceased's welfare, care and support that Anne and Johnny were providing to the deceased at the time she made the Will, which continued until her death in 2019. The deceased's later statements also suggest that she may have intended for each of her children to be treated equally with each of the beneficiaries to receive the equivalent of "one parcel" of land (with Anne and Johnny's parcel comprising 50% of the Middlehope land and 50% of the Minto Close property) and an equal share of the remaining cash assets.
While there is no evidence of a family understanding that Tony and Bud received their blocks of land as an early inheritance (cf Sgro v Thompson at [34]), there is also no evidence which indicates that they received them as recompense for their unpaid work. To my mind, it is more likely that the blocks of land were given to each of the children by way of early provision, with Tony and Bud receiving greater provision than Anne and Johnny at that time due to their contributions to the carting business over many years, their age and their marital circumstances.
Even if the blocks of land were given to Tony and Bud in 1994 as a "balancing of the scales" in recognition of their unpaid work and Edo and the deceased had different reasons for transferring the blocks of land to the children at that time, what is proper by way of provision does not require equality between a testator or testatrix's children: Megerditchian v Khatchadourian [2019] NSWSC 1870 at [193] (upheld on appeal). The care and support that Anne and Johnny provided to the deceased after Edo's death may not have involved the "heavy lifting" involved in the carting business and the deceased may have been sufficiently independent to cook, clean and be left alone during the day for some years, but the evidence demonstrates that Johnny and Anne made personal sacrifices by arranging their lives to provide support and care to the deceased after she had expressed the desire not to left alone.
However, the provision given to Tony during his lifetime and the deceased's testamentary wishes (and apparent desire to treat her children fairly) are not, in my view, determinative. This is particularly as the benefit to Tony of the early provision of the block of land has been expended and the evidence demonstrates that he has been a loving and dutiful son who made significant unpaid contributions over 25 years to the family carting business to the benefit of the deceased's estate and he now has financial needs.
Relevantly, Tony's financial position deteriorated after the deceased made the Will in 2008. His health issues in 2014 and 2015 had the consequence that he has not been able to work as a truck driver since 2017. Based on his age and health, I am satisfied that Tony has no future earning capacity. Tony may not be destitute, in the sense that he has a disability pension and some assets, but he has had to rely on funds from his ex-wife to meet his daily needs.
The deceased's Will recognised that she owed a moral obligation to Tony, but the provision that was made for him was part of the residue and equated to around 2.8% of the deceased's estate (excluding legal costs). While the deceased's estate is relatively modest in value (being $826,604 after legal costs are taken into account), to my mind, it is of a sufficient size that more should be provided to Tony even taking into account the deceased's moral obligations and desire to be fair to and provide more to Anne and Johnny.
As to the amount of provision, taking into account all the relevant circumstances, particularly the size of the estate, in my view, a wise and just testatrix would make provision for Tony by way of a lump sum pecuniary legacy in the amount of $125,000. That amount should provide Tony with capital to assist in covering the gap between his income and expenses (although not for 19 years) and a buffer for unexpected contingences.
I am not persuaded that an additional amount of provision by way of advancement should be allowed in respect of Tony's accommodation needs. Tony's interest in the Raleigh Place property should provide sufficient capital for alternative accommodation, accepting that he may need to move to a smaller property outside his preferred areas but within reach of a hospital. I also do not consider that the deceased was under any obligation to provide sufficient funds to enable Tony to settle his property arrangements with Frances and cover the cost of his move to a new unencumbered home.
In assessing the quantum of provision, I have taken into account the fact that Tony has been financially independent of the deceased for many years, the lack of detail about the financial arrangements between Tony and Frances, and some of the lifestyle choices that Tony has made over the years (as referred to at [102]-[104] above). In my view, these matters militate against higher provision for Tony.
I also consider that a wise and just testatrix, standing in the shoes of the deceased, would want to ensure that the amount of provision to Tony does not interfere with Anne's overall financial provision in any significant deleterious manner and that some provision should be made for Johnny. Making provision for Tony in the amount of $547,000 would substantially impact the bequests to Anne and Johnny and negate the value of Johnny's bequest entirely if he were to bear the burden of the provision. In my view, neither of those are appropriate outcomes in this case. The deceased was faced with a moral obligation to provide for an adult daughter who had continued to live with the deceased at her request and has two dependent children, a need for secure accommodation, and a strong claim to the deceased's estate arising from their close relationship and the daughter's contributions to the deceased's welfare over many years. Whilst acknowledging that Johnny also contributed to the deceased's welfare and estate and the deceased's moral obligation owed to him, Anne carried the burden of the deceased's daily care after Johnny moved out of the Minto Close property and has demonstrated financial needs.
In those circumstances, I accept Tony's submission that the burden of the order for provision should fall on Johnny. I should record that when Anne's counsel was asked where the burden should lie if an order for provision was made, he indicated that he did not have instructions to press for a particular position as he acted on behalf of the estate in the interests of both Anne and Johnny. He also indicated that his opinion (which he suggested was not relevant) was that it should largely fall on Johnny.
Assuming that the residue of the estate is used to pay legal costs, based on the current valuation of the Minto Close property, the impact on Johnny of bearing the burden of the order for provision would be to reduce the value of his entitlement under the Will to around $288,000 (assuming that the Minto Close property is not sold).
I cannot be certain whether making an order for provision in favour of Tony in the amount of $125,000 will mean that the Minto Close property or some other property owned by Johnny (and Anne) will have to be sold. While conscious that the deceased expressed a desire that Anne and her children not be forced out of the Minto Close property, the deceased's Will did not provide Anne with that right. It will be a matter for Johnny and Anne (as the executrix) as to whether the Minto Close property is sold or whether Johnny lends money or utilises some other asset to ensure that the provision ordered from the estate is paid.

Costs and orders

As to costs, during final submissions, Tony's counsel indicated that offers had been made. Accordingly, I have deferred dealing with the issue of costs and will direct the parties to provide written submissions on costs within fourteen days, with a view to dealing with the issue of costs on the papers if it cannot be agreed.
I note, however, that the order for provision in favour of Tony has been based on the assumption that, in the ordinary course, Tony's costs on a party/party basis and Anne's costs on an indemnity basis would be paid out of the estate, thus producing the net value of the estate of $826,204, on which the calculations have been based.
Since provision is to be made by payment of a lump sum amount, the orders should also specify whether interest is payable on the whole or any part of the amounts payable for the period and, if so, the period during which interest is payable and the rate of the interest: Succession Act, s 65(3).
Bearing in mind the nature of the deceased's estate and the lack of cash assets from which to pay the provision, in my view, I consider that a period of eight weeks should be allowed to enable the lump sum to be paid. If the lump sum is not paid within that time, interest is to be paid on it at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW) on any outstanding amount until the date of payment in full.
For these reasons, I make the following orders: 1. Pursuant to s 59 of the Succession Act 2006 (NSW), order that provision be made out of the estate of the deceased in favour of the plaintiff in a lump sum of $125,000 in lieu of the provision made for the plaintiff under the deceased's will dated 1 May 2008. 2. Order that the burden of the provision ordered above be borne out of the share of the deceased's estate that was left to Johnny Lalic. 3. Order that no interest is to be paid on the lump sum in favour of the plaintiff if it is paid within eight weeks of these orders. Otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW) is to be paid on any unpaid part of the lump sum from the day after payment falls due until the date of payment in full. 4. Direct the parties to file and serve brief written submissions as to costs within fourteen days of these orders, together with any affidavit evidence relied on in support of those submissions, and that the question of costs be dealt with on the papers.

Endnotes

Tony's affidavit evidence refers to receiving and selling his block of land in 1989. During cross-examination, Tony accepted that he received the land in 1994 and sold it in 1995.
Based on the average of the values of the three properties identified by Tony as suitable accommodation in Liverpool and Glenfield in Ex F and purchase costs of around $30,000.
Based on $2,600 per month as at September 2020, plus approximately $500 per month for Jaelan's increased school fees in 2021, and approximately $400 per month for increased costs of uniform, stationary, shoes, computer and travel costs to gymnastics and soccer.
Approximate mid-point of Anne's valuation dated 18 May 2021 of $652,000 to $680,000 and Tony's valuation dated 15 May 2021 of $700,000 to $750,000. 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: 27 January 2022

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