Luxton v Ishihara [2026] NSWSC 943 | Case summary | Zoe

NSWNSWSC

Luxton v Ishihara

[2026] NSWSC 943

Supreme Court of NSW|2026-08-06|Before: Bennett J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-08-06

Before

Bennett J

Catchwords

SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Defendants daughters of first marriage of deceased — Where plaintiff deceased’s spouse of 32 years — Where plaintiff provided a lot of care and assistance to the deceased — Where plaintiff received 1-year right of residence and portion of residue of estate — Where plaintiff and second defendant both have significant health issues — Whether adequate provision for proper maintenance made for plaintiff —Whether adequate provision for proper maintenance includes provision for plaintiff to live in retirement village of plaintiff’s choice — Whether adequate provision for proper maintenance includes portable life estate

Source

Original judgment source is linked above.

Catchwords

SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Defendants daughters of first marriage of deceased — Where plaintiff deceased’s spouse of 32 years — Where plaintiff provided a lot of care and assistance to the deceased — Where plaintiff received 1-year right of residence and portion of residue of estate — Where plaintiff and second defendant both have significant health issues — Whether adequate provision for proper maintenance made for plaintiff —Whether adequate provision for proper maintenance includes provision for plaintiff to live in retirement village of plaintiff’s choice — Whether adequate provision for proper maintenance includes portable life estate

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Luxton v Ishihara [2026] NSWSC 943

Hearing dates: 9 and 10 March 2026

Date of orders: 6 August 2026

Decision date: 06 August 2026

Jurisdiction: Equity – Probate and Family Provision List – Family Provision

Before: Bennett J

Decision: Plaintiff to receive portable life estate, see [298]

Catchwords: SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Defendants daughters of first marriage of deceased — Where plaintiff deceased’s spouse of 32 years — Where plaintiff provided a lot of care and assistance to the deceased — Where plaintiff received 1-year right of residence and portion of residue of estate — Where plaintiff and second defendant both have significant health issues — Whether adequate provision for proper maintenance made for plaintiff —Whether adequate provision for proper maintenance includes provision for plaintiff to live in retirement village of plaintiff’s choice — Whether adequate provision for proper maintenance includes portable life estate

Legislation Cited: Succession Act 2006 (NSW) ss 57, 58, 59, 60, 61, 65 Uniform Civil Procedure Rules (2005) NSW rr 42.1, 42.25

John Robert Luxton (John or the deceased) and Rosalie Fransisca Luxton (Rosalie or the plaintiff, or as known to John, “Sally”) (together, the couple) had been a couple for some 32 years at the time of the deceased’s death on 19 March 2024, aged 83. They met in Rosalie’s country of origin of Indonesia in 1991, commenced living together as a couple in 1992, and married in 1997. They did not have children together.
Both the deceased and Rosalie had been married before. The deceased had been married to Stephanie Ruth Luxton (Stephanie), from which there were two children born: Vanessa Ruth Luxton (Vanessa, or the second defendant) born in 1969, and Melissa Rosalind Ishihara (Melissa, or the first defendant) born in 1972 (together, the daughters or the defendants). Melissa has three children with her husband: Yuki (born in 2004), Hannah (born in 2006, also spelt Hana) and Toshiki (born in 2010) (together, the grandchildren).
For her part, Rosalie had been married to Mr Anthony De-Courcey Mac-Gillycuddy. There were no children of that marriage.
As is usual in proceedings of this nature and without intending any disrespect or overfamiliarity, I will refer to the various parties in this proceeding by their first names, as did counsel in the course of the proceedings.
The defendants were already adults by the time of the commencement of the relationship between the deceased and Rosalie. The defendants never lived with the couple, and in fact appear to have lived in different cities to the deceased and Rosalie for large parts of the period the couple were together. For instance, for many of those years Melissa was living in Japan with her husband, and over time, also with her three children.
At the time of the deceased’s death, the main asset of the couple was their marital home at X Cambridge Street, North Willoughby (the Marital Home), which had been purchased in 1996. They had rented a home next door, at Number 8, from 1992, and thus the couple had resided in the same street and local community for some 32 years before the death of the deceased.
As of the date of the purchase of the Marital Home, the deceased and Rosalie owned the Marital Home as tenants in common in equal shares.
By his will dated 5 December 2022 (the Will), subject to pecuniary legacies and a right of residence for a period of 12 months in Rosalie’s favour, the deceased left his half share of the Marital Home to the defendants. The deceased’s half share of the Marital Home was the major asset of his estate.
By Summons filed on 10 September 2024, Rosalie makes an application for a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) from the estate of the deceased.

The Inventory of Property attached to the Grant of Probate provides the following estimated or known values of the estate:
Cash in Banks: $6,713.96;
Shares in Companies: $61,979.58;
Motor vehicle (Toyota Corolla): $12,000; and
Half share of X Cambridge Street: $1,750,000.
These amounts total $1,830,693.54.
At the time of the hearing, the executors provided an updated valuation of the estimated value of the estate in the following terms:
Cash held in solicitors trust account: $1,368.67;
Shares in companies: $81,492.56;
Motor vehicle (Toyota Corolla): $5,000; and
Half share of X Cambridge Street: $1,800,000.
These amounts total $1,887,861.23 (the executors**’** 2026 estimate).
I note the parties agree that the value of the Marital Home is uncertain, and both parties work from a range of potential values. Adopting Rosalie’s approach, I will consider the value of a half share of the Marital Home as $1,750,000, which counsel for the plaintiff (TR P64 L24-26) and counsel for the defendant (DWS [6]) suggested was the low end of the possible range. I have chosen to adopt this low-range estimated value of the Marital Home having regard to the further uncertainty of what costs might be associated with the sale of the Marital Home which might impact its value. I will therefore consider the 2026 estimate to be $1,837,861.23 (being the executor’s 2026 estimate reduced by $50,000 to account for a low-end estimate of the Marital Home value).
From the 2026 estimate, it is clear that, firstly, the estate of the deceased is almost wholly (some 95%) comprised of the deceased’s half share of the Marital Home. Secondly, under the Will, Rosalie is to receive the Toyota Corolla ($5,000) and one third of the residue, which, based on the 2026 estimate, is some $27,620.41 ($1,368.67+$81,492.56=$82,861.23 /3). Of course, this sum remains subject to administration and legal costs, and so, as submitted by Rosalie (PWS [8]), very little may be left of this “residue” for final distribution.

The Marital Home was purchased in 1995 for about $300,000. Rosalie contributed about $40,000 towards the purchase, which partly came from a family law settlement with her first husband, and partly from her savings. The home had a mortgage of $150,000 at the time of purchase.
At some point in or around 2005, the deceased received an inheritance from his late mother, Vera Mary Luxton (Vera). Rosalie said the deceased received half of the proceeds of the sale of Vera’s house, the other half going to the deceased’s brother. Rosalie recalls that the deceased paid off the mortgage with a part of the inheritance, and that he also gave a “significant amount” to his daughters.
Melissa also recalls that the inheritance from Vera was used to pay off the mortgage on the Marital Home, however was silent on whether any part of that inheritance was gifted to her by the deceased.
Of this inheritance, Vanessa said the inheritance was worth $647,439 and that it was received on 28 April 2005. Vanessa notes that a $50,000 legacy was paid to each of Vanessa and Melissa from Vera’s estate. Beyond this legacy, Vanessa does not state the deceased gifted any part of the inheritance he received from his mother to the defendants.
Of this evidence, it is not in dispute, and I accept, that the deceased received an inheritance from his mother, and that he used at least part of it to pay off the couple’s mortgage on the Marital Home.
I accept the evidence that the defendants received $50,000 each from Vera’s inheritance. Considering that Rosalie did not acknowledge this legacy in her affidavits, was inconsistent in recalling the year the inheritance was received, and that Vanessa’s evidence has a documentary basis, I do not accept Rosalie’s evidence that the defendants received a further gift from the deceased from this inheritance money. I consider it more likely that Rosalie has misremembered the legacy received by the defendants as a gift from the deceased.
Rosalie stated she purchased the furniture that was in the home at the time of his death, excepting the queen bed, which was purchased by the deceased.
Rosalie had initially worked full-time as a pharmaceutical assistant, however transitioned to part-time work after being diagnosed with arthritis in 2009. The deceased was a draftsman and worked for various engineering companies before his retirement.
The actual salaries of each of Rosalie and the deceased were not the subject of evidence, however, Rosalie gave evidence that the deceased earned more than she did.
Rosalie retired at the age of 64, and since that time has received the aged pension.
Rosalie gave evidence that, in retirement, the deceased received a pension, along with interest from his savings and dividends from shares in his parents’ estate.
Rosalie said she paid for groceries and other household items, and that the deceased paid for mortgage instalments, the bills and most other expenses, including dining out and holidays.
Rosalie said that when the deceased was alive, she did not have any financial concerns.

The deceased retired in 2016. It was shortly after his retirement that the deceased fell ill and was diagnosed with a lung disease - pulmonary fibrosis. The deceased was unwell for about seven years before he died.
Following the diagnosis of pulmonary fibrosis, the deceased became increasingly worried, and gradually withdrew from social interactions. Rosalie said she encouraged him to meet up with friends, however, he was unwilling to do so, and so he eventually lost contact with his circle of friends.
In evidence was a report from a psychologist dated November 2018, which referred to the psychological support that had been provided by that psychologist in relation to the deceased’s anxiety and depression. The deceased appeared to remain under the care of the psychologist for some further time, as in evidence was a further report dated August 2019. The psychologist was of the view that the deceased required ongoing counselling support to maintain his improved mental health and wellbeing.
During the deceased’s illness, Rosalie was his primary caregiver and also provided emotional support. In about the last four years of his life, the deceased would call her to his side every night, even when she was asleep, to have her nearby. She provided round-the-clock care.
Rosalie was also responsible for driving the deceased to doctors’ appointments and hospital visits. Apart from a number of hospitalisations along the way, until the last few months of his life, the deceased remained at home where he and Rosalie lived.
Melissa gave evidence that the illness “was very hard on the Deceased both physically and mentally as he often rang me in tears, and I would comfort him”. This evidence supports the evidence of Rosalie. Rosalie was the one living with the deceased day and night, and I infer that the deceased’s illness was hard on her too, in ways she explains in her evidence.
About a year and a half before the deceased died, the deceased applied to My Aged Care for a home care package. There was no response from My Aged Care until 12 December 2024, some nine months after the deceased’s death, informing the deceased that he was eligible for a Level 3 Home Care package, valued at $40,529.60 per year.
In his final year of life, Rosalie said the deceased became completely dependent upon her, with her attending to him each day for all of his needs. During this period, the deceased required assistance with setting up his daily showers, assistance with dressing, emotional support, and required efforts by Rosalie to ease his anxiety by reassuring him that she would always be there for him.
Rosalie also gave evidence that in the last four years of the deceased’s life, she monitored the medication of the deceased. Details of the medications the deceased took from the period of 23 July 2017 to 29 December 2023 were in evidence. Melissa takes issue with Rosalie’s evidence that Rosalie monitored the medication of the deceased, submitting, “I do not believe that to be true”. Melissa’s reasoning is based on her observation during a visit: “The Deceased once showed me his medication and told me its purposes, so I believe he administered his own medication”.
To the extent Melissa disputes the level care and support that Rosalie gave the deceased over their 32 years as a couple, and over the last seven years as the deceased suffered from the illness which ultimately resulted in his death, I reject that evidence. On Melissa’s own evidence, she had minimal physical presence in the home of the couple over the 32 years they were together, and from October 2022, only visited the deceased ten times. I therefore accept that Rosalie’s evidence is more likely to be correct, and I accept that she took on the role as primary carer and took on significant caring responsibilities. Melissa is not criticised for her minimal physical presence, given that Melissa had her own life to live and her own family to support, and in circumstances where the deceased had a wife, with whom he lived, that took on a caregiving role.
From December 2023, the deceased’s health began to further deteriorate, at which time Rosalie took the deceased to Royal North Shore Hospital, where he remained for a few days. In January 2024 the deceased was transferred to the Northern Beaches Hospital where he remained until he died. During this time Rosalie visited the deceased every day and remained at his side for 4 to 5 hours.
Vanessa gave evidence of her own observations of the deceased during this period, particularly January 2024, being that the deceased “talked a lot”, “hopped on a pile of bricks”, and “drove me to Chatswood Chase for coffee”, where “we walked all around the new shops”. Vanessa stated that she and Melissa each saw the deceased “doing his own laundry” and noted that the deceased was “not on home oxygen and appeared quite capable of performing his own activities of daily living”.
To the extent this evidence was relied on to suggest the deceased was not seriously medically unwell (and within months of death) or depressed, or that the deceased was not dependent upon Rosalie for assistance in his activities of daily living when he was at home, I reject it.
It was not seriously in dispute in the proceedings that the deceased was very ill with lung disease at that time, and that by January 2024 the deceased only had months to live. Rosalie’s evidence of the deceased’s medical and mental status at this time is informed by her being present with the deceased every day, and is consistent with his medical diagnosis and condition, both generally and in relation to his closeness to death. Melissa’s own evidence as to the deceased’s diagnosis is illustrative of this, where she stated, “The Deceased was diagnosed with pulmonary fibrosis in or around 2017. This illness proved to be very hard on the Deceased both physically and mentally …”. An independent medical report from a doctor at the deceased’s general practice stated the following:

I have already set out the words used by the deceased in the Limited Contribution clause in relation to his views on Rosalie’s contribution to the annual maintenance and running costs (at paragraph [16]). Those views are echoed by Vanessa in the context of these proceedings.
In her evidence, Vanessa refers to the Limited Contribution clause, and then, over a number of paragraphs, sets out her knowledge of any financial contribution that either the deceased or Rosalie had “brought into the marriage”. In this context, Vanessa then undertakes a number of calculations as to the value of those contributions in 2024, using an online Reserve Bank of Australia Inflation calculator.
Applying her calculations, Vanessa then stated that Rosalie’s contribution was 9.27% of the cash amount the deceased brought into the marriage. Vanessa said, “I believe, looking at [the figures], that the deceased is correct and the plaintiff did in fact make ‘only a minor contribution to’ the purchase of the Property”.
Vanessa later stated, “I believe, as the deceased did, that he has provided well for the plaintiff”.
Firstly, I am of the view the figures presented by Vanessa are flawed. It is incorrect to say that the plaintiff made only a minor contribution to the purchase of the property by considering the inheritance received by the deceased from Vera’s estate, when that inheritance was received roughly ten years after the Marital Home was purchase. Whilst the precise sources of contributions at the time of purchase are not clear, there is no dispute that Rosalie contributed $40,000. I do note, however, that I have accepted that the deceased used the inheritance from Vera’s estate to pay off the mortgage.
Secondly, and more fundamentally, I note the focus of Vanessa in her evidence is on financial contributions of Rosalie to the estate of the deceased. However, I note that the defendants did not consider Rosalie’s contributions to the deceased’s estate from a non-financial or otherwise wider perspective.
For example, in the written submissions of the defendants, there is no reference to, nor acknowledgement of, the 32 years of domestic service, and care and support, provided by Rosalie to the deceased. Confirmation by the defendants that the 32 years of domestic service provided by Rosalie was not in issue was made only after the defendants were taken by the Court to Rosalie’s evidence of that service (TR P78 L22-27).

At the time of the hearing, a relative of Rosalie was visiting from Indonesia to provide support (TR P26 L1-16).
Rosalie’s main social connections in Australia are with her local church and its members, together with a small circle of friends who live nearby.
In terms of her health, since 2009 Rosalie has suffered from arthritis, for which she receives treatment from her GP under Medicare. She said that this condition may deteriorate as she grows older.
Rosalie has suffered from depression since 2014, at which time she started seeing a psychologist, whom she continues to see presently. The feelings of depression have been exacerbated by her learning of the comments the deceased made in his Will (see [16]-[17]).
In 1981, Rosalie was diagnosed with breast cancer, for which she underwent a right mastectomy. More recently, she has been diagnosed with a recurrence of the breast cancer in her left breast. Rosalie gave evidence that she is too overwhelmed to consider treatment at this stage.
Rosalie said that her health has deteriorated since the death of the deceased, and that she has become significantly weaker. She said she frequently experiences dizziness when undertaking activities such as grocery shopping, and that on many occasions she has been required to sit down for an extended period to recover before she was able to drive home safely. She said she has increasingly struggled to manage activities of daily living to maintain her independence. Rosalie was not cross-examined, or otherwise challenged, on this evidence, which I accept.
A letter from a doctor at Rosalie’s general practice states that Rosalie is not in good health for her age; states she suffers from rheumatoid arthritis with chronic pain in her fingers, knees, and shoulder, and severe limitation of right shoulder abduction; confirms the right mastectomy and recurrence in 2024; confirms the lung fibrosis following radiation to the left breast (also referred to as “radiotherapy induced pneumonitis with bronchiectasis”), with chronic shortness of breath and diminished exercise tolerance; notes potential sleep apnoea still pending investigation by a respiratory physician; and notes chronic anxiety and depression with recent bereavement. The medical evidence has also indicated that Rosalie has a diagnosis of asthma, and that she was struggling to manage activities of daily living due to her multimorbidity and mental state.
Additionally, in July 2024, Rosalie suffered a heart attack and was hospitalised for 8 days. Rosalie said she expects that her condition may deteriorate as she grows older. Tests at the time demonstrated evidence of coronary artery disease and the discharge summary dated 29 July 2024 noted Rosalie was to “continue combined statin and ezetimibe therapy with aspirin as primary prophylaxis for risk reduction of primary cardiac events”.
Rosalie has poor eyesight due to cataracts, which require surgery as soon as possible.
Rosalie’s affidavit dated 24 February 2026 confirms that the psychological and medical conditions cited before are continuing. She also provides recent letters from a medical practitioner in support of her claims. The medical evidence, in relation to which there was no cross-examination or other challenge, and which I accept, provided the following:

I observe that the defendants submitted that the second of only two “critical factual issues in dispute” is “the significance of Vanessa’s medical and financial problems” (DWS [9]). It was thus the subject of extensive cross-examination and submissions.
Vanessa, as beneficiary, has put her circumstances in issue as a competing claimant. Vanessa was 56 at the time of the hearing.
Vanessa’s evidence does not disclose information as to her education or employment in her early adult life. She does state, however, that for most of her adult life she “didn’t earn much money”.
Vanessa gave evidence that at the age of 38 she went to university to study nursing and completed that degree in four years, and, at the age of 42, started work at Canberra Hospital as a full-time registered nurse.
In June 2022, Vanessa accepted a full-time job at Cooma Hospital and started looking at houses to buy. She settled on a house in Nimmitabel in November 2023, which cost $310,000. It is now valued at $399,000 with a home loan with an outstanding balance of $311,056.87 as of 2 March 2026.
From a medical perspective, Vanessa gave evidence that she was born with (congenital) severe pulmonary stenosis and that she underwent open heart surgery around the time she was aged four. She also has a patent foramen ovale (PFO) with bidirectional shunting.
Vanessa said that, due to the congenital pulmonary stenosis, she has had reduced exercise tolerance and increased recovery times.
In June 2024, Vanessa was found to be in atrial fibrillation (AF). She was trialled on medications, however, these failed and she remained in persistent AF, which she reported made her feel short of breath on walking very short distances and tired regardless of how much sleep she got. In 2025, Vanessa underwent cardioversion for her AF, which was initially successful, however, she reverted into AF after 6 days. Vanessa was started on a form of medication she describes as a “short-term measure” following this and was otherwise on the public waiting list for an ablation.
Vanessa provided a letter from the Cardiology Outpatient Clinic at Canberra Hospital supporting her claims.
Vanessa said the AF is attributed to heart scarring caused by the pulmonary stenosis.
Vanessa started paying for private health insurance on 30 May 2025 and gave evidence that the waiting period for heart issues is one year.
In her affidavit dated 2 March 2026, Vanessa reported that she had had an ablation in 2025 and that she was no longer in AF. Vanessa reported she still fatigues and requires longer recovery time. Vanessa also reports having shortness of breath, knee pain and foot pain, and general mobility issues that make movement slower and more difficult.
In that affidavit Vanessa also stated that, some six months before, she had opted out of the 12-hour roster at work, as she was not coping with 12-hour shifts. She stated that from 2 March 2026, her work hours have reduced from 38 hours her week to 32 hours per week.
Vanessa further stated that she had seen a cardiologist who could “close the PFO”. She said that the cost of this, from memory, was about $6-7,000. She said that she planned to have the operation in late May/early June once she had finished her private health insurance waiting period.
Vanessa said that once the PFO is closed she can start having lipoedema surgeries and that she would like to have at least one in the second half of 2026 and the rest in 2027. The nature of, and reason for, the “Lipoedema surgeries” was unexplained in the evidence. However, Vanessa reported that, following conservative surgery preparation measures, she gets a fortnightly manual lymphatic drainage massage in Canberra costing $155 per session, and has a quote for a Lympha Press machine and garments recommended by the surgeon for $3,984.
Vanessa considers that she may need to move to Canberra in order to be closer to a good hospital, and to Melissa, with whom Vanessa has stayed with before and after operations on previous occasions.
From a financial perspective, Vanessa’s net fortnightly pay is $3,098.34, or approximately $1,328.36 per week, following her reduction in hours.
Vanessa also obtained a personal loan to pay for urgent electrical repairs of her home. The current balance on the loan was said to be $28,800.
Vanessa said that her home needs renovations; for instance, the house leaks in the rain, the carpets are damaged and stained, and Vanessa believes it to have asbestos requiring related repairs.
Vanessa has $2,634.65 in savings, $248,497.39 in superannuation, and a car valued at $31,000. Vanessa’s weekly expenditure was estimated at $1,421.35 in June 2025, exceeding her income by $92.99 weekly. Vanessa observed in March 2026 that she believed this estimation to remain accurate, though I note it does not include repayments of the personal loan.

Firstly, I have had regard to the defendants’ submissions that Rosalie provided limited financial contributions to the deceased’s estate (raised at [133]), which may be relevant to any consideration of matters referred to in s 60(2)(h). In relation to s 60(2)(i), the defendants submit that Rosalie has already received significant financial assistance from the deceased throughout their marriage.
I reject the characterisation of Rosalie’s contributions to the deceased and the deceased’s estate as limited to the monetary funds she entered the marriage with. Instead, I accept the submission of Rosalie that, in addition to her significant non-financial contributions, she also made significant financial contributions as a partner of nearly 32 years (TR P69 L1-5), including to the groceries and other household items. Rosalie also worked for the first 17 years the pair were a couple and has been receiving a pension since her retirement.
More fundamentally, I reject the purely financial perspective taken in relation to Rosalie’s “contributions” to the deceased and the deceased’s estate. The terms of s 60(2)(h) relevantly refer to contributions “financial or otherwise” (emphasis added) to the estate or “welfare” of the deceased. Accordingly, I give substantial weight to the uncontested evidence of Rosalie that she cooked and cleaned and carried out the lion’s share of the domestic duties within the household of the couple for the entirety of their 32 years together, and that the weight of Rosalie’s duties grew heavier from the time of the deceased’s 2017 diagnosis, and even more so when the deceased further deteriorated before his death. In this, Rosalie is not to be treated as if she were an “indentured domestic servant” (per Ibrahim at [278]). Rather, this Court gives the substantial non-financial contributions made by Rosalie to the deceased and the deceased’s estate due recognition and significant weight when considering the issue of adequacy of provision and what (if any) order ought to be made.

This conversation with Vanessa provides evidence that nothing much had changed in relation to the deceased’s views as to Rosalie’s moral claim on his estate from the time, in 1996, when the Marital Home was purchased as tenants in common, to the time the deceased executed his final Will on 5 December 2022. At this point, just five years into his relationship with Rosalie, it would appear the deceased considered that he had discharged his moral duty owed to Rosalie. From then it would seem that the deceased’s own assessment of his moral duty to make provision for Rosalie was set in stone.
However, the deceased and Rosalie lived life as a couple for a further 27 years from 1996, over which time Rosalie made significant contributions to the couple’s marriage, to the deceased’s welfare, in sickness and in health, and to the deceased’s estate (as found above). I am of the view that Rosalie’s moral claim on the estate of the deceased increased significantly over this period, and that this increase in moral claim was not recognised by the deceased. If the gift of the half share of the Marital Home at five years into their relationship discharged the deceased’s moral duty to Rosalie at that time, I do not accept that the same gift of half share came close to discharging his moral duty to Rosalie at the time of his death, when I have regard to the further 27 years together as a couple, and the contributions made to their circumstances and the deceased’s welfare over those decades. In this, I do not think the deceased duly considered Rosalie’s claim on his estate at the time he made the Will, because he did not have regard to her non-financial contributions, did not consider that her claim had strengthened over 27 years, and considered her not capable of managing money (see Slack v Rogan at [127]).
Thirdly, I have had regard to the size of the estate, with the 2026 estimate of the deceased’s estate being $1,887,861.23. I note this is likely to be considered a moderate-sized estate, or not large but not insubstantial (see Tarbes [10], Chalik v Chalik [2024] NSWSC 117 at [514] (upheld in Chalik [123])).
Fourth, I have accepted that, in particular, Vanessa has a competing claim that ought to be weighed against Rosalie’s claim (ss 60(2)(d) and 60(2)(f)).
Whilst Vanessa has competing circumstances, I would note that Rosalie is an elderly widow who is permanently unable to increase her income and is never likely to be better off financially. Whilst I accept that Vanessa has a reduced working capacity currently, she is still working and earning approximately $1,328.36 a week. Without weighing the competing health concerns of Rosalie and Vanessa, I observe that both women have serious and ongoing health conditions.
Whilst I accept that Melissa has a moral claim to the estate as the deceased’s daughter, I do not accept the submission that Melissa has great financial need and that the family’s income is almost totally consumed by expenses – so much is not evidenced by Melissa’s finances as in evidence.
I note that before the Court was evidence from each of Rosalie, Vanessa, and Melissa in relation to events that took place following the death of the deceased, which could go to ss 60(2)(m) and 60(2)(n).
As neither the Rosalie nor the daughters relied on post-death conduct of “any other person” as a factor going to the issues before the Court, I do not propose to recount them here, save as to note that issues relating to the funeral, the deceased’s belongings, obtaining a grant of probate, and Rosalie’s access to funds to get by were ventilated.

The defendants submit that the deceased made adequate provision for the proper maintenance, education or advancement in the life of Rosalie.
In support of this overall submission, the defendants firstly submit that “by dint of the deceased’s generosity and/or foresight, the plaintiff owns a half-interest in the Marital Home; that interest suffices to find her accommodation suitable to her needs, particularly where she has no dependants” (DWS [32]). The defendants elaborate, “the plaintiff has not demonstrated that the deceased did not provide adequately for her. Without prejudice to the contention, the defendants will (without admissions) consent to an order that further provision be made for the plaintiff in the sum of $150,000. That will distinctly end any concern about contingencies and a shortfall in income” (DWS [34]).
I reject the submission that this, being her own half share in the property (ie, no provision under the Will), or her own half share in the property plus $150,000, would be adequate provision for Rosalie.
Firstly, considering accommodation, I am of the view adequate provision for accommodation would be provision to enable a standard of accommodation consistent with what Rosalie is accustomed to. Having regard to my findings at [192]-[196], this would be accommodation in a retirement village with appropriate medical and social supports, proximity to the Willoughby community, a sufficiently sized main bedroom, and a second guest bedroom.
I am of the view that the only suitable option from those put forward in evidence is Hyegrove. Belgrove and the other options are too far from Willoughby. Lane Cove Gardens does not have bedrooms of an appropriate size, and Lindfield Gardens Retirement Living does not have retirement facilities such as medical care. By comparison, I consider Hyegrove is most likely to meet Rosalie’s current and future needs. It is the closest facility to the Marital Home and thus remains in the local community, allowing Rosalie to remain close to church and her familiar local amenities. Moving from a two-bedroom home worth $3.2 million, to an apartment worth $2.2 million, will keep Rosalie in the lifestyle she was accustomed to. I do not consider Rosalie is “improving” her position in stating this, but rather, moving to accommodation that is age appropriate. Hyegrove also has a high level of other services, including food, laundry and emergency response care. The essential features of accommodation that Rosalie currently requires, from the options presented, are only met in Hyegrove.
I reject the submission that Hyegrove is a “luxury accommodation” that is “going up a level”. As discussed in the course of the hearing, the phrase “luxury accommodation”, as advertised, should be taken “with a grain of salt” as language used in advertising (see TR P72-73). Hyegrove’s costs are attributable to its features, which are important to Rosalie – for instance, “basic food items included and delivered twice a week, bed linen and towels changed, laundered and your bed made once a week, emergency care response, repairs and maintenance to any equipment included when you move in, and a variety of other things, free shuttle bus, et cetera” (TR P102 L10-16).
The defendants submitted that “the costs of the taxi or Uber or car accommodates the issue she identified with Belrose” (TR P81 L28-29), that is, accommodates the distance between Belrose and Willoughby. However, I do not accept this. Further provision in the form of funds for taxis and Ubers misses the point of the human benefits of living in and being a part of a community, as opposed to dropping by that community in a taxi or Uber. That proposition also ignores the challenges that any 78-year-old might face if mobility issues arise, particularly as Rosalie already suffers arthritis and dizziness such that Rosalie has to sit down for an extended period of time to recover after grocery shopping before she is able to drive home safely. Whilst Belrose also has a bus service, that shuttle would be to the Belrose local community, which are not the local shops Rosalie is familiar with (see TR P102 L18-24). The defendants offered no suggestions of any potentially suitable retirement villages in Willoughby, so I infer that Hyegrove is, for practical purposes, the only one.
Secondly, I accept that Rosalie is under financial stress, has had to borrow money to get by, and her only income is a Centrelink pension. Adequate provision should have included not only a capacity to provide proper accommodation for Rosalie, but also provision to supplement income, as well as a modest sum for contingencies.
In summary, I am of the view that Rosalie’s circumstances weigh in the direction of a Court finding that adequate provision for the proper maintenance and advancement of Rosalie has not been made by the Will of the deceased.
Weighing all of these various matters, including the competing claims of Vanessa, I am of the view that the provision of approximately $30,000 made for Rosalie by the deceased was inadequate, as it is not sufficient to provide her with accommodation that is proper in the circumstances, nor sufficient to supplement her income and provide a buffer for contingencies.

Noting that Vanessa has not put in her own claim for more provision from the estate (but still having regard to her claim as a competing claimant as beneficiary), and that Melissa’s competing claim is not strong, I am of the view the deceased’s estate is adequate to accommodate Rosalie’s claim without occasioning hardship to the defendants, and am otherwise of the view that I should exercise the discretion of the Court and make an order for provision.
The defendants submitted that their “best-case position” was for Rosalie to receive $150,000 of further provision. For the reasons provided at [241]-[248], I do not consider that level of provision to be close to sufficient.
Rosalie submitted that her “Plan A” was to live in the Marital Home rent free for a further two years. Upon the expiry of that further two years, Rosalie presented “machinery provisions” for selling the property. Then Rosalie was to get her 50% of the remaining proceeds of sale in her capacity as tenant in common, and a further $1,000,000 or 60% of the remainder, whichever is greater, as further provision (see TR P60-61). The remaining proceeds of sale were to be paid to Vanessa.
The defendants submitted that “a two-year luxury may suit the plaintiff, with great respect, it doesn’t suit Vanessa. It’s one thing to say, with great respect, ‘Well, one can plan this two-year drop-dead period’, although it’s a bit longer because then you have the sale process. Vanessa’s condition doesn’t allow planning, so that’s a high-level position about that.” (TR P80 L11-15).
I accept the submission of the defendants that I should not make an order allowing Rosalie to reside in the Marital Home for a further two years. Apart from the fact the deceased died in March 2024, and so by the time of the making of any orders Rosalie will have been living in the Marital Home for over two years since the deceased’s death, in any event, I accept that I ought to have regard to the needs of the other beneficiaries, in particular Vanessa, so as to allow for some benefit of the inheritance, sooner rather than later.
More specifically, I am of the view that Vanessa’s medical and financial circumstances are sufficiently serious such that some provision for her as soon as practicable (as opposed to waiting two years) would be appropriate. In coming to this view, I have particularly considered the financial resources and financial needs of Vanessa (per s 60(d)), including her significant debts of a personal loan and home loan, her minimal equity in property, small savings balance, and an expenditure that exceeds her income, notwithstanding that Vanessa does have money in superannuation. I have also considered Vanessa’s ongoing health issues, which require continuing intervention.
Accordingly, I am of the view that any order the Court ought to make for provision for Rosalie will include an order for the sale of the Marital Home, in the next 6 months or so, or otherwise in accordance with any agreement of the parties.
Rosalie’s “Plan B” was for the Marital Home to be sold, with Rosalie to get 50% of the net proceeds of the sale in her capacity as tenant in common, and a further lump sum of $950,000 from the proceeds of sale. The remaining proceeds of sale were again to be paid to Vanessa.
I note that in closing submissions Rosalie provided calculations for the bases of $1,000,000, $950,000 and 60% provision, and the effect of these figures (see TR P64-65).
Underpinning the terms of Rosalie’s Plan A and Plan B was said to be her various needs: $2,604,800 for Hyegrove; $24,000 to repay the loan to her ex brother-in-law; cash to buy a replacement car; plus an amount for future contingencies (TR P64 L1-22).
In making these submissions, no amount was sought in relation to any potential costs liability, with counsel for Rosalie stating that it was assumed that “all the plaintiff’s legal costs are paid out of the estate” (TR P64 L17-18). I do not know the basis on which counsel for Rosalie has assumed, given the legal principles to be applied (see below), that a successful applicant for a family provision order will have their costs paid out of the estate, on the ordinary basis.
In response to Rosalie’s proposed plans, the defendants firstly acknowledged that Rosalie’s primary need is accommodation: accommodation is “front and centre” in Rosalie’s plans (TR 75 L38-47). So much I accept, noting that I am of the view that some provision to supplement income and for contingencies would also be appropriate, and would be in accordance with the principles set out above in relation to widows. I consider such provision also to be in conformity with community expectations more generally.
Secondly, the defendants submitted that “Melissa and the grandchildren aren’t simply written out” – “where the deceased loved Melissa, and also was very close to his grandchildren, they can’t just be cut out of the picture” (TR P77 L19-24; TR P75 L33-36).
Rosalie’s Plan A and Plan B preferred options are set out above. The potential option of a Crisp Order (or portable life estate) was raised by me, following my concerns that the estate might not be large enough to accommodate Rosalie’s accommodation and other needs, as well as accommodating the competing claims of the daughters. To that suggestion, counsel for Rosalie stated that “there shouldn’t be a Crisp order”, but that if the Court was against him on that issue, that “it’s not rocket science to work out what needs to be done” (TR P98 L3-5). In the course of closing submissions, counsel for Rosalie then went on to raise various options on the theme of Crisp orders (and loans), which would enable Rosalie to use funds from the estate in her lifetime, but that some of those funds would revert to the estate (and thus the daughters) following her death (see P98 1-9, P100 L39-41, P102 L38-42).
As part of this, counsel for Rosalie also noted any such order would need to allow for Rosalie to move from Hyegrove should her needs change, in which case I understood him to mean that there should be a portable life estate (TR P98 L39-45). I accept this submission as appropriate.
Rosalie further submitted as follows (TR P99 L2-16):

In weighing the submissions from both parties, whilst I have already noted that the deceased did not duly consider Rosalie’s claim on the estate nor fairly value her non-financial contributions to his life and his estate, that does not mean the deceased’s testamentary wishes should be given no weight. I accept that I should endeavour to give some weight to the deceased’s testamentary wishes to provide for both of his daughters and his grandchildren and the church. Accordingly, I do not consider Rosalie’s proposed orders, which see the remainder of the proceeds of sale to be paid to Vanessa, are appropriate.
I am of the view the order that ought be made for the maintenance or advancement in the life of Rosalie is for further provision that would allow her to live in a two-bedroom apartment at Hyegrove, plus a further sum for lifestyle and contingencies, but for this provision, at least in part, to be returnable to the estate of the deceased on Rosalie’s death, such that the deceased’s testamentary intentions are also met.
In relation to any order to include a “further sum”, I have had regard to the submissions of counsel for Rosalie, who seemed to submit (TR 102 L28-47) that if part of any provision for Rosalie is to be the subject of a portable life estate, it may be difficult for her to encumber any property with a loan if she runs out of money and needs to meet unforeseen contingencies in the future. I accept this submission, in the context of having regard to Rosalie’s current small income and small cash reserve, and would propose to include as part of any order a sum towards Rosalie maintaining her lifestyle and for contingencies.
I do note the defendants’ submission that the parties “obviously don’t get on well” (TR P91 L11), which might be thought to militate against the making of an order for a portable life estate. Whilst the nature of the relationship between the parties is a factor to have regard to, I am of the view this is outweighed by the legitimate short-term and long-term needs of all involved and the testamentary intentions of the deceased. I am further of the view that, whilst there was not a warm nor closely connected relationship between Rosalie and the daughters over the decades that Rosalie and the deceased were a couple, all of the evidence discloses that they were able to nonetheless engage with each other in a civil and respectful manner. I do not see any reason that this should not continue.
More generally, I am of the view that Rosalie’s age, the size of the estate, and the competing claims all militate in favour of making an order for provision for Rosalie where at least a part of that provision is by way of portable life estate (or by other arrangement).

With this as background, I am of the view that, in lieu of the provision made for Rosalie under clauses 6 and 7(d) of the Will, an order for provision in the sum of $1,150,000 ought to be made in Rosalie’s favour, $850,000 of which will be the subject of a portable life interest.
In discussing the provision for Rosalie below, I will refer to a “portable life estate”, but will allow the parties the opportunity to come to an agreement as to whether the actual order to be made is for a portable life estate, or rather a loan or some other form of arrangement.
In relation to the order I propose to make, I note that Rosalie will already have $1,750,000 (or perhaps more on the executors’ 2026 estimate) to put toward the “Hyegrove costs”, which total $2,604,000. I have calculated the Hyegrove costs by adding together the cost of the accommodation ($2,100,000) and the “membership fee” ($504,000). If Rosalie is provided a further $850,000 (to her own $1,750,000), then she will have available a total of $2,600,000, which will essentially meet the Hyegrove costs.
This total of $2,600,000 will be tied up in (portable) accommodation during Rosalie’s lifetime, with the $850,000 portable life estate component from the estate of the deceased will be returnable to the estate on Rosalie’s death.
Not the subject of the portable life estate, however, will be $300,000 of the $1,150,000. This will be available to Rosalie to assist in maintaining her lifestyle (which might include travel), supplementing her income, and provide a buffer for contingencies.
In making these orders in lieu of clauses 6 and 7(d), it will be noted that the remaining gifts in the Will remain, being the gifts to the church and the grandchildren (totalling $100,000), as well as the gift of the motor vehicle to Rosalie.
Of those gifts, I consider that the $10,000 ought to be paid to the church in the short term, given it is a small burden on the estate. However, I am of the view that the gifts to the grandchildren, totalling $90,000, ought to wait for distribution until after Rosalie’s portable life estate is returned to the estate. In deciding this, I have had regard to the competing claim of Vanessa, who appears to have greater need of funds in the short term than the grandchildren. There is no evidence before the Court of any short-term (or any) needs of the grandchildren. Such a deferral will therefore mean there is more residue available in the short term for Vanessa, or Vanessa and Melissa, as the case may be (see below).
In relation to what is left in the estate once the payment to Rosalie and the church is made, I note the following. In this judgment I take the 2026 estimate of the estate to be $1,837,861.23, based on the executors’ 2026 estimate. If the $1,150,000 for Rosalie is subtracted from this, $687,861.23 remains for the payment of the clause 7(b)(i)-(ii) and (c) gifts, which total $15,000. This would then leave an estimated $672,861.23 in residue for distribution, in the short term.
Before any distribution of the residue may be made to the daughters as residuary beneficiaries, the costs of the parties will need to be accounted for.
Having regard to the principles set out above in relation to a Court’s regard to potential costs, I note I do not know whether there have been any without prejudice offers and thus what submissions might ultimately be made on this issue by the parties.
In the interim, however, and whilst I will give the parties the opportunity to make submissions in relation to costs, from a preliminary perspective, I am of the view that a successful plaintiff will typically be entitled to an order for their costs to be paid out of the estate on an ordinary basis, and that an executor will typically be entitled to an order for their costs to be paid out of the estate on the indemnity basis. My preliminary views on the issue of costs are set out below.
So, for example, if the parties provide no reason for the Court to depart from the typical approach to costs, as set out in the paragraph above, after Rosalie’s ordinary costs and the defendants’ indemnity costs are taken into account, there will be $425,935.89 remaining in the residue to be distributed to the daughters ($672,861.23, minus $126,475, minus $120,450.34, equals $425,935.89).
If all of the residue were to go to Vanessa, as submitted by Rosalie, I am of the view that this amount would meet the majority of Vanessa’s short-term needs, by way of funds for her health and home. Additional to this, I note that in the longer term, Rosalie’s portable life estate of $850,000 will eventually return to the estate, and thus at some later stage both Vanessa and Melissa will be the beneficiaries of this amount, subject to the gifts to the deceased’s three grandchildren of $30,000 each.
Notwithstanding the submissions of Rosalie in relation to making an order that Vanessa’s needs be prioritised over those of Melissa, counsel for the defendants, in closing, asked that the Court in making its orders, not treat the daughters differently (TR P34-48). Accordingly, I will leave this issue to be decided by the defendants themselves.
I reiterate that, in undertaking the assessment I have, I have used the estimated value of the Marital Home of $3,500,000, which counsel for the plaintiff (TR P64 L24-26) and counsel for the defendant (DWS [6]) suggested was the low end of the possible range. Accordingly, if a higher sum is achieved on the sale of the Marital Home, there may be more remaining in residue for short-term distribution to the daughters.
I do not think a percentage of the sale of the Marital Home is a more appropriate order than a lump sum for Rosalie. The regime I have proposed allows the certainty of a fixed sum for Rosalie, which is the sum I consider to be the sum that “ought” to be made for her maintenance and advancement.
Of course, there is a possibility that, following the sale of the Marital Home, there may be an amount that is greater than the sums on which I have made my assessment. Were this to be the case, the effect would be that there is more available for distribution in the short term to the daughters. I consider this to be a positive outcome, given I consider the deceased owed both the daughters a moral duty to make some provision for them, and so the greater their inheritance in the short term, the better.
The parties will be given an opportunity to bring in agreed short minutes of order to give effect to these reasons. The agreed short minutes of order should address all outstanding issues, including the following:
Provision for Rosalie, in lieu of clauses 6 and 7(d) of the Will, by way of:

Luxton v Ishihara

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction

The deceased’s will and his estate

The Will

The estate

Costs

Hearing details

Summary of conclusion

The Law

Statutory Framework

Legal principles - Generally

Legal principles – Widows

Legal Principles – Portable life estates and Crisp Orders

Legal principles – Buffer for “contingencies”

Legal principles – Consideration of potential costs orders

Qualifications on “Principles”

Issues

Evidence and Credit

Evidence of competing financial circumstances

Facts and circumstances

Fact finding

Factual Background

Rosalie and the deceased and their life together

Domestic and caring contributions

Finances and financial contributions

Travel and dining out

Retirement and the deceased’s illness from 2017

The deceased’s views on Rosalie’s spending and handling of money and contribution

Rosalie’s contribution to the deceased’s estate

The deceased and Rosalie’s relationship and contact with the defendants and grandchildren

Rosalie’s evidence

Vanessa’s evidence

Melissa’s evidence

After the death of the deceased

Rosalie’s circumstances

Personal and health

Financial

Future needs - general

Future needs – accommodation

Plaintiff’s submissions

Defendants’ submissions

Consideration regarding future needs for accommodation

Vanessa’s circumstances

Melissa’s circumstances

Consideration

Issue 1: Has adequate provision for the proper maintenance, education or advancement in life of Rosalie not been made by the Will of the deceased (s 59(1)(c))?

Section 60(2) matters and associated factors

Rosalie’s contributions (financial or otherwise) to the estate or welfare of the deceased (ss 60(2)(h)) and whether any provision was made for Rosalie by the deceased in his lifetime or from his estate ((i))

Nature and extent of relationship between deceased and Rosalie and extent of obligations owed by the deceased to Rosalie (s 60(2)(a) and (b))

Testamentary intentions of the deceased (s 60(2)(j))

What weight should be given to the deceased’s testamentary intentions as compared to the nature of the relationship between Rosalie and the deceased, the extent of the obligations, and her contributions to the estate?

Defendants’ submissions as to adequacy of provision

Issue 2: If such provision has not been made, what, if any, order does the Court think ought to be made for the maintenance, education or advancement in life of Rosalie, having regard to the facts known to the Court at the time the order is made (s 59(2))?

Submissions as to what order ought to be made

What order for provision ought to be made?

Costs

Legal Principles

Conclusion

ORDERS

Parties

Legislation Cited (3)

Cases Cited (71)