Leverton v Predny

Facts

1. Several witnesses were cross-examined. The Court was not asked to make, and will not make, adverse credibility findings against any witnesses. To my observation, each of the witnesses did their best to answer questions honestly, recollecting many events which occurred several years ago and which in some cases were still a cause for emotion.
2. Subject only to debate about the frequency and nature of the contact between Adam, Alicia and Cheryl, neither the material facts nor the applicable legal principles for family provision claims were in dispute. I will next set out the facts which represent the Court's findings under headings which are familiar in matters of this kind.

The estate

1. The parties accepted that the assets of the estate have largely been realised and comprise $1,591,641.39 in cash and a motor vehicle valued at $20,000. The only unpaid liability is a tax debt of approximately $15,000. The net estate was therefore $1,596,641.39.
2. It was also accepted that the estate was large in relative terms for matters of this kind which come before this Court. Both parties' costs of the proceedings were capable of being paid out of the estate. The plaintiffs' costs, calculated on the ordinary basis, up to and including the conclusion of a two-day hearing were estimated to be $141,600. The defendants' costs on the indemnity basis were estimated to be $163,460. Therefore, should all parties costs be paid out of the estate on the usual basis, the net residue of the estate would be $1, 291, 581.40.
3. If all legacies are paid to Cheryl's four grandchildren ($16,000) and Deborah's five grandchildren ($25,000), there would be $1,250,581.40 in residue.
4. It was also accepted by Mr Hill that should the Court decide to order provision for both Adam and Alicia in some form, the size of the estate meant it may still be possible to provide for all remaining beneficiaries to receive their entitlements in accordance with Cheryl's will. Nevertheless, Mr Hill still pressed for the orders referred to in [10] above due to what he described as the defendants' 'disentitling conduct'.

Alicia

1. Alicia is now 38 years old and since March 2022 has been engaged to Mr Chris Jones, now aged 41. Together they have one child, a daughter now aged two. The family live in a property at Bulli worth $1,600,000.00 and which is encumbered by a mortgage of $824,674.61.
2. Alicia is employed as a manager at a medical device company. Her net monthly income is $7,897.26. Chris is employed by Shoalhaven City Council and has a net monthly income of $5,236.66.
3. Alicia and Chris' monthly expenses are $14,202.56, which exceeds their monthly income by approximately $1,000. Their most significant expenses are their mortgage repayments totalling $5,215.00 per month and childcare expenses of $3,380 per month.
4. Alicia and Chris have savings of just over $10,000 and own shares worth $18, 936. Their combined superannuation is $284,369. They owe $20,000 to Chris' parents, who provided those funds to help Alicia and Chris to raise their daughter. During her examination in chief, Alicia also accepted that Chris had received shares as a gift from his parents which were valued at $14,000.
5. Being aged 38, and without any evidence to the contrary, it was accepted that Alicia has many years of employment ahead of her and has no other physical ailments which might inhibit her ability to work. Alicia was receiving treatment from a psychologist but has since discontinued these sessions due to their cost. She would like to recommence these sessions. Chris receives treatment for psoriatic arthritis which is monitored by several specialists, and also currently receives treatment from a psychologist.
6. It was submitted by Mr Chapple SC that after reducing her mortgage, Alicia's primary financial need is to reduce mould contamination in her home (at an approximate cost of $29,167), provide ventilation in her home ($2,970-$20,000) and install sub-soil drainage to prevent further mould growth and prevent the likelihood of landslides (a temporary solution costing $9,510.28 and a permanent solution costing in excess of $100,000). Alicia would also like to repair damage in their backyard caused by a minor landslide and renovate the backyard to make it more child friendly (approx. $50,000-$200,000).

Adam

1. Adam is now 40 years old. He joined the Australian Army in 2003 at the age of 18. He served until 1 August 2023 when he was medically discharged due to injuries suffered on deployment. During his time in the army Adam was posted to various locations around Australia and served in Iraq and Afghanistan.
2. On 15 March 2008, Adam married his wife Ms Sonia Leverton. Together they have three children: sons aged 7 and 9 years old, and a 2 year old daughter.
3. After being medically discharged from the army, Adam receives a disability pension. His net monthly income is $4,870.14. Sonia works part-time as an early childhood educator. Her net monthly income is $53.10 with the balance of her income being paid directly to her employer to cover their daughter's daycare costs. Sonia also receives a pension from MilitarySuper of net $1,437.21 per fortnight. Her total net monthly income (including her pension) is $2,927.52. Adam and Sonia's combined monthly expenses are $10,728.42 which exceeds their combined income by $2,930 per month.
4. Adam and Sonia also have savings of $337,443.40 (largely comprised of a compensation payout which Sonia received due to injuries sustained serving in the army) and a combined superannuation of $243,459.54. Together they own a property in Queensland worth approximately $910,000 which is encumbered by a mortgage of $252,166.95 (requiring monthly repayments of $2,307.01).
5. As a result of his service in the army, Adam has a number of serious physical and mental health conditions. In October 2023, Adam was certified as being unable to work because of these injuries. In April 2024, the same doctor recorded that Adam may be able to return to full time work from January 2024 but that is subject to the success of rehabilitation and psychological support programs. Adam is currently on a waitlist for psychological treatment.
6. Adam acknowledges that if and when he is cleared to return to work he may need to undertake further studies to obtain employment. He is enrolled in a phlebotomy course at TAFE in Brisbane which is due to commence in 2025. Sonia also suffered injuries from her service in the army. She sees a psychiatrist once a month which is paid for by the Department of Veterans Affairs. There is no evidence to suggest she will not be able to continue her employment in a part-time or full-time capacity in the future.
7. Mr Chapple SC submitted that Adam and Sonia required further provision to reduce their mortgage, which was noted as their most pressing financial need. They also require funds to repair their home (approximately $10,000) and for Adam's future studies.

Deborah

1. Ms Deborah Ola Bosden, who is 63 years old, is Cheryl's younger sister. Deborah is entitled to the residue of Cheryl's estate (see [6] above). Deborah accepts in her affidavit in reply dated 15 February 2024 that she was surprised to hear she was the residuary beneficiary of Cheryl's estate.
2. Deborah is now divorced and has two children from her previous marriage. Deborah received $90,000 from her divorce settlement but had to pay a taxation debt from her marriage leaving her with $72,000.00. She provided her eldest daughter, Rebecca, $70,000.00 from her property settlement to help her buy a home. Deborah's father (Rebecca's grandfather) also provided Rebecca with a $90,000 gift to help Rebecca buy a home. This gift was in lieu of Deborah receiving any inheritance from him and she did not receive anything in his will.
3. Deborah works 50 hours per fortnight as a Disability Support Worker on a contract basis for a company based in Cooma. She earns $1,914.15 per fortnight before tax. She also earns additional income if she works outside normal hours and receives a mileage allowance for business use of her car, however her overtime pay is unpredictable. In the financial year ending on 30 June 2024, this mileage allowance amounted to $9,308.00. Her usual fortnightly living expenses amount to $3,080.31. There is a shortfall of approximately $1,100.00 between her fortnightly income and expenses. She takes extra work shifts when her employer makes them available to her.
4. Deborah rents a two-bedroom unit in Jindabyne from her daughter, Rebecca. Deborah lives in that property with another daughter and her granddaughter. The property was purchased by Rebecca using the $70,000 provided by her mother (referred to at [33] above). As part of her usual fortnightly living expenses (referred to at [34] above), Deborah pays $700.00 in rent per fortnight. It was accepted during cross-examination that she is still paying rent notwithstanding that she provided Rebecca with $70,000 for the property and Rebecca had the benefit of $90,000 from the estate of Deborah's father. In response to a question put to her by Mr Chapple SC, Deborah suggested that if the property was to be sold she would expect to receive $160,000 back from Rebecca, although this may or may not be Rebecca's position (see [40] below).
5. Deborah has savings of $23,833.82 and superannuation of $53,375.91. Her assets include a car worth approximately $10,500.00 and second-hand furniture with an estimated value between $1,000 - $2,000.
6. It was submitted by Mr Hill that Deborah's greatest financial need is for her to buy a home and be financially secure. Deborah would like to buy a three-bedroom home in Jindabyne to stay close to her daughters who live in the area and enable them to stay over if required. She deposed in her affidavits that without receiving the residue of Cheryl's estate she will have to work well into her sixties to pay her rent and support herself.
7. In the course of his cross-examination, Mr Chapple SC showed Deborah various Domain advertisements for properties in the Jindabyne area. Deborah said that it was her wish to have a house with a backyard, no stairs and three rooms so her daughter can live with her. Deborah accepted that a three-bedroom property she was shown by Mr Chapple SC in Cooma on ground level and with a backyard would be suitable. That property was listed for sale for $540,000.

Rebecca

1. Ms Rebecca McFarland is Deborah's eldest daughter and Cheryl's niece. Pursuant to clause 6.2 of the will, Rebecca will receive $5,000 from Cheryl's estate. Rebecca has three children with her partner James. She also suffers from a serious illness which she has had since she was 19 years old. Rebecca's circumstances are not in issue in this case.
2. During cross-examination, Mr Chapple SC asked Rebecca to explain what she understood the $70,000 her mother provided her would be used for. Rebecca said that the money was for the purpose of helping her family (that is Rebecca, her husband, and children) to get ahead. At the time she received the money she already owned the unit that her mother lives in and was in the process of building another property. Rebecca accepted that she charges her mother rent approximate to the amount due under her mortgage repayments. Rebecca also said that her sister moved into the unit after a relationship break down, but she is unaware if she makes any contributions to the rental payments. Rebecca accepted that she has not had a conversation with her mother about whether she is going to pay back the money that she has received from her mother and the money from her grandfather's estate.

Other beneficiaries

1. There was no evidence concerning the circumstances of Cheryl's grandchildren (Adam and Alicia's children).
2. There was also no evidence from any of Cheryl's great nieces and nephews (being Deborah's children) about their circumstances.

Adam and Alicia's relationship with Cheryl

1. Mr Hill submitted that Adam should not get any provision because he has not established any need that cannot be met out of his own resources, but accepted that Alicia has demonstrated some need. However, he submitted that due to their conduct towards Cheryl, Adam should not receive any provision and Alicia should only receive minimal provision. The consideration of this issue requires the Court to set out a history of their relationship and the evidence on that topic by other witnesses.

Adam and Cheryl's relationship

1. The Court is well satisfied that Cheryl was very emotionally volatile. To the inexpert eye this appears to have been verging on some form of psychological disorder, but the evidence does not permit a finding to that effect and none is made.
2. In his affidavit sworn 27 July 2023, Adam deposed that he loved his mother but described her behaviour as frequently erratic and violent. His affidavit records that when he was approximately 10 or 11 years old Cheryl stomped on his head after he had expressed disappointment about not being allowed to attend a local carnival.
3. He also deposed that Cheryl was frequently verbally or physically abusive towards him and Alicia. His affidavit provides several examples of what Cheryl would say to them during her outbursts including "I wish you would all just fuck off", blaming outbursts on the children by saying "it's all your fault" and saying in a derogatory tone "you are all just like your father." These examples were corroborated during the cross-examination of Ms Tracey Sinclair, a friend of Cheryl's. Adam also deposed that after Cheryl had an outburst, her demeanour would sometimes change suddenly and she would become caring and affectionate towards him.
4. Sometime around 1996, aged 11, Adam moved to Queensland to live with his paternal grandmother Ms Joyce Leverton. Adam says he was later told that his parents relocated Adam to Queensland because he was experiencing severe bullying at school. During that period Adam spoke with his parents on the telephone about once a week and exchanged letters.
5. In 1997, aged 12, Adam moved back from Queensland to live with his parents and Alicia in Port Macquarie. Adam deposes that upon his return the deceased was initially less verbally and physically abusive towards him and was dedicated to supporting his junior representative rugby league pursuits. However, he also said that his mother continued to have angry outbursts at random.
6. In February 2023, aged 18, Adam joined the army. He says that his mother supported him during his training and encouraged him to remain resilient when the training became difficult. After completing his Initial Deployment Training, Adam was posted to Townsville for three years (between 2004 to early 2008). During this period, the distance between Townsville and Port Macquarie meant that he was only able to visit his family approximately twice a year for about two weeks at a time. Adam recalls these visits as a positive experience. Adam otherwise spoke to his mother and father on the phone about once a fortnight. He recalls these phone calls were also positive.
7. On 31 December 2005, Adam proposed to Sonia. Adam recalls that Cheryl responded to the news by expressing disappointment that Sonia's father had been informed of the news before her. Adam expressed disappointment at Cheryl's reaction.
8. From 2005 until his father's death in 2014, Adam recalls speaking to both of his parents approximately once per fortnight, unless he was on a field exercise (which lasted up to three months) or he had been deployed overseas (which lasted six to eight months). Between approximately August 2007 and March 2008, Adam was deployed to Afghanistan. While Adam had two-weeks pre-embarkation leave prior to leaving for Afghanistan, he says he spent those two weeks travelling to Sydney to obtain a passport which he needed to obtain prior to deployment.
9. He also says that he travelled with Sonia to Port Macquarie to visit his parents at least once each year, typically over the Christmas period. During cross-examination he stated that he and Sonia visited Sonia's mother once or twice a year and they visited Adam's family and Cheryl twice a year. Adam and Sonia married in March 2008 and all family members attended their wedding.
10. At the time of his parents' separation in 2013, Adam recalls that he did not know that Cheryl was intending to separate from Phillip. He was only informed of the separation when his father told him that Cheryl was moving out of the family home. Adam recalls continuing conversations with both parents at this time and that he did not discuss their separation with either of them.
11. The same year, Adam purchased a home with Sonia and both Cheryl and Sonia's mother travelled to Brisbane to visit and stayed in their new home.
12. In or about 2014, Adam recalls property settlement proceedings commencing between Cheryl and Phillip but cannot recall who commenced the proceedings. On or about 4 September 2014, Adam recalls his father informing him that he was updating his will. As noted at [3] above, Phillip passed away unexpectedly from a heart attack in September 2014.
13. After his father's death, Adam returned to Port Macquarie to be with his family and assist with his father's funeral arrangements. He recalls Cheryl sorting through his father's possessions and disposing of things she didn't want. This upset Adam because he said he was not consulted about what items he may like to keep. Adam also says that Cheryl provided minimal to support to Alicia and himself following their father's death.
14. Adam also said he tried to make attempts to repair his relationship with Cheryl after his father's death but every time he mentioned his father's estate, Cheryl would become angry and remind him that 'everything belongs to me'. During cross-examination Adam said the 'problem' he was trying to repair in their relationship was Cheryl's apparent focus on obtaining Phillip's property.
15. In December 2014, Cheryl informed Adam that she was in Brisbane and would like to meet his eldest son. Adam deposes that he arranged for Cheryl to meet his son and she took a photo with him. During cross-examination Adam accepted that this visit was short and lasted approximately 5 minutes.
16. In 2015, family provision proceedings were commenced by Adam and Alicia against their mother as executor of their father's estate. In his reply affidavit, Adam acknowledged that after the mediation Alicia and Adam's barrister commented in the doorway that he expected that Alica and Adam would not want anything to do with Cheryl and they both agreed. He says he did not know that Cheryl's barrister overheard the comments and had he known, he would have ensured Cheryl knew that he intended to continue having a relationship with her. During cross-examination Adam said that this was 'a moment that I really regret, especially at that time' (Tcpt, 30 September 2024, p. 42(10)).
17. After the family provision proceedings, Adam admitted that he did not speak to Cheryl or visit her in person as frequently as he had previously. Adam explained this was because it was difficult for him to see Cheryl due to where he was posted with the army, COVID-19 restrictions and that he only had minimal leave which he used to spend time with Sonia and his children.
18. It was put to Adam during cross-examination that given he was living in Brisbane in 2016, he could have visited his mother prior to being posted to Albury-Wodonga in 2017. Adam says that he felt he would not have been welcomed by Cheryl in 2017 given the state of the relationship at the end of 2016 after the family provision proceedings.
19. In 2018, Adam was deployed to Iraq for six months. Adam says he was not able to see any of his family during this time and did not have access to his mobile phone. In 2019, Adam was stationed in Albury/Wodonga for two years until 2021. Adam says that these commitments meant he could not travel to New South Wales.
20. Between 2015 and Cheryl's death in August 2022, Adam says Cheryl only travelled to Brisbane to visit him once in March 2020. Adam says he did not see Cheryl on this occasion as he was scheduled to have shoulder surgery in Melbourne, was only informed of her incoming visit the week before and could not reschedule the surgery.
21. Between May 2018 and July 2022, Adam sent several text messages to Cheryl. Adam does not have access to any text messages prior to May 2018. On 6 May 2018 Cheryl sent Adam a text saying "Ok pop not well love you 2 [sic]?". Adam responded by sending some photos of his two sons. On 13 December 2018, Adam sent a text message to Cheryl stating "Hey mum. Apologies for not contacting you sooner. I had my phone suspended whilst I was in Iraq and was only re-connected. I'm sorry to hear about pop, condolences to you and the family. May he rest easy. Love u."
22. There is evidence before the Court that Adam and Cheryl would share text messages on special occasions such as birthdays, Easter, and Christmas and Adam would periodically send photos of his children. Throughout 2019, many text conversations were instigated by Cheryl. Adam would often respond without any written message but would send photos of his children. Adam also says he spoke to Cheryl on the phone but recalls Cheryl often becoming angry and would yell at him for not visiting her.
23. On 11 May 2020, Adam sent the following text to Cheryl "Hey serious question. Do Alicia and I get any inheritance or not."
24. Cheryl responded: Yes when do I get 2 see my gread children and the greadchildren as well and when I die [sic] And did u get your father inheritance because Joyce told me I was not going to get the inheritance before Phil & I got marry [sic]
25. Adam responded… "Wow you seriously asked about that. No one asked about your inheritance from your dad."
26. On 21 May 2020 Cheryl texted Adam "Hi mate I hope your opp went ok love u xxx." Adam replied "Hey, op went really well. I spent the night in hospital and now back on base In the wards. Already started physio and pain levels are moderate."
27. On 8 June 2020, Adam sent Cheryl a text thanking her for the card for his younger son's birthday and the $10 for both sons. Cheryl responded "Good morning Happy Birthday little man love Nan Chez & Great Nan Day xxxxxx" and "They are beautiful and thank u what kind of cake did he have?"
28. On 11 July 2022, Adam sent a message to Cheryl informing her that his daughter had been born the previous evening.
29. During cross-examination, Adam said that it wasn't until he was informed by his aunt Deborah that he became aware of how sick his mother was a few months before Cheryl's death in August 2022. Adam admits that he did not visit Cheryl during this period but accepts in hindsight that he should have. Adam also accepts that he could have asked for compassionate leave to visit Cheryl. Adam says that he was not informed by Agnes that Cheryl had been admitted to hospital prior to her death and was not informed of her death until Alicia told him. Adam attended Cheryl's funeral.

Alicia and Cheryl's relationship

1. In her affidavit sworn 26 July 2023, Alicia deposed that she had a very close relationship with her mother as a child given she was her only daughter. However, she recorded that her mother had a temper and suffered from mood swings and was frequently physically and occasionally verbally abusive towards Adam and herself.
2. Alicia recorded several instances from her early childhood in her affidavit where her mother would refer to Alicia as a "bitch" and would say "I fucking hate you". Some of these instances of verbal abuse were accompanied by physical abuse including her mother kicking and slapping her. Her affidavit also noted that after these outbursts, her mother would appear to become a different person and would act in a very kind and loving way to her.
3. Alicia deposes that Cheryl's behaviour continued to be erratic during her (Alicia's) teenage years. She says her mother frequently referred to her as a "spoilt bitch" and would have outbursts when something upset her. Again, Alicia notes there were periods where her mother was caring and affectionate towards her. She records that when she was in year 10 her mother took her to Melbourne for a weekend and bought her a formal dress.
4. In April 2008, when Alicia was 21 years old, she moved to London for two years. She records that she spoke to Cheryl on the phone at least twice a week and her mother visited her in London once in 2009 for two weeks. Alicia returned to Australia in April 2010 and stayed with her parents in her family home in Port Macquarie for one month before moving to Townsville for work and to live with friends she had met in London. Alicia describes her relationship with her mother as positive and believed that the distance helped to improve their relationship. When Alicia returned to Port Macquarie, the two of them went out for lunch together.
5. On 1 January 2013, Alicia was informed by her mother that she was separating from Phillip. Alicia says that she was not surprised to hear her parents were separating because, to her observation, their marriage had been unhappy for many years.
6. Alicia stated that her parents' divorce was a source of renewed tension between her and Cheryl. After an incident at a cousin's 21st birthday party in February 2013, Alicia deposes that she telephoned her mother and encouraged her to seek psychological help. Cheryl appeared to disregard Alicia's requests. After this conversation Alicia records that she did not speak to her mother until November 2013 and Cheryl made no attempts to contact Alicia.
7. On 29 November 2013, Cheryl sent Alicia a letter stating that she felt Alicia had not properly supported her following her separation with her father. A few weeks later, Alicia sent a long letter in reply detailing her concerns about her mother's behaviour throughout her life and her concerns about her mother's mental health. The letter included (emphases in original): … I have wanted to sit down with you for years, and tell you what I really thought. And you should actually talk about this with Nan as she was the one who planted the idea in my head years ago.. That she thinks you have Bi-polar. I have always thought there was something different with you.. and I agree with Nan, I think you have Bi-Polar. Or some type of mental illness … Do you remember kicking the absolute shit out of me? And I had bruises all up my leg! Do you remember when you and Adam got into an argument when he was about 11 or 12 years old and stomped on his head repeatedly? Do you remember when we were driving to Nans, and you went psycho at Adam and pulled the car over and started punching his door window, screaming at him to get out. Do you remember when we lived in Collarenebri and you and I got in to a little argument and you turned around and slapped me across the face so hard? … I have said to you millions of times, I know dad treated you like shit…Adam and I knew what was going on. You and Dad fought all the time. You were both as bad as one another. He put you down for not saying words correctly; he made you feel like shit. He was a very jealous man. I have said all of this to Dad and he knows this. But you weren't perfect either mum. Every single family holiday we ever had, you would ALWAYS go off your head about something. And when you go off your head mum you are so crazy. I have spoken to Nan about your behaviour for years… I have been concerned about you for years.. one day when Nan and I were talking, Nan said to me - "I think your mother has Bi-Polar" and I have been thinking about that and I totally agree with her. You have had such a shit life mum and I do feel sorry for you. But you need to take some responsibility for your actions. …. One minute being nice to me and the next you are going off your head, telling me you hate me and to get out of your fucking life. You have been like this all my life mum and I've had enough. I do not need to have my own mother tell me she hates me and to get out of her fucking life, I do not have to put up with your shit anymore. You chose to be like this mum, you can't even see what you have done. In your eyes you are never at fault, it is always everyone else, never your fault you always think you're the victim. Until you can finally admit that you have a problem, and you go and get some real help, I can't just deal with your mood swings. You have some real anger issues, and you need to see a psychiatrist, not just once mum, but you have years of shit you need to talk to them about. You would need on going visits to a psychiatrist."
8. After Cheryl phoned Alicia about her letter, the pair did not speak through to the end of 2013 and during 2014 except on special occasions such as birthdays and Christmas.
9. On 26 September 2014, Cheryl phoned Alicia to inform her that her father, Phillip, had died. The aftermath of her father's death was a clear source of tension between Cheryl and Alicia. Both Adam and Alicia believed that their father had made a new will which did not leave everything to their mother. Alicia was concerned that her mother and Agnes were disposing of her father's possessions before this alleged new will was found.
10. Mr Hill cross-examined Alicia as to what basis she had to believe her father had created another will. Alicia said that she and Adam had been personally told by Phillip that he had made a new will. She also stated that a family friend and her father's auntie also informed her that Phillip had made a second will.
11. Adam and Alicia commenced family provision proceedings against their mother as executor of their father's estate in late 2015. The proceedings settled by consent in April 2016. As part of these proceedings the parties attended a mediation. Alicia accepts that at the end of the mediation, their barrister said to Adam and Alicia in the doorway "so after this, she'll basically be dead to you right?" and that both agreed with that proposition. Alicia says that she did not know that their barrister relayed their comments to Cheryl's barrister, and she never intended for her mother to believe those comments came directly from Adam and herself. Alicia reiterates in her affidavit that her mother was not dead to her and that she never intended to have nothing further to do with her. During cross-examination said that this was an 'off-the-cuff remark' (Tcpt, 30 September 2024, p. 23(1)).
12. At some time in March 2016, Alicia attempted to reconcile with her mother. In response to Cheryl's texted reply "Sorry I'm working I think u said what you have 2 say I'm dead [sic]" Alicia sent the following text messages: Mum, we never said that. Obviously the lawyers say that as a scare tactic. Do you want to talk about things or not? No more games, no more he said, she said. I am reaching out to you, as your daughter asking if you want to talk about things. As a mother do you want to talk to your daughter? …. Also Mum, if I did say that, and you believe I said that.. And if it were true.. Why would I be messaging you now? Why would I have called you twice 2 weeks ago I am reaching out to you now asking you, do you want to sort this out or not?
13. Alicia and Chery did not speak for the remainder of 2016. However, on Christmas Day 2016 Alicia sent Cheryl a text message saying "Merry Christmas Mum! I hope your[sic] having a nice day with everyone. Hope to speak to you face to face in the new year." Cheryl replied on the same day "Mery xmas Alicia I hope had [sic] lovely xmas I do missu [sic] and love u so much xxxx."
14. Between 2017 and 2019 Cheryl and Alicia met with each other in person on approximately five occasions and spoke to each other on the phone approximately once or twice a month and exchanged text messages. For example, on 11 March 2017 Alicia sent Cheryl a text message which stated "Hi Mum, I was wondering if you would like to meet up soon and talk?" Cheryl responded with "sure".
15. On 23 March 2017, Alicia sent Cheryl a text stating "Hi Mum would you like to meet up on Saturday 8th April for a coffee?". Both Cheryl and Alicia then subsequently agreed to have lunch at The Entrance after Easter on Saturday 29 April 2017.
16. On 10 April 2017, Cheryl sent a Alicia a text message sating "Hi I hope you had are lovely day Happy Easter xxx [sic]". Alicia responded "Happy Easter Mum" which was punctuated by a 'blowing kisses' emoji.
17. On 25 April 2017, Cheryl texted Alicia "Hi I hope you had nice day were [sic] do u wont 2 meet on Saturday for lunch xxx." Alicia responded "Hey Mum, yeah had a nice ANZAC day. We went to the dawn service this morning. I thought we could meet at The Entrance lakehouse."
18. After the meeting at The Entrance on 29 April 2017, Cheryl texted Alicia "Hi I had are lovely day thank u I hope u got home safe love u xxcxxx" [sic]. Alicia responded "Hey Mum, I had a lovely time with you. Glad we met up!...."
19. On 14 May 2017, Alicia sent Cheryl a text message wishing her a happy Mother's Day. Cheryl replied on the same day with a message which stated "Thank u Adam text me 2 and sent me photo of [Adam's eldest son] it great of u And [sic] Adam 2 text for Mother Day xxx [sic]". On 2 June 2017 Alicia sent Cheryl a message asking if Cheryl was free to catch up for her birthday. The pair organised to meet on 24 June 2017.
20. On 15 June 2017, Cheryl messaged Alicia to inform that her maternal grandfather was ill. Alicia responded ' Hi Mum, that's not good, What's wrong? On 16 June 2017, Alicia sent a text to Alicia and wished her a happy 60th birthday.
21. There was evidence of extensive communications between Alisha and Cheryl between the end of 2017 and 2019. Both wished each other well on special occasions and corresponded about significant life updates including the success of Alicia and Chris's search for a house to purchase. For example, on 8 August 2019, Cheryl sent Alicia a text message to wish her a happy birthday. Alicia responded "Thanks Mum, love you xxxx." Cheryl then asked "How is the house hunting going xxx". Alicia responded "There hasn't been that much on the market. The real-estate was saying that around September it probably will pick up again. Hopefully something comes up soon. How have you been?" The pair then sought to organise a catch up.
22. On 15 August 2019, Cheryl sent Alicia a message saying "Hi I'm think of you love xxx." Alicia responded "Thanks Mum! Love you x" and also informed her that she had checked the mail that morning and received the card and money that Cheryl sent Alicia.
23. On 2 October 2019, Alicia sent Cheryl this text: Hi Mum Chris and I keep missing out on houses as prices have gone up where we are looking. I was hoping you could help us by letting us borrow $60,000 off you. We will pay you back as much as you want each week. To be honest I know this is not ideal, me asking you. but in reality you know if Dad were here I would've been able to ask him to help us and he would've been able to help. Chris parents have also given us some money to help.. but we are just always falling short. We have found a house and put in an offer but it's $60k short of what they want. Please think about it and let me know
24. Cheryl responded on 3 October 2019: OK can I have you Bank ACC & your BSB.
25. Alicia responded on the same day: Thank you very much Mum. Don't worry about transferring that money now. What we've done is put in another offer (above what we had) now (with the money from you) we could offer closer to what they were asking. Let's see if they accept and if they do, I'll let you know. I really appreciate you helping us. Xx
26. On 22 November 2019, Alicia informed Cheryl that she (Alicia) and Chris had purchased a property off market. On 25 December 2019, Alicia sent Cheryl a text wishing her a Merry Christmas.
27. Between 2020 and 2021, COVID-19 restrictions precluded Alicia from visiting Cheryl, but they continued to speak to each other on the phone once every two or three weeks and exchange telephone messages. For example, during April 2020, Alicia and Cheryl shared several messages about how Alicia was finding the process of moving into her new home. On 28 April 2020, Alicia sent Cheryl a text saying "Hey Mum, cause [sic] we've moved from an apartment to a house we need to get some furniture… would you be willing to help us out to buy some stuff?" On 29 April 2020, Cheryl asked Alicia for her bank account details so she could transfer her $2000.
28. On 8 May 2020, Alicia sent a text to Cheryl asking if she received a hamper she had bought her as a gift. Cheryl sent a photo to confirm receipt. Throughout the end of 2020 and the beginning of 2021 there was evidence of continued text communication between Cheryl and Alicia, consistent well wishes on special occasions and periodic mutual inquiries about the other's welfare.
29. On 1 June 2021, Cheryl informed Alicia via text that she had been diagnosed with breast cancer. Alicia responded by trying to call Cheryl and requesting she call back when she was free. Alicia deposes that her mother became less receptive to her phone calls during this period. On 2 June 2021, Alicia texted Cheryl, 'are you free today? Can I call you?'. Cheryl did not respond to this message. On 3 June 2021, Alicia texted Cheryl "Hey Mum, good luck today! I hope everything goes well. I'll be thinking of you. I'll call you tomorrow to see how you are. Love you." Cheryl did not respond to this message.
30. On 16 June 2021, Alicia wished her mother a happy birthday. Cheryl responded "I will thank you xxx". On the same day Alicia asked Cheryl if she received her medical results back. On 28 June 2021, Alicia sent Cheryl a text message: "Hey Mum, good luck tomorrow! I'll be thinking of you. It's good they got it early. Take care and I'll call you on the weekend to see how you are going. Love you x"
31. After Cheryl underwent cancer surgery in July 2021, Alicia recalls sending her mother flowers. On 1 July 2021, Cheryl sent Alicia a text saying "Hi thank you for the beautiful flowers they are lovely I'm ok but tied [sic] going back 2 bed." On 13 July 2021, Cheryl sent Alicia her medical reports and also sent a photo of the flowers Alicia had sent her the week before.
32. There was continued intermittent text message correspondence between Alicia and Cheryl between July and September 2021. On 21 November 2021, Alicia sent a text message to Cheryl which stated "Hey Mum, how are you going? Xx'. On 22 November Cheryl replied "Yes I'm great thank for asking" [sic].
33. On the same day Alicia sent the following text message: Do you not want me to contact you? Every time I message you just give short answers and don't want to talk. When I call you, you don't answer If you don't want to speak to me just let me know and I'll leave you alone. Cheryl responded: Your [sic] the one who don't want 2take [sic] 2me[sic] what it been what 5 month sink u got in touch with me I was in the shower [sic]. Alicia responded: When you told me you had cancer I called you a couple of times and you didn't answer. When you finally did answer you just kept telling me not to worry about it and wanted to rush me off the phone and not actually talk. It hasn't been 5 months since I've been in touch. Scroll up through your messages from me. I was contacting you in September which was 2 months ago and again all I got was short answers and no conversation. I'm trying to have some type of relationship with you mum. Yes there are issues and one day I hope we can sit down as adults and talk about things and finally move on. Yes it's going to take time… yes there is a lot of hurt on both sides. Yes we both have to work on it and it's not going to be easy. But if you don't want that that is your decision
34. Cheryl then responded that she did want a relationship with Alicia: "Yes I no [sic] it going to 2 take time but it been 7 years I'm going ok I go back 2 work on Monday 29/11 we have much 2 say I do won't [sic] are [sic] relationship with u 2 xx [sic]."
35. In March 2022, Chris proposed to Alicia. Alicia immediately informed her mother of the news by telephone on 13 March 2022. They also shared the following text conversation: Cheryl: I'm sooo happy for u & Chris thank u very much for letting me no [sic] (three love heart emojis) Alicia: "Of course I would let you know, you are my mum. We haven't told anyone about the baby except for Chris's parents and we only told them today as well. I'm only 6 weeks so still very early. I go for a scan in 2 week, so I'll let you know how I go (three blow kisses emojis)].
36. Alicia deposes that she continued to keep her mother informed about her pregnancy. For example, on 21 March 2022, Alicia shared ultrasound scans of the baby with her mother. On 7 June 2021, this text message exchange occurred: Cheryl: What can I give u for the baby room. Alicia: We have a cot… Chris's parents are buying us a pram… It think we just need a changing table and car seat. They're the main things. Cheryl: I will get that for u I will sent u money in your acc just let me [know] how much Alicia: The changing table or the car seat? xx Cheryl: Both Alicia: Oh great! Thanks mum. I'll let you know once we've picked everything. xx Cheryl: That ok I won't 2 help u with the baby I'm for u if won't me 2 [sic]" Alicia: Thank you (two blowing kisses emojis)
37. During her mother's cancer treatment, Alicia deposed that she made several attempts to visit her mother. For example, she said that her mother told her that she could not visit as she was undergoing radiation treatment and the doctor said it was too risky for Alicia to visit given she was pregnant. On another occasion, she said that it was too risky for Alicia to visit due to the number of COVID cases at the time and Cheryl's immune system being so low. Alicia says she respected her mother's decision and felt she did not need to visit her in person at that time given they were in regular telephone and text messaging contact.
38. Mr Hill cross-examined Alicia about why she did not immediately visit Cheryl after her second cancer diagnosis in June 2022 especially since her uncle, Alan and her cousins Aaron Wiegold and Skye Reed had spoken to her about the seriousness of the new diagnosis. Alicia said that her mother had provided a more positive picture of her current welfare and that Cheryl had told Alicia not to visit her because the doctor said that it was too dangerous for Alicia to attend while she was pregnant and Cheryl was undertaking radiation therapy.
39. On 5 July 2022, Alicia texted Cheryl that "I'm going to have my baby shower September 17th, will you be able to come? You can stay at my house." Cheryl responded 'I hope I can come for get Alicia Nan come with Nan would love 2 come 2 any I live it up 2 u xxx [sic].
40. On 10 July 2022, Alicia texted Cheryl "Hey Mum, I was calling to see how you are going. I was at the airport I flew to Singapore today just landed a couple hours ago. I'll call you once I am back. Let me know when your next specialist appointment is so I can take time off and come with you. Xx." On 28 July 2022, Alica texted Cheryl "Good luck today mum with the injection. I hope it doesn't make you feel sick." On 31 July 2022 Cheryl responded "everything went ok not sick just tied [sic] I gave my self the needle it was ok I ask the Doctor if you can come up but answer no it 2 Ricky xxxxxx [sic]".
41. On 13 August 2022, Alicia sent Cheryl a text saying "Hey Mum is everything ok" to which Cheryl said she would respond tomorrow. Alicia responded with a message which said "…. I just want you to know, that I do want to help. I want you to survive and fight this. I want you to be here when my baby arrives and I do you want you to be a part of it's life."
42. On 17 August 2022, her aunt Rebecca called Alicia and informed her that she (aunt Rebecca) and Agnes had taken Cheryl to the hospital because she was not well, and the nurses had informed them that Cheryl might not make it through the night. Alicia deposed that she and Chris immediately drove from Bulli to Lake Macquarie Private Hospital and arrived at 11:30pm. Alicia was at her bedside until Cheryl died.
43. After Cheryl's death, Alicia deposes that she had conversations with her grandmother who informed her that Cheryl purportedly did not want Alicia or Adam at her funeral. She also deposes that she and Adam were never mentioned at their mother's funeral except during Cheryl's eulogy by her friend Ms Tracey Sinclair who referred to the children in her eulogy as follows: … "Years later the kids were young adults and left the nest to start their journeys. These were sad days for Cheryl as her kids were her whole life, her world and her biggest achievement. …" … "…Sadly, with the passing of their father, Cheryl's heart was again broken, as she was alienated by her children, with her not permitted to see her grandchildren at all. Sadly, her broken heart was just the start of her body failing her, with cancer taking our Cheryl way too soon.
44. On 20 July 2022, Alicia sent a handwritten letter to her grandmother asking her to stop telling lies about Adam and Alicia to the rest of the family and to let there be peace.

Evidence from other witnesses

1. Several other family members and friends also gave evidence about their observations of the plaintiffs' relationship with Cheryl.
2. Ms Julianne Wiegold is Cheryl's sister-in-law and married to Cheryl's younger brother, Mr Stanley Wiegold. Julianne was called in the plaintiffs' case but was not required for cross-examination. Julianne deposed in her affidavit that she observed Cheryl verbally and physically abusing her children from time to time. She specifically recalled that Cheryl would say to Alicia "You're a little bitch" and would refer to Adam as a "little shit" or a "shit of a kid". Julianne also deposed that in 2019 Alicia confided to her that she was communicating with Cheryl again but that Cheryl told her she didn't want Agnes finding out otherwise she would try and stop her from communicating with her.
3. Stanley, Cheryl's brother, also deposed an affidavit in the plaintiffs' case but was not called for cross-examination. He provided unchallenged evidence that when he visited Cheryl and her family, he heard Cheryl call Alicia "a fucking little bitch" and Adam a "fucking bastard". He also deposes that he saw her use violence against her children.
4. Deborah also provided evidence in the proceedings about Cheryl's relationship with Adam and Alicia and with her. In her 6 November 2023 affidavit, Deborah acknowledged that she had her differences with Cheryl from time to time and they would sometimes not speak until matters were resolved. She also deposed that Cheryl told her that she was deeply hurt by Adam and Alicia saying that Cheryl was dead to them. However, Deborah accepted during cross-examination that Cheryl did not tell her that she had met Alicia in person at The Entrance in 2017 nor did Cheryl inform her (Deborah) that she had exchanged text messages and phone calls with Adam.
5. In her affidavit in reply, Deborah deposed that two days after Cheryl's funeral she received a phone call from Alicia while she was at Agnes' house in Dora Creek asking if she and Adam were in Cheryl's will and if they could come and take what they wanted out of her house.
6. Deborah also accepted during cross-examination that Cheryl was someone who was subject to mood swings, had a quick temper and struggled to regulate her emotions due to her struggles to articulate her thoughts and feelings. Deborah also proffered evidence that she also had a conversation with Alicia about Cheryl's mood swings and agreed that Cheryl would have benefitted from counselling to help her with past trauma.
7. Similar evidence was also provided by Mr Arthur Smith, a close friend of Cheryl. Arthur said that as their friendship developed, they would talk about their family lives. Cheryl informed Arthur that she had two grandchildren but only had contact with her children by phone or text and said that 'my kids don't allow me to see my grandchildren.' Arthur says Cheryl would become emotional when recording these facts.
8. Cheryl's friend Tracey also gave evidence in the proceedings and was cross-examined by Mr Chapple SC. Tracey gave evidence that Cheryl 'went through hell with Phil and her beloved children' and was subject to verbal, mental and financial abuse from Phil and verbal and mental abuse from Adam and Alicia. She also deposed that Cheryl told her that her health was being severely impacted by not being able to see her grandchildren and described her children as only ever caring about money.
9. During cross-examination, Tracey accepted that over the years she had seen Cheryl, 'when pushed to her limit', threaten to kick the children out of the house, say "I wish you would all just fuck off", blame the causes of her angry outbursts on her children and say in a derogatory tone "you are just like your father." Tracey said that Cheryl would be pushed to her limits by the children ignoring her instructions or requests and Phil making demeaning remarks to her.
10. Tracey deposed that Cheryl told her that "I was invited to Alicia's baby shower, but Alicia said 'only if you stay for a short time and you can't say at my house overnight.' I won't go as Alicia thinks I'll be an embarrassment in front of her new family and friends, it's not worth the grief, she only wants money anyway, she's asked me to pay for nursery set up." This evidence is contradicted by the text messages set out above and demonstrates that people do not always tell the truth to their friends.
11. Tracey also deposed that she was neither aware nor personally witnessed Cheryl ever physically abuse her children. Her evidence was that Cheryl was frustrated by what she sensed was her children becoming more like their father through their increased use of demeaning or derogatory 'one liners' towards her. Tracey did say that she recalled Cheryl calling Alicia "A fucking little bitch". She says that her outbursts were caused by her children causing Cheryl to reach 'breaking point.'
12. Tracey also provided evidence that she recalls Cheryl mentioning that Alicia had sent her flowers after her surgery to remove her breast cancer in July 2021 (see [103] above). She recalled commenting to Cheryl that "Alicia may be feeling a bit guilty, or caring?" and Cheryl replying "Who cares they'll be going in the bin". However, whatever Cheryl may have told Tracey, the photo Cheryl sent Tracey one week later (see [103] above) demonstrates that they did not "go into the bin".
13. According to Tracey, it was only once Cheryl was diagnosed with 'both cancers' that Cheryl informed her "Alicia tried to make contact and reach out as there might be money involved." She says she witnessed Cheryl decline or ignore calls from Alicia on at least three or four occasions.
14. Tracey deposed that Cheryl had told her that she did not want Adam and Alicia to be told of her death, attend her funeral or have photos of them at her funeral. Contrary to Alicia's evidence (see [115] above), Tracey denies that her eulogy at Cheryl's funeral only mentioned Adam and Alicia when she allegedly said "Following Phil's death, Cheryl's children alienated her, which kept her from her grandchildren. That's why we are here today." The eulogy in evidence before the Court does reflect that Tracey referred to Adam and Alicia as Cheryl's proudest achievement.
15. Agnes' evidence is that Cheryl's relationship with Adam and Alicia ended on the day of the mediation after hearing that she was 'dead' to her children. She deposed that to the best of her knowledge there was no physical contact from Adam or Alicia, just the occasional text message. During cross-examination, Agnes accepted she felt that Alicia and Adam were wrong in challenging their father's will and that from this point she did not want to have a relationship with Adam and Alicia. She says that she blames Alicia and Adam for Cheryl's death on the basis that they broke her heart when they challenged their father's will.
16. Agnes also stated that she did not give any thought to allowing Adam and Alicia to take belongings from Cheryl's house because she believed that Cheryl had adopted a non-negotiable position that Adam and Alicia should not have anything. When asked by Mr Chapple SC if her belief that this position was non-negotiable was partially because she was upset with Adam and Alicia because they challenged their father's will, Agnes replied "No, because I [sic] upset their mother. She'd done nothing to them except break her heart." (Tcpt, 30 September 2024, p.53(9)-(10)).
17. It also became evident during cross-examination that Agnes was not completely aware of the extent of the contact that Cheryl had with Adam and Alicia after Phillip's death. Despite her affidavit stating that there was no physical contact from Alicia with Cheryl, Agnes accepted that they had lunch at The Entrance in April 2017, in Terrigal in August 2017 and had lunch in November 2017. Agnes also accepted that she was not aware that Cheryl and Alicia spoke on the phone on a few occasions each month. In relation to Cheryl's contact with Adam, Agnes was aware that they exchanged text messages but said that Cheryl never informed her they spoke on the telephone
18. At [40] of her affidavit affirmed on 24 January 2024, Agnes deposed that after Alicia had expressed concerns to her about her mother's behaviour she said to Alicia "Your mother is going through change of life, and you should speak to your father about this. Perhaps she should see a doctor. Your mother may have bipolar, I don't know, but speak to your father." During cross-examination, Agnes resiled from this evidence. She said that she did not recall volunteering that information and, sitting in the witness box, she did not believe that Cheryl was bipolar. To the extent it is necessary, the Court prefers the evidence in Agnes' affidavit.

Legal principles

1. There was no dispute about the applicable legal principles.
2. In Basset v Bassett [2021] NSWCA 320 at [78]-[88] (Bell P; Leeming and Payne JJA), the New South Wales Court of Appeal summarised the discretionary exercise which the Court must undertake pursuant to ss 59(1)(c) and 60(2) of the Act which I respectfully adopt and apply: Applicable legal principles 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] NSWStRp 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."
3. As noted at [11], one of the key issues in this case is whether, and if so to what extent, the nature of the relationship Adam and Alicia had with their mother should be a factor against the Court making orders for provision in their favour. Historically, the Court was required to consider whether 'the character or conduct' of the applicant 'is such as to disentitle him to the benefit of such an order (emphasis added) (See s 3(2) Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) (now repealed). Section 60(2)(m) of the Act now stipulates that the Court may consider 'the character and conduct of the applicant before and after the date of the death of the deceased person'.
4. As was noted by Lindsay J in Estate MPS, deceased [2017] NSWSC 482 at [49] "Section 60(2)(m) of the Succession Act has a broader, more flexible focus than section 3(2) of the 1916 Act. It does not employ the word "disentitling". It appears in the context of legislation that requires the Court to consider the totality of a relationship." The significance of this is that the Act does not automatically preclude the Court from providing provision to an applicant merely because there is evidence of a strained relationship. The plaintiff's conduct and the nature of the relationship between Cheryl and the plaintiff's (see s 60(2)(a) of the Act) are just two of a number of discretionary factors the Court may consider when undertaking the instinctive synthesis required to determine a family provision claim.
5. Cases which concern whether the relationship between adult children and a deceased testator should affect the amount (if any) provision should be provided have also frequently considered whether there was an 'estrangement' between the applicants and the deceased. In Rada v Smith [2024] NSWSC 273 at [26]-[28] I criticised the use of the term 'estrangement': 26 However, I do not wish to leave this topic without making a more general observation. In my view, "estrangement" should be banished from the family provision lexicon as some kind of freestanding, established consideration. It has come to be treated as though it appears as one of the matters specified in s 60(2) of the Act. 27 I respectfully add my voice to other judicial expressions of caution about the utility of the term. It assumes what it seeks to prove. It is a word already loaded with moral obloquy which risks diverting the Court and the parties into an ultimately fruitless attempt to assign blame for conduct which took place long ago, often in emotional circumstances, and in a context which is impossible to recreate years later in a way that is both fair and proportionate to its ultimate importance to the outcome of a given case. Obviously one of the fundamental difficulties with that task is the necessary unavailability of one of the protagonists to give evidence. 28 "Estrangement" should be replaced with the neutral expression "lack of contact". As such, it falls within at least sub-sections 60(2)(m) and (p) of the Act. So understood, it invites a factually more objective inquiry in the sense of ascertaining what contact there was or was not. To the extent that the reasons for the lack of contact need to be explored, the experience of the Court is that, generally, only the most egregious conduct on the part of either the deceased or the applicant will have any impact on the multifactorial discretionary exercise in which the Court is engaged. And only in the most extreme cases will it be decisive of the outcome. In the vast majority of cases it will have no impact because the Court understands that disagreements, moments of irritation, and words said in haste and repented at leisure are an ordinary incident of family life.
6. I respectfully adhere to that view. Nevertheless, authorities which have considered the impact of relationships between adult child plaintiffs and deceased testators on the amount of provision awarded commonly refer to the 'estrangement' between the parties. For example, in Burke v Burke [2015] NSWCA 195 at [88]-[93] Ward JA (Meagher and Emmett JJA agreeing) (emphasis added) outlined principles for how trial judges should consider any estrangement between parties amongst other discretionary factors in family provision cases: 88 His Honour did not err in rejecting the submission that it would only be the most egregious conduct of a child of the deceased that would deprive even an adult child of a right to have his or her needs taken into account by Court and to have an appropriate decision made in his or her favour where it is established that he or she is impecunious or of very limited financial means. True it is that in Hughes v National Trustees, Executors and Agency Co Australasia Ltd [1979] HCA 2; (1978-1979) 143 CLR 134 it was said that the stronger the applicant's case for relief the more reprehensible must have been his conduct in order to disentitle him to the benefit of any provision. However, the authorities do not, in my opinion, stand for the proposition that in all cases where estrangement is not the product of callousness or hostility there is a prima facie entitlement to provision. 89 In Palmer v Dolman (at [110]), Tobias JA was of the opinion that "the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the [now superseded Family Provision] Act. Nevertheless, it does not follow from that that there is a prima facie entitlement to provision in circumstances where there is financial need on the part of an estranged adult child. 90 In Ford v Simes, Bergin CJ in Eq said (at [71]-[72]): It is one thing to make provision for a child, even an adult, where the Court is able to better balance the obligations of the testator with the adequacy of the provision made by the testator. However in my view it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility. (my emphasis) It is obvious that if the estrangement from the testator is explicable, as was the case in the authorities referred to above, a claimant may still achieve an order for provision under the Act. However there will be cases in which the estrangement is such that a testator is entitled to make no provision for an estranged child. This is one of them. The deceased spent the last 14 years of his life without any assistance from the appellant; without any communication (except the abusive encounter) from the appellant; and without the benefit of the love from a child whom he had nurtured and financially assisted during his formative years. 91 The words italicised above do not support Terry's contention that, almost as of right, provision should be made in the absence of hostility or callousness. Her Honour was there contemplating that estrangement was a factor that would appropriately be taken into account; that it would not necessarily preclude the establishment of a claim for provision; and that circumstances of hostility or callousness were ones in which it might be particularly appropriate for a testator to choose not to make provision for an estranged adult child. But her Honour did not suggest that callousness and hostility are the only circumstances in which the community might reasonably consider it not inappropriate for there to be no provision made for an estranged adult child even though that child was in straitened financial circumstances. 92 In Keep v Bourke, Barrett JA (at [37]) made clear that estrangement did not enjoy the status of a determinative consideration. There, the testator was the instigator of the separation. The fact that the daughter (who had married against her parents' wishes) did not attempt reconciliation was treated by the primary judge as not barring a claim for provision though it reduced her claim on the testator's bounty. Barrett JA considered that his Honour's decision should be upheld, on the basis that his Honour had addressed all relevant matters going to jurisdiction and an assessment was made by way of appropriate "multi-faceted evaluative judgment" taking those matters into account. 93 What these observations demonstrate is that it is for the primary judge to evaluate all the relevant circumstances, including, where there has been a period of estrangement, the circumstances of that estrangement and whether there has been any attempt at reconciliation; and that there may be no one right answer: reasonable minds may differ.
7. The law in relation to estrangement in family provision claims was also comprehensively considered by Hallen J in Underwood v Gaudron [2014] NSWSC 1055 at [230]-[244] (upheld in the Court of Appeal in Underwood v Gaudron (2015) 324 ALR 641) 230 On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]: "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge." 231 Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: "... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act." (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102]. 232 In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows: "As explained by the primary judge, the term 'estrangement', which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience." 233 His Honour added: "The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. ... Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of 'love and support' from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. ... Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant." 234 Since the Court of Appeal judgment, there appears to have developed, in cases under the Act, a view within the profession that the decision of the majority in Andrew v Andrew effectively changes the law in relation to the court's approach to determining cases in circumstances where there has been an estrangement. I note, for example, in Burke v Burke [2014] NSWSC 1015, that Rein J identified, at [35], a submission made on behalf of the Plaintiff to the effect that: "it would be only the most egregious conduct of a child of the deceased (such as murder) that would deprive even an adult child of a right to have his or her needs taken into account by a Court and to have an appropriate provision made in his or her favour where it is established that he or she is impecunious or of very limited financial means". 235 As Rein J did in that case, I reject such a view if it exists. There are simply too many cases of high authority (to some of which I have previously referred) that identify the importance of freedom of testation and the entitlement of a testator or testatrix , in certain circumstances, to make no provision for his, or her, child. Furthermore, as previously stated, the court is "given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all": Pontifical Society for the Propagation of the Faith v Scales, at 19. 236 I note, also in this regard, what Pembroke J wrote in Madden-Smith v Madden at [30] - [34]. 237 I do not consider that Allsop P, in Andrew v Andrew, is to be taken as rejecting the notion that a testator is free to make no provision for an adult child. His Honour acknowledged, at [17], that such a notion existed: "Of course, as Dixon CJ said in Pontifical Society v Scales, at 19, and as Bergin CJ in Eq said in Ford v Simes, at [71], there may well be cases where a testator is entirely justified in making no provision for an adult child." 238 At [19], the learned President added: "That is not to say that in conducting the assessments in ss 59(1) and (2) estrangement, the reasons therefor, an absence of love, hostility, resentment, and carelessness of the hopes and wishes of another are not all apposite matters for consideration. That enquiry should not, however, be structured or approached by reference to justification in order to displace a testamentary 'entitlement' or right in respect of an adult child." 239 Similarly, Barrett JA, at [95], pointed to Evans v Levy [2011] NSWCA 125, in which Young AJA wrote (with the concurrence of Campbell JA and Sackville AJA): "It was open to the primary judge to form a judgment that the nature of the continuing relationship was not such that it created a moral duty on the deceased to provide for the appellant or that the community would have expected him to do so." 240 At [147] - [148], Barrett JA added: "The primary judge made a careful assessment of the competing claims on Mrs Andrew's testamentary bounty. He recognised Lynne's subjective need. He had before him and took into account ample evidence about Mrs Andrew's relationship with her respective children and the situations in life and financial circumstances of those children. He also made detailed findings about the circumstances in which Lynne and Mrs Andrew had virtually no contact with one another for some 35 years before Mrs Andrew's death. It was accepted that there was no particular episode of disagreement or hostility that caused one party to reject the other and that the very long period of lack of contact was not marked by apparent anger or recrimination. The central finding was that Lynne, for reasons she did not express or explain (and about which one can only speculate), separated herself from her parents and, as the judge put it, thereby withheld love and support by an almost complete rejection of her mother. I am of the opinion that the decision of the primary judge on the first-stage question was not affected by error of the kind that would justify intervention of this Court according to the principles discussed at [99] and [100] above. That is sufficient to dispose of the appeal. The question whether an order for provision should have been made in exercise of the second-stage discretion does not arise." 241 Basten JA expressed doubt, at [52], whether the Plaintiff's conduct had been "so reprehensible" as to substantially disentitle her by reducing her share to a nominal sum, notwithstanding her financial needs. 242 Of course, the Act does not refer to "reprehensible" conduct. It refers to "the character and conduct of the applicant before and after the date of the death of the deceased person". Furthermore, to conclude that justice would be better served by rejecting the judgment of a competent testator or testatrix as "unjustified", where that testator's, or testatrix's knowledge of the virtues and failings of the members of his, or her, family, equips him, or her, for the responsibility of disposing of his, or her, estate in far better measure than can be afforded to a court by affidavits sworn after his, or her, death and which frequently provide an incomplete and superficial reflection of family relations and characteristics, should only be reached when the court is satisfied that the requirements of the Act are established. 243 I make clear that in stating what is written above, I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 244 In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
8. This case is another apt demonstration of why, in my respectful opinion, the term 'estrangement' is unhelpful. The objective evidence clearly demonstrates that the source of the tensions between Adam, Alica and Cheryl were all manifestations of the ordinary incidents of family life given each of their circumstances from time to time, those circumstances including, but not being limited to, Cheryl's volatile personality. There has also been a clear attempt by all sides to reconcile the relationship. To describe the nature of the relationship as 'estranged' would be to unfairly attribute moral blame on both parties and cast a shadow over the steps which were taken to restore and maintain contact and reconcile differences.
9. The authorities set out above require a close examination of the objective facts to appreciate the relationship between the parties in this case before any determination as to the impact of that relationship on any provision awarded can be made. The authorities also demonstrate the impact of 'estrangement' (or 'lack of contact' as I prefer) is just one of all the relevant circumstances the Court needs to consider when exercising its discretion as to whether provision should be awarded. In this case, the mere fact that Adam and Alicia may have had periods when they had a lack of contact with Cheryl is not a reason to preclude them from receiving provision. However, it also does not mean their conduct may not have a negative impact on the amount of provision the Court might order. The undoubted and successful attempts at reconciliation are also an important matter in the exercise of the Court's discretion.

Adam and Alicia's relationship with Cheryl

1. The focus of both parties' submissions was on the extent to which Adam and Alicia's relationship with their mother, Cheryl, should affect the amount of provision, if any, they receive. Mr Chapple SC submitted that their relationship should not be analysed by scrutinising isolated incidents to define the entire relationship. Instead, it was submitted the relationship needed to be viewed through three distinct stages which informed each other: 1. Their relationship with Cheryl as children. 2. Their relationship with Cheryl as young adults, after they had left home. 3. Their relationship with Cheryl after their father Phillip's death.
2. As to the first stage, Mr Chapple SC argued that both Adam and Alicia's evidence described that their mother had erratic mood swings and both provided several examples of where Cheryl was either physically or verbally abusive towards them. These instances of verbal abuse were also corroborated by the evidence provided by Stanley and Julianne. It was properly clarified by Mr Chapple SC that the Court was not invited to cast blame upon particular people as to the source of the outbursts or for the existence of any such outbursts. Although Mr Chapple SC postulated, and the Court accepts, that the toxic relationship which was evidently present between Phillip and Cheryl must have been a significant contributing factor.
3. However, it was also acknowledged that both Adam and Alicia accepted that Cheryl would often show deep affection towards them and was a good mother who was very supportive of their endeavours at school. Mr Chapple SC submitted that it was the oscillation between Cheryl's emotional states which was difficult to comprehend for Adam and Alicia and which informs the next stages of the relationship.
4. The second stage of the relationship was contended to be defined by both Adam and Alicia realising that some separation between themselves and Cheryl may assist their relationship. However, even where distance was created it was noted both children continued to communicate with Cheryl. For example, during Alicia's time living in London between 2008-2010 Alicia would speak to Cheryl on the phone weekly. Similarly, Adam spoke to his parents regularly on the phone and used annual leave to return to Port Macquarie to visit his parents whilst posted in Townsville for his army duties.
5. Mr Chapple SC also noted that it was during this stage of the relationship that Adam and Alicia sought out relatives including Agnes and Deborah to talk about their mother's emotions and her mood swings. Mr Chapple SC submitted that Agnes and Deborah's affidavit and cross-examination evidence corroborated Adam and Alicia's evidence that Cheryl did have a volatile personality and commonly had mood swings. This was said to demonstrate that Cheryl had ongoing and long-term issues which affected her personality which were not only affected by the way that Adam and Alicia interacted with her.
6. Mr Chapple SC accepted that Adam and Alicia's relationship with Cheryl changed in the third stage of their relationship, the period after Phillip's death. Mr Chapple submitted that rightly or wrongly, Adam and Alicia believed that their father had created a second will and that belief was reasonable. The reasonableness of this position was that their parents had separated in 2013, Family Court proceedings were commenced for the purposes of obtaining a property settlement, there was evidence from Agnes that Cheryl had obtained legal representation to assist her with those proceedings and both Adam and Alicia provided evidence that Phillip had directly informed them that he had created a second will.
7. Similarly, it was also contended on behalf of Adam and Alicia that the family provision proceedings were readily explainable because of the evidence of a longstanding turbulent relationship between the parties, the statements made to Adam and Alicia by Phillip about his will being changed, as well as Cheryl and Phillip's separation and subsequent proceedings which made it reasonable to believe Phillip might not leave his entire estate to Cheryl. On this basis the Court was asked not to make any adverse inferences against Adam and Alicia as to their conduct on the basis that they commenced family provision proceedings. The Court accepts that submission and will make no such adverse inference.
8. Mr Chapple SC conceded that Adam and Alicia had acceded to their barrister's comment at their mediation that Cheryl was "dead to them." However, Mr Chapple SC emphasised that both acknowledged in the witness box that they regret what they said and did not genuinely believe the gravamen of the comment. Their remorsefulness and the comment occurring in a clearly emotionally charged situation were submitted to be sufficient basis for the Court not to find that their statement should affect any provision they are awarded. The Court accepts that submission.
9. Not only did Mr Chapple SC submit that the long-term nature of the relationship between Adam, Alicia and Cheryl was explainable by reference to the three stages referred to above. He also sought to characterise and subsequently challenge Cheryl's position that Adam and Alicia wanted nothing to do with her as a false narrative. Mr Chapple SC accepted the genesis of the narrative was the comment made at mediation, but that narrative was inconsistent with the objective evidence of the subsequent communication between Adam, Alicia and Cheryl.
10. For example, Mr Chapple SC noted that it was Alicia who took the positive step in March 2016 to rekindle her relationship with Cheryl (see [84] above). He noted that Alica decided to meet Cheryl in person at The Entrance on 29 April 2017 (see [90] above) and made further attempts to visit in person in July and October of 2017.
11. Mr Chapple SC also observed that Alicia was proactive in providing emotional support to her mother after she informed her of her cancer diagnosis. As soon as Alicia found out about Cheryl's cancer on 1 June 2021, Alicia immediately tried to call her, and Alicia also sent Cheryl flowers in July 2021 to Cheryl after she had surgery. Mr Chapple SC submitted that these interactions were warmly received by Cheryl as demonstrated by Cheryl sending Alicia an image of the flowers a week later to thank Alicia. It was noted this evidence contradicted Tracey's affidavit evidence that Cheryl would throw the flowers in the bin.
12. Notwithstanding this communication, Mr Chapple SC accepted that the relationship continued to be affected by periods of tension. For example, Alicia's message to Cheryl on 21 November 2021 where she asks whether Cheryl still wants contact to her is indicative of such tension. However, Mr Chapple SC said that conduct was explainable by the long-term tensions which had evolved throughout the various stages of their relationship.
13. Mr Chapple SC submitted that the litany of positive interactions between Alicia and Cheryl show that despite their lack of face-to-face contact, they had a strong personal relationship. This was underscored by Cheryl being the first to know from Alicia that she was pregnant after becoming engaged to her fiancé Chris. Mr Chapple SC noted this rapprochement was reciprocated by Cheryl, who asked if she could buy anything for the baby room. Mr Chapple SC submitted that this interaction demonstrates that the evidence does not inform any suggestion that Cheryl was going to be estranged from Alicia's grandchild. Alicia inviting Cheryl to her baby shower in July 2022 was further evidence against any purported estrangement.
14. Mr Chapple SC rejected any submission that Alicia did not take steps to visit Cheryl when she was sick with cancer. Mr Chapple SC relied on the message sent by Cheryl to Alicia on 31 July 2022 informing Alicia that the doctor had said that it was not safe for a then pregnant Alicia to visit Cheryl whilst she was undergoing radiation therapy (see [112] above). This corroborates Alicia's evidence that she tried to visit her mother but was informed it was unwise to do so. Mr Chapple also relied on various supportive text messages Alicia sent to her mother in around July-August 2022, around the same time the will was made on 16 August 2022, to reject the veracity of Clause 7(d) of the will which claimed that there had been 'little or no contact between my Children and I for many years and there is no relationship of love and affection between us'.
15. In relation to Adam's communication with Cheryl, Mr Chapple SC accepted that their communications were more guarded and less frequent but did not reach a state which should affect any provision the Court provides Adam. Mr Chapple SC provided three reasons why this was the case. First, messages sent by Adam to Cheryl before 2018 were not recoverable. Second, Adam was incommunicado for extensive periods while he was on tour with the army. Third, Mr Chapple SC hypothesised that the nature of the relationship between mother and daughter and mother and son may be different.
16. Mr Chapple SC acknowledged that the messages between Adam and Cheryl demonstrated Adam providing photos of his children to Cheryl and exchanging kind and celebratory messages around significant dates like Christmas and birthdays. Mr Chapple SC again accepted the relationship was not without tension, noting the 21 May 2020 text Adam sent to Cheryl asking if he and Alica were in the will caused a momentary strain in their communication but submitted that after this message was sent they continued with their usual exchanges of love, well-wishes and photographs of Cheryl's grandchildren. Mr Chapple SC submitted the evidence of their communications once again provided no basis to support a conclusion that there was little or no contact between Adam and Cheryl.
17. The evidence of communication was also submitted to contradict various pieces of evidence relied upon by the executors to establish that Adam and Alicia did not want, and did not have, any contact with Cheryl after the mediation: 1. The evidence in Tracey's affidavit that Cheryl was 'scared and frightened by Alicia' and that Alicia is 'manipulative' was not a sentiment reflected in their text exchanges. 2. The evidence in Tracey's affidavit that Cheryl said that the flowers Alicia sent would go in the bin was not corroborated by Cheryl sending a photo of the flowers to Alicia a week after they were sent. 3. The evidence that Cheryl told Tracey that Alicia 'will want more know[sic] that she is pregnant' was said to be inconsistent with the messages which show Cheryl offering to assist Alicia with purchasing items for the nursery. 4. The evidence in Tracey's affidavit that Cheryl said that Alicia did not want Cheryl to stay at her house overnight for her baby shower was contradicted by a text message expressly inviting Cheryl to stay overnight. Cheryl allegedly saying that she won't go as Alicia thinks I'll be an embarrassment was submitted to be an assumption that she was imposing on Alicia. 5. The evidence of Cheryl purportedly telling Tracey that she won't ring Adam and Alicia 'as they say I'm already dead to them anyway…. They only want money was contended to be inconsistent with the evidence of communication between the parties.
18. Mr Chapple SC submitted that this evidence demonstrated that what Cheryl was telling her friends and family was inconsistent with the actual nature of the relationship she was having with Adam and Alicia. Mr Chapple SC described this situation as one of 'parallel narratives'. Mr Chapple SC asked to the Court to draw a positive inference that Cheryl did not want to disrupt the narrative that she had been disowned by her children. Mr Chapple SC relied on Ms Wiegold's affidavit evidence that Alicia said "Mum and I are talking again. Mum doesn't want my Nan to know…" as support for the proposition that Cheryl was not being honest with some people about the nature of the contact she was having with her family.
19. Therefore, it was submitted to be clear that Adam and Alicia's conduct with their mother should not preclude them from obtaining provision from Cheryl's estate.

Alicia and Adam's financial needs

1. Alicia's financial circumstances are not in dispute. However, in contending that Alicia should receive provision of $300,000, Mr Chapple SC accepted that the Court needs to factor in the extra $14,000 in shares owned by Chris when determining the appropriate amount of provision for Alicia. It was submitted that Alicia's need to reduce her mortgage repayments (the mortgage currently being $824,674), and to conduct essential home renovations to address the effects of a landslide and remove mould demonstrated sufficient needs to justify provision. Mr Chapple SC candidly accepted that the proposed costs of the remediation work were unclear and that the Court would not be able to provide sufficient provision for Alicia to cover her mortgage and renovation costs. Instead, it was likely the provision would address remedial costs and the remaining amount could be used to reduce the mortgage.
2. It was also accepted by Mr Chapple SC that their income is not sufficient to meet their expenses and it might be that they need to sacrifice the amount of renovation work that they do to pay more off the mortgage so they can bring down their expenses.
3. Adam's financial circumstances are also not in dispute subject to a disagreement as to how Adam's daughter's childcare costs are calculated. This dispute was moot because whether the daycare expenses were deducted from Sonia's daycare income or were added as an expense does not change the totality of Adam's financial circumstances.
4. Mr Chapple SC submitted that the Court should provide Adam with provision of $300,000. This amount would allow Adam to discharge his mortgage, currently $252,166.95 and leave an additional amount to allow Adam to retrain in furtherance of his search for future employment. Mr Chapple SC acknowledged that Adam and Sonia have the benefit $337,000 from Sonia's compensation pay out from the army but noted that money is being used to supplement the excess of their expenses over income which is about $2,930 per month. He also accepted that there is scarce evidence of what future employment Adam would like to pursue and any upskilling or training he will require to obtain those roles.

Effect of further provision on Cheryl's testamentary intentions

1. Mr Chapple SC's final submission was that providing further provision for Adam and Alicia would not displace Cheryl's legitimate testamentary intentions. He first noted that it was accepted by both sides that Deborah, as the sister of the deceased, is not someone for whom the law would ordinarily regard the deceased as having a moral obligation to provide, but that Deborah did provide a lot of support and care to Cheryl during her illness with cancer.
2. It was also accepted that Deborah's financial circumstances were poor. However, Mr Chapple SC contended that even if the Court provided Adam and Alicia with $300,000 each this would still leave Deborah with $650,000. This amount, it was submitted: 1. respected Cheryl's testamentary intentions by providing double the provision for Deborah compared to Adam and Alicia; 2. was sufficient to provide Deborah with an ability to purchase a unit in Jindabyne, a villa in Berridale or a freestanding three-bedroom home in Cooma; and 3. would not affect the amount Cheryl provided be given to her grandchildren.

Adam and Alicia's relationship with Cheryl

1. Mr Hill challenged Mr Chapple SC's characterisation of Adam and Alicia's relationship with Cheryl being defined by 'three stages' as misleadingly attributing the bulk of the blame to Cheryl and submitted that the issues in the relationship were not 'one-sided'. Mr Hill relied on Tracey's affidavit which indicated that the children 'knew how to press [Cheryl's] buttons' and would mock her for her outbursts. This was submitted to show that Adam and Alicia had responsibility for the state of the relationship.
2. Tracey's evidence was contended to be of significance given she was a witness who did not have a financial interest in the outcome of the case and had 'no axe to grind'. The executors also relied on Tracey never observing Cheryl hit her children as further evidence that blame should not be overly attributed to Cheryl for the state of the relationship.
3. Mr Hill also submitted that the November 2013 letter (see [79] above) which Alicia sent to Cheryl outlining her grievances with how Cheryl treated her when she was younger was 'offensive in its terms' and reinforces that the children played a significant role in the fraying relationship between them.
4. Mr Hill challenged Mr Chapple SC's contention that the relationship had repaired to the extent that it had. Mr Hill contended the Court should place significant weight on Adam and Alicia acceding to their barrister's observation that Cheryl was 'dead to them'. Mr Hill submitted those comments 'weighed heavily' on the deceased and must be considered, despite his acceptance that they both regretted those comments.
5. Mr Hill also submitted that Adam and Alicia's remorse for their comment needs to be viewed in light of other purported failures to rekindle their relationship with their mother. It was said that a key concern for Cheryl was that the children never came to visit her face to face. Mr Hill accepted that Alicia tried to repair the relationship via text but that was insufficient given Cheryl wanted a face-to-face visit. Mr Hill asks the Court to find that Adam did not visit Cheryl after the family provision proceedings were resolved in 2016.
6. Mr Hill also submitted that it was 'quite repugnant' that Adam never facilitated Cheryl's wish to see her grandchildren regularly. He submitted that the only time Cheryl saw her grandchildren was when she took a photo with Adam's eldest son in Brisbane and only saw him for five minutes. Adam asking Cheryl if he and Alicia would get an inheritance was submitted to support Tracey's evidence that Cheryl spoke to her about the children being obsessed with money. This alleged obsession, absent any attempt to reconcile the relationship by meaningfully supporting Cheryl's desire to see her grandchildren, was also submitted to be 'repugnant.'
7. Mr Hill also submitted that the Court should take note that Adam was aware for two months prior to Cheryl's death that she was very ill and still did not see her. It was contended Adam could have applied for and used compassionate leave to visit Cheryl but did not do so.
8. Mr Hill relied on Justice Hallen's adoption of what was said in Hampson v Hampson (see [141] above) that the Court may find parties were sufficiently estranged where there is conduct on the part of the applicant that is hurtful to the deceased or which the deceased seriously disapproves. This was contended to be applicable in this case where Cheryl was hurt by the comment that Adam and Alicia believed she was dead to them, she never had the opportunity to properly see her grandchildren and the children rarely visited her after 2016. On this basis, Mr Hill submitted that the conduct of Adam and Alicia provided sufficient basis for the Court not to provide provision to either child.

Adam and Alicia's financial needs

1. In the alternative, if the Court found Adam and Alicia's conduct insufficient to preclude them from any family provision order, Mr Hill submitted that Adam had not demonstrated sufficient need to justify any provision order being made. It was contended that Adam has a house, cash and income which will continue in the form of his disability payments from the army. Mr Hill also accepted that even if the Court were to make an order for provision which would enable Adam to pay off his mortgage, he would still be spending more than they would earn in that situation and Adam would still be required to change his current expenditure habits.

Consideration - summary

1. The starting point is whether s 59(1)(c) of the Act - the 'jurisdictional question' - has been satisfied. This provides: "At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
2. If the jurisdictional question is satisfied, s 60 provides the Court with a broad and non-exhaustive set of considerations in exercising the discretion to determine whether any further provision should be provided.
3. As I discuss further below, there was no dispute that adequate provision had not been made by the will for Alicia. In relation to Adam, Mr Hill rightly did not put any dispute over whether the will did not make adequate provision for Adam at the forefront of his case. No provision for Adam in the will, on the evidence, is not adequate provision for Adam. The parties' real focus was on three key matters going to the question of whether any provision should be ordered and, if so, in what amount: 1. Did the financial circumstances of Adam and Alicia warrant provision being ordered? 2. Did Adam and Alicia's conduct towards Cheryl provide a reason to reduce or disentitle them from provision? 3. Should provision be ordered in the light of the clear testamentary intention of Cheryl (made pellucid by clause 7 of the will) not to provide for Adam and Alicia?
4. For the reasons which follow the Court has determined by reference to those issues: 1. Yes. Adam should receive provision of $250,000 and Alicia should receive provision of $300,000. 2. No. 3. Yes.

Consideration - adequate provision

1. As the Court of Appeal made clear in Bassett at [78]-[79], prior to the Court making any order for provision, the Court must be satisfied that the 'jurisdictional question' as prescribed by s 59(1)(c) of the Act has been satisfied. In this case, Clause 4 of the will demonstrated that no provision was made for Adam and that Alicia was to receive jewellery of perhaps greater sentimental than financial value (there being no evidence of the value of the jewellery and it not being listed as a separate item in the probate inventory of property). As to whether the jurisdictional question is satisfied, the Court of Appeal in Sgro v Thompson [2017] NSWCA 326 at [74] (White JA, McColl and Payne JJA agreeing) held that it is wrong to focus solely on whether the 'material needs' of the plaintiffs have been satisfied. The Court goes on to say at that paragraph that "the question was whether the provision was inadequate in all the circumstances for the applicant's "proper" maintenance, education and advancement in life, and that that required regard to be had to not only the applicant's financial position, but the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and others with claims upon his or her bounty."
2. In this case the Court is satisfied that the jurisdictional question is satisfied for three reasons: 1. The plaintiffs have demonstrated sufficient need to establish that the absence of financial provision for them in the will was inadequate for each of the plaintiff's 'proper' maintenance, education, and advancement. 2. Adam and Alicia's position as Cheryl's son and daughter means they did have a moral claim on Cheryl's testamentary bounty (see Bassett at [88]). This is especially the case in the light of the next reason. 3. There was no dispute that the estate was a relatively large one.
3. Assuming that Adam had also satisfied the jurisdictional question, the only basis that Mr Hill contended Adam had not demonstrated he had any need for further provision was that Adam had a house, cash, and was continuing to receive income in the form of disability payments from the Army.
4. However, the Court accepts Mr Chapple SC's submissions that Adam's most significant and proven need is to pay off his mortgage, currently valued at $252,166.95. Further provision of $250,000 will enable Adam to do this. That payment will also relieve him and Sonia of current monthly repayment obligations of $2,307, which will reduce their current excess of expenditure over income to approximately $600 per month. In relation to that excess, the Court accepts that while Adam and Sonia have accumulated a large amount of savings, they have three young children who are completely financially dependent upon them. Their current rate of savings are insufficient to place them in a position of long-term financial security and also pay off their mortgage. Adam accepted that once medically cleared he would need to find employment to help support his family's financial needs.
5. The Court declines to order in Adam's favour the $300,000 provision contended for by Mr Chapple SC for three reasons: 1. Payment of the mortgage was a clearly proven need. As Mr Chapple SC accepted, there was no evidence available that would enable the Court to quantify with any confidence a sum for further provision beyond that. 2. Weighing Adam's current financial circumstances and needs against those of Alicia and Deborah (the effect of Deborah's lesser moral claim being ameliorated by the consideration of observing Cheryl's testamentary intention to benefit Deborah), no further sum is warranted, including for contingencies. Adam could meet these from his net assets including savings. 3. This is not a case where Adam will never work again. To his credit, once medically cleared he intends to undertake employment. As Hallen AsJ (as his Honour then was) said in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 and cited in Bassett at [88], the community does not expect a parent to look after his or her children for the rest of the child's life.
6. In relation to Alicia, the Court accepts Mr Chapple SC's contention that $300,000 is the appropriate amount of provision which should be awarded, for the reasons advanced on her behalf, and balancing her claim against those of Adam and Deborah and the size of the estate. It was uncontested that Alicia has significant financial needs. She has a large mortgage ($824,674.61), monthly childcare expenses of $3,380 and is going to have to undertake essential repairs of her house to address the impacts of a landslide and mould infestation. Mr Chapple SC accepted that the exact cost of those renovations was uncertain. For example, the Court was only provided with an approximate amount to address the mould issue ($29,167) and was provided with a very wide range of costs to mitigate against landslides ($9, 510.28-$100,000).
7. $300,000 will assist Alicia and Chris to reduce their mortgage significantly, from its current level of $824,674.61. This would eliminate their monthly deficit in the context of the significant financial burden they face which in addition to mortgage repayments, includes a $20,000 loan which needs to be repaid to Chris' parents, childcare and other expenses.
8. Even with the further provision of $300,000, Alicia and Chris may need to make difficult decisions to help reduce their expenses to become financially secure in the long term. Given the size of the estate, the Court has no hesitation in concluding that a wise and just testator would have provided approximately such an amount to provide a starting point to help Alicia become more financially stable and independent during her adult years. In reaching that conclusion, the Court has not ignored that both Alicia and Chris are both relatively healthy and have many years of working life ahead.

Consideration - effect of conduct

1. The starting point to assess this issue is that, in my respectful opinion, it is not reasonably open to question (s 144, Evidence Act 1995 (NSW)) that children who are raised by a parent who oscillates wildly between aggressive outbursts and displays of affection are likely to have a conflicted relationship with that parent even into adulthood. As I will next develop, this provides a persuasive explanation as to why Adam and Alicia's relationship with Cheryl was difficult over a long period of time. There is also no doubt that the comment made at the mediation was hurtful and weighed heavily on Cheryl's mind. However, for the following reasons the Court is not satisfied that the conduct of the plaintiffs towards Cheryl provides a basis for the Court to order no provision, or otherwise reduced provision, in favour of Adam and Alicia.
2. The Court is not satisfied that the relationship, viewed as a whole, demonstrates any conduct by Adam and Alicia which is sufficiently reprehensible to warrant no (or reduced) provision being awarded and is satisfied that the ups and downs of the relationship are readily explainable without dispositively adverse reflection on Adam and Alicia.
3. The Court accepts Mr Chapple SC's submission that the parties' relationship should be viewed over a lifetime and the Court should not place excessive weight on the comments made at the mediation, which was undoubtedly a difficult and emotional time for everybody. The Court also accepts that the state of the relationship is explainable by the course of events over a lifetime and are not simply caused by the mediation.
4. The affidavit and oral evidence provided by Alicia and Adam demonstrated that during their childhood Cheryl did have erratic mood swings and on several occasions was verbally and physically abusive towards them. This account is supported by the affidavit evidence of Stanley and Julianne Wiegold. It was also corroborated by Cheryl's friend Tracey who provided evidence that she had witnessed Cheryl swear at her children on several occasions, but denied she ever saw Cheryl hit her children. In the absence of any submission impugning Adam and Alicia's credit, the Court also accepts their evidence that Cheryl did physically abuse them on occasions during their childhood.
5. At the same time, the Court also acknowledges that Cheryl was a very loving mother throughout their childhood. For example, the evidence demonstrates that Cheryl went to school events and was supportive of Adam's rugby league aspirations. The Court also accepts the evidence from Alicia, Adam, Deborah and Tracey that Cheryl and Phillip's marriage was not happy and that Phillip's behaviour towards Cheryl was dismissive and at times belittling. The Court accepts that this, in addition to the behavioural challenges of Adam and Alicia attributable to their age, is also part of the explanation for Cheryl's behaviour towards the plaintiffs.
6. The Court also accepts Mr Chapple SC's submission that Cheryl's relationship with Adam and Alicia did improve when Adam and Alicia were young adults. While Alicia was in London she had a positive relationship with her mother and spoke to her weekly. Similarly, even while deployed in Townsville for his Initial Employment Training, Adam's unchallenged evidence was that he visited his family at least twice a year for two weeks at a time.
7. However, the evidence also demonstrates that the children's relationship with Cheryl changed after their father died and animosity was generated because of Adam and Alicia's belief that their father had made a later will. However, the Court accepts this was a reasonable belief for three reasons: 1. The fact that Phillip and Cheryl had separated in 2013 and had an acrimonious relationship makes Phillip's decision to maintain a will that left his entire estate to Cheryl appear counterintuitive. 2. The commencement of the Family Court proceedings in 2014 to effect a property settlement provides a legitimate basis for Adam and Alicia to think that the Phillip had changed his will to ensure that Cheryl was not entitled to everything he owned. 3. The Court also accepts Adam and Alicia's evidence that they had been told by their father himself that he had made another will.
8. The Court rejects Mr Hill's submission that viewing the relationship in the 'three stages' contended for by Mr Chapple SC attributes too much blame to Cheryl for the state of the relationship. This misconceives Mr Chapple SC's submission, which expressly did not blame Cheryl for the state of the relationship and accepted that both Adam and Alicia's juvenile behaviour and Phillip's behaviour towards Cheryl were also triggers for strong emotions to which she was disposed by her personality.
9. The Court also rejects Mr Hill's submission that Tracey's evidence that she was not aware of Cheryl ever physically abusing Adam and Alicia is to be given weight because she is a 'disinterested witness'. While it is the case that Tracey does not have a financial interest in the matter, she was clearly a close friend of Cheryl.
10. However, the Court does accept Mr Hill's submission that Adam and Alicia acquiescing to their barrister's comment that Cheryl was 'dead to them' was a deeply hurtful and imprudent thing to say, whether or not they intended it to be a private comment. It evidently and understandably caused Cheryl deep distress. However, the Court will not place dispositive weight on that comment to avoid scrutinising relationships based on isolated events (see Underwood v Gaudron at [140]) and because both Adam and Alicia have demonstrated remorse for that comment.
11. An important factor in favour of Adam and Alicia is that each made attempts to reconcile the relationship with Cheryl.
12. The evidence at [73]-[116] above demonstrates that Alicia took several active steps to reconcile her relationship with Cheryl and, contrary to clause 7 of the will, had a relationship of love and affection with Cheryl. The following examples of contact are especially pertinent: 1. In March 2016 Alicia sent Cheryl a text to discuss what was said at the mediation and repair the relationship (see [84] above). 2. On 29 April 2017, Alicia met Cheryl in person and made further attempts to reconcile with Cheryl in July and October 2017 to meet again in person (see [90] and [93] above). 3. There were numerous messages of love and affection shared between Alicia and Cheryl, especially on special occasions such as Mother's Day (see [91] above). 4. As soon as Cheryl informed Alicia about her cancer diagnosis on 1 June 2021, Alicia phoned Cheryl and sent her a text (see [101] above). Alicia also sent several follow up messages to check in on Cheryl's progress. 5. On 1 July 2021, Alicia sent Cheryl flowers (see [103] above). 6. Alicia informed Cheryl on 13 March 2022 that she was engaged to Chris, and Cheryl (after Chris' parents) was one of the first to know that Alicia was pregnant (see [107] above). On 7 June 2021, Cheryl also asked Alicia what she (Cheryl) could purchase for the baby room. 7. On 5 July 2022 Alicia invited Cheryl to her baby shower and said she could stay at her house (see [111] above). 8. On 13 August 2022, just two days before the will was made, Alicia sent Cheryl a message asking her to fight her cancer and expressing how she wanted to have a long-lasting relationship with Cheryl (see [113] above).
13. The Court accepts that the foregoing does not mean the relationship between Cheryl and Alicia was "perfect". However, Alicia certainly did not treat Cheryl 'callously, by withholding without proper justification their [her] support for Cheryl' (as was the case in Ford v Simes [2009] NSWCA 351 at [71] (Bergin CJ, Tobias JA and Handley AJA agreeing). Nor could Alicia's conduct be described as 'hostile' or conduct of which Cheryl seriously disapproved (see Underwood v Gaudron at [140]). Cheryl's willingness to help Alicia purchase a home and buy items for Alicia's nursery shows that Cheryl enjoyed having a relationship with Alicia.
14. The Court rejects, for three reasons, Mr Hill's submissions that Alicia's attempts to reconcile the relationship were insufficient and that she should have visited Cheryl in person more often. First, Alicia did clearly make attempts to visit Cheryl face to face during 2017. Second, the Court takes notice that between 2020-2021 COVID restrictions would have hindered Alicia's ability to visit Cheryl face to face. Finally, Mr Hill did not challenge Alicia's evidence that Cheryl informed Alicia she could not visit her whilst she was pregnant as the doctor had said it was dangerous to visit whilst Alicia was pregnant and Cheryl was undergoing chemotherapy.
15. The Court finds that Adam also took steps to reconcile the relationship with Cheryl after 2018 by sending her text messages which included photos of his children, and well-wishes on special occasions. While his efforts were not as assiduous as those of Alicia, Adam's deployment to Iraq for 6 months in 2018 and his posting to Albury/Wodonga between 2019-2021 affected his ability to see his mother. The text messages refute the proposition in Clause 7 of the will that she had no contact with Adam.
16. Nevertheless, in finding that Adam's conduct does not warrant any adverse consideration in these proceedings, the Court has not overlooked that, in hindsight, Adam's conduct could have been better. To his credit, Adam acknowledged as much. First, after his father's death in 2014 when Cheryl came to visit him in Brisbane, Adam and Cheryl had a five-minute meeting where Cheryl was able to take a photo with Adam's son. No explanation was given as to why that meeting was so short. Second, Adam accepted in cross-examination that he could have visited Cheryl between 2016-2017 when he lived in Brisbane, but he did not do so. Third, while the text messages showed that Cheryl wanted a relationship with her grandchildren, Adam only sent her photos and did not engage with her. Fourth, whilst only finding out late about how sick Cheryl was prior to her death, Adam did not visit her in hospital and accepted in cross-examination this was something he regretted.
17. Furthermore, Adam's text to Cheryl on 11 May 2022 (see [66] above) which inquired whether he and Alicia would receive any inheritance from Cheryl highlights the tension which existed between them. Contrary to the submission by Mr Hill, the Court does not find that Adam was obsessed with money. If an explanation for the matters in this and the preceding paragraph is required, it was evident in the witness box that Adam still struggled with the volatility of his mother's treatment of him as a child and young adult. In any event, if some recognition of Adam's less fulsome attempts at reconciliation should be made, it is achieved (albeit for other reasons - see [186] above) by the amount of provision for Adam being less than that for Alicia.
18. For completeness, the Court also declines to accept the submission by Mr Hill that the evidence from other witnesses, particularly Agnes and Tracey, demonstrates that Alicia and Adam had 'no relationship of love and affection' with Cheryl. Agnes during cross-examination accepted that she was not aware of the extent of communication Cheryl had with Alicia.
19. It is also clear that Tracey was incorrectly told that Cheryl would bin the flowers Alicia sent in light of Cheryl texting a photo of the flowers to Alicia a week after they were sent. Tracey's evidence that Cheryl said that she was scared of Alicia, that Alicia only wanted money and that Alicia said Cheryl was not allowed to stay at her house for the baby shower are all uncorroborated by the evidence of the text messages. To the contrary, the messages show that Cheryl and Alicia had a fond (if sometimes distant) relationship, that Cheryl wanted to help Alicia purchase a new home and items for the nursery, and that Alica invited Cheryl to stay at her house for the baby shower. Therefore, the Court prefers that contemporaneous evidence about the nature of Adam and Alicia's relationship with Cheryl, and accepts Mr Chapple SC's submission that Cheryl was not providing her relatives and Tracey with a complete picture of the extent of the contact she was having with Adam and Alicia.

Consideration - freedom of testation

1. The Court is also satisfied that the proposed order for provision continues to respect Cheryl's testamentary intentions. In Bassett at [87] the Court of Appeal referred to White JA in Sgro v Thompson [2017] NSWCA 326 at [83] (with whom McColl and Payne JJA agreed) where his Honour quoted what he had said in Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127]: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and 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…. 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."
2. His Honour's judgment reiterates that the Court ought to consider and have regard to the wishes of the testator when considering family provision claims. However, the Court is not satisfied in this case that Cheryl gave due consideration to the plaintiffs' claims on the estate. This is because the reasons outlined in clause 7 of the will for why Cheryl did not provide further provision to Adam and Alicia are not supported by the evidence. For the reasons outlined above, it is incorrect to say that there was 'little or no contact' between Cheryl and her children and no longer any relationship of love and affection. There is no doubt that communication between Adam, Alicia and Cheryl was limited compared to the level of engagement other families may come to expect between parents and adult children, but there nevertheless remained genuine and more than occasional contact between the parties and expression of affection.
3. At the same time, the authorities recited above also make clear that the Court should have due regard to the interests of other beneficiaries to the will. In this case, the Court is satisfied that the amount of provision which will be ordered in favour of Alicia and Adam will still enable Cheryl's testamentary intentions to be honoured.
4. As noted at [17] above, even if all legacies are paid to Cheryl's four grandchildren ($16,000) and Deborah's five grandchildren ($25,000) and the costs of the proceedings were paid out, there will still be $1,250,581.40 left in the estate. Provision of $250,000 to Adam and $300,000 to Alicia will leave $700, 581.40 in residue for Deborah.
5. This outcome sufficiently respects Cheryl's intentions for two reasons.
6. First, it means Deborah continues to receive the greater part of the estate.
7. Second, that amount is enough for Deborah to obtain a property which satisfies her desire, articulated during re-examination (see [38] above) to have a house with a backyard and three rooms so her daughter can live with her, and also without stairs, which is located close to her daughters in the Jindabyne area. Based on the sample property valuations tendered by Mr Chapple SC during the hearing, $700,000 would be more than enough for Deborah to purchase a two bedroom unit in Jindabyne, a two bedroom property in Berridale or a three bedroom home in Cooma.

Conclusion

1. Alicia and Adam are to receive respectively $300,000 and $250,00 of the residue of the estate. Subject to any special costs applications, the plaintiffs should have their costs out of the estate on the ordinary basis and the executors on the indemnity basis. The parties will be given an opportunity to bring in short minutes to give effect to these reasons, and to make any submissions as to costs to the extent that issue cannot be agreed.

Amendments 10 February 2025 - Correction to representation details 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: 10 February 2025