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[2025] NSWSC 558
Supreme Court of NSW
2025-05-30
Hmelnitsky J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Madigan v Love; Madigan v Love [2025] NSWSC 558
Hearing dates: 5, 6 and 7 May 2025
Date of orders: 30 May 2025
Decision date: 30 May 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision: 1. In 2024/42509 summons dismissed with costs
2. In 2024/42950 summons dismissed with costs
Catchwords: SUCCESSION — Family provision — Claims by adult children — Whether insufficient provision was made by deceased to plaintiffs
SUCCESSION — Family provision — Notional estate — Whether estate was affected by relevant prescribed transactions
Legislation Cited: Succession Act 2006 (NSW) ss 59, 60, 75, 76, 78, 80
Cases Cited: Bladwell v Davis [2004] NSWCA 170
Jodell v Woods [2017] NSWSC 143
Pulitano v Pulitano [2019] NSWSC 1688
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Strang v Steiner [2019] NSWCA 143
Tarbes v Taleb [2023] NSWSC 565
Taylor v Farrugia [2009] NSWSC 801
Texts Cited: Nil
Principal judgment
Parties: Dan Morgan Madigan (Plaintiff in 2024/42509)
Marcus Morgan Madigan (Plaintiff in 2024/42950)
Colin William Love (First Defendant in 2024/42509 and 2024/42950)
Donna Marie Woods (Second Defendant in 2024/42509 and 2024/42950)
Representation: Counsel:
J Brown (Plaintiff in 2024/42509)
J Cook (Plaintiff in 2024/42950)
N Bilinsky (Second Defendant in 2024/42509 and 2024/42950)
Solicitors:
PB Ritz Lawyers (Plaintiff in 2024/42509)
ASG Lawyers (Plaintiff in 2024/42950)
Glass Goodwin (Second Defendant in 2024/42509 and 2024/42950)
File Number(s): 2024/42509
2024/42950
Publication restriction: Nil
Mark Madigan died on 5 February 2023 at the age of 86. He was survived by his de facto spouse, Donna Woods, with whom he had been in a committed and long-standing domestic relationship for over 35 years.
The deceased was also survived by six children. The oldest two are Samantha (born 1968) and Antony (born 1970) who are the children of the deceased’s first marriage, which was to Gail Chancellor. That marriage lasted from some time in the 1960s until the early 1970s.
The next oldest is Marcus (born 1972) who is the child of a brief relationship which the deceased had with Patricia Burridge in the early 1970s.
The next oldest is Dan (born 1982). He is the child of the deceased’s brief marriage to Julie Wellings which lasted from some time in 1982 until some time in 1983.
The youngest two are Bridget (born 1992) and Mary (born 1994), who are the children of the deceased’s relationship with Donna.
At the time of his death, the deceased and Donna owned a house in Gerringong which had been their home since the early 1990s. It was originally purchased by the deceased but had been in their joint names since 2002. The deceased also had savings in a self-managed superannuation fund established by him and Donna (the SMSF). At a point in time about two years prior to his death, the balance allocated to him in that fund was about $540,000. He had executed a binding death benefit nomination in favour of Donna in respect of his portion of the SMSF in October 2014. In June 2020, he also executed a request to the trustees of the SMSF that his pension be made reversionary to Donna (the automatic reversionary pension nomination). He withdrew part of his balance in the two years prior to his death which he gave to Donna, who reinvested it in her own account in the SMSF. In the result, Donna has come to own the Gerringong house, which is probably worth about $1,425,000, and – one way or another – has received the balance of the deceased’s superannuation, meaning that the estate had little of any value.
The deceased’s last will was made on 17 November 2011. It appointed Donna and the deceased’s long-term solicitor, Colin Love, as executors. The will provided that each of the deceased’s six children should receive a gift of $20,000 and that the balance of the estate should go to Donna, if she survived him, or to Bridget and Mary equally, if she did not.
The estate did not have sufficient assets to make any of the gifts for which the will provided. Because the value of the estate’s assets was so low, neither executor sought a grant of probate. Nonetheless, although she was not bound to do so, Donna paid $20,000 to each of the deceased’s six children from her own resources.
Marcus and Dan now seek orders for further provision under s 59 of the Succession Act 2006 (NSW). They have each commenced proceedings joining both executors named in the will, but only Donna has taken an active part in the proceedings. The proceedings were heard concurrently, with evidence in one being evidence in the other.
Marcus and Dan seek orders for further provision in the sum of $200,000 each. They say that the Court should make orders designating the deceased’s superannuation (including the amount which went to her automatically as well as the amounts which he withdrew and gave to her) and the deceased’s interest in the Gerringong home as notional estate in order to meet their claims and their costs of pursuing them. The plaintiffs’ costs up to the conclusion of the hearing, calculated on an indemnity basis, have been approximately $135,650 for Dan and $114,048 for Marcus. Donna’s costs are estimated to be about $206,000 in total.
In the following part of my reasons I set out my findings as to matters which appear to me to be relevant to the resolution of the dispute. The evidence, as often occurs, traversed some matters about which I have not found it necessary to make findings. I have tried as far as possible to identify those matters that are appropriate to take into account having particular regard to s 60(2) of the Succession Act.
The deceased had various professional interests over many decades. By all accounts he was a very charismatic man. He seems to have been involved in managing nightclubs and, according to the plaintiffs, had been an SP bookmaker. When he met Donna in the 1980s, his main job was in a business conducted by his friend, Joe Morris. He also had some real estate and other investments which he managed with friends including his solicitor friend, Mr Love, who is the first defendant. Between 1996 until 2005, he and Donna owned and managed the Grosvenor Hotel in Waterloo.
There was very little evidence about the deceased’s first marriage. Both Samantha and Tony are eligible persons but neither put their financial circumstances in issue in these proceedings.
Marcus was born in October 1972. His mother is Patricia Burridge who, despite never having been married to the deceased, is also known as Patricia Madigan. She and the deceased commenced to have a relationship in about 1970. They separated in 1977 or 1978 when Marcus was about five years old. Marcus was the only child of the relationship. Patricia has no other children.
At the time Marcus was born, the deceased and Patricia lived at a home owned by the deceased at Castlecrag. Samantha and Tony seem also to have been living there at the time.
Patricia gave evidence that she had provided a very substantial deposit for the Castlecrag property. It is difficult to know what to make of her evidence about her contribution to this property. When asked about the basis for her assertion, she said:
“The only evidence is when he bought that house, it was investigated by the Taxation Department. He told the taxation that he got the money from me and that's the only evidence I have.”
That is a shaky foundation for the proposition that Patricia actually contributed to the purchase of the Castlecrag property. Because nothing much seems to turn on it, I prefer to make no finding as to how that property was paid for. I note that the property was in the deceased’s name and Patricia made no claim on it after the relationship ended.
After the relationship between Patricia and the deceased ended, all three of the deceased’s children at that time moved out with Patricia, at least in this short term. Eventually, Samantha and Tony moved back in with the deceased at Castlecrag and Patricia moved to Cronulla with Marcus.
The deceased commenced a relationship with Julie in the mid to late 1970s. They were married in October 1981. Dan was born in May 1982. The deceased and Julie separated in 1983 and were divorced in February 1986. Dan was the only child of the relationship. Julie has no other children.
The deceased and Julie lived at the Castlecrag property at the time Dan was born. The relationship ended when the deceased started a relationship with another woman. Julie and Dan moved out with friends and eventually settled in Double Bay. In 1987, Julie and Dan moved into an apartment on William Street, Double Bay, which Julie bought from her landlord some years later. This is the Double Bay property to which I will refer later in these reasons.
The deceased and Donna met at a friend’s wedding in March 1987. They began seeing one another shortly thereafter. They started living together in 1989 and remained partners until the deceased’s death.
Bridget was born in 1992. Mary was born in 1994. In 1993, the deceased purchased the Gerringong house for $165,000. It was their family home for the rest of his life. Donna continues to live there.
At the time they met, Donna was working in drug education. She worked as a teacher between 1988 and 1992. She did not work as a teacher after Bridget was born in 1992 until about 2008. Between 2008 and 2020 she did occasional casual teaching work at a local Catholic High School.
The deceased and Donna acquired the Grosvenor Hotel in 1996 through a company, Jarifree Pty Ltd. The purchase price was $861,400. I do not know whether they also separately paid to acquire the business being conducted at the hotel. Donna became the licensee. The deceased worked full time at the hotel. The hotel was sold in 2005 for about $1.6 million. They, or perhaps just the deceased, lived in an apartment above the hotel for much of the late 1990s.
In 2002, the deceased transferred title to the Gerringong house into the joint names of himself and Donna.
The deceased did not work after the Grosvenor Hotel was sold in 2005. Donna said that by the time of his death he had not worked for over 20 years, which suggests that he may have stopped working even before the hotel was sold. In any event, at least since the sale of the hotel, the deceased was a self-funded retiree supporting Donna and their daughters. I note that in 2005 when the hotel was sold, the deceased was about 68 years old, Donna was about 47 years old and their children were aged about 11 and 13.
In 2010, the deceased became gravely unwell and was hospitalised for a lengthy period. He was on a ventilator for 45 days. Donna believed that there was a chance he would die. Over the following years, he spent a total of about 12 months in hospital. He had operations in 2010, 2011, 2012, 2015 and 2016. He had two rounds of chemotherapy, hospitalisations for heart and gastric issues, an autoimmune disease, back surgery and prostate cancer.
From 2010 until his death in 2023, the deceased was cared for by Donna on a more or less full-time basis.
At some point after 2010, probably in about 2014 or 2015, the deceased decided to put assets into Donna’s name. It is not possible to reach a conclusion as to exactly when this occurred. As to why it occurred, there is no doubt that the deceased wanted Donna to be financially secure and independent. The circumstances described in paragraphs [27] and [28] above would be sufficient reason for many people in the deceased’s position to move assets into their partner’s name. As to whether it was specifically done in order to defeat potential claims under the Succession Act, the position is less clear. Although she was cross-examined as if the decision had been hers to make, it was not really for Donna to ‘admit’ the deceased’s intentions in this regard. However, she did not resist the suggestion that one of the matters that the deceased wanted to achieve by moving assets into her name was to protect her financially. She accepted that an aspect or consequence of such a strategy was that she would be protected as far as possible from claims by, among others, Marcus and Dan. Be that as it may, I have no doubt that the deceased would have seen such claims as being unmeritorious and that moving assets into Donna’s name was an exercise in protecting the financial security of his much younger family from unmeritorious claims on his estate.
In his final years, the deceased exhibited some symptoms of cognitive decline. He occasionally mixed up people’s names, for example. Donna suspected or believed he had vascular dementia and spoke to a doctor about this possibility. The deceased was not however diagnosed with vascular dementia. The doctor suggested that it may be appropriate to see a geriatrician, but the deceased never followed this up. He was unwilling to countenance the idea. Nevertheless, Donna behaved as if he had been diagnosed with some level of dementia.
| Asset/(Liability) | Value (AUD) | | 1,371 ordinary fully paid IAG shares | $6,306.60 | | Personal effects | $6,000 | | (Mastercard) | ($5,268.88) |
By the time of the hearing, the estate had no remaining assets. It had accrued additional liabilities for expenses met by Donna personally in the sum of about $15,000, which included sums for the deceased’s funeral and rates on the Gerringong property.
In one of her first affidavits, Donna disclosed the following matters which, in her view, may potentially be relevant to the making of notional estate orders:
The deceased’s interest in the Gerringong property. Although there were slightly varying estimates in the evidence, I will take the midpoint of the values identified by Donna, being $1,425,000 as at the beginning of April 2025.
The sum of $3,074.99, being half of the balance of a bank account in the joint names of the deceased and Donna as at the date of death. I will refer to this account as the Mark and Donna joint account.
The sum of $239,842.67, being the balance of the deceased’s interest in the SMSF as at the date of death. As mentioned, this amount was allocated to Donna pursuant to an automatic reversionary pension nomination.
Three separate dealings whereby the deceased caused a total of $300,000 allocated to him in the SMSF to be transferred or allocated for Donna’s benefit. These took place as follows:
(a) $100,000 on 25 June 2021; (b) $100,000 on 11 November 2021; and (c) $100,000 on 26 April 2022.
In her most recent affidavit, Donna also included an additional amount of $40,327.46 as potential notional estate, being half of the total pension withdrawals from the SMSF into the Mark and Donna joint account. She also included an amount of $1,100, being a cash gift to Mary from the joint account in the 12 months prior to the deceased’s death. In her latest affidavit, Donna excluded the amounts in 33(4)(a) and ((b) above from the notional estate calculations.
There is no doubt that I have power to make a notional estate order in relation to the sums referred to in paragraphs 33(3) and 33(4)(c) above. There is a question as to whether I have power to make such an order in relation to the two payments referred to in 33(4)(a) and ((b) above. I will return to this issue in the context of considering the application of the law to the facts.
Both plaintiffs launched stinging attacks on Donna’s credibility as a witness. It is appropriate to deal with this issue before dealing with other aspects of the evidence.
First, it was suggested that Donna’s evidence about the deceased’s cognitive ability was false and had been manufactured to assist Donna in the proceedings. Donna’s evidence in that regard was that the deceased was generally managing his affairs with her assistance. The plaintiffs’ case theory was that the deceased was in fact suffering from and had been diagnosed with serious vascular dementia to the point where he was entirely incapable of managing his own financial affairs for years prior to his death, and that Donna had masterminded the movement of his assets into her name for her own benefit for the specific purpose of defeating their legitimate claims on the deceased’s estate. She did all of this, apparently, pursuant to an enduring power of attorney (although the evidence only contained a general power of attorney signed in October 2010). Counsel for Dan went so far as to trail his coat through the proposition that Donna exercised undue influence over the deceased.
I do not accept any part of this submission. The plaintiffs could have, but did not (apparently), subpoena any of the deceased’s medical records. Such records as were available were entirely consistent with Donna’s evidence. She did tell people, including doctors, that he had been diagnosed with dementia, but this does not make it so. She freely admitted that she had told people that he had dementia. But I can discern nothing inaccurate, much less dishonest, in any evidence she gave about this issue in the proceedings.
The fact that the deceased was suffering from some limited degree of cognitive decline is not in any event a sufficient basis to conclude that he had no ability to manage his financial affairs or that Donna was taking advantage of him. The critical aspect of his affairs with which I am concerned is the movement of assets in the three years prior to death from his superannuation into Donna’s superannuation. On any view, this is something that started to occur quite systematically many years prior. It was done in consultation with financial planners, who advised that there were tax benefits to doing so.
So far as concerns the use of a power of attorney, Donna said that she had held a power of attorney but had never actually used it. This seems to be consistent with such evidence as is available. The deceased himself signed SMSF financial statements and annual returns in the years leading up to his death and several years after the general power of attorney had been signed.
The second significant aspect of the plaintiffs’ challenge to Donna’s credibility concerned some discussions she had with her financial planners in the weeks immediately following the commencement of these proceedings. In the course of those discussions, she told one of the financial planners that she believed the deceased had wanted to protect her from claims such as these. She said, in effect, that she could hardly say that in her own affidavit. She also asked, at one point, whether some of the withdrawals from the deceased’s super were more appropriately characterised as having been for living expenses, as opposed to being used to contribute to her own super. The adviser told her that that was not possible.
These remarks were taken by counsel for the plaintiffs as proof of Donna’s willingness to lie in her evidence in order to cheat the plaintiffs out of their rightful claims. They submitted that she had positively endeavoured to persuade the financial planner to prepare false documents that supported her position in the proceedings.
The problem, however, is that she did not lie in her evidence. Nor did anyone prepare any false documents. She did not say that any of the deceased’s lump sum withdrawals had been for living expenses. In fact, she freely identified them in her own affidavit as being transactions that may be within the scope of the notional estate provisions in the Succession Act. Nor did she (or anyone else) lie about the purpose for which the deceased wanted to move assets into her name. Although her affidavit did say that she believed the deceased had done so to secure the taxation advantages identified at the time by the financial advisers, she freely admitted in cross-examination that the deceased wanted to protect her financially, and that a byproduct of this was that she would be protected from claims such as these. If she had any hesitation in cross-examination, it was about accepting categorical propositions put to her about what the deceased’s intention had been. This was understandable. It was not for her to admit the deceased’s subjective intention in setting out many years ago to move assets into her name.
It is in any event important to understand the context in which Donna had the discussions with her financial advisers to which I have been referring. The discussions were in February and March 2024, at about the time these proceedings were commenced. I do not know whether she knew at that point just how large the plaintiffs’ claims were, but she shortly thereafter received affidavits in which their combined potential claims, plus costs, amounted to millions of dollars. In his first affidavit, Dan said that his financial needs were well over $600,000. Marcus identified his financial needs to be well in excess of $2,000,000 in his first affidavit. At the time of the discussions in question, Donna was facing potentially ruinous litigation. She was doing nothing more than exploring her options, all of which will probably have seemed bad to her at the time, as to how to defend the proceedings.
I am not prepared to find that Donna was an unreliable witness. I generally found her to be an intelligent and thoughtful witness who dealt as patiently as may be expected with challenging lines of questioning.
Dan attended Double Bay Primary School. He attended Waverley College between the ages of 12 and 15. Between the ages of 15 and 18, he attended Vaucluse High School.
He said that he suffered sexual abuse at Waverley College. He never mentioned this to his father. Donna learned about this claim for the first time when it appeared in Dan’s affidavit in these proceedings. He also started to take drugs whilst at that school, although this apparently predated the abuse which he described.
Dan had a relationship with a woman called Anna between about 2000 and 2006. They have two children, who were born in 2004 and 2005. He met a woman called Celeste in 2015. They were married in a small ceremony in 2017 but separated in 2022. They were divorced in July 2023. They had no children together.
Although not presently employed, Dan has had fairly consistent work since leaving school. Between 1999 and 2010, he worked as a labourer at Sydney Fish Markets. Between 2010 and 2020, he worked as a delivery driver and eventually a branch manager for a plumbing supplies business. Between 2020 and 2023, he worked as a gardener for a strata maintenance company. He lost this job in mid-February 2023, shortly after his father died.
Dan has been a habitual drug user for his entire adult life. He was a frequent user of marijuana and ecstasy from the time he was about 14 years old. He started to take ice (crystal methamphetamine) at about age 16. He struggled with heroin addiction in his 20s and in recent years has struggled with ice addiction. He has taken part in several rehabilitation treatment programs but has had relapses throughout his adulthood.
Dan has been fully dependent on his mother for accommodation for much of his life, including as an adult and including quite recently. She continues to live in the Double Bay property, although she entered into a long-dated contract to sell this property in mid-2024. The evidence shows that the sale price was $2,830,000 and that settlement is due in November 2025.
Dan’s evidence about his mother, Julie, was very positive. He has a good relationship with her and she has generally been willing to continue to support him by providing accommodation in Double Bay. She has also lent him money from time to time. She has been a devoted and supportive mother.
There was no evidence as to the kind of financial support which Julie will be willing to provide to Dan in the future. She did not give evidence. I do not know what her plans are for herself or for Dan in the future. She is about 80 years old and will probably have given some thought to who should inherit her estate. So far as the evidence discloses, Dan is the only person with any claim on that estate. It is reasonable to infer that he will inherit from his mother.
The nature and quality of Dan’s relationship with his father is difficult to gauge. His evidence suggests that his father was fairly absent from his early life, although Dan did stay close to the deceased for several years after he and Donna moved to Gerringong.
It is always difficult to determine the nature and quality of a claimant’s relationship with a deceased relative. This is especially so where the witness has much to gain from painting the relationship in a particular light. The task is more straightforward where there is corroborative contemporaneous evidence such as correspondence or where a disinterested witness is able to corroborate the claimant’s account. Here, however, there is neither. There is almost no contemporaneous correspondence that sheds light on Dan’s relationship with his father. The only witness who is in a position to respond to Dan’s evidence is Donna, who is not disinterested. Marcus could have, but he was not really able to give evidence about this matter at the level of detail required for present purposes. To the extent that Marcus made comments about the relationship between Dan and the deceased, I take his view into account but I attach relatively little weight to it.
Nevertheless, although she is far from disinterested, there are good reasons to give considerable weight to Donna’s evidence about Dan’s relationship with the deceased. From 2010, she was the deceased’s main carer and was constantly with him. She was intimately involved in his affairs until his death. She is well placed to give evidence about his relationship with Dan. Furthermore, Dan’s evidence about his relationship with Donna was highly tendentious. The fact that his evidence about his relationship with Donna is so unreliable causes me to treat his evidence about his relationship with the deceased with considerable caution.
As to almost every issue about which he gave evidence concerning his relationship with Donna, Dan cast Donna in a distinctly bad light. He attributed no end of hardships, sometimes significant but mostly trivial, to Donna. He blamed her for intervening to prevent his father paying for private school fees (never mind that he sent his daughters with Donna, Bridget and Mary, to public schools and never mind that Julie’s mother paid for Dan’s private schooling in any event); for preventing his father from driving him home from Gerringong at the end of the school holidays (never mind that he and Donna had two small girls at home and that Dan was old enough to travel by himself); for preventing his father from paying for a lawyer to represent him when he was charged with drug offences; for preventing his father from taking his phone calls; for planning holidays with the deceased and their daughters without including him in their plans; for providing him with what he considered to be sub-standard accommodation in their two bedroom home in Gerringong; for intervening in his attempts to be friendly towards Bridget and Mary; for not contacting him soon enough when his father was dying; for not contacting him soon enough after his father had died (notwithstanding that she contacted him immediately when she realised that he had, yet again, changed his phone number).
As to all of these matters, I prefer Donna’s evidence. Nothing she said about any of these matters struck me as the least bit unlikely. On the other hand, for me to accept Dan’s evidence as to any one of these matters, I would need to be persuaded of a degree of malice in Donna that strikes me as quite unlikely.
The aspect of Dan’s relationship with his father that is most significant in the light of how Dan put his case is the extent to which his father was responsible for Dan’s drug use. The centrepiece of his case was that the Court should approach his claim in much the same way as that of a plaintiff in a claim against the estate of an abusive parent.
The evidence does not allow me to conclude that the deceased was ever abusive towards Dan. Nor does it allow me to conclude that Dan’s circumstances are to any significant degree the result of the deceased’s shortcomings as a parent. Like many in the community, Dan had a closer relationship with one parent than another. He has a loving mother who has provided support throughout his whole life and continues to do so, even now that she is in her 80s. She also seems to have good relations with Donna. There is no doubt that the deceased’s relationship with Dan grew weaker as his focus shifted to his new family with Donna. Nevertheless, they did not become estranged. They had occasional contact. During the deceased’s many years of ill health, he and Dan only had occasional contact. After 2010, Dan saw his father and Donna about four or five times. He only visited his father once after 2013. They got on. They just did not ever see very much of one another.
There is also no suggestion in the evidence that Dan sought his father’s help over the last 20 years or so with financial or any other issues. Although he referred to making many attempts at dealing with his drug problem, this is not a case where the plaintiff had been seeking help from the deceased but where the deceased refused. In fact, there was no element of financial or any other kind of dependency in the relationship between Dan and the deceased in the 20 years or so prior to his death.
Dan’s case is, effectively, that he is entitled to reparations for a lifetime of bad parenting. However, I am unable to find that the deceased was a bad parent. I am not persuaded that he was the cause of Dan’s woes. He may have been absent, but he was absent from all of his children’s lives at various times, save for Bridget and Mary. I am unable to conclude that the deceased’s bad parenting is the, or even a significant, cause of Dan’s lifetime of drug use.
| Financial need | Value (AUD) | | Private health insurance for inpatient rehab clinic | $415.83 per month | | Clinical sessions with psychologist | $7,714.20 per year | | Psychiatrist | $825.60 per quarter | | Rental in Eastern Suburbs | $325 - $370 per week | | Initial bond for rental in Eastern Suburbs | $740 - $1,400 | | Clothing, bedding, toiletries, kitchenware and other basic household items | $2,000 | | Second hand whitegoods, appliances, furniture | $5,000 | | Second hand vehicle | $19,900 | | Medical marijuana | $100 per week | | Dental implants | $23,000 - $30,000 per arch | | Debts | $41,000 | | Debt to mother | $10,000 | | Superfunds top up | Unspecified | | Enrolment fees, materials and other related expenses | Unspecified | | Optometrist and prescription glasses | Unspecified | | Buffer for uncertainties of life | Unspecified |
Dan behaved incredibly badly towards Donna after his father died.
As mentioned, Donna paid $20,000 to each of the deceased’s children from her own funds during 2023 even though she was not required to do so. In Dan’s case, after communications with his mother, Donna rationed the payments so that he did not receive $20,000 all at once. Julie’s concern was that Dan had started gambling and that he was simply wasting his inheritance. Donna sent a message as follows:
“Morning Danny. It seems you still have $2400 left, according to those notes you sent me. So I think it might be best to wait a bit before you get more. If you find a place to live and need a bond etc I can give you money then. But until you find something the money will disappear. Then you’ll be back to square one. I truly only want what is best for you. Although it may not seem like it. The money will always be there for you but rather than watch it drift away I think you should have a specific goal.”
“Keep your fucking business out of mine. I’m a forty-one year old male. No! Look what you’ve done! Fuckin’ listen”.
“Donna the money belongs to me not my mother it’s been a free days the right thing for you to do is send it
This is not a request donna, you owe me I need it
You have paid Marcus and the others I don’t neee any parenting around the money if I want to piss it up against the walls I will.
…
Yes this has caused massive problems with my self and my mother I believe the money belongs to me not her so I would approacite if you send it asap as this money belongs to me .
Why are you even asking my mother for permission I am 42”. (errors in original)
“In February 2023 Mr Madigan disclosed details about his history of substance abuse which had started aged 16 and continued in various forms ever since. He reported his father was often absent. He disclosed a history of childhood sexual abuse by a teacher at his school. He reported difficulties sleeping as one of the reasons for his substance abuse.
This pattern of behaviour matches the research into adverse childhood events and subsequent risk of substance abuse. The more events, the higher the risk. Long term substance abuse then changes brain function, and reversing this requires long term psychological therapy.”
I have already mentioned Marcus’s early years. After moving out of the Castlecrag house, he and his mother eventually moved to a friend’s home in Balmain. Marcus completed years 7 and 8 at Balmain High School. He completed years 9 and 10 at Glebe High School. He left school after year 10 at age 17 and started work at The Dry Dock Hotel in Balmain.
Marcus enjoyed a close relationship with his father during his childhood. He stayed at the Castlecrag house every second weekend right up until he was about 18 years of age. He continued to visit and to stay at Castlecrag even as a young adult.
As a teenager, Marcus had a son, Justin, with his then girlfriend. He was born alive but died several hours later. Marcus was shattered by this event. He was close to his own father at the time and the death of Justin brought them even closer.
Marcus had a relationship from the early 1990s with a woman called Charmaine. Their daughter, Ti-arna, was born in March 1994. They moved to a rented house in Leichhardt in 1995. At that point, Marcus was working as a general purpose hand for Sydney Ferries. Ti-arna now has a son, aged about 3 years.
The relationship with Charmaine lasted around five years. In about 1996, Marcus started a relationship with another woman, Moana, whom he had also known since high school. They remained in a relationship, on and off, for about eight years. Moana had a daughter about the same age as Ti-arna but Moana and Marcus did not have children together.
His father’s purchase of the Grosvenor Hotel assumed significance in Marcus’s case. He said that his father asked him to come and work at the hotel in return for a promise that if the hotel could reach certain revenue targets, then:
“…I promise I will keep it for the family for good and when I die you will be entitled to a share of it. As long as it can pay for itself, we will keep this place forever. You know this is where you belong.”
Marcus took up the offer. He said that this was a pivotal point in his life because it meant that he was giving up his dream of becoming a skipper with Sydney Ferries in order to help his father at the hotel. In fact, he claims that he did help turn the hotel business around and that he helped his father meet and exceed the revenue targets he had set.
I prefer Donna’s evidence about Marcus’s employment at the hotel. This is in part because I have generally found her to be reliable about other matters. It is also in part because Marcus’s evidence about his gambling has proved to be fairly unreliable, as I will shortly discuss.
As Donna says, he was offered work there in 2004 at a point when he was unemployed. He was employed as a bar attendant and not in any kind of managerial capacity. Not long afterwards, he was caught on CCTV playing the poker machines after licencing hours. The manager of the hotel showed the footage to Donna and the deceased. It also appeared that Marcus was taking cash from the hotel. His employment was terminated in March 2005.
Donna also explained that she and the deceased were already in discussions about selling the hotel by the time Marcus was employed there. She does not recall Marcus ever being part of a succession plan concerning the hotel. I am unable to accept Marcus’s evidence about his central role in turning the hotel business around on the promise of a succession plan.
Moana and Marcus separated in about 2005. He took work at a hotel in Five Dock where he met Holly. They began a romantic relationship and moved to Lismore, where Marcus continued to work in hospitality. Their daughter Matilda was born in April 2010. Their son Max was born in May 2011. Marcus and Holly separated in 2012 at a time when they were living on the Gold Coast in Queensland.
Marcus returned to Sydney in 2013 and started working again for Sydney Ferries as a deckhand. He was however now only on a casual basis. Holly and the children (Matilda and Max) moved back to Sydney about 12 months later.
In September 2018, parenting orders were made which provided for the children to live with Marcus. It is unclear whether these lapsed, but Max’s living arrangements are currently about half-half between Marcus and Holly. Marcus’s evidence was that Matilda has recently begun to live full-time with him in an apartment in Pyrmont.
Marcus suffered two injuries while working for Sydney Ferries. The first was a shoulder injury in early February 2020. This led to a period of six to eight weeks off work. The second was an arm injury in August 2021, shortly after being back on full duties. He has not returned to work since this injury. He has had surgeries on his shoulder and arm. He continues to suffer pain.
Marcus has been receiving worker’s compensation payments calculated at 80% of ordinary time earnings at the time of the accident, which comes to about $802 per week. There is real uncertainty about whether and for how long he will continue to receive these amounts because, it seems, the insurer takes the view (or will in the future take the view) that he is suitable for work in hospitality.
The deceased was aware that Marcus had injured himself at work. He did not offer to help him out financially. But nor did Marcus ask him to.
Marcus has a fairly significant gambling problem.
In his first affidavit, he explained that he had started to use gambling apps on his phone during the COVID lockdowns and that he uses around $200 to $400 per month to gamble. He says he was introduced to gambling at a young age by friends of the deceased and that he sees gambling as an important part of being a man, although he is not proud of his gambling. He sees gambling as means of meeting some of his larger living expenses. This seems counterintuitive. Marcus accepted as much.
The evidence shows that Marcus gambles significantly more than he described in his affidavit. Bank records tendered by the defendant show that he had spent the entire $20,000 gift from Donna on gambling within about two weeks of receiving it on 13 May 2023. The records suggest that Marcus was spending many thousands of dollars every month over several years up until his father’s death and also subsequently. For example, he accepted in cross-examination that between 1 April 2022 and 30 June 2022, the total amount that he transferred to a Cyprus entity ‘White Larnaca’ could very well have been over $24,000. He accepted that the transactions in this time-range consisted of payments of up to $150 or more each day. Additionally, he accepted that, over about a week in late February 2025, he made payments totalling more or less $3,500 to an online casino company ‘BS Moving Pty Limited’.
Marcus protested that he sometimes gambled using other people’s money. This may be so, but he did not deny that his gambling was very significantly more serious than he had described in his original affidavit.
Marcus’s bank records also show some deposits that are difficult to understand. He has been receiving occasional deposits described as ‘rent’.
In this regard, it is relevant to note that he is the owner of a property in Bundall, Queensland, which is on the Gold Coast. He tendered a declaration of trust dated 15 October 1992 which contained the following recital:
“WHEREAS the Trustee [Marcus] has agreed he will purchase [the Bundall property] in trust for his Mother PATRICIA MADIGAN on the basis she is providing the whole of the purchase price and desires me to become fully entitled to the property on her death.”
In his affidavit, Marcus said that this is where his mother lives. He said that she meets all of the outgoings for the property.
In Patricia’s evidence, however, she said that she lives in social housing in Annandale and that she has done so since the late 1970s. When she swore her affidavit she gave the Annandale property as her address, although the document was sworn and witnessed near to Bundall on the Gold Coast.
These circumstances were not adequately explained.
Marcus’s mother said that where possible, she contributes to help Marcus with his expenses. In fact, she has provided significant financial assistance to him in recent years. In the period from June 2022 until about mid-March 2025, Patricia regularly put funds into a joint account which Marcus would then immediately withdraw, often to spend on gambling. In total, Patricia gave Marcus about $80,000 by this method over this period.
Patricia did not give meaningful evidence about her general financial situation. However, it is reasonable to proceed on the basis that Marcus will at least inherit the Bundall property. The deed itself recites that she wants him to have it when she dies. Marcus submitted that he could not be certain that Patricia would continue to provide him with financial assistance, or that she may not be equipped to in the future. I do not accept these submissions. The absence of evidence about other aspects of Patricia’s financial circumstances, which could potentially have assisted Marcus on precisely this issue, is a matter about which he could have led evidence. In the circumstances, it is appropriate to proceed on the basis that Patricia will probably be willing to continue to provide support for Marcus in much the same way as she has been.
Marcus does seem to have had a good relationship with the deceased as a child and in his early adult years. However, the relationship seems to have always been strained by the fact that Marcus was generally unreliable with money. He would borrow from friends and family and not pay them back. This was a source of disappointment for the deceased. After Marcus’s employment at the hotel was terminated in 2005, their relationship was further strained.
The deceased and Donna visited Marcus on three occasions in 2008, 2009 and 2010. Donna recalls that the deceased often expressed disappointment about the fact that Marcus was gambling. He would say such things as ‘he smokes too many drugs and won’t get off his backside to work hard’ and ‘he is just pissing his money away gambling’. At about this time, the deceased became displeased with the fact that Marcus and Holly were involved in a business called ‘Sexy Services’ on the Gold Coast. Marcus explained that the business was not an escort agency but was a ‘promotions company’ that used ‘video flirt chats which were MA rated content’. Nevertheless, Marcus’s involvement in the business was another source of disappointment to the deceased.
According to Donna, in the 35 years in which she lived with the deceased, Marcus rarely saw the deceased or contacted him by telephone. To her observation, it tended to be the deceased who contacted Marcus. Marcus visited him only rarely during the period that he was so unwell in 2010.
As with Dan, there was no element of financial dependence at all in their relationship. They were in contact from time to time, but Marcus was not the least bit dependent on the deceased for anything. They got on, but they were not very close.
| Financial need | Value (AUD) | | Extinguish liabilities | $56,000 | | Accommodation Support Fund | $235,000 | | Dental implants | $50,000 | | Private health insurance | $100,000 | | Contingencies and rebuilding of super | $200,000 | | Retraining as councillor | $21,000 | | Specialised gambling rehab facility | $15,000 |
I have described much relevant detail concerning Donna in other parts of these reasons. It is appropriate to note several additional matters.
When Donna started living with the deceased, she was about 31 years old and the deceased was aged about 52. She ceased working soon after having children.
By 2002 when the Gerringong house was put into their joint names, she had been a stay-at-home mother for about 10 years.
As already described, Donna assumed a very significant burden in looking after her very sick, relatively elderly husband at a time when she still had relatively young children. In 2010 when the deceased became unwell, their daughters were 16 and 18 years old. The burden of looking after the deceased prevented her from being able to perform full time work from 2010 onwards. She was about 52 in 2010. Aside from occasional casual teaching work from 2008 to 2020, she was, as she remains, largely dependent on their superannuation savings for financial support.
Donna is also the principal carer for her 95 year-old mother, who lives nearby in Gerringong. Her mother owns her home. Donna may well inherit a share of that house with her two sisters, however she does not know what her mother’s testamentary wishes are.
At the time of the hearing, Donna owned the following (leaving aside assets of no particular value):
The Gerringong house. As mentioned, I will take the midpoint of the values identified by Donna in her April 2025 affidavit, being $1,425,000.
SMSF balance of $1,303,395.72 as at 7 April 2025.
Bank balances of about $10,500.
Artwork with an estimated value between $36,000 and $51,300 (less agent’s commission on sale).
A 2020 model car worth about $17,000.
Furniture and household contents worth between $80,000 and $100,000.
Personal effects and jewellery worth about $5,000.
As at April 2025, Donna had liabilities totalling $96,264.60. To a large extent, this reflects the costs of these proceedings. The estimate of additional costs up to and including the end of the hearing was $110,000.
Donna gave detailed evidence of her monthly expenditure, which she estimates to be $8,616.55. She was not seriously challenged on this evidence. She also estimates that she spends up to $450 per month on her mother, mostly for groceries.
There was also evidence that the Gerringong house is in need of repairs. These are mostly things that were put off while the deceased was alive because he was so unwell. She estimates that the various jobs will cost a total of around $75,000.
Donna suffers from several medical conditions and takes a number of medications. She maintains a healthy lifestyle but has been advised that she will need various procedures in the coming years. Donna also requires several ongoing medical appointments for her various conditions and procedures. These appointments will not be covered by her private medical insurance. Donna’s mental health was adversely affected by the years of caring for the deceased. These proceedings have only worsened matters on that front.
Part 3.3 of the Succession Act provides for the making of notional estate orders. Section 78 provides that the Court may make an order designating property as notional estate only for the purposes of a family provision order to be made under Part 3.2, or for the purposes of an order that the whole or part of the costs of the proceedings be paid from the notional estate.
Section 80 provides as follows:
80 Notional estate order may be made where estate affected by relevant property transaction
(1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies.
Note—
The kinds of transactions that constitute relevant property transactions are set out in sections 75 and 76.
(2) This section applies to the following relevant property transactions—
(a) a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order,
(b) a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction,
(c) a transaction that took effect or is to take effect on or after the deceased person’s death.
(3) Property may be designated as notional estate by a notional estate order under this section if it is property that is held by, or on trust for—
(a) a person by whom property became held (whether or not as trustee) as the result of a relevant property transaction, or
(b) the object of a trust for which property became held on trust as the result of a relevant property transaction,
whether or not the property was the subject of the relevant property transaction.
75 Transactions that are relevant property transactions
(1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being—
(a) held by another person (whether or not as trustee)…
76 Examples of relevant property transactions
…
(2) The circumstances are as follows—
…
(b) if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person’s death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust,
…
Donna accepts that a relevant transaction occurred in relation to the Gerringong property. She also accepts that relevant transactions occurred in relation to the following amounts of cash:
$239,842.67, being the balance allocated to the deceased in the SMSF but which was allocated to Donna pursuant to an automatic reversionary pension nomination.
$100,000, being an amount withdrawn by the deceased from the SMSF on 26 April 2022 and then paid to Donna.
$1,100, being a cash gift to Mary from the joint account in the names of Donna and the deceased in the 12 months prior to death.
$3,074.99, being 50% of the balance of a joint bank account as at death.
$40,327.46, being 50% of the pension withdrawals made by the deceased and paid into the joint account in the year prior to the deceased’s death.
A question arises as to whether the two additional amounts of $100,000 which were withdrawn from the deceased’s SMSF and paid to Donna were also relevant transactions. In my view, they were relevant transactions. That is because the deceased intended to transfer his assets to Donna for the purpose of, among other things, protecting his estate from unmeritorious claims by his children. They were within three years of his death.
Donna paid a total of $120,000 to the deceased’s children in deference to his wishes as expressed in the will. These payments were made from her own funds. I also note that her costs of these proceedings will total about $206,000. Donna has also met estate costs and liabilities totalling $15,575.74 out of her own resources. It will be appropriate to take all of these matters into account in deciding whether notional estate orders should be made and, if so, the amount and form of such orders.
Both Dan and Marcus put their claims for further provision by reference to two principal matters, being (a) their undoubted financial needs and (b) the ability of their needs to be met from notional estate. These are, relevantly, factors under ss 60(2)(c)-(d) of the Succession Act. Absent from their submissions was any recognition of the other s 60(2) matters that are usually appropriate to take into account in making an order under s 59.
It is not appropriate to approach the exercise of the Court’s power in s 59 of the Succession Act in that way. Rather, as has been explained on many occasions, the task is a multi-factorial one. This is the case for both ‘stages’ of the two-stage inquiry, as was explained by the High Court in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 209-210 (Mason CJ and Deane and McHugh JJ):
“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.” (emphasis added)
“The risk of error arises if a two-stage approach is adopted and it is assumed that the first stage requires an evaluation of whether the applicant has been left without adequate provision for his or her maintenance, education or advancement in life, thereby focusing primarily, or perhaps exclusively, on the applicant’s financial needs. An applicant’s financial needs and the financial needs of other persons with claims on a deceased’s testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222 at [22]:
‘… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs.’”
In the present case, there are several matters, including matters expressly referred to in s 60(2), that weigh heavily in the exercise of the Court’s power to make an order under s 59 but which were all but omitted from the plaintiffs’ submissions.
The first of these concerns the nature of the relationship between each of the plaintiffs and the deceased. Despite the relationship of father and son, neither plaintiff was particularly close to the deceased. Neither was at all emotionally or financially dependent on him for decades prior to his death. Both Dan and Marcus have specific financial needs, but they are not needs of the kind that either plaintiff thought to raise with the deceased during the final decades of his life. They probably sensed, correctly, that the deceased would not have been willing to assist either plaintiff in the manner or to the extent to which they now seek further provision from his estate.
Secondly, and in stark contrast to the plaintiffs, Donna had a close and loving relationship with the deceased for about 35 years. She cared for him at very considerable personal and emotional cost to herself for many years prior to his death. She gave up work to care for his children and, eventually, him. She is an intelligent and resourceful person. She would have been entirely capable of working full time and enjoying a second career once her daughters left home, but for the fact that the deceased became so unwell in 2010. As matters transpired, she was financially dependent on the deceased throughout most of their relationship.
Thirdly, the deceased would have expected Donna to outlive him by many years. It is reasonable for someone in that position to try as far as possible to ensure the financial independence of their partner, which is what he did. It would be a serious matter for the Court to make orders for further provision for non-dependent adult children that worked a material change to that outcome.
The deceased’s intentions in this regard are revealed not only by his will but in the deliberate steps he took over many years to move assets into Donna’s name. These steps were taken to ensure that his major assets would ultimately come to be owned by Donna. Overwhelmingly, his intention was to ensure her financial independence. The plaintiffs seek to cast these steps in a sinister light. They see them as steps by the deceased to defeat their legitimate claims on his estate. I do not see matters that way. The deceased was free to deal with his assets as he saw fit during his lifetime. The way he dealt with his assets assists in reaching a view as to what the deceased’s testamentary intentions were. Here, the facts show that the deceased wanted Donna to be financially independent and that she should benefit from his estate to the specific exclusion of all of his children, save for the limited gifts for which he provided.
Fourthly, as the deceased would have known, each of Dan and Marcus has a loving mother who has provided and will continue to provide financial and other assistance to them. Each is likely to inherit their mother’s home. Neither plaintiff was at all dependent on the deceased. By contrast, each is quite dependent on his mother.
Fifthly, the scheme of the will reflects all of the matters to which I have just referred. It reveals the relative standing of the plaintiffs, on the one hand, and Donna, on the other, in the deceased’s sense of moral obligation. He was not estranged from either plaintiff. He was generally aware of their needs, although neither Dan nor Marcus ever sought material financial assistance from him. As with his other children, he did not consider that they had a claim on his testamentary bounty that was remotely as well-founded as Donna’s claim.
Sixthly, the deceased almost certainly considered that the financial resources available to him in his final years (that is, his estate and all of the potential notional estate) were sufficient – but only just sufficient – to ensure Donna’s financial security. It is reasonable to infer from the steps he took and from the terms of his will that he did not want to leave Donna in the position of having to live off social security. He considered that Donna needed every bit of the financial security he was able to provide to her.
In this respect, the plaintiffs submitted that Donna could nonetheless afford to sacrifice some of the notional estate as well as some of her own wealth. They suggested that if she were to use the available cash from the notional estate plus her own superannuation balance to pay out their claims, which would be secured by a charge over the Gerringong house in the meantime, then she would have sufficient funds to live off albeit that she would have to sell her house or move onto social security considerably sooner.
I do not find this reasoning to be persuasive. Even though I accept that the plaintiffs have the financial needs they describe, it is a mistake to approach the s 59 question on the basis that further provision should generally be ordered to meet demonstrated financial need where the estate can afford it. Although the financial ability of the estate and notional estate to provide further provision is always a matter that must be taken into account, it is not a matter that should be given primacy and it is not a matter that I find to be terribly significant here. This is especially because of the matter I referred to in the previous two paragraphs, namely that the testator had a strong view that Donna’s financial security required her to receive all of the property and cash which could now be the subject of a notional estate order.
These are all matters that, when taken in the round, tend against the making of an order for further provision for the plaintiffs. However, it is both necessary and appropriate to consider the position of each plaintiff individually.
Marcus submitted that further provision was required in order to break a cycle of poverty for him and his dependent children. He submitted that further provision may allow him to reduce his liabilities, obtain safe and secure accommodation for his family and allow him to properly treat his health and medical issues so as to get himself back on his feet.
Marcus also submitted that he had not ‘squandered a start in life given by the deceased’. To the contrary, he submitted that his father had failed to provide him ‘with the kind of support which might have avoided his present demonstrable need’.
He relied on three specific matters that, he submitted, had particular relevance to his application:
The fact that the deceased only paid minimal child support to Patricia.
The fact that the deceased ‘went back on his promise’ concerning Marcus being part of some succession plan in relation to the Grosvenor Hotel, in circumstances where Marcus had given up his job at Sydney Ferries on the basis of that promise.
The fact that Patricia’s financial position was negatively impacted by her contribution to the Castlecrag property, which was held in the deceased’s name only. This, he submits negatively impacted Patricia’s financial position which, in turn, limited the opportunities available for Marcus.
Marcus recognises that he ought not be trusted to manage any further provision because of his gambling. He submits that any further provision should be paid to a trustee to manage on his behalf.
I will deal first with the matters which Marcus says are particularly relevant.
As to the financial position of his mother, which is the subject of the first and third matters relied on, I am unable to conclude that Marcus’s current circumstances are different than what they would have been if the deceased had paid more child support to Patricia in the 1970s and early to mid-1980s. Patricia came into an inheritance not long after that period and purchased a house. Despite being the beneficial owner of that house, she has had government supported housing in Sydney for the past 45 years or so.
Nor am I able to conclude that the financial burden of making a contribution to the Castlecrag property in the early 1970s robbed Patricia of the ability to provide appropriate care and opportunities to Marcus. Even if the evidence allowed me to reach such a conclusion, it would be another thing to conclude that Patricia’s financial situation in the early 1970s was entirely the deceased’s fault. As it stands, the evidence would not allow me to reach such a conclusion. I note that Patricia never asserted any interest in the Castlecrag property.
As to the situation concerning the Grosvenor Hotel, I have preferred Donna’s evidence. I am unable to conclude that Marcus took that job in reliance on a promise that he would enjoy some long-term benefit referable to the hotel. Even if such a promise had been made, his conduct at the time in gambling outside of licensing hours would have well and truly justified the deceased in departing from such a promise.
A difficulty I have in entirely accepting Marcus’s submission about his cycle of poverty is that he has been significantly financially dependent on his mother in the past several years but has not led any evidence as to her ability to continue to provide such assistance. He is also likely to inherit her Bundall home.
I am also unwilling to accept that there is a meaningful causal connection between Marcus’s current financial circumstances and his father’s failure to be more present in his early life. The deceased and Marcus seem to have had a good relationship during Marcus’s childhood and adolescent years. Marcus stayed with him every second weekend right up to and even beyond turning 18.
It would also not be accurate to see Marcus merely as an adult child who has fallen on hard times, such as was discussed in Taylor v Farrugia [2009] NSWSC 801 at [58] (Brereton J). It is true that his financial circumstances are dire, but even taking into account his work injuries it would not be right to say that he has merely fallen on hard times. He received a disability payout in respect of his work injuries, of which he also spent a substantial portion on gambling. His own evidence was that he was introduced to gambling when he was very young. It is also appropriate to recognise that he is a child of a long past relationship between the deceased and Patricia and that, in the decades that have passed since they separated, it was Patricia who provided and who continues to provide support and assistance to him.
These matters, when taken together with the other considerations set out in paragraphs [121] to [135], lead me to conclude that the gift of $20,000 for Marcus was appropriate and that it would not be appropriate to make an order for further provision. His claim will be dismissed.
Counsel for Dan submitted that he is a vulnerable person who needs some form of intervention in his life. He has had lifelong drug problems. At least at some recent points he has been homeless, although his mother continues to allow him to live in her Double Bay apartment. His financial circumstances are also dire. I accept these matters.
However, I am unable to accept the submission that Dan’s application is the very kind of application to which Chapter 3 of the Succession Act is directed, which is how his case was put. Although the object, scope and purpose of the legislation informs the way in which the power to make a s 59 order should be exercised, it is wrong to approach the exercise of that power with an assumption that a given application is within the scope of it. In every case it is necessary to engage in the task of determining, by reference to matters such as those identified in s 60, whether the Court ‘ought to’ make such an order.
As I have already mentioned, Dan relies by analogy on those cases where the deceased has abused the claimant. He referred me to Pulitano v Pulitano [2019] NSWSC 1688 where Henry J said:
“[133] Fourth, while there is evidence that the plaintiff suffered physical abuse as a child at the hands of the deceased, the purpose of the Succession Act is not to provide compensation for any past failure in terms of the deceased’s legal or moral duty to be a good and responsible parent. Nor is its purpose to punish or provide a legacy by way of damages for past abuse or immoral conduct by the deceased: Williamson v Williamson [2011] NSWSC 228 at [124] - [125].
[134] That said, the Court may take into account the past conduct of the deceased where it provides an explanation for the current position of the plaintiff, including his mental state (if established), giving rise to additional needs. The deceased's past conduct and abuse is not irrelevant where it had the effect of depriving the plaintiff of opportunities in life or where there is some causal connection between it and the plaintiff’s need for provision: Williamson v Williamson [2011] NSWSC 228 at [127]; Litchfield v Smith & Tingate [2010] VSC 466 at [57].”
Naturally, Dan emphasises what her Honour said in [134]. However what her Honour said in paragraph [133] has particular relevance here.
I am moreover unwilling to accept that ‘the past conduct of the deceased…provides an explanation for the current position of the plaintiff’. Counsel for Dan made the following submission in relation to this matter:
“…where a parent knowingly understands the illness of a child and stands by without undertaking proper assistance then that should be taken into account as a proper consideration in a family provision claim.”
Stated in that general way, I agree. But it is not this case. The evidence on which Dan relies does not allow me to make the finding for which he contends, or anything like it. It would be a rare case where the Court was able to conclude with confidence that the financial and health predicament of a 42 year-old man was materially attributable to the fact that his father failed in his parental duty during the plaintiff’s early teenage years. It would be an even rarer case where the Court could reach that conclusion where the plaintiff had and continues to have a loving and supportive mother who has taken an active role in looking after the plaintiff during his lifetime.
So far as other applicable principles are concerned, Dan made only two submissions. The first was that he is not an abled child and so guidelines such as those described by Hallen J in Jodell v Woods [2017] NSWSC 143 at [104] do not apply. The second was that it is not correct for the Court to give primacy to the position of the spouse: Bladwell v Davis [2004] NSWCA 170 at [19] (Bryson JA, with Ipp JA and Stein AJA agreeing).
I accept that there is no rule that Donna should be given primacy merely because she is in the position as the surviving spouse. But what Bryson JA said in Bladwell v Davis at [19] was as follows:
“In the application of the test in s 7, and of the exposition thereof in Singer v. Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v. Berghouse, in full and with reference to the instant facts…”
Here, I do not give ‘general primacy’ to Donna’s claim merely because she is the surviving spouse. The strength of her position reflects all of the circumstances I have described, including that she is the much younger surviving spouse of a long-term, loving relationship of over 35 years in which she made significant sacrifices and in which she had been generally financially dependent on the deceased for the vast majority of that time.
As to the first matter of principle on which Dan relies, I am not willing to approach the question on the basis that Dan is or is not disabled. He has generally been employed throughout his adulthood. He has also had serious drug problems. I have already accepted that his life is in need of some kind of intervention. But it does not follow that the burden of funding such an intervention should come at the cost of the provision which the deceased made for Donna.
It bears repeating that I accept that Dan’s circumstances are poor. I accept that he has serious financial needs and that his situation in life is very difficult. However, he is an adult son who was not dependent on his father, whether financially or otherwise, for decades prior to his death. He was not especially close to his father. It is difficult to say much more about the strength of their relationship than what I said above, namely that they were not estranged and that they got on, but they saw one another and spoke to one another only rarely.
Dan’s claim necessarily involves a challenge to Donna’s financial security in a way that I have no doubt the deceased would have resisted with great vehemence. As already explained, he had a strong desire to ensure Donna’s financial independence. Dan has, furthermore, behaved towards Donna in a way that is difficult to ignore. It is understandable that someone in Dan’s circumstances would have strong emotions about obtaining cash from their father’s estate. But Donna was offering to pay him out of her own money and, after discussions with his own mother, was simply trying to look after his best interests by not handing him all the cash at once. Dan’s vitriolic reaction to these circumstances reveals the obvious contempt with which he regards Donna, whose financial independence he now seeks to disturb. I consider that it is appropriate to take this conduct into account in deciding whether or not the Court ought to make an order for further provision.
These matters, when taken together with the other considerations set out in paragraphs [126] to [135], lead me to conclude that the gift of $20,000 for Dan was appropriate and that it would not be appropriate to make an order for further provision.
Dan’s claim will also be dismissed.
The orders of the Court will be:
In proceedings 2024/42509, the summons is dismissed with costs.
In proceedings 2024/42950, the summons is dismissed with costs.
**********
(1994) 181 CLR 201