Last v Lewis

1974.                 New South Wales Law Reform Commission, Testator's Family Maintenance and Guardianship of Infants Act 1916, (Report 28, 1977)
                      New South Wales Law Reform Commission, Uniform Succession Laws: Family Provision (Report 110, May 2005)
      

Category: Principal judgment Parties: Robyn Janet Last (Plaintiff/Cross-Defendant) Kevin John Lewis (Defendant/Cross-Claimant) Representation: Counsel: M Galvin (Plaintiff/Cross-Defendant) D Stewart (Defendant/Cross-Claimant)

Solicitors: RMB Lawyers (Plaintiff/Cross-Defendant) Matthews Dooley & Gibson (Defendant/Cross-Claimant) File Number(s): 2020/100973 Publication restriction: Nil

Judgment

1. The plaintiff, Robyn Janet Last, commenced these proceedings by summons filed on 2 April 2020. Ms Last seeks an order for further provision for her maintenance, education and advancement in life pursuant to s 59 of the Succession Act 2006 (NSW) out of the estate of her late father, Leslie William Lewis, who died on 7 April 2019 at the age of 89 years, having left a will dated 31 January 2017.
2. The defendant, Kevin John Lewis, is the executor of the deceased's will under a grant of probate made by this Court on 29 July 2019. Mr Lewis is a son of the deceased.
3. As a number of the people relevant to this case are members of the Lewis family I will, with no disrespect intended, refer to them by their first names after I have introduced them.

Issues raised by cross claim

1. Kevin filed a cross claim on 29 October 2020. The relief claimed in the cross claim is as follows: 1 A declaration that the Deed of Family Arrangement dated 18 September 2003, executed by the late Leslie William Lewis (the deceased), the cross-claimant, the cross-defendant and others (Deed), was an instrument executed by the cross-defendant that would be effective as a release of her rights to apply for a family provision order with respect to the deceased's estate. 2 An order pursuant to section 95 of the Succession Act 2006 (NSW), or, in the alternate, pursuant to section 31 of the Family Provision Act 1982 (NSW), approving the release of the cross-defendant's rights to apply for a family provision order with respect to the estate of the deceased as contained in the Deed.
2. The pleadings and particulars in the cross claim allege the existence of a Deed of Family Arrangement dated 18 September 2003 (the Deed), and the relevant terms of the Deed, being that Robyn's parents agreed to transfer a residential property that I will call No 892 to Robyn for a price of $200,000, being an undervalue of $500,000. The amount of the undervalue was to be regarded as a gift in lieu of inheritance. The parents made wills to give effect to the terms of the Deed. The Deed, by clause 7(e)(i), contained, inter alia, a promise by Robyn not to seek to challenge the parents' wills in any way.
3. The cross claim then pleads: 9 On the proper construction of the Deed, the Deed was an instrument executed by the cross-defendant that would be effective as a release of her rights to apply for a family provision order with respect to the deceased's estate, if approved by the Court. Particulars i. Section 31, Family Provision Act 1982 (NSW). ii. Section 95, Succession Act 2006 (NSW).
4. The cross claim alleges that, after 27 February 2004, Robyn, having taken independent advice in relation to the Deed from Champion Legal, and having given due consideration to that advice, executed the Deed.
5. Then the cross claim alleges that, after 27 February 2004, No 892 was transferred to Robyn and Garry William Last, who is Robyn's ex-husband, pursuant to the Deed.
6. Then it is alleged that, on or about 18 February 2008, Robyn and Garry transferred No 892 to third party purchasers for $1,200,000, with all of the net proceeds being paid to Robyn.

The Deed

1. The first step in the determination of Robyn's claim is to decide whether the Deed is binding upon her, and if it is, whether, upon its proper construction, the Deed has the effect that Robyn has purported to release her rights to make a family provision application. If it does, then she will be precluded from making her family provision application if the Court approves the release: Succession Act, s 95(1).
2. It will be convenient, at the outset, to set out the terms of the Deed which the defendant by his cross claim seeks to enforce.
3. The parties to the Deed were the deceased and his late wife, Edna Leonne Lewis. The other parties were their four children. They were the plaintiff and the defendant, and their siblings Debra Jane Heffernan and Bruce Leslie Lewis.
4. As some of the properties that were the subject of the Deed are still owned by the parties to the Deed, I will refer to the properties by their street numbers. Three of the properties (No 2111, No 846, and No 892) are located in south-west Sydney and the fourth (No 17A) is located in the Illawarra.
5. The terms of the Deed are: RECITALS: A. The Parents are the registered proprietors of the following unencumbered properties: - [No 2111]; [No 846]; [No 892]; [No 17A]. B. The four properties referred to in A above were valued in or about June 2002 as follows: - [No 2111] - $700,000.00; [No 846] - $700,000.00; [No 892] - $700,000.00; [No 17A] - $380,000.00. C. Copies of the Valuations in respect of the four properties are attached to this Deed. D. For the purposes of this Deed the parties acknowledge that the values of the properties remain unchanged at the date of execution of this Deed, or alternatively that if there have been any increases in values then all four properties would have increased in value to the same extent. E. For the purpose of providing for future income of the Parents it is proposed that: - (a) certain of the properties referred to in Recital A will be transferred to certain of the Children at a price less than valuation; and (b) the Parents will make Wills which will ensure equality between the four Children; and (c) Equality between the four Children shall be reached by having regard to the extent to which the properties are sold to some of the Children at under valuation amounts and the difference between the respective valuations and the price at which the properties are sold to Children shall be regarded as a gift in lieu of the inheritance entitlements of the respective child or children. OPERATIVE: 1. (a) [No 846] will forthwith be sold to Debra (who for the purposes of this Deed will include and mean a transfer to Debra Jane Heffernan and Robert John Heffernan as joint tenants) for the sum of $200,000.00; (b) The parties acknowledge that the valuation of [No 846] is $700,000.00 and that the "undervalue amount" is $500,000.00 which is to be regarded as a gift in lieu of inheritance of $500,000 in favour of Debra Jane Heffernan. 2. (a) [No 892] will shortly be sold to Robyn (who for the purposes of this Deed will include and mean a transfer to Robyn Janet Last and Garry William Last as joint tenants) for the sum of $200,000.00; (b) The parties acknowledge that the valuation of [No 892] is $700,000.00 and that the "undervalue amount" is $500,000.00 which is to be regarded as a gift in lieu of inheritance of $500,000 in favour of Robyn Janet Last. 3. Stamp Duty and registration fees in respect of the transfers referred to in 1 and 2 above are to be payable by the transferees. 4. The Parents will continue to reside in [No 2111] as their principal place of residence and will keep [No 17A] as their family holiday home. 5. The Parents will devise [No 2111 and No 17A] to Bruce Leslie Lewis and Kevin John Lewis equally as tenants in common in their Wills. This will ultimately will (sic) have the effect of causing Bruce Leslie Lewis and Kevin John Lewis to receive these properties, which on today's values have a combined value of $1,080,000.00, so they will each individually inherit an equity of approximately $540,000.00. 6. Annexed and marked with the letters "A" and "B" respectively are the Wills of the Parents intended to give effect to the terms of this Deed. 7. The parties acknowledge and agreed (sic) as follows: - (a) that the terms and conditions of this Deed and the Parents' Wills are fair and reasonable having regard to the circumstances and needs of the respective Children; (b) that: (i) the effect of stamp duty payable by Debra and Robyn in respect of the transfers referred to in 1 and 2 above as against the fact that there will be no stamp duty payable if the other properties are transferred to Bruce and Kevin under the terms of the Wills of the Parents, and (ii) the differences in valuation which mean that Bruce Leslie Lewis and Kevin John Lewis will each respectively receive from the two properties which they will inherit approximately $40,000 more than that received by the other children; is fair and reasonable having regard to the fact that Debra and Robyn have respectively lived in the properties at [No 846] and [No 892] for a considerable period of time without payment of rent; (c) that the Parents may subsequently transfer one or both of the remaining properties namely [No 2111] or [No 17 A] to one or both of Bruce Leslie Lewis or Kevin John Lewis in such manner as they may determine without in any way derogating from the terms of this Deed; (d) that if one or both of the properties are transferred to (sic) pursuant to (c) above then the Parents may change their Wills to ensure equality without derogating from the terms of this Deed; (e) the Children promise that they will not: - (i) seek to challenge in any way the Parents' Wills, or (ii) seek to challenge any transfers made by the Parents under the terms of this Deed, or (iii) seek to cause any properties transferred by the Parents pursuant to the terms of this Deed to become part of the notional estate of the Parents after their death.

Principles governing the effectiveness of the release

1. As has been stated, Kevin seeks an order in his cross claim that the Court, under s 31 of the Family Provision Act 1982 (NSW) or s 95 of the Succession Act, approve the purported release in clause 7(e)(i) of the Deed of Robyn's right to apply for a family provision order with respect to the deceased's estate.
2. Robyn appears to have pleaded that the Deed is voidable because her entry into the Deed was procured by undue influence and unconscionable conduct, and, though not stated in express terms, Robyn appears to have implied in her pleadings that the Deed was also procured as a result of duress.
3. Although in her submissions Robyn clearly asserted that the Deed had been procured by the deceased's unconscionable and coercive conduct and that Robyn was subjected to undue influence, it may be that Robyn only made those claims in aid of her submission that the Court should not give its approval to the Deed. Robyn did not in any formal way seek an order that the Deed be set aside on any ground at common law or in equity by which the Deed may have been vitiated.
4. If the Court were to find that the Deed is voidable by virtue of the presence of a vitiating factor, the effect of Robyn's rescission would be that the Deed is avoided as from the beginning and the Court would make such orders as are necessary to give effect to that outcome: Alati v Kruger (1955) 94 CLR 216 at 224 (Dixon CJ, Webb, Kitto and Taylor JJ); [1955] HCA 64. The prima facie outcome would be that the interest in No 892 given to Robyn under clause 2(a) of the Deed would need to be returned to the estate of the deceased.
5. However, at least two bars to Robyn's right to rescind would have arisen in this case. The first is that, by selling No 892 to third-party purchasers and accepting the sale proceeds of that transaction, Robyn has elected to affirm the Deed in a manner inconsistent with the exercise of her right to rescind it: Haas Timber & Trading Co Pty Ltd v Wade (1954) 94 CLR 593 at 602 (Dixon CJ, Fullagar and Kitto JJ); [1954] HCA 39. The second, complementary with the first, is that the proprietary interest in No 892 has passed to bona fide third-party purchasers for value: White v Garden (1851) 10 CB 919 at 926; 136 ER 364 at 367 (Cresswell J); see Ruthol Pty Ltd v Mills [2003] NSWCA 56; (2003) 11 BPR 20,793 at [98] (Sheller JA, with whom Meagher JA and Cripps AJA agreed at [1] and [103] respectively). Intervening events have therefore made rescission impossible.

Circumstances relevant to approval of the release

1. I will now turn to deal with the circumstances relevant to the execution of the Deed and whether the Court should give its approval to that part of clause 7(e) that constituted a release of Robyn's right to make an application for a family provision order out of the estate of the deceased.
2. At some time before mid-June 2002, the deceased formed an intention to organise his affairs in the way that led to the execution of the Deed. The timing is established by the fact that three of the valuations that were annexed to the Deed were dated 14 June 2002 and the fourth was dated 12 June 2002. It appears that the deceased wanted to achieve at least three objectives. The deceased and Edna were concerned that they had inadequate funds for the balance of their retirement, and they wanted to raise money using some of the property that they owned. The deceased also wished to maintain No 2111 as his and Edna's residence for life. Finally, the deceased wished to make testamentary arrangements to provide for the early inheritance of some of his children while achieving a fair division of his and Edna's property between the four children. The deceased informed at least Robyn and Kevin of his proposal.
3. The Deed was drafted by the deceased's solicitor, Mr Phillip Thompson. The deceased arranged for Kevin and his wife, Robyn and her husband Garry, and Debra and her husband Robert, to attend a meeting at Mr Thompson's office in Penrith on 18 September 2003. As Bruce was living in Queensland, he attended by telephone.
4. There was some difference in recollection as between Robyn and Kevin as to whether there was only one meeting or whether the meeting took place on the one day in two separate parts of Mr Thompson's office. That difference does not appear to be material.
5. Mr Thompson read through the provisions of the Deed early in the meeting.
6. Robyn gave the following evidence of what happened at the meeting in par 48 of her 25 May 2020 affidavit: … Bruce said, "I am getting legal advice before I sign anything." My father said "If anyone gets their own legal advice. Then I will take the deal off the table and exclude them from my will." I said, "The Deed is not right. Garry and I paid rent for the first 6 years we lived at [No 892]." Kevin said "There is no evidence you ever paid rent. Show me the receipts." I replied "Mum never gave me any receipts. She used the cash for her household expenses." I said, "What do these 'promises' in the deed mean?" My father said "You have to sign the promises. Otherwise, you don't get the properties." Bruce acquiesced, as did the rest of us. I did not obtain any legal advice about the Deed and the meaning of the promises was not explained to me. We all signed the Deed of Family Arrangement at the office of Philip Thompson.

Should the Court approve the Deed?

1. The requirement that the deceased's children execute the Deed was a unilateral requirement developed by the deceased (and probably supported by Edna). Although the deceased's children other than Robyn apparently executed the deed relatively freely, its terms were not in any sense negotiated, and the proposal was put by the deceased on a take it or leave it basis.
2. The purpose of the proposal was to raise funds for the deceased's and Edna's retirement by realising some of the value in No 846 and No 892 in a manner that, from the deceased's perspective, provided Robyn and Debra with an early inheritance, in terms that appeared to be reasonably fair as at the date of the Deed as between Robyn and Debra on the one hand and Kevin and Bruce on the other, whose inheritance would be deferred to the time of the death of the survivor of the deceased and Edna.
3. The apparent fairness of the effect of the deed depended upon the accuracy of the valuations that were annexed to the Deed, which is a dubious proposition given the differences between the properties that were all valued at $700,000 and the absence of any valuation rationale in the valuations. Robyn did not, however, take issue with this apparent coincidence. Even assuming that the valuations were reasonably accurate, fairness of outcome depended upon Robyn and Debra being able to retain ownership of their respective properties until the time when Kevin and Bruce received their inheritances, or alternatively, Robyn and Debra being able to convert their ownership of the properties into assets whose values escalated in line with the properties to be inherited by Kevin and Bruce.
4. The Deed was entered into at a time so far ahead of the likely dates of death of the deceased and Edna that the crystallisation of Robyn's and Debra's rights of inheritance at that date created the possibility that any apparent equality of inheritance would evaporate as a result of changes in circumstances between the date of the Deed and the date of the death of the survivor of the deceased and Edna. Further, the terms of the Deed had the effect that the deceased precluded himself from adjusting the distribution of his testamentary bounty in response to changes in the circumstances of his children after the date of the Deed. That is because any further provision that the deceased made in his will in favour of Robyn and Debra would involve a contravention of the deceased's covenants in the Deed to Kevin and Bruce.

Principles relevant to the making of a family provision order

1. Section 59 of the Succession Act grants the Court the power to make an order for further provision out of the estate of a deceased person in favour of an eligible person where the Court is satisfied that the will of the deceased person has not made adequate provision for the proper maintenance, education or advancement in life of the applicant: see s 59(1)(c). Having made the evaluative determination that adequate provision has not been made for the applicant, the Court's discretion to make such order for provision as the Court thinks ought to be made is enlivened: see s 59(2).
2. The core principles governing the Court's family provision jurisdiction, both generally and in the context of an application by an adult child, were recently stated by the Court of Appeal in Bassett v Bassett [2021] NSWCA 320 at [78]-[88] and I respectfully adopt that statement: [78] Before an order for provision can be made in favour of a child of the deceased (who is an "eligible person" within the meaning of s 59 of the Succession Act), the Court must be satisfied that "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": Succession Act, s 59(1)(c). [79] Satisfaction in this regard is "jurisdictional" insofar as it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): see, for example, as to the use of the description "jurisdictional", White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; Singer at 208-210; Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [69]-[72]. Care must, however, be taken when answering this jurisdictional question not to confine the relevant consideration to an applicant's financial or material needs; the language of "proper maintenance, education or advancement" involves more than simply a question of financial needs: see Sgro v Thompson [2017] NSWCA 326 at [68]-[74] (Sgro). [80] Once the level of satisfaction referred to in [78] has been reached, the Court has a broad discretion, "having regard to the facts known to the Court at the time the order is made" (emphasis added), to make such order for provision out of the estate as ought to be made "for the maintenance, education or advancement in life of the eligible person": Succession Act, s 59(2). [81] In considering both whether to make a family provision order and the nature of any such order if the threshold required by s 59(1)(c) is satisfied, the Court is entitled to consider the broad range of matters specified in s 60(2) of the Succession Act. The breadth of the matters that may be considered under s 60(2) does not, however, authorise the making of an order which is for a purpose other than "the maintenance, education or advancement in life of the eligible person". Nor does it relieve the Court of the need to make the order "having regard to the facts known to the Court at the time the order is made" (emphasis added). [82] The primary judge's summary of relevant principles, as noted at [59] above, was not challenged. It is convenient to add a reference to McCosker v McCosker (1957) 97 CLR 566 at 571-572; [1957] HCA 82 (McCosker), in which Dixon CJ and Williams J observed that: "The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v. Perpetual Trustee Co. (Ltd.) [1938] NSW St Rp 3; [1938] AC 463; (1938) 38 SR (NSW) 176 the word 'proper' in this collocation of words is of considerable importance. 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." [83] Kitto J's observations in the same case at 579 are also of note: "The testator has shown by the terms of his will that he did not fail to consider what he ought to do for the several members of his family and that it was his deliberate judgment that some of them, including the respondent, had been adequately provided for by assistance he had given them. His opinion on the subject is, of course, by no means conclusive. But there is nothing to suggest that he was under any misapprehension, or that he was in any way prejudiced against the respondent; and the case seems to me to be one of those in which the testator is much more likely to have formed a correct conclusion on the subject of the moral obligations he owed to his family than a court can well hope to be." [84] In Singer at 208-209, the majority held, in the context of broadly equivalent provisions under the predecessor Family Provision Act 1982 (NSW), that: "It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'. That description means no more than that the court's power to make an order in favour of an applicant under s.7 is conditioned upon the court being satisfied of the state of affairs predicated in s.9(2)(a)." [85] More recently, in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122] (Vigolo), Callinan and Heydon JJ observed, in relation to the corresponding Western Australian legislation, that the questions which the Court has to answer in assessing such a claim do not "necessarily always divide neatly into two" and that: "Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors." [86] Vigolo is also significant because three of the five justices (Gleeson CJ, Callinan and Heydon JJ) supported the continuing utility in this field of discourse of notions of moral obligation and duty. Thus, Gleeson CJ (at [25]) observed that: "In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text." See also Callinan and Heydon JJ at [121], cf Gummow and Hayne JJ at [63]-[73]. [87] It is also relevant to note that in Sgro at [83], White JA (with whom McColl and Payne JJA agreed) repeated what he had earlier said in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] as follows: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will." These observations bear a close affinity with those of Kitto J in McCosker, noted in [83] above. Sgro was a case where, as Payne JA explained at [3], one sister's claim "was founded upon what all members of the family understood as her claim to the Greystanes property upon her parents' death, Rosa [another sister] having earlier received the Merrylands property in a way all members of the family understood as comprising an early inheritance." At [76]-[78], White JA relevantly held that: "76 [T]he primary judge did err in principle in his assessment of the significance of Rosa's having been given the Merrylands property in 1985 as her early inheritance. There is no doubt that the primary judge took that transaction into account as one of the material considerations. His Honour did so in considering the provision made for the applicant by the deceased during the deceased's lifetime … and as evidence of the deceased's testamentary intentions … In the section of his reasons headed 'DETERMINATION' the primary judge referred to the deceased's having made generous provision for Rosa during her lifetime by, amongst other things, giving her an unencumbered house … His Honour then went on to say that the level of provision made during the lifetime of the deceased could not alone determine what was proper on the deceased's death, albeit it was one of the matters to be taken into account in determining what is 'proper'. 77 But in considering Carmela's competing claim on the estate, the primary judge said (at [133]) that: 'Her competing claim is not founded upon any competing financial need, but on her contributions to the deceased, both financially and in other ways, during the deceased's declining years.' 78 Carmela's competing claim was not founded only on her contributions to the deceased during the deceased's declining years. Fundamentally, it was founded upon what all members of the family recognised as her moral claim to the Greystanes property upon her parents' death because her sister had received an early inheritance of the Merrylands property." [88] In relation to the approach to be taken to a claim for provision by an adult child, reliance was placed by Merilyn and Bruce upon the following summary of principles by Hallen AsJ (as his Honour then was) in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111] as follows: "(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) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (e) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 149. (f) Although some may hold the view that equality between children does 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."

Circumstances relevant to adequacy of provision

1. I will begin by identifying a number of issues that were dealt with by the parties' witnesses at some length in the evidence, but which do not appear to call for detailed consideration in the light of the parties' final submissions.
2. There was considerable dispute in the evidence in relation to:

• whether Robyn contributed when a child and teenager to the operation of the deceased's businesses to the same extent as her siblings;
• whether, after Robyn left the family home, and in particular after her separation and divorce from her husband Garry that led to the sale of No 892, Robyn substantially ignored her parents and did not regularly visit them and attend family gatherings;
• whether, and if so to what degree, Robyn was frozen out of the family's affections by reason of her behaviour, or her divorce, or her sale of No 892, in circumstances that may or may not have been in breach of an agreement that she had with the deceased that she would retain No 892 during his lifetime for the benefit of herself and her children; and
• whether, at the time of the deaths of Robyn's mother and the deceased, she visited them infrequently and whether in various ways she misbehaved on the occasions when she did visit.

1. As a general matter, notwithstanding that the evidence contained many assertions and counter-assertions by the witnesses relevant to these issues, the evidence did not take the form of testimonial evidence of specific events observed by the witnesses. The evidence tended to take the form of the witnesses' subjective beliefs stated without any extensive basis. The evidence was generally a summary of the witnesses' impressions of events covering a considerable period long in the past. I accept that this was less so in relation to the evidence of specific incidences that were alleged concerning Robyn's conduct at the times of the deaths of her parents. Even then, there was considerable scope for differences of recollection, depending upon context and the perceptions of the participants.
2. As Kunc J said in Pavlis v Pavlis [2021] NSWSC 1117 at [167], citing an earlier observation of my own: [167] Ninth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. This case has many similarities to the family dispute considered by Robb J in Ak-Tankiz v Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said at [187]: "The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations."

The deceased's last will and the net distributable estate

1. The deceased's last will of 31 January 2017 made the following gifts:

• By clause 3, No 2111 is left to Bruce and Kevin in equal shares as tenants in common;
• By clause 4, No 17A is left to Kevin solely; and
• By clause 5, the rest and residue of the deceased's estate is left equally among Robyn, Debra, Bruce and Kevin.

1. The evidence of the net distributable estate of the deceased is summarised in Attachment A to Kevin's closing submissions. The primary assets in the estate are No 2111, which was valued by the court-appointed expert at $6,750,000 as at 5 July 2021, and No 17A, which was given an estimate of $1,000,000.
2. Additionally, at the time the attachment was prepared, the estate had cash of $45,559.97. The effect of the deceased's last will is that the deceased provided for Robyn in the form of a one-quarter share of this amount of cash.
3. The estate had estimated total liabilities of $290,500 to cover the agent's commission and selling costs for both properties, as well as estate taxation, liabilities and costs. The net value of the estate for any allowance for legal costs is therefore estimated at $7,505,059.97.
4. The evidence of Robyn's costs was on the indemnity basis at $188,446, for which Attachment A makes an allowance of 60% for the purpose of estimating Robyn's costs on the ordinary basis. On that basis, which may not be sufficiently generous, the estimate of Robyn's costs was $113,067.60.
5. The evidence was that Kevin's legal costs on the indemnity basis was $169,450.
6. The total costs that would be payable out of the deceased's estate if Robyn succeeds in obtaining an order for further family provision and her costs was therefore $282,517.60 if Kevin's estimate of the costs recoverable by Robyn is correct.
7. When the total costs of the proceedings are deducted from the total net estate (rather than added as in Attachment A) the net distributable estate is $7,222,542.37.
8. Robyn obtained three real estate agent appraisals for No 17A in June 2021. Averaging the values stated in the appraisals would give a value for the property between $1,263,333 and $1,336,333. It is therefore possible that the true total net estate may have a value in the order of $7,500,000. The evidence does not enable the Court to make a precise finding on this subject.

Robyn's financial position

1. In Robyn's 13 July 2021 affidavit updating her financial position, her assets and liabilities were then stated to be: Assets Savings $4,726 Property Cordeaux Heights $940,000 Superannuation $836,000 Household contents $5,000 2013 Mitsubishi Outlander $7,000 Total $1,792,726
2. Robyn's total liabilities were $15,731.
3. As I understand the evidence, Robyn used her share of the proceeds of sale of No 892 to purchase a house at Bringelly in 2008 that she moved into in December 2011. The price of the Bringelly property was about $740,000 according to Robyn. She later sold that house and in January 2017 she purchased and moved into her present home in Cordeaux Heights. The sale price of the Bringelly property was $1,960,000. The settlement sheet for the transaction (part of Exhibit D3) showed that the major payments out of the price were $789,070.66 to the Commonwealth Bank of Australia Ltd, $608,337.74 to Teachers Mutual Bank Ltd, and $383,094.45 to Robyn. The settlement sheet for the purchase of the Cordeaux Heights property (also part of Exhibit D3) showed that the price payable was $880,000. This settlement sheet showed that, on settlement, a bank cheque in favour of Commonwealth Bank of Australia Ltd for $789,070.66 was required. That is the same amount that was payable out of the proceeds of sale of the Bringelly property.
4. In my view there is not enough information in the documents contained in Exhibit D3 to adequately understand the meaning of these transactions.
5. Exhibit D3 also contained a settlement sheet for the sale by Robyn of a property in Queensland for $272,000 that took place on 22 June 2017. Robyn received $264,073.11 from the sale. Robyn gave evidence that she lost over $100,000 on the sale of this property [T 78.31].
6. Robyn was cross-examined about her purchase and sale of these properties [T 77.3-81.23]. The result of the cross-examination is not entirely clear, possibly in part because Robyn was only given the documents that became Exhibit D3 shortly before her cross-examination, and she did not have time to consider their significance. With due respect to counsel, the questions that were asked may not have been entirely clear. At [T 77.47] there was a suggestion that Robyn mortgaged the Bringelly property to both the Commonwealth Bank and Teachers Mutual Bank. Robyn replied that she took out loans with Suncorp and Bank of Queensland to renovate the Bringelly property in conjunction with using some of her savings. Counsel then appeared to suggest at [T 78.6] that the $789,070.66 payable to the Commonwealth Bank and that $608,337.74 payable to Teachers Mutual Bank from the sale proceeds of the Bringelly property represented the repayment in borrowings in those amounts by Robyn. As Robyn had given evidence that she used $200,000 to renovate the Bringelly property, Counsel asked [T 78.6]: "So, what about the other, well, 789 and 608 is about 1.3, 1.4, so what happened to the other $1.2 million?". Robyn was evidently confused by the question and did not give evidence that clearly explained the transactions.

Robyn's medical history and prognosis

1. At the time of the hearing, Robyn was aged 65 years. Robyn gave evidence in her initial substantive affidavit affirmed on 25 May 2020 of her medical history. That evidence was somewhat repetitive. I have tried to limit the amount of repetition in the following record of Robyn's medical history.
2. Robyn said that from about 5 years of age she began experiencing painful and debilitating inflammation in her feet and legs for 3 to 4 days at a time. They became swollen and covered with an erythematosus rash.
3. During her childhood, over several years up to her early teens, Robyn also suffered dental issues, including inflammation and infections. Due to abscesses she had to have several teeth removed and her jaw excised. At the age of 14 Robyn suffered inflammation and malalignment of her spine, making it very painful for her to move. She underwent intense chiropractic treatment over two years, which continued with other therapies later on. Robyn said that she had been advised by medical practitioners that the dental issues, the leg flareups and the inflamed spine and many other symptoms and syndromes were caused by her medical condition.
4. Kevin objected to the evidence given by Robyn concerning the technical medical causes of the disabilities from which she suffered.
5. Robyn was, however, able to give evidence in accordance with s 100(3) of the Succession Act that, when she first began having flareups, the deceased said to her: "It looks like the Lewis allergy".
6. Robyn gave extensive evidence in her initial substantive affidavit of her medical ailments during her teenage and later years. She said that during her teenage years she continued to suffer from the symptoms that she had in childhood as well as inflammation and nodule swellings along her spine which continued into her early 20s. She underwent intense chiropractic treatment at first and then regular chiropractic treatment into her 20s. She said that she still undergoes intermittent therapeutic massages.
7. During her 20s, Robyn became hypersensitive to the contraceptive pill, especially to oestrogen which started to cause sugar level problems, including diabetes and overall weakness. Robyn had a urticarial rash, which is similar to measles, and which was extremely itchy and burning on her hands, feet, buttocks, elbows, ears and face. That continued into her 40s.

Robyn's future expenditure requirements

1. Robyn retired in January 2018 after having taken 12 months' leave from work due to medical issues in January 2017.
2. Robyn is concerned that she will require admission to a nursing home in the future like the deceased. If she has to draw down on her superannuation to meet medical, renovation, maintenance or in-home care expenses, then her income will be severely reduced, and she will not be able to meet her usual expenses.
3. Robyn said that she had conducted research into the costs of care services. The basic cost of a level 4 in-home care package is approximately $55,000 per year. Robyn estimated that she will need $600,000 to pay for in-home care in the future.
4. Robyn is concerned that, due to her medical issues and ongoing changes in symptoms, she will lose her mobility and function. Robyn listed a considerable number of modifications to her home and property that may be required in the future. Robyn gave broad estimates of some but not all the costs that she would face. She estimated the cost of replacing the back decking, roofing and back stairs would be $80,000. Non-slip polishing and refurbishing of wooden floorboards would cost $30,000. Installing side metal paling gates for easy access to the property, with easy catches and locks, would cost $10,000. Installing fencing along the top of a retaining wall would cost $8,000. Safety lights, sensor lights and downlights would cost $3,000. A new water system including tank and pump would cost $12,000. A teak outdoor setting would cost $7,000. Robyn estimated the total cost of the modifications that she believes she will need to make to her home at $300,000.
5. Robyn gave a separate list of repairs and renovations that she said would need to be made to her home because it is 30 years old and has not undergone repairs or renovations since it was built. The total estimated cost for the 10 items listed was $149,500.
6. Robyn said that all her home appliances were over 10 years old and the estimated cost of replacing them was approximately $10,000.
7. Robyn currently cannot afford an internet connection and estimates the cost of a reliable NBN internet connection would be $1,680 per year.
8. Robyn fears that her home is not secure, and she wants to install an alarm system with ongoing service. The estimated cost is approximately $338 to install and then $953 per year thereafter.

Bruce's financial position

1. Bruce gave evidence that he is a director of, and 50% shareholder in, a company whose name suggests it provides safety training. Bruce lives in rented premises. His company supplies him with a fully maintained motor vehicle and pays for his petrol, mobile telephone and cleaning expenses. Bruce's gross weekly salary is $1,935. His expenses are $1,472.
2. As of 6 July 2021, Bruce had assets of $776,745, which included a bank account of $55,875 and superannuation of $372,620.
3. As at that date, Bruce's total liabilities were $315,419.

Kevin's financial position

1. As of 22 June 2021, the total weekly income of Kevin and his wife was approximately $2,450, having reduced from $2,750 as of 29 June 2020.
2. Kevin and his wife have two investment properties from which they are entitled to receive a gross weekly rental of $965. As at 22 June 2021, they had reduced the rent they were charging on their investment property in Queensland by the sum of $50 per week to give COVID-19 relief to the tenants.
3. Also, as of 22 June 2021, Kevin's wife had lost her job as a part-time cook and did not then have any income from employment.
4. As of 22 June 2021, the home owned by Kevin and his wife had a value of $1,200,000 and was unencumbered. They had two investment properties with values of $700,000 and $560,000 that were mortgaged to secured debts of $282,000 and $318,000 respectively. Their assets had a total value of $2,720,000 and their liabilities were $600,000.

Consideration

1. The present case is unusual because the Court has to deal with the significance of the Deed and the early inheritance that Robyn received when it evaluates the adequacy of the provision made in favour of Robyn in the deceased's will. The deceased attempted to divide his estate equally between his four children, although he did so in a way that would not necessarily achieve equality of result. On the one hand, Robyn and Debra were given their inheritances early so that they enjoyed an immediate benefit that would continue throughout the deceased's lifetime provided that their life circumstances enabled them to retain the properties transferred to them early, or otherwise retain the value of those properties. As I have already observed, Debra realised the advantages of this arrangement, but Robyn did not. On the other hand, Kevin and Bruce were made to wait until deceased's death to receive their inheritances, which denied them the enjoyment of their inheritances during the deceased's life. As it seems clear that the deceased intended to retain No 2111 and No 17A during his lifetime, Kevin and Bruce were reasonably assured of inheriting those properties between them under the deceased's will.
2. It is also a consideration that, even though the risk that Robyn would not be able to retain the benefit of her early inheritance eventuated relatively quickly, the fact that No 892 was added to the matrimonial property to be divided between Robyn and Garry following their divorce had the effect that Robyn was probably much better off after No 892 had been sold than she would have been for the balance of the deceased's life if she had not received her inheritance early under the Deed.
3. I have set out above in some detail the substantial costs that Robyn claimed in her evidence she would have to incur in the future. I am satisfied that Robyn will probably incur substantial additional costs in the improvement and modification of her home and to meet her medical needs, but the evidence by no means justifies the Court in making an order for additional family provision in favour of Robyn that would meet all or substantially all those costs. Such an order would not properly reflect the advantage received by Robyn from her early inheritance and would be unfair to Kevin and Bruce who have had to wait for theirs.
4. As I have explained, the medical evidence only permits the Court to find that Robyn is likely to incur somewhat greater than average costs to meet her future medical needs. Robyn's home is a relatively modest one, and if she is required to expend a substantial proportion of her superannuation fund to meet the contingencies of life, that is likely to cause her to have an inadequate fund to meet future needs.

Orders

1. The Court: 1. Dismisses the cross claimant's cross claim. 2. Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in addition to the provision made for her in clause 5 of the Will dated 31 January 2017 of the deceased, the plaintiff receive, by way of provision, a lump sum of $425,000, out of the estate of the deceased. 3. Orders that no interest be paid on the lump sum if it is paid within 14 days of the date of the making of these orders; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 15th day from the date of the making of these orders until the date of payment in full. 4. Orders that the provision made for the plaintiff be provided out of the residuary estate of the deceased. 5. Orders that the plaintiff's costs and disbursements of the proceedings, calculated on the ordinary basis, be paid out of the estate of the deceased. 6. Orders that the defendant's costs and disbursements, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.

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: 16 June 2022