Limberger v Limberger; Oakman v Limberger

Catchwords

[2010] NSWCA 176 Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep) Andrew v Andrew (2012) 81 NSWLR 656[2012] NSWCA 308 Bartlett v Coomber [2008] NSWCA 100 Bindoff v The Trust Company (Australia) LtdEstate of the late Everitt Joseph Griffiths [2016] NSWSC 1100 Bkassini v Sarkis [2017] NSWSC 1487 Boettcher v Driscoll (2014) 119 SASR 523[2014] SASC 86 Bondelmonte v Blanckensee [1989] WAR 305 Borebor v Keane (2013) 11 ASTLR 96[2013] VSC 35 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bowyer v Wood (2007) 99 SASR 190[2007] WASCA 235 Diver v Neal (2009) 2 ASTLR 89[2010] VSCA 195 Giannarelli v Wraith (1988) 165 CLR 543[1988] HCA 52 Goodman v Windeyer (1980) 144 CLR 490Zukerman v Public Trustee [1951] NZLR 135 Jodell v Woods [2017] NSWSC 143 Johnson v Johnson (2000) 201 CLR 488[1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808[2015] NSWCA 42 Sam Wardy v Gordon SalierWilliam Wardy v Gordon Salier[1994] HCA 40 Slack v RoganPalffy v Rogan (2013) 85 NSWLR 253

Judgment (59 paragraphs)

[1]

[2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hobson v R [1998] 1 Cr.App.R 32 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 Hunter v Hunter (1987) 8 NSWLR 573 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 Jodell v Woods [2017] NSWSC 143 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kogan v Martin [2019] EWCA Civ 1645 Kohari v Snow [2013] NSWSC 452 Liprini v Liprini [2008] NSWSC 423 Lumb v McMillan [2007] NSWSC 386 Lynch v Cadwallader [2021] EWHC 328 (Ch) MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCann v Ward & Burgess [2012] VSC 63 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 Meres v Meres [2017] NSWSC 285 Olsen v Olsen & Ors [2019] NSWCA 278 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Rawson v Studholme [2018] NSWSC 1764 Re Buckland (dec'd) [1966] VR 404 Rondel v Worsley [1969] 1 AC 191 Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sangha v Baxter [2009] NSWCA 78 Sarant v Sarant [2020] NSWSC 1686 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316 Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Webb v Ryan [2012] VSC 377 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Category: Principal judgment Parties: 2019/17122 - Joseph Victor Limberger v Steven George Limberger Joseph Victor Limberger (Plaintiff) Steven George Limberger (Defendant)

[2]

2019/21207 - Catherine Philomena Oakman v Steven George Limberger Catherine Philomena Oakman (Plaintiff) Steven George Limberger (Defendant) Representation: Counsel: 2019/17122 - Joseph Victor Limberger v Steven George Limberger Mr K Morrissey (Plaintiff) Mr D Liebhold (Defendant)

[3]

2019/21207 - Catherine Philomena Oakman v Steven George Limberger Ms E Elbourne (Plaintiff) Mr D Liebhold (Defendant)

[4]

Solicitors: 2019/17122 - Joseph Victor Limberger v Steven George Limberger Szabo & Associates Solicitors (Plaintiff) Walsh & Blair Lawyers (Defendant)

[5]

2019/21207 - Catherine Philomena Oakman v Steven George Limberger LHD Lawyers (Plaintiff) Walsh & Blair Lawyers (Defendant) File Number(s): 2019/17122; 2019/21207

[6]

Judgment

HIS HONOUR: Maria Limberger (the deceased) died on 22 January 2018 aged 90 years. She left surviving her, three, now adult, children, being Joseph Victor Limberger, the Plaintiff in the proceedings numbered 2019/17122; Catherine Philomena Oakman, the Plaintiff in associated proceedings numbered 2019/21207; and the Defendant, named in both proceedings, Steven George Limberger. These reasons relate to both proceedings.
Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the children of the deceased and other family members, after introduction, by his, or her, first name, respectively.
Joseph and Catherine each seeks a family provision order out of the estate, or notional estate, of the deceased, under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. (In fact, in this case, the relevant objects are maintenance and advancement in life). The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. Each also seeks an order for costs of the proceedings.
There were associated proceedings, numbered 2019/215586, being proceedings for rectification of the duly executed Will made by the deceased, which were also listed for hearing, but these proceedings were settled by the parties. After consideration of the evidence in those proceedings, and without any opposition by any of the parties in the remaining proceedings, orders were made, and were recorded on the court's computerised court record system, JusticeLink, on 9 March 2021. It will be necessary to refer to the orders made in those proceedings later in these reasons.
All three proceedings were listed for concurrent hearing, for 4 days, commencing on 8 March 2021. At the commencement of the hearing of the two family provision matters, an order for a concurrent hearing of both proceedings, which had been anticipated when the matters were set down for hearing, was made, without objection of the parties and in reliance upon Uniform Civil Procedure Rules 2005 (NSW) r 2.1 (UCPR), which provides that the Court may, "at any time, and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings". In addition, UCPR r 28.5(c) provides that if several proceedings are pending in the court and it appears to the court that "it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another…".

[7]

Some formal matters not in dispute

Joseph commenced the family provision proceedings by Summons filed on 17 January 2019, that is within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).
Catherine commenced the family provision proceedings by Summons filed on 21 January 2019, that is within the time prescribed by the Act.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, each of the parties is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c) of the Act).
However, under s 60(2) of the Act, relevantly in the family provision proceedings, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …". This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.
As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
A family provision order may be made in relation to property that is not part of the deceased's estate but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

[8]

Some background facts

There were five children of the marriage of the deceased to Silvester Limberger, they being John Steven Limberger, who was born in January 1950 and who died in 2016; Phillip Limberger, who pre-deceased the deceased, who was born on a date not disclosed in the evidence, and who died in 1968; Joseph, who was born in May 1952 and who is almost 69 years of age; Steven, who was born in December 1959 and who is now 61 years of age; and Catherine, who was born in December 1968 and who is now 52 years of age.
The deceased's husband, Silvester, pre-deceased her, having died on 27 June 1989. By his Will, Probate of which was granted on 30 May 1990, a copy of which was Ex D7, he left the whole of his estate to the deceased, but in the event that he did not survive her, to be divided equally between John, Steven and Catherine.
The deceased, by a previous relationship, had given birth, in March 1947, to a daughter, Natalija (also known as Natasha), in Yugoslavia, who also pre-deceased her. As will be read, her two children were Defendants in the rectification proceedings. They have not participated in the other proceedings, but an agreement was reached, in the rectification proceedings, that they would receive a lump sum (in total $100,000), and an agreed lump sum costs order ($45,000), out of the estate of the deceased.
Each of Joseph and Catherine consented to the orders and notations made in the rectification proceedings.
By her duly executed, and professionally drawn, Will, as rectified, made on 28 September 2006, the deceased appointed Steven and John as her executors. She left a legacy of $300,000 to Catherine upon trust for her life, with the remainder being given to her two children, Tristan and Reagan. The deceased left the remainder of her estate equally to "her children" Steven and John.
As John had predeceased the deceased, his half-share of the residue of the estate, passes, pursuant to Clause 11.4 of the deceased's Will, equally, to his 5 children with his wife, Flavia, being Damien Limberger, who was born in 1979; Michael Limberger, who was born in 1981; Briana Limberger, who was born in 1983; Anthony Limberger, who was born in 1985; and Laura Limberger, who was born in 1990.
Each of John's children gave evidence, by affidavits, which were read in the proceedings, about a number of matters, including his, and her, financial resources and needs, respectively. None of John's children were cross-examined.

[9]

The estate of the deceased

On 21 October 2020, the Court directed the parties to provide, in hard and soft copy, an Agreed Schedule that contained: 1. the assets and liabilities of the estate and notional estate at the date of death; 2. the assets and liabilities of the estate and notional estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased.
At the hearing, a final version of the document was tendered and marked Ex JS1. I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
The gross value of the deceased's estate, at the date of death, was estimated to be $10,183,371. After paying some of the liabilities ($22,856), the estate was said to have a value, at the date of death, of $10,160,515.
The gross value of the deceased's estate, at the date of the hearing, was agreed by the parties to be $9,335,894. However, there was a dispute about property of the deceased that Catherine asserted had a total value of $511,231.
At the date of the hearing, the deceased's estate comprised: 1. two parcels of real estate in Pearson Street, Wagga Wagga ($8,000,000 and $520,000 respectively); and real estate in Kooringal, a suburb of Wagga Wagga ($460,000); 2. cash held in the trust account of Steven's solicitors ($352,894); 3. a car ($3,000); 4. 51 fully paid shares at $1.00 in Rivcrete Pty Ltd (nil value). (There was dispute about this attributed value); 5. one unit in Rivcrete Unit Trust (nil value). (There was dispute about this attributed value); and 6. a debt due by Rivcrete Pty Limited ($449,442) which is unlikely to be recovered. (There was dispute about whether this debt was recoverable, as part of it was shown in the records of the Trust owed by Steven and another part, as owed by John).
Counsel for Steven stated, from the bar table, without objection, that he, and the other residuary beneficiaries, had agreed that the lump sum of $300,000, in which each of Tristan and Reagan has an equal remainder interest, would be paid to them out of the residue of the estate of the deceased following the resolution of the proceedings no matter what the result of Catherine's claim. Of course, that is a matter entirely for them. (It is a credit to all of the residuary beneficiaries that they have adopted this course as they could have submitted that any provision made for Catherine, should be provided, in whole, or in part, out of that part of the estate: s 65(1)(c) of the Act.)

[10]

The Costs of the Proceedings

In relation to the family provision proceedings, Joseph's costs, calculated on the ordinary basis, were estimated to be $140,604. His costs, calculated on the indemnity basis, were estimated to be $155,000. He has paid $828 on account of disbursements.
In an affidavit, sworn on 16 February 2021, by Mr G Szabo, Joseph's solicitor, the Court was informed that "The plaintiff has entered a conditional costs agreement with my firm for our professional fees and all disbursements and expenses, including counsel's fees" and that "The costs agreement does not include any uplift fee".
In relation to the family provision proceedings, Catherine's costs, calculated on the ordinary basis, were estimated to be (using the mean of the range provided) $217,000. Her costs, calculated on the indemnity basis, were estimated to be $293,500. She has not paid any costs or disbursements.
In an affidavit sworn on 8 February 2021 by Ms P Barry, Catherine's solicitor, the Court was informed that "the Plaintiff has entered a conditional costs agreement with LHD Lawyers for their professional fees"; that "There is no uplift factor"; and that "The conditional costs agreement excludes all disbursements, expenses and outlays including counsel's fees".
It is hard to comprehend how costs, totalling almost $360,000 (calculated on the ordinary basis) and almost $450,000 (calculated on the indemnity basis), have been incurred in what are, essentially, relatively straightforward family provision proceedings, each by an adult child of the deceased.
In relation to the rectification proceedings, Steven's costs, calculated on the indemnity basis, were estimated to be $37,600. The balance of his costs, calculated on the indemnity basis, of the two family provision proceedings, and the rectification proceedings were estimated to be $47,823: Tcpt, 9 March 2021, p 40(34-38). (There was evidence that some of Steven's costs, totalling $166,777, have already been paid out of the estate.)
Counsel agreed, and all submitted, that the Court should not determine, as part of these written reasons, how the costs of the proceedings should be borne. They submitted that that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne. Furthermore, the issue of the quantum of each Plaintiff's costs will have to be determined following the conclusion of the hearing.

[11]

The duty of legal representatives

There are two aspects of the duty of legal representatives to which it is necessary to refer in this case. The first relates to the affidavits that were read in the proceedings.
One whole Court day, effectively, was spent dealing with objections to parts of the affidavits of witnesses, particularly the evidence of each of the parties. This requires comment for the simple reason that time, and costs, were taken dealing with those affidavits (even though counsel, for the most part, did not spend a lot of time arguing about the paragraphs, or parts of the paragraphs, to which objection was taken).
In Thomas v SMP (International) Pty Ltd [2010] NSWSC 822, Pembroke J, at [19], wrote: "It is common for some litigants to want to use their evidence as an opportunity to unburden themselves in unmanageable detail of the many facts which have preoccupied them in the years preceding the hearing of their case. But a fair hearing of their case can be seriously hindered by such unfiltered outpourings. That is why, among other things, counsel have a duty to the court which is additional to their duty to the party whom they represent. This duty is a legal duty, not merely a rule of practice or etiquette: Teece, The Law & Conduct of the Legal Profession in New South Wales, second edition, Law Book Co, pages 30-35 and 41-44. Counsel's duty to the court requires them, where necessary, to restrain the enthusiasms of the client and to confine their evidence to what is legally necessary, whatever misapprehensions the client may have about the utility or the relevance of that evidence. In all cases, to a greater or lesser degree, the efficient administration of justice depends upon this co-operation and collaboration. Ultimately this is in the client's best interest. It is more likely to ensure that a just result is reached - sooner and with less expense."
In Olsen v Olsen [2019] NSWCA 278, the Court of Appeal dealt with complaints about some comments expressed by the trial Judge about the nature and length of the Plaintiff's affidavits. At [64] - [65], White JA (Meagher JA and Emmett AJA agreeing at [1] and [91] respectively), wrote: "The primary judge also expressed the following concern (Judgment at [45]): '[45] When I complained about the plaintiff's affidavit evidence being unhelpful and far more extensive tha[n] it needed to be, junior counsel disavowed responsibility. She said 'The plaintiff insisted on drawing his own [affidavits]'. She added 'We did not have control. It was a difficult situation'. This is, I am afraid, an abdication of the responsibility of the plaintiff's legal representatives. No matter how determined a plaintiff may be to unburden himself of memories of real or imagined distant family events, his solicitor and counsel are duty-bound to restrain his enthusiasms.' Nor does this paragraph give rise to any apprehended, let alone actual, bias against the plaintiff. The primary judge's concern was legitimate. His statement that solicitor and counsel were duty-bound to restrain the appellant's enthusiasm to unburden himself of his memories was correct. The appellant's principal affidavit dealt not only with his relationship with the deceased, but also in irrelevant detail with property purchased by the deceased for his half-siblings and stepmother and with the maintenance paid by the deceased to the plaintiff's mother when he was a child. By way of example, the appellant deposed that when he became interested in girls (apparently sometime after he was 12) he was often embarrassed about his state of dress."

[12]

The Rectification Proceedings

It is not necessary to detail the evidence given in the rectification proceedings. It is only necessary to note the relevant orders that were entered in those proceedings on 9 March 2021: "1. Notes the associated proceedings 2019/21207 and 2019/17122. 2. Notes that the parties in the associated proceedings do not oppose the making of these orders and notations in these proceedings. 3. Orders, pursuant to s 27(3) of Succession Act 2006 (NSW), that the period of time for making the application for rectification be extended up to, and including, 31 July 2019, the date of the filing of the Summons. 4. Declares that the Court is satisfied that the Will dated 28 September 2006 ('the Will') of Maria Limberger ('the deceased') does not carry out her intention because a clerical error was made. 5. Declares, pursuant to s 27(1) of the Succession Act, that the deceased intended that the expression "my children", in the Will, to refer only to John Steven Limberger and Steven George Limberger and not to any other children of the deceased. 6. Orders, pursuant to s 27(1) of the Act that the Will be rectified by deleting, on page 3 of the will: (a) The heading Meaning of "Children"; and (b) Clause 11.6. 7. Orders the Plaintiff, as the executor of the estate of the deceased, to deposit, within 7 days, the original grant of Probate made on 16 July 2018, in the Probate Registry, together with a sealed copy of the rectification orders, marked to the attention of the Senior Deputy Registrar in Probate, to be placed in Court file 2019/215586. 8. Directs that the matter be remitted to the Senior Deputy Registrar in Probate to enable effect to be given to the direction of the court by attaching a sealed copy of the rectification orders to the original grant of Probate. 9. Orders that the Defendants' costs and disbursements of the proceedings, (including GST), being a specified gross sum instead of assessed costs, agreed in sum of $45,000, be paid out of the estate of the deceased. 10. Notes the agreement of the parties that, in consideration of the settlement, the Plaintiff, within 28 days of the date of these orders and notations, will pay to the first and second Defendants, out of the estate of the deceased, a total sum of $145,000 as follows: a. $50,000 to the first Defendant; b. $50,000 to the second Defendant; and c. $45,000 in satisfaction of the order for costs and disbursements of the first and second Defendants referred to in Paragraph 9 above. 11. Notes the agreement of the parties, that if the settlement sum has not been paid within 28 days of the date of the making of these orders, interest on any unpaid part thereof, shall be paid, calculated at the rate prescribed by s 84A of the Probate and Administration Act 1898 (NSW) from the 29th day after the date of the making of these orders until such date as it has been paid in full. 12. Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased. 13. Notes that Jack Antoni Stan Kuda, who filed a Submitting Appearance on 17 February 2021, and who is a person who is, or who may be, affected by these orders and notations, consents to these orders and notations being made."

[13]

The Evidence

The following sections address some additional relevant legal principles, the evidence of the witnesses, and the views to which I have come, which inform my findings of fact. Before turning to those facts, it is necessary to refer to some general principles which should be remembered.
In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that: "... the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation."
His Honour's observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [56].
I also refer to Lynch v Cadwallader [2021] EWHC 328 (Ch), at [49] - [50]: "When assessing the reliability of the six witnesses seen and heard, I have in mind the researches and findings of the cognitive psychologist and expert on human memory Dr Elizabeth Loftus, and the criminal psychologist and researcher at University College London, Dr Julia Shaw. Human memory is not stable. It has a strong propensity to change over time, to provide false accounts and be susceptible to suggestion. In short, memory is malleable. A confident witness may be mistaken. Contemporary documents may provide a valuable guide to the truth: Armagas Ltd v Mundogas S.A. [1985] 1 Lloyd's Rep.1, at page 57 col. 1; Goodman v Faber Prest Steel [2013] EWCA Civ 153. In Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) Leggatt J (as he was) explained that the litigation process itself may lead to a witness's memory of events being based on documents and later interpretation rather than the original experience; all remembering of distant events involves reconstructive processes: '[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces."[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.' Leggatt J set out the best approach to evidence [22]: '[T]he best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.'"

[14]

The instructions for, and the execution of, the 2006 Will

In or about late in 2003, the deceased said to Steven (Affidavit, Steven George Limberger, 10 March 2020 at par 10): "I want to update my will. I don't want Joseph or Cathy to get anything from me. Cathy has nothing to do with me and we have nothing in common. Where was she when I needed help when I hurt myself last year? Nowhere to be seen".
In or about July 2004, the deceased, John and Steven had a conversation to the following effect (Affidavit, Steven George Limberger, 10 March 2020 at par 11): Deceased: "I have made an appointment with Michael Kennedy [solicitor] at Walsh & Blair to update my will… I want to make sure Joseph receives nothing - considering what he did to your father and me… I just can't forgive him. I don't want to leave Cathy anything, as she is not a daughter to me, she never comes to see me, we have nothing in common. She is a stranger to me..." John: "Mum, I think you should leave something to Cathy". Steven: "I agree with John. Perhaps you should consider it". Deceased: "Have you seen Cathy lately?" Steven: "No" Deceased: "That makes two of us".
Steven recalled that, on 5 July 2004, the deceased and John attended a meeting with Mr Michael Kennedy. After this meeting, the deceased told Steven, "I saw Michael and told him that Joseph, Cathy and Natasha are to receive nothing": Affidavit, Steven George Limberger, 10 March 2020 at par 12.
In or about late April 2005, the deceased told Steven, "I received a letter from Michael Kennedy. He says it's important that I update my will": Affidavit, Steven George Limberger, 10 March 2020 at par 14. She then gave Steven two letters, one dated 5 July 2004 and the other dated 19 April 2005, from Mr Kennedy.
The letter dated 5 July 2004 includes the following (with minor spelling corrections): "Your Family Situation I note that:- 1. you have five children - John, Steven, Cathy, Joseph and you have a daughter who was born outside your marriage at the time of the Second World War who you did not raise and with whom you have had little contact; 2. both John and Steven have worked for the family business for a number of years and continue to do so; 3. Joseph is estranged from the family following him unsuccessfully suing you and your late husband; 4. Cathy lives in an unsatisfactory domestic relationship. … Your Concerns You are particularly concerned that your children, Joseph and your eldest daughter could contest your will. You are concerned that if assets were given to Catherine that her husband and associates could squander the assets and that you would be left with little. … Advices Based on the information that you have provided to date and the writer's knowledge of your family history, I believe that it could be difficult for Joseph to succeed in any claim having regard to his past conduct and the estrangement that has continued over many years. … In relation to your concerns for Cathy, we believe that it would be best to leave what you would otherwise give to her to a will trust controlled by John and Steven. In simple terms, under the will trust she would not own the asset but would be entitled to the income. If she had a need for financial assistance John and Steven could transfer assets to her or sell the assets on her behalf. This would be at their absolute discussion [sic]. You have the greatest duty to provide for John and Steven as both of them have worked in the family business and provided financial and moral support to you and your late husband over many years. Recommendations I would suggest that:- 1. John provide me with a value of the asset as listed; 2. you give careful consideration as to what you may wish to set aside for Cathy; 3. to give consideration to giving to Steven your interest in the plant and equipment so that he has an equal holding with John - this could be set off against Steven's full entitlement in the will. Upon receipt of John's advices as to the value of your assets I would be in a better position to advise as to whether or not what you propose is acceptable. In addition to your will I will arrange for both a power of attorney and an enduring guardianship appointment to be made by you."

[15]

Witnesses

Each of Joseph, Catherine and Steven gave evidence and was cross-examined. A number of the deceased's grandchildren (none of whom were cross-examined) also gave evidence of her, or his, observations of the relationship between the deceased and each of Joseph and Catherine.
As well, Donna Maree Field, a long-time friend of Catherine's, gave evidence in the form of an affidavit sworn 30 August 2019. She was not cross-examined either.
In relation to Joseph, I consider that he attempted to give his evidence truthfully, although there were parts of his evidence that were inconsistent with the contemporaneous records that were tendered and with the evidence of Steven which I accept.
I also thought that Joseph did not reflect, appropriately, on the effect of his actions, particularly in relation to the events surrounding the partnership about which a great deal of evidence was given and which was one of the reasons identified by the deceased for making the Will that she did.
For example, as will be read, Joseph denied being violent in a meeting with other members of his family, held in 1984, to discuss the future of the partnership. This was in direct contradiction with evidence given by Steven about this incident. I preferred Steven's evidence.
I was not overly impressed with Catherine. I found her to display some anger towards the deceased, which, I thought, clouded her ability to answer some of the questions about the deceased candidly and honestly.
By way of example, during cross-examination, Catherine was referred to two postcards the deceased had sent to her during the deceased's trip to Europe. Initially, she firmly stated that these postcards were "not… affectionate": Tcpt, 10 March 2021, p 154(09). However, she later accepted that the deceased had written the words "I love you, see you soon" on the postcards and that this was "fairly affectionate": Tcpt, 10 March 2021, p 154(47)-155(02).
There is another aspect in one affidavit of Catherine to which reference should be made. In her first affidavit, sworn on 18 January 2019, the following passage was read without objection: "In or about 2000, my husband and I purchased our current home as joint tenants, with folio identifier 47/258295 commonly known as 11 Roosevelt Avenue, Tolland NSW 2650 for the sum of $140,000, and is currently worth approximately $395,000".

[16]

The dispute concerning the Limberger Family Businesses

The deceased and Silvester owned a number of businesses, including Silver Star Homes, Riverina Building Supplies and Rivcrete.
In 1970, John commenced employment with Silver Star Homes and Riverina Building Supplies.
In 1971, Joseph commenced employment with Silver Star Homes and Riverina Building Supplies.
In 1976, Steven commenced employment with Silver Star Homes.
On 1 July 1978, Joseph, John, the deceased and Silvester entered into a formal written partnership agreement. Under this agreement, Joseph was responsible for production, sales and delivery of materials to building sites.
Joseph claimed that he conducted most of the work for the partnership. In cross-examination, Steven confirmed that, whilst he was at boarding school, Joseph was heavily involved in the family's building business: Tcpt, 11 March 2021, p 236(31-33). Steven also accepted that it was Joseph's belief that he "did more of the heavy lifting" in the business: Tcpt, 11 March 2021, p 237(29-32).
However, Damien, one of John's children, gave evidence that, from the time Rivcrete was established in approximately 1978, John had managed the business on a day-to-day basis and had worked extremely long hours, from 7:30 a.m. to 6:30 - 7:30 p.m. and on weekends.
In 1984, the deceased, Silvester, Steven, John and Joseph had a meeting at the deceased and Silvester's house to discuss the business. Joseph recalls saying to the deceased and Silvester: "You should build your holiday house at Mollymook and check each month to see how much the business has made". Joseph claimed that he was referring to Silvester doing less work and taking less responsibility due to his age and having done hard physical work throughout his entire life. Joseph also told Silvester and the deceased that John and Steven were not working to their full potential, to which John and Steven stated: "You want to do everything and we're never given the chance". Joseph also stated that he agreed to reduce his working hours as a result of this meeting.
However, Steven provided a different account of this meeting. Steven recalled that Joseph arrived unannounced at the deceased and Silvester's home and that John, initially, was not present. Steven recalled that Joseph smelled strongly of alcohol, was carrying a half-empty bottle of whisky and had bloodshot eyes. Joseph stated that he wanted to discuss the business and said words to the effect of: "I will control the business. I will be able to hire and fire whoever I want. I think you should both retire down the coast".

[17]

Michael's Evidence

Michael gave evidence in an affidavit sworn 5 July 2019. I accept his evidence as there is no reason not to. Nor was it submitted that where the evidence of Joseph or Catherine conflicted with his evidence, the evidence of each of them should be accepted.
In about 2013 or 2014, when Michael was visiting the deceased, she said words to the effect of: "I am so grateful to John, Flavia, Stephen [sic] and Helen who look after me. At least one of them comes around every night to visit and bring me groceries and dinners. No one else comes to visit." Michael took the last comment to be a reference to Joseph and Catherine.
On another occasion, in or about 2013, whilst visiting the deceased, she said to Michael words to the following effect: "I am so lucky to have you grandchildren and your parents to look after me. The other's don't care about me and never come to visit. All they want is my money and they won't be getting any from me!" Once again, Michael took the deceased's expression "the others" to be a reference to Joseph and Catherine.
Michael had no memories of Joseph and states that he never attended any regular family Christmas, or Easter, dinners.
Michael recalled Catherine and her family attending the family Christmas and Easter celebrations until about 2007 or 2008. He stated that the relationship between Catherine and the deceased appeared to be distant and difficult. On most of the occasions when Catherine visited the deceased, in Michael's presence, there would be an argument which would result in Catherine leaving early. Once Catherine left, the deceased would usually say words to the effect of "Cathy hates me. She shows me no respect". On such occasions, Michael observed that the deceased was teary and, often, was also shaking.
From 2007, in most of the years when John and Flavia held Christmas, or Easter, celebrations, at their home, John would say to Michael words to the effect of, "I have invited Cathy but as usual she is not coming". On one occasion, John stated "Cathy didn't even reply to my message inviting her".
Michael recalled that the only time he saw Catherine take an interest in the deceased was after she was hospitalised in 2015 and when she was subsequently placed into a nursing home. Michael recalls weekly phone calls with Flavia in which she would say to him "Cathy never does anything to help [the deceased] and never takes her out, even though Cathy is always visiting her now she is in the nursing home".

[18]

Briana's Evidence

Briana gave evidence in an affidavit sworn 4 July 2019. I accept her evidence as there is no reason not to. Nor was it submitted that where the evidence of Joseph or Catherine conflicted with her evidence, the evidence of each of them should be accepted in preference to Briana's evidence.
As a child, Briana regularly visited the deceased, on average three times each month. Briana seldom saw Catherine at the deceased's home, with the exception of major family gatherings such as Christmas and Easter.
When Briana was about 10 years old, she witnessed heated arguments between the deceased and Catherine. She does not recall the words that were said.
From Briana's teenage years onwards, the deceased spoke to her, on numerous occasions, about her relationship with Catherine and what had caused their lack of communication. The deceased would say words to the effect of "I disapprove of Cathy's behaviour and how she treats me", "She has no respect for her own mother" and "She doesn't love me".
The deceased appeared, to Briana, to be very upset at Catherine's choice of lifestyle and relationships, including her relationship with Phillip. Briana recalled the deceased saying words to the effect of: "I believe that Cathy's friends and Phillip were a bad influence on her. They encouraged her to take drugs and smoke and run away from home"… "Her friends and Phillip turned Cathy against me, she was such a loving child until she started associating with them"; and "We didn't raise a daughter like this. It is shameful to our family and to me".
From Briana's teenage years onwards, the deceased would speak to her, frequently, about the lack of communication with Catherine. The deceased often said words to the effect of "Cathy has made no attempt to contact me at all. She doesn't even care enough to make one phone call", "I have not heard from Cathy for years", "She can't be bothered to call even her own mother", "What have I done to deserve this?", "How can she treat me like this" and "Am I such a bad person Briana?"
When the deceased said these things, she appeared to be upset and close to tears. Briana estimated that such conversations occurred, on average, once per month.
After the deceased's health deteriorated, she had conversations with Briana in which she said words to the effect of "Why isn't Cathy here to help me?", "Cathy doesn't love or care enough about me to want to help or even see if I am OK", "My daughter should be here helping me, not you Briana", "Why is she not here helping, like your father and mother?", "She doesn't care enough, she has never cared" and "I don't know if I will ever see Cathy again".

[19]

Damien's Evidence

Damien gave evidence in an affidavit sworn 3 July 2019. I accept his evidence as there is no reason not to. Nor was it submitted that where the evidence of Joseph or Catherine conflicted with his evidence, the evidence of each of them should be accepted.
From May 2015 until August 2015, Flavia said words to Damien to the effect of "I go to Omama's house every morning to get her out of bed, clean her and dress her… she often says to me 'Where is my daughter, she should be here helping me'".
On at least four or five occasions between approximately 2008 and the deceased's death, she said words to Damien to the effect of "Flavi looks after me like she is my daughter. Where is my daughter to look after me? She doesn't care about me".
Damien believed that Joseph became estranged from the deceased in 1984. The deceased would say to Damien at least once a year words to the effect of "How could Joe do that to the family. I don't want to ever see him again".
To the best of Damien's knowledge, Joseph did not visit the deceased after 1984 except when he visited her at the nursing home.
From 1989 to 1998, Damien never observed Catherine to visit the deceased. The deceased would say to Damien, at least three to four times a year, words to the effect of "Cathy doesn't care about me. She never rings or visits me".
Damien observed that when Catherine attended Christmas and Easter family dinners, Catherine would "always end up fighting with [the deceased]". During such arguments, Damien heard the deceased shout words to Catherine to the effect of "You never visit me, you never call me, you don't love me!"
From 2002 to 2015, Catherine attended only two Christmas evening dinners. John told Damien that Catherine attended in 2003 (when Damien was overseas) and Damien observed Catherine to attend in 2004.
From 1989 until the deceased was admitted to a nursing home in 2015, the deceased said to Damien, approximately three to four times a year, words to the effect of "Where is Cathy, she doesn't care about me. She never rings or visits me".
In or about 2015, John said to Damien words to the effect of, "Cathy has only started visiting Omama now that she is in the nursing home".

[20]

Evidence of Donna Maree Field

Donna confirmed some, but not all, of Catherine's evidence about the relationship with the deceased.
Donna observed the deceased to be a strict parent, who could be very loving, but, at other times, very nasty to Catherine. Whilst Donna never witnessed the deceased physically abuse Catherine, she often saw the deceased yell and scream at her. Catherine also told Donna on multiple occasions that the deceased had physically assaulted her: Affidavit, Donna Maree Field, 30 August 2019 at par 9-10.
Over the years, Catherine told Donna of derogatory remarks the deceased made to her, including "you're too fat", "you need to lose weight", "what's with you hair", "get those earrings out" and "don't eat": Affidavit, Donna Maree Field, 30 August 2019 at par 14.
To Donna's observation, Catherine's relationship with the deceased was generally good but it was usually in the presence of others that the deceased would belittle Catherine
In or about 2007 to 2009, Donna recalls Catherine telling her "I don't visit mum, it's just too difficult for me to deal with her emotionally after years of her abuse and the grief that she caused me. I don't want my children being subjected to this behaviour. I still call her fairly regularly to see how she is and what she's been up to. I do stop and chat with her whenever we've bumped into each other in the street from time to time, and it's fine and civil between us": Affidavit, Donna Maree Field, 30 August 2019 at par 19.
Catherine expressed to Donna that she wanted a close relationship with the deceased but had felt that, because of the deceased's behaviour towards her, she had to keep a certain distance to protect herself and her family. However, in 2015, Catherine expressed to Donna that she had a strong feeling that she needed to become closer to the deceased.
In the latter half of 2015, when the deceased was living in the Forrest Centre, Donna recalled Catherine telling her that the deceased was unhappy and frequently pleaded with Catherine to take her home and care for her, but that John and Steven would not allow it.
On or about 5 December 2017, Donna accompanied Catherine to the Wagga Referral Hospital to visit the deceased. Donna observed that the deceased "was talking and laughing" and "seemed… to be very happy and she was very much enjoying our company, so much so that [she] did not want us to leave": Affidavit, Donna Maree Field, 30 August 2019 at par 25. According to Donna, this was different to the way she had observed and been told by Catherine that the deceased had behaved towards her in the past.

[21]

Joseph's Claim for a Family Provision Order

Joseph states that, until 1968, he maintained a "close and loving relationship" with the deceased.
However, Joseph recalls an incident, around 1969, when the deceased followed Joseph to a friend's house and "forced her way inside the house to see what [he] was doing". Joseph recalls another incident when the deceased entered his bedroom whilst he was asleep and cut his hair with scissors "because she didn't like my long hair".
In 1973, Joseph married and moved out of the family home.
Following the court proceedings initiated by Joseph against Silvester and the deceased, it was accepted that he became estranged from the deceased.
Initially, Joseph stated that he had no contact with the deceased from 1988 until 2015. However, in cross-examination, he accepted that it "could be correct" that he was, in fact, estranged from the deceased from about 1985, noting, from October 1985 to 1988, that the only contact he had with the deceased was seeing her in court: Tcpt, 9 March 2021, p 111(31-47).
Joseph also accepted, in cross-examination, that he took no steps to get in touch with the deceased during this 30 year period and that he only went to see her after she was admitted to the nursing home: Tcpt, 9 March 2021, p 114(03-17).
Steven recalled that, approximately one week after the conclusion of Joseph's Supreme Court proceedings against Silvester and the deceased, Silvester and the deceased said words to the effect of "Joseph will never get anything from us".
From the time of Silvester's death, the deceased would, from time to time, say words to Steven to the effect of "I don't know how Joe could have done what he did to me and your father. I could never see him again". Steven estimated that the deceased continued to make remarks of this kind approximately every month until her death.
In July 2015, Catherine contacted Joseph to tell him that the deceased had been in hospital, was now in aged care, and that she had asked to see him. In cross-examination, Joseph initially accepted that Catherine told him "Mum is now in palliative care. I think you should come see her": Tcpt, 9 March 2021, p 112(29-32). However, he later stated that he was not aware the deceased was in palliative care: Tcpt, 9 March 2021, p 112(46-49).

[22]

Joseph's Medical Conditions

Joseph suffers from the following medical conditions: carpal tunnel syndrome in his hands; hypertension; high cholesterol; and arthritis. Joseph also experiences pain in his neck, lower back and knees on a daily basis, due to arthritis, which typically takes between two and five hours to recede. The pain is more severe during winter months. He can no longer take medication to treat his arthritis as he previously developed a stomach ulcer from taking medication, which required urgent hospitalisation.
In 2014, Joseph had surgical procedures to address his carpal tunnel syndrome and has had four surgical procedures. These surgeries were unsuccessful and, currently, he has almost no use of his left hand. He experiences constant numbness in that hand and finds tasks such as opening a jar or buttoning a shirt extremely difficult.
As a result of these medical conditions, Joseph is unable to perform any physically demanding work.
In cross-examination, when asked how he was able to cook, clean, wash clothes and garden whilst suffering arthritis, Joseph stated "I don't regard that as really hard physical": Tcpt, 10 March 2021, p 140(42).

[23]

Joseph's Financial Circumstances

In 2002, Joseph finalised his divorce. He received the family property at XXX Big Springs Road, Wagga Wagga and the mortgage of approximately $70,000. He also received cash of $40,000 less legal costs of $30,000.
In 2004, Joseph began building a shed on the property, with 25% of it being habitable, and moved into it in 2013. In cross-examination, he confirmed that, whilst the shed is "not really finished… 25% of it's liveable": Tcpt, 9 March 2021, p 115(33-38).
The shed in which Joseph lives is approximately 90 square metres. It is made of iron colorbond composition, with a concrete floor, and a corrugated iron roof. There is no air-conditioning and, in summer, it can reach temperatures of up to 45 degrees inside. There is a wood heater, which assists in colder months.
The shed has a separate living area, dining area and kitchen (but these spaces are not divided by doorways): Tcpt, 9 March 2021, p 116(16-18). The shed has two bedrooms (including a guest bedroom) and a veranda: Tcpt, 9 March 2021, p 116(23-34). The shed has walls lined with timber boards, windows, light fittings and power points in each room, main power to the property and a wood heater: Tcpt, 9 March 2021, p 116(44)-117(21).
Joseph accepted, in cross-examination, that it would be possible to convert other parts of the shed into a habitable space if required: Tcpt, 9 March 2021, p 116(39-42).
On 15 September 2017, Joseph came to an arrangement with his son, Kye, in which Kye paid off Joseph's mortgage of approximately $15,000, in exchange for Joseph transferring the Big Springs property into their joint names in equal proportions as tenants in common. Kye obtained a loan for approximately $450,000 and constructed a house valued at approximately $500,000 on the land.
Joseph accepted that the Big Springs property was, even then, worth more than $30,000 and that in carrying out the transfer, he had given Kye one-half of the assets that he then owned. However, he denied that the transfer was a gift: Tcpt, 9 March 2021, p 120(06-16). He stated that he gave Kye half the property because: "He wanted to build a house there and the only way he could build a house there was for the mortgage to be cleared. So I told him that he'd have to clear the mortgage so that you'd be able to borrow the money": Tcpt, 10 March 2021, p 131(45-48).

[24]

(Of course, the estimated expenditure is $19 per fortnight less than the income he receives.)
Joseph has the following assets: Description Full Value Half Share in 291 Big Springs Road $262,500 Funds held in CBA Wagga Wagga $ 300 2005 Holden Ute $ 500 Boat $ 500 Furniture $ 1,000 Electrical Goods $ 500 Trailer $ 300 Total $265,000

[25]

Joseph's Claimed Needs

Joseph seeks provision from his mother's estate to enable him to purchase a home on the northern coast of New South Wales, at an estimated cost of $550,000. He wishes to live near Ballina as it is coastal, he enjoys fishing, it is warmer (which would alleviate his arthritis pain) and it is in close proximity to a hospital.
Joseph accepted that if he had not transferred half of his interest in XXX Big Springs Road to Kye, he would have had enough to purchase a new residence in Ballina: Tcpt, 10 March 2021, p 141(09-13). He also accepted that if the Big Springs property were sold for the average of the various appraisals provided in these proceedings, his share of the proceeds would be sufficient to purchase a new residence: Tcpt, 10 March 2021, p 141(42)-142(02).
When questioned about why he had sought to move when he already has a home, Joseph stated "I've got a modified shed, it's unhabitable": Tcpt, 10 March 2021, p 135(01-02). However, in cross-examination, Joseph accepted that, if he received provision from the deceased's estate, he could increase the habitable space in the shed from 6 metres to 24 metres: Tcpt, 10 March 2021, p 142(41-50).
In relation to a new residence, Joseph also seeks: 1. $22,000 to pay for stamp duty and solicitor's fees; 2. a fund to purchase basic furniture and white good contents in the amount of $35,000; 3. a fund to cover home and contents insurance for approximately 18 years in the amount of $90,000; and 4. a fund to pay for council rates and charges for approximately 18 years in the amount of $36,000.
Joseph seeks $86,400 to pay for the cost of a cleaner to maintain his residence for 18 years, given his medical conditions. Joseph estimates, based on the Fair Work Ombudsman award for cleaners dated 27 June 2019, the monthly cost of a cleaner as $400.
Joseph also seeks provision to enable him to purchase a new or good second-hand motor vehicle. Joseph seeks $30,000, which is the approximate cost of a dual cab Ford Ranger model. He also seeks $11,000 to cover the cost of car insurance for ten years and a $12,000 fund to cover the cost of repairs of any vehicle for ten years.
Finally, Joseph seeks provision to cover any possible medical care costs and future contingencies in life. A BUPA private Gold cover (including required joint replacement) has an estimated cost of $464 per month and Joseph seeks $100,321 to cover the cost of insurance for 18 years.

[26]

Catherine's claim for a family provision order

Catherine states that she had a close and loving relationship with the deceased throughout her early childhood. However, from Catherine's teenage years, she and the deceased had a difficult relationship.
Catherine observed the deceased to be a: "strong disciplinarian… [who] would often fly into fits of rage against me for no particular reason": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 17.
Steven gave evidence that, throughout her teenage years, Catherine would frequently lie to the deceased about her whereabouts and break her curfew. Steven recalls the deceased telling him several times that Catherine had stolen money from her purse to buy cigarettes and that she had found alcohol in Catherine's room. Catherine denies that she ever stole money from the deceased or drank alcohol without the deceased's permission, but accepted that she had smoked against the deceased's wishes: Tcpt, 10 March 2021, p 147(48)-148(30).
In about 1985, Catherine states that she left home after being physically assaulted by the deceased. Steven gave evidence that, whilst he observed the deceased occasionally raise her voice at Catherine, he had never seen her abuse Catherine, either mentally or physically. Steven did not notice any bruises or marks on Catherine and was never told by Catherine that she had been beaten.
Catherine stated that the deceased did not try to contact, or visit, her when she ran away from home. However, Steven stated that, on many occasions, he witnessed the deceased crying and saying words to the effect of, "I don't know where Cathy is! I am worried sick about her! She is out of control!"
After 8 months, Catherine returned to the family home. However, her relationship with the deceased "was never quite the same", was "a rollercoaster relationship" and "had become very strained": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 47-48.
In cross-examination, Catherine accepted that the deceased did not physically assault her beyond her teenage years, but stated that "she was still angry": Tcpt, 10 March 2021, p 156(39)-157(05).
In 1986, Catherine once again moved out of the family home to complete a TAFE course and returned only on weekends. Catherine accepts that the deceased supported her studying and paid for her board: Tcpt, 10 March 2021, p 150(38-45).

[27]

Catherine's Medical Conditions

A medical certificate completed for Catherine on 20 November 2018 states (Ex CP01/169): "Mrs Catherine Oakman has significant pain in her knees bilaterally, also now in the elbows and the left ankle. This is contributing to poor mobility, now requiring a walking stick. She has difficulty walking up and down stairs or slopes. She is unable to stand for long periods. She is unable to carry any great weights. She is now unable to shower without the aid of a shower chair. She is unable to continue in her current work role given her physical impairments. She is unlikely to pass any medical assessment to continue with a new contractor. If her condition doesn't improve, which is likely the case without surgery, weight loss and pain management, then she would probably need assistance in the home with ADLs."
A medical report for Catherine, prepared by her GP Dr Azab on 8 February 2021, includes the following (Ex CP03/4): "1. Patient's History Catherine's history is: •Osteoarthritis bilateral knees and requiring walking aids • NIDDM 2020 • HTN Controlled • Morbid Obesity • Lower Back Pain 2. Previous and Existing Conditions Her Previous and Existing conditions are the same Question 1. 3. Your diagnosis Her Diagnosis according to her History and examinations is: • Morbid Obesity • Bilateral Knee Pain • Difficulty to mobilise • Depressed mood Catherine's medication list is enclosed. She was also referred to an orthopaedic surgeon. 4. Treatment to date (including any medication, therapies and referrals to other medical practitioners/therapists) and any future treatment proposed and estimate cost for same. Catherine's Treatment is: • Medication and CBT •Medication for NIDDM and regular dietician and Diabetic educator review • Referral to psychologist for future CBT • Referral to Psychiatrist and to continue treatment in the long term. 5. Whether our client is fit to undertake any form of employment no [sic] or in the future Catherine is not suitable and has no capacity for future employment. She is vulnerable to any stress, difficulty to concentrate and achieve tasks and she is physically unable. 6. Prognosis Generally. On the background of her physical restriction and mental illness lead to a disabling nature and restrict her to obtain any employment.
Catherine suffers from physical disabilities, including: 1. severe osteoarthritis; 2. osteophytosis and lateralisation of the patella in both knees; and 3. a valgus deformity in both legs.

[28]

Catherine's Financial Circumstances

Catherine has not worked since she was made redundant in February 2019 and says she is unable to do so due to her physical and mental disabilities. Catherine is ineligible for NDIS funding. As such, her only current source of funds is Phillip's wage. Catherine's income for the 2020 financial year was $2,271 (from Centrelink benefits).
However, during cross-examination, Catherine accepted that she has $276,181 in total and permanent disablement benefits to which she is entitled as a part of her superannuation, but stated that she was unaware she could apply to receive this entitlement: Tcpt, 10 March 2021, p 186(03-33).
Catherine has the following assets and liabilities: Assets Held By Estimated Value 2012 Volkswagen Amarok Plaintiff $16,000 (estimate) CBA Smart Access Bank Account Plaintiff and Phillip $25 (as at 1 February 2021) AON Superannuation Fund Plaintiff $35,965 (as at 30 June 2020) Hostplus Superannuation Fund Plaintiff $9,961 (as at 30 June 2020) MTAA Superannuation Fund Phillip $146,803 (as at 30 June 2020) Ruby wedding and engagement rings Plaintiff $2,000 (estimate) 2001 Jayco Flamingo Campervan Plaintiff $11,500 (estimate - midpoint of valuation range) XX Roosevelt Avenue, Tolland NSW 2650 Plaintiff and Phillip $265,000 (estimate - midpoint of valuation range) Nominal personal property and household contents Plaintiff and Phillip $5,000 (estimate resale value) TOTAL ASSETS $492,254 Liabilities Held By Estimated Value Joint mortgage with CBA Plaintiff and Phillip $26,408 (as at 31 December 2020) CBA Mastercard Plaintiff $14,744 (as at 12 January 2021) Loan from Tristan Oakman re payout of Kildare Catholic College School Fees Plaintiff and Phillip $9,550 (as at 27 January 2021) TOTAL LIABILITIES $50,702

[29]

The parties agreed, during the course of proceedings, that the value of the Tolland property is $320,000: Tcpt, 10 March 2021, p 185(33-36).
In late February 2020, Phillip commenced employment as a full-time mechanic. At the time of the hearing, he was on Job Keeper and his future job security is uncertain. Phillip earns approximately $950 per week. Catherine is uncertain of Phillip's ability to continue working due to the back problems he suffers whilst working. Phillips income for the financial year ending 30 June 2020 was $51,010.
Tristan lives at home and is studying full-time at university. He currently works 80 hours per fortnight on a casual basis, as a disability support worker, earning $90,000 per year: Tcpt, 10 March 2021, p 174(48).
Reagan lives at home and currently works full-time as a property manager at a real estate firm in Wagga Wagga, earning $50,000 per year: Tcpt, 10 March 2021, p 175(04). However, at the time of the hearing, he was on Job Keeper and his future job security is unknown.
Catherine does not anticipate that either of her children will move out soon. In cross-examination, she accepted that "eventually they will move out… in their lifetime": Tcpt, 10 March 2021, p 194(17-21). They do not pay board as Catherine believes "I should assist them in advancing their lives financially". However, when asked why they don't pay board, Catherine stated "there isn't any reason. I just haven't asked them for it": Tcpt, 10 March 2021, p 194(40).
However, Phillip acknowledged that, at some point, Tristan and Reagan will move out. (At this point, Phillip would become Catherine's primary carer and would require help for Catherine whilst he is at work as well as to assist with general household chores and management).
Tristan and Reagan pay for their own day-to-day expenses, excluding groceries. Catherine accepted, during cross-examination, that it is not necessary for her to support her sons financially: Tcpt, 10 March 2021, p 175(36-42).
Catherine and Phillip's monthly expenses are $4,759: Ex CP03/47-48. Catherine states that she and Phillip are approximately $750 short on their monthly expenses and that: "I basically live day to day and need to manage the family finances closely. Phillip and I have minimal savings given the needs and contingencies of a family of four": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 277.

[30]

Catherine's Claimed Needs

Catherine estimates her present and future needs will cost approximately $1,210,940. Accordingly, she seeks provision from the deceased's estate to the amount of $1,100,000.
Given Catherine's physical disabilities, she says that she requires accommodation in a single-storey house which is on level ground, has no stairs and is modified to accommodate her disabilities. Catherine seeks a three or four bedroom home so that there is space for her family, a garden and her painting therapy.
Her current home is said to be unsuitable given that it is situated on a hill, the driveway is on a steep incline and accessing the front door requires walking up a set of 14 stairs.
Catherine also seeks a property in Wagga Wagga so she can take her scooter to the local shops and be near a hospital: Tcpt, 10 March 2021, p 197(50)-198(06). Her current property is approximately a 20 minute drive from the hospital and is too far for Catherine to use her scooter to visit the local shops: Tcpt, 10 March 2021, p 198(31-45).
As such, Catherine seeks provision of $266,145 to purchase a new home. This figure is based on the following costs: 1. purchase price: $550,000; 2. stamp duty: $20,085; and 3. legal and removal costs: $3,500; less: 1. sale price of existing property less sales commission (3% plus GST) and legal costs respectively: $320,000 - $10,560 - $2,000 = $307,440.
Ex D13, tendered by Steven, presented listings for a number of three-bedroom, single-storey houses in Wagga Wagga, ranging in value from $209,000 to $349,000, which Phillip conceded may be suitable for Catherine's needs. Catherine accepted that some of these properties would be suitable apart from the fact that they have steps and, in one case, the front of the property was too steep for her liking: Tcpt, 10 March 2021, p 192(25-28).
However, Ex CP01/205-207, tendered by Catherine, presented a listing for what she assessed to be a suitable home, valued at $669,000. Ex CP03/189-193, submitted by Catherine, presented listings for a number of properties which she assessed to be suitable homes, valued between $579,000 and $990,000. However, Catherine did not inspect any of these: Tcpt, 10 March 2021, p 193(40-41).
In cross-examination, Catherine accepted that she would not require this amount to purchase a new single-storey residence of two or three bedrooms: Tcpt, 10 March 2021, p 196(10-13). Similarly, Phillip accepted that it would cost much less than $900,000 to buy a new property in Wagga Wagga that was suitable to Catherine's needs: Tcpt, 10 March 2021, p 205(20-30). He accepted that such a property could be purchased for around $550,000: Tcpt, 10 March 2021, p 206(27-35).

[31]

Steven's competing claim

Steven had a close and loving relationship with the deceased throughout their joint lives. He lived at home until 1986, except for a brief period from 1972 to 1976, when he attended boarding school at Bowral. From 1986 onwards, Steven moved out of the family home.
From 1976 to 1980, Steven conducted an apprenticeship with Silverstar Homes and, from about 1978 to December 2019, Steven was employed by Rivcrete. Steven's wife, Helen, was employed part-time by Rivcrete from 2000 to December 2019. Steven has never had employment elsewhere: Tcpt, 11 March 2021, p 224(37-38).
Following Silvester's death in 1989, at the deceased's request, Steven (with John) assisted the deceased with the administration of Silvester's estate.
In 2002, the deceased had a fall at her home and had limited mobility for approximately the subsequent six months. During this period, Steven (with John) purchased a wheelchair, walker, walking sticks and a personal emergency alarm for the deceased. Steven and John took turns visiting, taking meals to and caring for the deceased, on alternate days. Steven and John assisted the deceased with her physiotherapy until, gradually, her condition improved. Steven and Helen would also visit the deceased with their children most weekends.
In about 2008, the deceased stopped driving. From this point onwards, John, Steven, Flavia and Helen would do the deceased's grocery shopping and take her to all of her appointments. From 2008, Steven's daughter Kate would clean the deceased's home once a week.
From 2012 or 2013 to 2015, Steven, or John took dinner to the deceased every day.
After the deceased moved into Loreto Home of Compassion in 2015, Steven would visit her every day.
Catherine stated that, on one occasion whilst visiting the deceased at Loreto Home, the deceased asked: "Can I trust Steven to do the right thing when I'm gone?": Affidavit, Catherine Philomena Oakman, 18 January 2019 at par 175.
However, Steven's evidence in his affidavit of 27 June 2019 at par 39 is that: "My mother explicitly trusted me in her care and the business. My mother would often express gratitude for what I did for her and the business. On such occasions she would say words to the effect of 'Thank you for all you do for me Steve. I'm such a burden on you and you are always there for me.' My mother was informed of all matters and I discussed with her any discussions concerning the business".

[32]

In cross-examination, Steven accepted that he failed to mention his family's discretionary trust in his affidavit as an asset available to his family unit: Tcpt, 11 March 2021, p 220(34-44).
As the deceased owned the property upon which Rivcrete operates its business, Steven is in the process of winding down the business so that the property can be sold. As Steven's employment history is limited to Silverstar Homes and Rivcrete, and given his age, Steven does not believe he has good prospects of finding other remunerative employment after he ceases to work for Rivcrete.
Helen is currently unemployed, after ceasing to work for Rivcrete in December 2019.
Steven is currently selling the stock and assets of Rivcrete, but has not drawn an income since December 2019. The proceeds of sale are being applied towards the expenses of Rivcrete (including clean up expenses, fuel and utility expenses) and otherwise to reducing the overdraft, which is currently $194,000.
In cross-examination, counsel for Catherine asked Steven extensively about Rivcrete Unit Trust and the distributions made to and from it. Steven accepted that the deceased (and, after her passing, the deceased's estate) was the only person contributing money into the trust, but that John and Steven received distributions from the trust over the period from at least 2014-2019: Tcpt, 11 March 2021, p 234(43-50). However, I found this evidence of limited relevance because there is more than sufficient funds in the actual estate to meet the provision to be made for Joseph and for Catherine.

[33]

Steven's medical conditions

Steven suffers from arthritis in both knees and his lower spine.
Steven suffers Plantar Fasciitis in both feet and is required to wear orthopaedic footwear.
Steven takes Micardis and Norvasc daily for hypertension, Cardia Aspirin for blood thinning, Lipitor daily for cholesterol, Allopurinol daily for gout and Zoloft daily for depression.
Steven suffers from industrial deafness.

[34]

Anthony's competing claim

Anthony is a grandchild of the deceased, a child of John and a beneficiary.
In November 2020, Anthony was made redundant and received a redundancy package of $22,327. Anthony is currently looking for employment and has no income source.
Anthony is in a de facto relationship with Britt Matilda Bergelin, who works full-time as a Product Marketing Manager at Elekta Instrument AB and earns an annual income of approximately $93,000.
Anthony and Britt have the following assets and liabilities: Asset Held By Estimated Value Motor Vehicle Anthony $ 15,000 Savings Anthony $210,000 Karl Gerhards vag 25, 133 xxx Saltsjobaden, Sweden Britt $271,062 Superannuation Anthony $ 85,000 Superannuation Britt $ 20,000 TOTAL: $601,062

[35]

Liability Owed by Amount Student Loan Britt $ 33,129 Mortgage Britt $218,355

[36]

Anthony would like to upgrade his vehicle, which he estimates will cost around $50,000. He would like to purchase a vehicle for Britt, which he estimates will cost approximately $30,000.
Anthony had a close relationship with the deceased. Growing up, he would regularly visit her and assist with the maintenance of her house and yard. After Anthony moved away from Wagga Wagga, he made an effort to see the deceased whenever he was visiting Wagga Wagga.

[37]

Laura's competing claim

Laura is a grandchild of the deceased, a child of John and a beneficiary.
Laura currently works full-time as an Architectural Designer at Shelton Mindel, New York and earns approximately $90,000 per annum before tax.
Laura lives alone in rental accommodation, for which she pays US $2,100 per month.
Laura has the following assets and liabilities: Asset Estimated Value Savings $ 1,000 Superannuation $14,247

[38]

Liability Amount Westpac Credit Card $ 6,000

[39]

Laura had a loving relationship with the deceased and would regularly visit when growing up. Laura spent time at the deceased's home using her swimming pool, cooking and assisting with chores.
After moving to Sydney, Laura continued to visit the deceased when she returned to Wagga Wagga.

[40]

Michael's competing claim

Michael is a grandchild of the deceased, a child of John and a beneficiary.
Michael currently works full-time for the Commonwealth Bank of Australia as a Market Data Specialist and earns a net monthly income of $6,984.
Michael has the following assets and liabilities: Asset Estimated Value XXX Abelia St, Tahmoor $470,000 Lot X Alum Creek, Dry Plain $180,000 Mazda CX3 $ 27,000 Mazda BT50 $ 7,000 Savings Account $ 43,000 Shares $ 20,300 Superannuation $156,341 TOTAL $903,641

[41]

Liability Amount Mortgages $ 5,000 Credit Card $ 6,817 TOTAL $ 11,817

[42]

Michael has approximately $469,248 in life insurance.
Michael's Mazda BT50 is due for replacement with a "more harder working vehicle that is required at the Lot X Alum Creek property". He estimates this will cost $55,000.
Michael requires the following provision to be spent on his residence: 1. $40,000 to update his bathroom and kitchen; 2. $12,000 to install a central air-conditioning unit; 3. $8,000 to replace his carpet; and 4. $2000 to replace his lounge.
Michael, currently, spends four hours per day commuting to work and would like to purchase a new residence in the future to improve his work/life balance. He estimates this will cost approximately $850,000.
Michael requires the following provision to be spent on the Lot X Alum Creek Property: 1. $15,000 to replace the fence lines; and 2. $50,000 to erect a shed to store equipment and machinery.
Michael anticipates that he will need to assist with the future cost of care for Flavia, due to her limited assets and lack of income.
Michael had a close relationship with the deceased. As a child, he spent most weekends at the deceased's house with his siblings. When Michael attended university, he spoke to her regularly on the phone. After moving to Sydney, Michael spoke to the deceased less frequently, but would try and visit her on most occasions when he returned to Wagga Wagga.

[43]

Briana's competing claim

Briana is a grandchild of the deceased, a child of John and a beneficiary.
Briana is currently working as a nanny four days a week and earns $1,036 per week.
Briana is married to Benjamin James Ridge. Benjamin works full-time for InfraSol Group as a civil engineer and project manager and has a net monthly income of $10,215.
Briana and Benjamin's assets and liabilities are as follows: Asset Held By Estimated Value Funds in bank accounts Benjamin $ 56,054 Shares in InfraSol Group Benjamin $108,266 2016 Toyota Corolla Benjamin $ 10,000 Household goods and personal effects Briana & Benjamin $ 50,000 Superannuation Briana $ 8,795 Superannuation Benjamin $161,977 TOTAL $395,092

[44]

Liability Owed by Amount HECS Debt Briana $ 78,019

[45]

Benjamin has life insurance of approximately $34,980.
Briana and Benjamin would like to purchase a home together, pay off Briana's HECS debt and replace some of their furniture and whitegoods.

[46]

Damien's competing claim

Damien is a grandchild of the deceased, a child of John and a beneficiary.
Damien currently works part-time as a medical practitioner for Murrumbidgee Local Health District. In July 2020, he commenced part-time employment with Charles Sturt University as an Associate Head.
Damien's net income for the 2020 financial year was: 1. Damien: $257,060; and 2. Limberger Medical Trust: ($57,225)
Damien is married to Susan Limberger, who works part-time as a teacher and earns an after-tax income of $72,841. Susan has been on maternity leave since January 2020 and expects to return to work in or about April 2022.
A summary of Damien and Susan's assets and liabilities are as follows: Asset Held By Estimated Value XX Payten Rd, Corbie Hill NSW Damien & Susan $ 320,000 XX Mansell Rd, Hanwood NSW Damien & Susan $ 740,000 XX Yambil St, Griffith NSW Limberger Superannuation Fund $ 605,000 Medical Equipment Limberger Medical Trust $ 120,000 Toyota Prado Limberger Medical Trust $ 30,000 Skoda Octavia Limberger Medical Trust $ 20,000 Daedong Tractor Damien & Susan $ 30,000 Toyota Hilux Damien & Susan $ 3,000 Shares Damien $ 25,300 Funds in bank accounts Damien & Susan $ 3,880 Funds in bank accounts Limberger Medical Trust $ 22,300 Funds in bank accounts Limberger Superannuation Fund $ 25,990 First State Super Damien $ 9,000 First State Super Susan $ 26,200 TOTAL: $2,062,550

[47]

Liability Owed by Amount XX Payten Rd, Corbie Hill NSW Damien & Susan $ 185,300 XX Mansell Rd, Hanwood NSW Damien & Susan $ 296,100 XX Yambil St, Griffith NSW Limberger Superannuation Fund $ 374,150 Medical Equipment Chattel Mortgage Limberger Medical Trust $ 42,300 Visa Card Damien $ 4,100 MasterCard Limberger Medical Trust $ 150 TOTAL: $ 902,100

[48]

Damien and Susan each have life insurance of approximately $2,500,000.
Damien does not have any interest in companies or trusts other than: 1. Damien; 2. the Trustee for Limberger Medical Trust; 3. the Trustee for Limberger Superannuation Fund; and 4. Limberger Nominees.
Damien had a close and loving relationship with the deceased throughout her life.
During Damien's early childhood, his family would see the deceased, on average, every one or two weeks.
From 1989 to 1997 (at which time Damien left for university), John would drop Damien and his siblings at the deceased's house most Saturday mornings, until late in the afternoon. Damien, Michael and Anthony would cut the lawn, maintain the gardens and clean the swimming pool.
Damien worked at Rivcrete during university holidays from 1997 to 2002. During this period, he would see and spend time with the deceased every time she visited Rivcrete, which was approximately four to five afternoons per week for several hours.

[49]

Joseph's Submissions

Joseph submitted that the deceased blamed him for Silvester's death and for causing the family business to incur a large expense by commencing proceedings in 1985. Joseph contended that, by making no provision for Joseph in her Will, the deceased was condemning him from the grave.
In regards to the value of the Big Springs property, Joseph submitted that the estimates provided by Jacob Goodan (Ex D10 and Ex D11) should be disregarded as they contain extremes of $500,000 and $1,600,000 and do not disclose details of comparable property sales. Instead, Joseph submitted that the property's value should be estimated at $975,000, being the midpoint of the range of $850,000 to $1,100,000 provided by Kitson Property and One Agency (Ex JL2).
Joseph estimated that, allowing for selling costs and legal expenses of approximately $25,000, each half of XXX Big Springs Road is worth $475,000.
However, Joseph then submitted that the value of his interest in one half of XXX Big Springs Road as a tenant in common, whilst relevant, should not be determinative of the outcome of his application for provision. He maintained that he needed to move to the North Coast for health reasons, but did not want to interfere with the continued occupancy and enjoyment of Kye and his family. Joseph's contention was that given Kye has been made redundant and his wife is unemployed, Kye is not in a position to purchase his share of the Big Springs property, and, otherwise, he does not wish to force a sale of the property.
However, as I pointed out to Joseph's counsel during oral submissions: "[Joseph] either stays where he is now and enjoys the comfort of the home that he has built for himself and lived in for the last seven years, perhaps with some financial assistance to improve the quality of the home - that's one alternative. The other alternative is that he sells the block of land by making a s 66G application, and if he did that, he would have sufficient, on the worst possible scenario, and far more than sufficient, on the best scenario, to enable him to purchase alternative accommodation": Tcpt, 11 March 2021, p 255(01-08).
Joseph contended that, for more than half of his life, he had a good relationship with the deceased and contributed to the business and family welfare. Whilst Joseph acknowledged their estrangement, he submitted that the fault was with both himself and the deceased. He noted their reconciliation in July 2015.

[50]

Catherine's Submissions

Catherine submitted that, despite reconciling with the deceased (to a degree) from 2015 onwards, the deceased wished to punish Catherine for her teenage behaviour and for her choice of husband, in her final Will. Catherine contended that the deceased's differential, and hurtful, treatment of her is demonstrated by such behaviour as her failure to contribute financially to Catherine's wedding, failing to visit Catherine when her first child was born and failing to attend his christening despite being invited to do so. Counsel submitted that the treatment Catherine had received from the deceased was vastly different to that of Steven and John, that is: 1. their choice of spouse was not the subject of criticism and rejection; 2. they were employed for decades in the family business with no need to seek employment on the open labour market; and 3. they had received almost the whole of the very significant assets built up jointly by the deceased and Silvester over decades.
Whilst Catherine acknowledged the stated reasons for Joseph having been omitted from the deceased's Will, she contended that the same reasons did not apply to her.
Catherine submitted that there was no evidence to support the reasons given to Mr Kennedy for excluding her in the deceased's Will, that is, that she was living in an unsatisfactory domestic relationship and that Phillip would squander any assets that she received. Catherine contended that these reasons demonstrated the deceased's unreasonable antipathy towards Catherine and her husband.
Catherine submitted that the deceased did not give proper consideration to Catherine's moral claim upon her estate, as a result of which the children of John and Steven had been preferred to Catherine's children.
Catherine pointed to Basten JA's comments in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 that "indifference, irritation or even outright hostility are also 'natural' characteristics of some family relationships". She submitted that this observation applied in these proceedings, given that a controlling mother had to deal with what she viewed as a disobedient teenage daughter.
Catherine submitted that although the relationship was difficult, Catherine had persevered and there was no behaviour on her part which disentitled her to provision. Catherine submitted that it was the deceased's behaviour that had contributed to Catherine being deprived of a close relationship with her mother and Catherine's children being deprived of a close relationship with their grandmother.

[51]

Steven's Submissions

Steven submitted that Joseph, in having no contact with the deceased for as long as he had, relinquished any claim to provision out of her estate and, consequently, that the deceased was not under a moral obligation to make provision for Joseph.
Steven further submitted that Joseph's decision to make a number of nursing-home visits to the deceased in the final two and a half years of her life did not alter the position. For a significant period, Joseph had made no attempt to play any part in the life of the deceased.
Counsel for Steven, during oral submissions, also submitted that Joseph did not provide any evidence of conversations between himself and the deceased and that "the evidence is very vague as to the nature and duration of that interaction in the last two to two and a half years or so of the deceased's life": Tcpt, 11 March 2021, p 275(03-18).
Steven further submitted that, due to the frequent infections suffered by the deceased from mid-2015 until the time of her death, during which she was often delirious, it is not known "to what extent on the occasions that Joseph visited the deceased she necessarily even recognised him or knew who he was": Tcpt, 11 March 2021, p 275(20-35).
Steven pointed to the lack of evidence that the deceased attempted to make provision for Joseph following his visits to her or even considered doing so.
Steven submitted that Catherine's moral claim to provision out of the deceased's estate was either extinguished, or very substantially diminished, by Catherine's decision to have next to no contact with the deceased for so many years. He submitted that the Court should be slow to find that a resumption of contact at a point in time when the deceased was nearing the end of her life operated to revive a moral claim relinquished (or substantially diminished) decades earlier.
Steven submitted that there was no suggestion, in the evidence advanced by Catherine, that, following Catherine's resumption of contact, the deceased had considered revising her will to make additional provision for Catherine.
Yet, Steven accepted that the provision made for Catherine under the deceased's Will was inadequate. He conceded that it would be appropriate for the Court to order that Catherine receive provision, in lieu of the provision made for her out of the deceased's estate. He submitted that the moral claim of all of the residuary beneficiaries was particularly strong by reason of the enormous lifetime contributions of each of Steven and John to both the building up of the estate (by working in, and, ultimately, running, the family businesses) and the welfare of the deceased, to whom they provided extensive care and assistance, without pause, until her death.

[52]

The Law

The principles to be applied are well known and I have dealt with them in many cases. For the benefit of the parties, I shall repeat the relevant principles.
Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied as to matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; and 2. … 3. At the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased.
Thus, to justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2).
The majority (Mason CJ, Deane and McHugh JJ) observed in Singer v Berghouse (1994) 181 CLR 201 at 210; [1994] HCA 40, referred to these as "twin tasks" and stated that they involved similar considerations, because in each the Court has to assess what is the "proper" level of maintenance and what is "adequate" provision. As has been observed, these terms are relative and require that regard be had, among other things, to the matters set forth in s 60(2), including the claimant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the claimant and the deceased, and the circumstances and needs of other claimants, beneficiaries and potential beneficiaries.
Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased's Will applies unless a specific application is made and acceded to by the Court.

[53]

Some Additional Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447 at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a will according to the Court's own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." (emphasis in original)
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."

[54]

Claim by an adult child

I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). 3. Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) at 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ). 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.

[55]

Large Estate

The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood at [41]; Borebor v Keane at [67]. In this case, the estate is of large value.
In Re Buckland (dec'd) [1966] VR 404, Adam J wrote, at 414: "Throughout the hearing the vastness of the estate has tended to overshadow all other elements in the case. I can appreciate readily enough the significance of the size of the estate when the question is whether the estate is sufficient to provide what an in ample estate would be adequate provision for proper maintenance of a claimant. Where there are competing moral claims for maintenance and the estate is insufficient to satisfy all, one can understand that less than what otherwise would be proper maintenance may be considered adequate provision in a will for proper maintenance. I can understand also that where the estate is ample and competing moral claims may be disregarded, the purposes of the legislation are not served by the judge being niggardly."
At 415, his Honour added: "I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. ... The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance."
In Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep), Young J wrote at 20-21: "[W]ith a very large estate… there is great temptation on a court to be overgenerous with other people's money. This is especially so when the Court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in such a way as, in substitution for the testatrix, to fulfil her moral duty. If the estate is a large one the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs because they have been associated with a wealthy testatrix, is a relevant factor."

[56]

Estrangement

Acrimony or estrangement between an applicant and the deceased is a consideration that has been at the forefront of the Defendant's case in opposition to the claim by the Plaintiff.
In Jodell v Woods [2017] NSWSC 143, at [108]-[111], I set out the relevant principles relating to estrangement: "(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 recognized by the New South Wales Court of Appeal in Hunter v Hunter, 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 an 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]. In Andrew v Andrew, Basten JA at [40] 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: at . 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.' His Honour added at [49]: '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.'

[57]

Qualifications on "Principles"

As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA at [18]-[20], and by Barrett JA at [66]-[67]; in Burke v Burke (No 2) [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and very recently, by White JA, in Steinmetz v Shannon at [37]. They must be remembered.

[58]

Determination

What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered.
Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Joseph, and of Catherine, respectively, has not been made by the Will of the deceased.
Judged by quantum, and looked at through the prism of his, and her, own financial resources and needs, adequate provision for the proper maintenance or advancement in life could be seen as not having been made by the Will of the deceased for each of Joseph and of Catherine. As stated above, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased and consider what she ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as a wise and just, rather than as a fond and foolish testatrix: Bosch v Perpetual Trustee Co Ltd at 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19-20 (Dixon CJ).
The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.
Whilst I have borne in mind that the relationship with the deceased of each of Joseph and of Catherine was not as close as the deceased's relationship with Steven and John (during his life), and with their children, and that there may have been reasons for the deceased's disappointment in the irregularity of contact with Catherine, and with what had occurred with Joseph which resulted in them not seeing each other for over 27 years, I also remember that Catherine, in particular, did maintain contact with the deceased and Joseph did return to see the deceased before her death. I also consider the relationship of the deceased with each of them, prior to, in the case of Joseph, 1985, and in the case of Catherine, prior to 2007.

[59]

Amendments 19 May 2021 - Coversheet amended. 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: 19 May 2021

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