//
[2020] QSC 7
General information, not legal advice.
Supreme Court of Queensland
2020-02-10
Ryan J
Original judgment source is linked above.
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANTS LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN - where the applicants are the children of the deceased - where the applicants have been diagnosed with Asperger's Syndrome - where the deceased did not provide for the applicants in his will - whether a wise and just testator, in the deceased's position, would have made some provision for the applicants in his will - where a wise and just testator would have taken into account that his estate was not small; they were his children; he controlled his relationship with them and the contact they had with him; they were unlikely to find employment; their life was likely to be difficult because of their disability; their mother's finances were limited; and there was no suggestion of any other needs based claim upon the estate - where having regard to the size of the estate, the community would not expect the deceased to leave the most vulnerable of his children dependent on welfare whilst providing for his other children who were able to meet their needs from their own resources - where the deceased failed to make adequate provision for the applicants' proper maintenance and support in his will
SUCCESSION - FAMILY PROVISION - PROPERTY WHICH MAY BE SUBJECT TO ORDER - PRIMACY OF WIDOW'S CLAIM - EXONERATION OF MATRIMONIAL HOME - where the respondent is the widow of the deceased - whether the conduct of the respondent as executor, and any pursuit by her of litigation to the detriment of the estate, can be taken into account in deciding whether to exonerate the matrimonial home - where no evidence given of the widow's particular attachment to the home, or her inability to find or fund a suitable replacement for it were it not exonerated - where it is not appropriate to apply the broad general rule that primacy be accorded to widows
Succession Act 1981 (Qld)
Abrahams (by his litigation guardian the Public Trustee (Qld)) v Abrahams (2015) 13 ASTLR 406
Alexander v Jansson [2010] NSWCA 176
Baird v Harris [2015] NSWSC 803
Bladwell v Davis & Anor [2004] NSWCA 170
Blore v Lang [1960] HCA 73; (1960) 104 CLR 124
Camernik v Reholc [2012] NSWSC 1537
Collet & Anor v Knox & Anor [2010] QSC 132
Collicoat v McMillan [1999] 3 VR 803
Cropley v Cropley [2002] NSWSC 349
Duffy v Duffy [2014] NSWSC 216
Gardiner v Gardiner, Supreme Court of New South Wales, 28 May 1998, unreported
Golosky v Golosky [1993] NSWCA 111
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Higgins v Higgins [2005] QSC 110; [2005] 2 Qd R 502
In Re Allardice, Allardice v Allardice [1910] 29 NZLR 959
Kohari v Snow [2013] NSWSC 452
Luciano v Rosenblum (1985) 2 NSWLR 65
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGarry v McGarry [2009] NSWSC 504
Mckenzie v Topp [2004] VSC 90
Palagiano v Mankarios [2011] NSWSC 61
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Re Anderson, Supreme Court of Queensland, 13 May 1984, unreported
Re Fulop Deceased (1987) 8 NSWLR 679
Re Harris [1936] SAStRp 52; [1936] SASR 497
Re Watkins (deceased) Hayward v Chatterton and Others [1949] 1 All ER 695
Rocco Condello v Sung Soo Kim [2018] NSWSC 394
Sayer v Sayer; Garbutt v Sayer [1999] NSWCA 340
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161
Stewart v McDougall NSWSC, 19 November 1987, unreported
Szypica v O'Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Thompson v Sgro [2016] NSWSC 1869
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Warriner v McManus & Warriner [2015] VSC 314
Whitmont v Lloyd, Supreme Court of New South Wales, 31 July 1995, unreported
Zagame v Zagame [2014] NSWSC 1302
[1] This is an application for provision from the estate of the deceased. I will refer to family members by their first names so that my reasons are easier to follow. I intend no disrespect.
[2] Bryan Pott died on 17 June 2008, aged 69 years. He was a retired commercial airline pilot. At his death, he had almost $3.8 million in assets, separate from other income earning assets which he controlled through a family trust.
[3] The deceased married his first wife, Denise, in 1959. They had three children.[1] He met Jennifer Niebour-Pott in 1982. In 1983, after he separated from Denise, he entered into a relationship with Jennifer. They had two children. He divorced Denise in 1986. His relationship with Jennifer ended in the 1990s. In 1998, he married his second wife, Cecilia, and they were still together at his death.
[4] The deceased provided for Cecilia and the three children of his first marriage in his will. He left nothing to his children with Jennifer - Cameron and Naomi Niebour-Pott. Cameron and Naomi are the present applicants. The respondent, Cecilia, is the executor of the deceased's will.
[5] It is not necessary for me to make any finding about the nature or duration of the deceased and Jennifer's relationship. It is enough to say that there was animosity between them after their final separation and, in 1998, Jennifer commenced de facto property proceedings against the deceased. The deceased engaged the law firm Clayton Utz to act on his behalf in those proceedings. They had not resolved prior to his death and were continued by his estate.
[6] The deceased had some contact with Cameron and Naomi until 2000. After 2000, his contact with them ceased but he agreed to maintain them both until they reached 18 years.
[7] At the deceased's death, Cameron was aged 17 years and 11 months and Naomi was 24.
[8] On 16 March 2009, by his litigation guardian, Cameron filed an originating application for an order for adequate provision from his father's estate. On 26 October 2009, Naomi indicated her intention to seek adequate provision from her father's estate. Under rule 69 of the Uniform Civil Procedure Rules 1999, I order that Naomi be joined as the second applicant in this application.
[17] The deceased's will is dated 21 August 2007.
[18] Before his death, the deceased purchased property through a trust, the Ocean Projects Trust. The trustee of the trust was a company, Ocean Projects Pty Ltd. The deceased was a director and shareholder of the trustee company and the principal beneficiary of the trust. The trustee company owed the estate more than $2 million at the deceased's death.
[19] By his will, the deceased appointed Cecilia his executor and trustee. She was granted probate of the deceased's will on 21 January 2009.
[20] At his death, the deceased's estate included two residential properties (and their furniture and effects) at Benowa Waters (including the matrimonial home), a car, shares, his loan to the trustee company and another $494.50 in assets.
[21] The deceased left to Cecilia the matrimonial home at Cabana Boulevard, Benowa Waters, its furniture and effects, and his cars.
[22] He left another home at Edinburgh Road, Benowa Waters and its furniture and effects, to his daughter, Christine Morgan.
[23] He gave all money owing to him by the trustee company, either as a loan or as undistributed income, to Cecilia (50%) and his sons, Gregory Pott (25%) and Bryan Pott (25%).
[24] He gave to Cecilia his shares in Ocean Projects Pty Ltd and appointed her as the principal of the Ocean Projects Trust in his place.
[25] He gave the residue of his estate to his trustee (Cecilia) to be used for the payment of certain expenses, with the balance to be held on trust for his sons Gregory and Bryan.
[26] The material tendered on this application was quite voluminous. I found the simplest way to manage it for the purposes of understanding the relevant narrative was to prepare a table setting out significant factual matters in chronological order.[3]
The deceased married his first wife, Denise Robyn Pott.
He had three children and one foster child with her. His three children are Bryan Kenneth Pott, Christine Denise Morgan and Gregory Colin Pott. Bryan, Christine and Gregory are beneficiaries under his will. His foster child died in 1997.
The deceased and Jennifer commenced a relationship (the deceased was then separated from his first wife Denise).
The deceased, Jennifer and Naomi moved to Hong Kong. The deceased was employed as a pilot with Transcorp Airlines (a subsidiary of Ansett Airlines) and later by Air Hong Kong. He, Jennifer and Naomi returned to Australia between his employment with those companies.
Cameron was born prematurely in Hong Kong at 27 weeks' gestation.
The relationship between the deceased and Jennifer deteriorated.
Jennifer returned to Australia with Cameron and Naomi.
The deceased visited Jennifer, Cameron and Naomi in Australia twice.
Jennifer, Cameron and Naomi were away for about 15 months.
The deceased was, by then, in a relationship with Cecilia.
They all lived together in the same house in Hong Kong.
The deceased's employment with Air Hong Kong ended and the deceased, Jennifer, Cameron and Naomi returned to Australia. Cecilia followed some months later.
The deceased, through his family trust, owned a motel at Palm Beach, flats at Palm Beach and a "farm" at Midginbil. After a stay at the motel, the deceased, Jennifer and the children lived on the farm until the deceased's relationship with Jennifer ended.
Cameron and Naomi are discretionary beneficiaries of the Ocean Property Trust. They have never received any distribution from it.
According to Jennifer she and the deceased separated finally at this time.
According to Cecilia, their final separation was in August 1995.
Jennifer commenced proceedings in the Supreme Court against the deceased and the trustee of the family trust.
The deceased filed an Application for Final Orders in the Family Court, seeking contact with Cameron and Naomi.
By consent, the deceased agreed to pay child support for Cameron and Naomi until they reached 18 years (he died just before Cameron reached 18).
He agreed to pay Naomi's orthodontic fees and private school fees for both children.
The deceased withdrew his application for final orders for contact with Cameron and Naomi.
Dr Tony Attwood confirmed that it was "quite clear" that Cameron's abilities and history were consistent with Asperger's Syndrome (then a "recently defined neuro developmental disorder") - noting that there had been "some concern" about that diagnosis in the past.
Dr Attwood assessed Naomi (aged 17), noting her unusual profile of abilities and character. He found her character consistent with an Asperger's personality type.
The deceased made an offer to Jennifer to settle their litigation which was rejected. (He made one further offer before the matter was mediated in 2011.) The deceased engaged Clayton Utz to act for him in this matter.
Assistant Professor Dr David Furrows confirmed that Naomi satisfied the criteria for a DSM-IV diagnosis of Asperger's Disorder.
Dr (now also Professor) Attwood confirmed Cameron's diagnosis of Asperger's Syndrome, noting its effect on his ability to gain employment and specific components of his daily living skills as well as his need for "continuing support from a parent".
Dr Attwood confirmed that Naomi had quite clearly Asperger's syndrome.
Dr Furrows confirmed Cameron's "severe" Asperger's Disorder "which handicaps his ability to obtain skills or work". Dr Furrows explained that while Cameron accepted all appropriate treatment, his disability was unlikely to substantially improve.
Dr Furrows confirmed Naomi's "severe and longstanding Asperger's Disorder" which disabled her communication and social skills and handicapped her ability to obtain skills or to work. He confirmed that her disability was unlikely to substantially improve.
Dr Furrows confirmed Cameron's diagnosis of severe Asperger's Disorder. He was then receiving distance education because of his disability.
The deceased requested that his name (as father) be removed from Naomi's birth certificate, and it was.
Dr Chris Wever confirmed Cameron's diagnosis of Asperger's Disorder, noting his symptoms of poor eye contact, odd use of language and an inability to understand complex language. He was extremely isolated and "could be severely disabled by his psychiatric condition".
Dr Chris Wever confirmed Naomi's diagnosis of Asperger's Disorder. He referred to her poor eye contact, odd use of language and social difficulties.
Naomi purchased a house at Tivoli - using money from her grandfather (the circumstances in which he gave that money to her are explained below) and the first home buyer's grant. Cameron, Naomi and Jennifer moved into Naomi's house at Tivoli.
Probate of the deceased's will was granted to Cecilia.
Cameron filed an application for adequate provision from his father's estate.
Naomi joined Cameron's application for adequate provision from her father's estate.
Dr Attwood prepared a report primarily about Naomi's career and occupational potential. He described her as "kind, insightful and humorous". She was considerate; showed a remarkable level of compassion; and had considerable intellectual ability. She had, though, extremely low self-esteem and this led to the potential for clinical depression. She had trust and rejection issues and "unresolved issues in relation to her father and his personality". Dr Attwood strongly recommended her attendance at the Minds and Hearts Clinic to improve her self-esteem. He noted her need for psychotherapy to assist with her Asperger's Syndrome.
Jennifer, Cecilia and the trustee of the deceased's family trust entered into a deed of settlement of Jennifer's Supreme Court Action for $800.000, including costs of $307,910.81.
Naomi swore an affidavit for the purposes of this application. She did not disclose her ownership of the house at Tivoli. She falsely stated "I have no assets".
The estate changed solicitors from McCullough Robertson to Gall Standfield and Smith.
Jennifer purchased a house at Robina (from the settlement proceeds). She and Cameron and Naomi moved from Tivoli to the Robina house. Naomi rented out the Tivoli house from late 2012 until mid-2016.
Cecilia brought proceedings against Clayton Utz (whom the deceased had engaged to act for him in the proceedings brought by Jennifer in 1998) seeking a declaration that a Costs Agreement was void and otherwise challenging the fees said by Clayton Utz to be owed to it by the deceased/his estate (the "assessment proceedings").
Clayton Utz issued invoices to the estate in the amount of $534,150.15 between July 2008 and March 2011. The estate paid $393,040.25. An amount of $141,109.90 is outstanding, pending the outcome of the ongoing assessment proceedings.
The applicants changed solicitors from Gleeson Lawyers to Lehn's Lawyers (now Keating Lehn Solicitors).
Dr Attwood confirmed Cameron and Naomi's diagnoses of Asperger's Syndrome.
Cameron and Naomi filed an application for a declaration that the deceased was their father.
Naomi swore an affidavit for the purposes of this application (for adequate provision) which did not refer to her ownership of a house.
Justice Peter Lyons declared that the deceased was Cameron and Naomi's father. His Honour ordered the estate to pay their costs on an indemnity basis.
Naomi swore an affidavit for the purposes of this application which did not refer to her ownership of a house.
Naomi swore an affidavit for the purposes of this application which disclosed her ownership of the house at Tivoli and explained her reasons for lying about it previously.
Cecilia made a complaint to the police about Naomi's false affidavit/s and she was charged with a criminal offence.
Cecilia paid Cameron and Naomi $67,002.09 - their legal fees for their successful application for a declaration of paternity.
The charge against Naomi was "struck out" in the Magistrates Court.
Naomi sold the Tivoli property. The net proceeds of sale were $211,515.89. She invested $50,000 in a term deposit. The balance went to legal costs, the purchase of a car for her mother and other living expenses.
Police advised Cecilia that the charge against Naomi had been withdrawn.
Relationship between the deceased and Cameron and Naomi
[27] According to Jennifer, the deceased had been attentive to Cameron and Naomi's needs when they were young. In his own words, he was loving and caring. The deceased told Cecilia (once) that he missed holding Cameron's hand.
[28] According to Cecilia, there was no contact between the deceased and Cameron and Naomi after Jennifer brought proceedings against the deceased in 1998. According to Jennifer, the deceased's contact with Cameron and Naomi during their de facto property dispute was "cordial and limited, normally by telephone".
[29] In 1999, when Cameron and Naomi were aged about 9 and 15, the deceased was, apparently, keen to have contact with them (including on every second weekend) and keen for them to resume contact with the three children of his first marriage and their children. He made an application to the Family Court for contact orders.
[30] In support of his application, which was filed on 7 September 1999, the deceased swore an affidavit in which he described himself as a "loving and caring father figure" to the children; interested in their personal and educational development.
[31] The evidence suggests that the deceased assisted Naomi to gain work experience at a property owned by the trust in November 1999.
[32] According to Cecilia, in July 2000, the deceased was advised by his lawyer to cease contact with his children until the de facto property proceedings were resolved.
[33] Whatever his reasons, the deceased was not motivated to pursue his Family Court application for contact with Cameron and Naomi and he withdrew it in 2000, after which his contact with them ceased. Nevertheless, the deceased supported Cameron and Naomi financially until they turned 18;[4] he permitted them (and their mother) to live at the farm until December 2007; he paid for their school fees and he paid for Naomi's orthodontic work.
[34] Cameron will be 30 years old in July 2020. He is not named as a child of the deceased on the deceased's death certificate.
[35] Cameron suffers from a neuro developmental disorder on the Autism Spectrum which was previously known as Asperger's Syndrome. He was bullied, and physically assaulted, at school. He requires a litigation guardian. His condition has improved a little with a gluten, dairy and soy-free diet.
[36] He is very dependent on Naomi and his mother. He is otherwise friendless, isolated, withdrawn and depressed.
[37] He cannot cope with change. He is a concrete thinker with rigid and inflexible thought processes. His verbal comprehension is impaired. He is prone to misinterpretation. He risks becoming "overloaded" by auditory information. He likes things "in order". He does not like his belongings touched. When he becomes angry, he goes into his bedroom, screams into a pillow and puts on music to calm down.
[38] He panics over social interaction. He has poor social and pragmatic language skills. He struggles to interpret facial expressions and body language. At times, his conversation is inappropriate. He talks about irrelevant matters and can be tangential. He does not like public transport because it places him in close proximity to other people.
[39] He has a heightened awareness of smell, sound and touch. He does not like being hugged, preferring a handshake. He cannot stand "feeling the fat" in the environment. He is sensitive to the feeling of clothing on his body.
[40] He is able to dress himself but does not always wear clothes which are appropriate for the weather or occasion. He (and Naomi) meticulously plan their outfits for a particular day, including when they need to wash and dry an outfit in anticipation of wearing it.
[41] He washes his clothes separately from the clothes of the others in his family. He insists (at least at times) on washing and drying his clothes inside a closed house (so that the smell of "outside" does not enter).
[42] Cameron is worried about everything he eats. He has some ability to prepare food. He will only eat meat cooked in a casserole dish because he cannot deal with the fat "going everywhere" were it to be grilled or fried. He will not eat anything cooked in his mother's oven. He will only eat out at one restaurant.
Results of the current assessment indicate that Mr Niebour-Pott has a range of significant areas of impairment, including mild deficits in intellect, common sense reasoning, and constructional ability, and moderate to severe deficits in comprehension and judgment, mathematical reasoning, processing of nonverbal communication, sensitivity to sensory stimulation, analysis, synthesis, planning and organisation and rigidity in behaviours. This constellation of impairment, consistent with Asperger's Syndrome, causes significant disability in his capacity to function independently in his activities of daily living, with his adaptive composite below the 1st percentile for his age matched peers. He shows moderate to severe impairment in all aspects of everyday functioning ... In my opinion he is unable to be gainfully employed, support himself financially, or to manage his own affairs, and he is reliant upon the support, supervision and prompting of his mother, and to a lesser extent his sister, to help him follow ... basic routines and attend to his own cares. He is unlikely to be able to live independently, and will continue to require prompting, support and/or supervision to perform basic tasks ([f]ood preparation, shopping, personal hygiene) and for safety and health issues. He will require supported and supervised accommodation if his mother is not available to provide care. These needs will be lifelong.
[56] Cameron is not able to obtain a driver's licence. He has a lazy eye and wears glasses. He needs, but has not yet had, dental work. His treatment for Hodgkin's Lymphoma left him, his mother thinks, tired and depressed, with a poor memory.
[57] I have described Cameron's personal circumstances in some detail because there is a dispute about the amount of "care" he and Naomi need.
[58] Cameron has always lived with his mother and sister. He was 17 years and 11 months when the deceased died. It is likely that he had then only the bank accounts he has now.
[59] He has been in receipt of a disability support pension since 19 July 2006. When the deceased died, Cameron's pension (including an education supplement) was $488.30 per fortnight. In July 2019, his pension was $926.20 per fortnight and he had $2,818 in the bank. He has no other assets. He contributes to his living expenses. He needs support to manage his money and fears losing it all.
[60] He is a beneficiary of the Ocean Projects Trust. However, he has never received, and is unlikely to ever receive, a distribution from the trust. Nor is he able to earn money in any capacity to supplement his pension.
[61] He bears the cost of his living expenses. His only liability is his share of the costs of these proceedings.[5] He does not have private health insurance
[62] On 2 July 2019, he applied to become a participant in the National Disability Insurance Scheme (NDIS). His primary disability is ASD level 2. The application identified Cameron's needs as in the areas of mobility (transport), effective communication; social interaction; learning; self-care and self-management (noting that his mother organised all of his day to day activities). He has been approved for funding, which is discussed further below.
[63] Naomi will be 36 in June of 2020. The deceased had his name removed from her birth certificate and she is not named as a child of the deceased on the deceased's death certificate.
[64] As noted above, there is a dispute about the amount of care Naomi needs. I have therefore discussed her personal circumstances in detail.
[65] Naomi was sexually abused by her maternal grandfather from pre-school age until 2007 (aged 22/23), although she had a "reprieve" from the abuse while she lived in Hong Kong.
[66] She has been diagnosed with Autism Spectrum Disorder, Depression, Post-Traumatic Stress Disorder (PTSD), Anxiety, Alcoholism and Endometriosis.
[67] Her depression, PTSD and alcoholism are likely to be the consequences of the sexual abuse. Also, the current legal proceedings are likely to have triggered PTSD symptoms.
[68] Dr Wever, who saw her in May 2016, found her presentation consistent with a diagnosis of ASD level 1 (though she was on the borderline of levels 1 and 2). He thought she appeared extremely anxious and depressed. She made little eye contact and spoke in a quiet voice. Her speech was delivered in a monotone. Her answers were brief and concrete. (This was not unlike her presentation in court during her evidence.).
[69] Naomi has legally changed her name four or five times since 2006. She chose new names which she hoped would make her feel better about herself as she struggled to cope with her father's rejection of her and her grandfather's sexual abuse.[6]
[70] She completed year 12 and was accepted into the University of Queensland to study Archaeology and Anthropology. Her mother enrolled in the same courses to support her. She was also assisted by a disability support officer and certain allowances were made for her. However, she found it impossible to study for reasons which may have included Cameron's cancer diagnosis and the stress of her mother's property dispute with the deceased. She discontinued her university study and has not returned to it. She managed to complete a TAFE course in signing and community language.
[71] For years she has suffered from suspected endometriosis. By January 2019, it was causing her debilitating pain. She was unable to get out of bed and suffered from nausea and vomiting almost every day. She was prescribed Endone for the pain and an anti-emetic. She did not take the Endone (she was allergic to it or intolerant of it), and used alcohol (Tequila) instead until March 2019, when there was a change to her pain relief regime.
Anyone with endometriosis pain will suffer, and, very often, women cannot function on those days. They stay home in bed. They cannot go to work and, basically, the world stops on those days. Naomi had exactly the same. However, Naomi also has autism and for people with autism, the world around them is a very hostile environment. That means that everyday activities and events can be extremely stressful, such as buying groceries or even going to the doctor, and that's an extra layer of stress and pain to her condition.
[75] Naomi suffers from a "bad back". She sees a Chiropractor on an almost weekly basis for $60 a session.
[76] In her own words: she has "a lot of allergic reactions" to foods and does not like the textures of some of them. She said, "I won't eat gluten, dairy and soy and not pomegranates, they can be a nightmare". As noted above, she (and Cameron) clean their teeth with bicarbonate of soda. Naomi says she is allergic to "Australian" toothpaste. She was not allergic to toothpaste in Hong Kong. She (and Cameron) wash with Sorbolene. She suffers from migraines.
[77] Because of her ASD, she needs to follow certain routines. It can take her an hour or more to be ready to leave the house. She is particular about hygiene. She would not let her mother touch a doorknob after she had cleaned it. After she (and Cameron) eat at the one restaurant they are prepared to eat at, they swim in the ocean to remove "the oil" from their skin and the car must be cleaned. She has washed her hands so frequently that her skin cracked and bled.
[78] Naomi does not like the sounds, noises or smells of public places and spaces. She smells odours intensely ("a little bit of perfume ... would be like the whole bottle was poured over you"). She finds the smell of cooking meat "putrid". She can smell "the outside".
[79] She is sensitive to noise, particularly high-pitched noise. She hears things "much louder than other things and people's voices can get drowned out".
[80] She does not like the feel of certain clothing on her skin. She does not like to be hugged by her mother.
[81] Naomi and Cameron are very close. She enjoys his company. She otherwise has no friends. She enjoys playing videogames and watching films, including with Cameron. She enjoys reading. She is good at preparing meals. She is able to do her own laundry (although Cameron did it for her when she was sick). She does not clean. She is allergic to dust, but lets it sit there because Jennifer is not allowed to touch it.
[82] Leaving the house is stressful for her. She does not like to do it because she might have to have a conversation with someone. She finds it easier to stay at home, although she will attend appointments. She finds conversations "like sitting an exam". When she speaks to other people she feels "stressed and its wearying". She will be polite to people she meets but she will go on and on about things she is interested in (such as kings and queens). Social engagements are difficult because she does not know what to do.
... Naomi is very reliant on her mother in matters of day to day support. I do think that she was very significantly traumatised by the alleged sexual assault from [her] maternal grandfather, which I previously underestimated when I saw her on that one occasion on the 17th December 2007.
It is clear that Naomi has an Autistic Spectrum Disorder (ASD) with comorbid Post Traumatic Stress Disorder (PTSD) and had comorbid alcohol abuse in the past, though this has improved more recently.
Her functioning is poor with her not currently engaged in studies, a job and being extremely socially isolated. She is currently on the Disability Support Pension and this would reflect her inability to work.
I think that her prognosis is poor as her ASD makes it more difficult to work on psychological issues of trauma. This is often related to a lack of insight into your own emotional state that people with ASD often have and this is what is required in trauma therapy. Her ASD symptoms have kept her isolated and the PTSD symptoms are causing further isolation as there are many triggers in the community which would worsen her anxiety and PTSD symptoms.
As such, I do think that she will need ongoing care and support and is unlikely to become independent and self-sufficient.
I do think that Naomi will need ongoing psychiatric and psychological support. Currently she is seeing a psychologist but I do think a psychiatrist may need to become involved with the possibility of evaluation of her needs for psychotropic medication. I think that her psychological needs will be ongoing and that her treatment is likely to require fortnightly to monthly visits to a psychologist and a psychiatrist to be seen once every three months.
[89] Similarly, in Ms Coles' opinion, Naomi will need ongoing care and support and is unlikely to ever become independent and self-sufficient.
[90] Jennifer's father lived with Jennifer, Cameron and Naomi (on the farm) in around 2007. He left suddenly on Mother's Day 2007. Shortly after he left, Naomi told Jennifer that her grandfather had sexually abused her as a child and as a young adult. The most recent incident of abuse occurred a few days before Mother's Day 2007. It had been witnessed by Cameron. Indeed, Jennifer had also seen her father putting his hands on Naomi's breasts - but she did not ask him to leave the farm. Jennifer herself had been sexually abused by her father when she was a child.
[91] Later that year, Naomi was accepted into a course at the University of Queensland. The farm was isolated from the University. Jennifer felt that her father "owed" Naomi for the years of abuse he had put her through. She asked her father for money[9] to enable Naomi to buy a house in a location which would allow her to travel more easily to university. Jennifer and Naomi found a property to buy at Tivoli in Ipswich. Jennifer's father gave Naomi $250,000 to buy it. Naomi reluctantly accepted the money. She said, "I felt as though my grandfather was giving me the money so that I wouldn't tell anyone about the abuse. However, I could not see any other way we would be able to afford to move from the farm".
[92] The property settled in December 2007 and Jennifer, Cameron and Naomi moved into it. Naomi bought the property in her legal name at the time: "Storm Naomi Rose".
[93] She disclosed the ownership of the property to Centrelink but did not disclose it for the purposes of this application until 16 April 2015 - filing several false affidavits about her assets before then (dated 25 July 2011, 15 October 2013 and 2 February 2015).
[94] In her affidavit of 16 April 2015, Naomi offered the following explanation for failing to reveal her ownership of the house previously -
... Until now I have been reluctant to speak about the Tivoli property because of the circumstances surrounding the purchase, and the memories of abuse associated with it. I have also felt some embarrassment about the numerous times I have changed my name. I was also scared my father and his family would find a way to take the property away.
[95] In May 2016, Dr Wever was asked to comment on the reason for her making false affidavits. He said -
What does appear clear is that Naomi may well have been overwhelmed by many of the legal issues and may have mistakenly not declared her assets appropriately due to her high levels of anxiety or may have not declared her assets due to the triggering of PTSD symptoms that this would have caused. These are not clear from my interview with Naomi as she was extremely shy and unable to give good answers as to the reasons why she did this. Certainly her mental health condition would have considerable effect on her capacity to present information in any legal forum. When people are anxious they will often not think clearly and at times information may not be accurately presented due to their anxiety. Whether this is due to the anxiety of her Autism Spectrum Disorder in legal situations or whether it was related to her PTSD I am unclear but I think both would have affected her ability to present this information.
[96] In her evidence at the hearing, Naomi said that she did not disclose her ownership of the house because it made her grandfather's abuse of her "so real". She also said "Mum ... was afraid we'd be homeless".
[97] After Jennifer bought the house at Robina in 2011, and she and Cameron and Naomi moved into it, the house at Tivoli was rented from 2012 - 2016. There were two tenants. The first was to pay $240/$250 per week, but was evicted for non-payment of rent. The second was to pay $260 per week. Property agents took their commission and money for maintenance from the rental payments.
[98] In June 2016, Naomi sold the Tivoli property. The net proceeds of the sale were $211.515.89.[10] She invested $50,000 in a term deposit; almost $140,000 went to legal fees and the balance went to medical expenses, improvements on the Robina home, the purchase of a car for Jennifer (the family had been without one), vet bills and living expenses.
[99] As noted in the table above, after Naomi disclosed her ownership of the house at Tivoli, Cecilia made a complaint to the police about her false affidavits. She was charged by police with a criminal offence but the charge was later withdrawn.
Naomi's financial circumstances apart from her house
[100] Naomi has always lived with her mother and brother. In addition to her house, or rental income derived from it or the proceeds of its sale, she has been in receipt of a disability support pension since August 2001.
[101] At the date of the deceased's death, she received by way of that pension and a supplement, a total of $762 per fortnight.
[102] In July 2019, she was in receipt of a Disability Support Pension of $926.20 per fortnight. She had $1706 in savings, $50,000 in the term deposit and "effects" worth $300. She was earning about $60 a month in interest on her Term Deposit.
[103] Although she is named as a beneficiary of the Ocean Projects Trust, she has never received, and is unlikely to ever receive, a distribution from it.
[104] She is unlikely to obtain or maintain employment, even on a part time basis, to supplement her pension.
[105] She bears the cost of her living expenses. Her only current liability is her share of the costs of these proceedings.[11]
[106] Naomi applied for participation in the NDIS in July 2019. Dr Wever considered her to be then suffering from ASD level 2, because of her lack of independent functioning. She has been granted NDIS funding, which is discussed further below.
[107] Jennifer and the estate settled the de facto property dispute for a payment to her of $800,000. The $800,000 included her legal costs of $307,910.81, leaving her with $492,089.19. She used that money to buy her home at Robina, which she estimates is now worth $600,000. Her other property, which includes furniture, her car and cash, is worth about $16,666.
[108] In January 2019, Jennifer (aged 70) was receiving $1046.10 per fortnight from Centrelink for the care she provides to Cameron and Naomi. The Robina house requires some maintenance. Jennifer shares the cost of the usual living expenses with Cameron and Naomi.
[109] Jennifer admitted in cross-examination that, in the course of her de facto property dispute with the deceased, she did not disclose to her solicitors that she lived in Naomi's house. She said she was in rental accommodation. Her explanation for not telling her solicitors was: "We needed a roof over our heads. I was concerned about where the children would live if anything happened to me".
[110] She was aware that Naomi swore false affidavits about her property for the purposes of this application.
[111] Currently Jennifer provides care, support and accommodation to Cameron and Naomi. She will turn 72 in September 2020. She has arthritis and household chores are becoming more difficult.
[112] Her intention is to leave the whole of her estate to Cameron and Naomi when she dies. It is not unreasonable to assume that Cameron and Naomi will not personally be able to provide Jennifer with aged care (when she requires it) or tolerate carers for their mother in their home. It is not unreasonable to assume that Jennifer may need to sell her home to ensure that she receives the care and support which she may need as she ages.
[113] Cecilia attached to her affidavits an email from the deceased to his lawyers which explained that he left nothing in his will to Cameron and Naomi because of his doubts about their parentage and because they had been "supported to adulthood financially and with the provision of accommodation and educational assistance." This was essentially the position she took in response to the application. However, after the declaration of paternity in 2014, Cecilia acknowledged Cameron and Naomi's eligibility to apply for provision out of the deceased's estate.
[114] As noted above, Cecilia was gifted the matrimonial home in the will. She has been living there since 1998 and seeks to have it exonerated from any provision I might make for Cameron or Naomi.
[115] Cecilia presented very little evidence about her relationship with the deceased. She presented very little evidence about her personal, health, occupational or financial circumstances, although after the deceased's death, she was in control of the family trust.
[116] I proceed on the basis that she is able to maintain herself from her own resources.
[117] Cecilia's oral testimony was to the following effect:
It was only after affidavits were filed in these proceedings that she knew that Cameron and Naomi were autistic.
She acknowledged that Cameron and Naomi were potential beneficiaries of the family trust but said that she had no "duty" to check on the needs of potential beneficiaries. Nor did the trust "run" so as to meet the needs of its beneficiaries.
It was not for her (alone) to determine future distributions of trust income or capital. Every year, she met with her stepson Gregory to determine whether there would be any distribution and, if so, to whom. Those who received distributions from the trust were those who worked to earn income for the trust (and of course, on that test, there would never be any distribution to Cameron or Naomi).
She agreed that, as executor of the deceased's will, she was under a duty to consider whether it was in the interests of the estate and its beneficiaries to engage in litigation.
[118] She was cross-examined about the value of the estate and the cost of the litigation in which it had engaged. The following was established:
The needs and circumstances of the children of the deceased's first marriage
[122] No evidence at all was presented about the needs or circumstances of these mature adult children or their relationship with the deceased. I proceed on the basis that they are able to maintain themselves and meet their needs from their own resources.
[123] The authorities to which I will refer in this part of my reasons (which are only some of the numerous authorities to which I was referred by the parties) are mostly from interstate. Whilst there are some differences between the legislation in Queensland and the legislation interstate, those differences do not detract from the value of the particular statements of principle and guidance which are set out below.
[124] The application is made under section 41(1) of the Succession Act 1981 which provides -
If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person's spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.
[125] In Singer v Berghouse,[13] Mason CJ, Deane and McHugh JJ identified two questions or stages for consideration in determining such an application (footnotes omitted) -
The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc. were explained in Bosch v Perpetual Trustee Co. Ltd. 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. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leader, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.
[126] However, the questions or stages do not always neatly divide into two, as Callinan and Heydon JJ observed in Vigolo v Bostin - [14]
We do not ... think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
[127] In Taylor v Farrugia, Brereton J referred to the two stage approach and the potential for overlap, and explained the matters which the Court was required to consider in these terms -[15]
... [T]he Court must consider, first, whether the plaintiff is an eligible person; secondly, whether the plaintiff has been left with inadequate provision for his or her proper maintenance, education and advancement in life; and thirdly, if so, what (if any) provision or further provision ought to be made out of the estate for those purposes.
[128] In this matter, sections 41(3) and (4) of the Act are also relevant. Those sections state -
(3) The incidence of the payment or payments ordered shall, unless the court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court.
(4) The court may, by such order or any subsequent order, exonerate any part of the estate of the deceased person from the incidence of the order, after hearing such of the parties as may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party.
[129] The principles which have guided my approach in this matter have included the following.
[130] A court is not to intervene merely because it thinks it would have been good, fair or more equal for the testator to have benefitted an applicant in a certain way. A court is to consider the provision a wise and just testator would have thought it his or her moral duty to make for an applicant, having regard to community standards.
- It is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate or some kind of equity between the various claimants. The court's role is not to reward the applicant, or to correct the hurt feelings of, or the sense of wrong felt by, the applicant: Baird v Harris [2015] NSWSC 803 [136] - [137] per Hallen J.
- Courts do not intervene just because it would have been "nice or good" for the testator to give a certain applicant a benefit. The test is whether and, if so, what provision a wise and just testator would have thought it his moral duty to make in the interest of the applicant, having regard to community standards. Such an assessment takes place with due regard to the freedom of testamentary disposition: Warriner v McManus & Warriner [2015] VSC 314 [57] per Zammit J.
- The purpose of the jurisdiction is not the correction of the hurt feelings of, or sense or wrong felt by, the competing claimants upon the estate of the testator: Golosky v Golosky [1993] NSWCA 111 per Kirby P.
- A person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made, before they can leave money as they wish. One does not ask if the will is fair; or if the property has been divided equally. One does not, as a judge, ask how would I have made the will; "What must be asked is [did] ... the testatrix fail ... in her moral duty to those who had a claim on her.": Stewart v McDougall NSWSC, 19 November 1987, unreported, Young J.
[110] Whether an applicant has a 'need' or 'needs' is also a relevant factor at the first stage of the enquiry. It is an elusive concept to define, yet, it is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance, education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 (Tobias JA, with whom Beazley and Hodgson JJA agreed).
42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
[113] 'Need', of course, is a relative concept... It is different from 'want'. The latent difference between the words was stated by Lord Neuberger of Abbotsbury ...in the House of Lords decision, R (on the application of M) v Slough Borough Council ...:
'Need' is a more flexible word than it might first appear. In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'.
[115] As Callinan and Heydon JJ emphasised in Vigolo v Bostin, the question of the adequacy of the provision made by the deceased 'is not to be decided in a vacuum' or 'by looking simply to the question whether the applicant has enough on which to survive or live comfortably'. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.
[135] The nature and content of what is adequate provision is not fixed or static. It is "a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards". What is adequate and proper provision is necessarily fact specific: Camernik v Reholc [2012] NSWSC 1537 (Hallen J), adopted in Rocco Condello v Sung Soo Kim [2018] NSWSC 394 (Kunc J).
[136] Counsel for the applicants submitted, "Depending on the circumstances of the case, [adequate provision] extends to the advancement in life of an applicant to whom the deceased owed a moral obligation" and referred to the following authorities (emphasis by counsel for the applicants):
In Thompson v Sgro, Hallen J said:[16]
'Although the existence or absence of 'needs' which the applicant cannot meet from her, or his, own resources will always be highly relevant and often decisive, the statutory formulation, and, therefore, the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, education and advancement in life.'
And in Jones v Smith, Ferguson JA said that although it was essential to success that an applicant establish 'need', 'need' is a relative concept which is:[17]
'... to be assessed in light of all of the circumstances ... It is not a case of looking in isolation at the value of the assets that the claimant has and deciding whether the person has enough to get by on whether comfortably or otherwise. Rather, the claimant's assets and income are just two facts that go into the melting pot to determine whether there has been adequate provision made. Another important element for this consideration is the size of the estate. If there is more money to go around, then that will affect what is adequate for the proper maintenance and support of the claimant.'
In considering what provision a wise and just person in the position of the deceased would have made in all the circumstances, as White J said in Slack v Rogan:[18]
'... respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s [41] of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life ... The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed.'
[137] The measure of adequate provision is determined by reference to what the applicant needs for their proper maintenance and not by reference to a need to achieve "equality".
- " ... Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court. Nor, in a case where a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator's bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked. The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard for all the circumstances of the case ... Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made - for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same. This is not such a case, and the provisions made by the will, as to some children at any rate, could not properly be regarded as provision for maintenance. The testator, independently of need, has chosen to confine his bounty to five of his children. There is, therefore, no justification for using the gifts so made as the measure of the provision to be made for one to whom nothing has been given, but who should receive something for her proper maintenance: Blore v Lang at 134 - 135 per Fullagar and Menzies JJ.
[138] Adequacy and propriety are value laden concepts. The content of those concepts depends on the attitudes of the community when the court is seized of the matter, as much as an appreciation of previous relevant decisions: Higgins v Higgins [2005] QSC 110; [2005] 2 Qd R 502 at 509 - 510 [35]. The test of propriety is flexible and adapts to current but accepted standards of testamentary obligation: Collicoat v McMillan [1999] 3 VR 803 at 816 [38]. There is no ascertainable external community standard to guide the decision. The assessment involves a broad, evaluative judgment which is not to be constrained by preconceptions and predispositions: ; at 284 - [126].
[140] Primacy is accorded to claims for widows in certain circumstances, including "in the absence of special circumstances"; "if the children are physically and mentally able to maintain and support themselves"; and where the requirements for the allocation of resources between the widow and children are equal.
- "... [A]s a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies": Luciano v Rosenblum (1985) 2 NSWLR 65 at 69 - 70, per Powell J. See also Golosky v Golosky [1993] NSWCA 111.
- In Sayer v Sayer; Garbutt v Sayer [1999] NSWCA 340, certain of the principles stated in In Re Allardice, Allardice v Allardice [1910] 29 NZLR 959 were endorsed by Sheller JA at [8], including the following -
"[I]n the case of a widow the Court will make more ample provision than in the case of children, if the children are physically and mentally able to maintain and support themselves."
"When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow's claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in the aid of an adult child ..."
[141] I have edited the summary of the principles which apply to claims by adult children contained in Camernik v Reholc (references and citations omitted) [19] so as to confine them as much as possible to those of relevance in the present case where the adult child applicants have disability.
(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) ... [O]rdinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; [and] where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form ...
(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute...
(e) There is no need for an applicant adult child to show some special need or some special claim...
(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration ... Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant ... In addition, if the applicant is unable to earn, or has a limited means of earning an income, this could give rise to an increased call on the estate of the deceased...
(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim...
Claims by children with disabilities; claims by children funded by social security
[142] I note the caution of Kirby J in Golosky v Golosky that consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, the following cases, to which the applicants referred, have been of assistance. The comparable authorities to which the respondent referred are dealt with later in these reasons.
Baird v Harris [2015] NSWSC 803
[143] The deceased died in September 2013. The applicant was the child of a relationship the deceased was in between 1991 and 1997. The applicant has ASD and was about 17 when his father died. The deceased left most of his estate to a "close friend" with whom he was in a relationship at his death. The estate was valued at $497,200. The deceased made some provision for the applicant in his will - about $65,000 in cash and an unregistered motor cycle which could be sold.
[144] The applicant's tutor, his mother, commenced the proceedings. She suffered from mental ill health and took her own life in May 2015. She had no assets of value. She had been living with the applicant in public housing. The applicant's housing situation was uncertain after her death - he was living with relatives but had applied for public housing.
[145] The applicant received funding from the NDIS. He was likely to receive a disability pension and NDIS support for the rest of his life.
[146] Hallen J considered that the applicant's ASD and its sequelae called for additional consideration (beyond that which the usual principles required). Also, he was without secure accommodation and whilst there was a capital fund available to him and he earnt a modest income, he was obliged to live substantially "on the beneficence of the State".
[147] His Honour considered the authorities about the relevance of pension entitlements, particularly in small estates. His Honour noted statements in those authorities to the effect that a court should have regard to the availability of the disability support pension and its associated social benefits, which were of considerable value (such as, for example, concessional rates for medical services). However, his Honour did not consider the applicant's entitlement to a pension and public housing to be "determinative". His present lifestyle was confined by his need to rely upon those benefits - he had no choice.
[148] His Honour found that the applicant and the deceased had a reasonably close and loving relationship, although there was a short period when they did not see each other. The deceased did not maintain him wholly or partly for some years before his death. The applicant had a capital sum of about $110,000 available to him. He wished to undertake a driving course, so that he would be able to drive independently, and needed psychological care, which he had not been able to fund. He had limited earning capacity through supported employment. He required ongoing support in his activities of daily living. He had liabilities in relation to legal costs and disbursements.
Whitmont v Lloyd, Supreme Court of New South Wales, unreported judgment, 1641/1994
[153] The plaintiff was the only daughter of the testatrix. The testatrix made no provision for her in the will. The testatrix treated the plaintiff harshly and with hostility while the plaintiff was a child and into her adult life. She withheld parental encouragement and support from her. The plaintiff made a substantial contribution to the testatrix's financial resources by working in her enterprises, for only modest returns. There was no cause for the testatrix's hostility towards her. Indeed, the trial judge found the plaintiff to have shown astonishing patience, dutiful behaviour and forbearance towards her mother. Ultimately, they became estranged in the face of her mother's provocation. The estrangement (which lasted for about 20 years before the testatrix's death) was not due to fault on the part of the plaintiff.
[154] The court was satisfied that substantial provision ought to be made for the plaintiff but "the long estrangement and absence of contact" between the plaintiff and the testatrix was "to some degree a moderating influence on the provision ... order[ed]".
[155] The plaintiff was 67 when she applied for provision. She was retired and received the Age Pension. Her only significant asset was a flat worth (in 1994) $220,000. She owed money to her daughter and had health problems. Her needs included money to pay a body corporate levy; to renovate and repair her property; to acquire private health insurance; to pay for future medical and dental expenses and for a possible hip replacement. She sought an amount of money which would generate an income so that she would not need to rely upon the aged pension, as well as capital to meet her financial needs.
[156] Bryson J considered that it would be "very undesirable, to the point of being scandalous" if the testatrix was able to end her relationship with her only daughter through hostility, and, although having a large estate to dispose of (over $1 million), leaving her daughter dependent on the Age Pension.
[157] Of the significance of the Age Pension or other social benefits, his Honour said (my emphasis) -
... The fact that an Age Pension or other social benefits are available is a relevant matter, and in smaller estates is often of great importance, particularly where there are competing claims on bounty. There are many judicial observations referring, usually incidentally and without full consideration, to the significance of the availability of social benefits; but there is in my view no authority or ground in principle for either ignoring their availability, or for adopting a view that their availability would relieve a testator from a claim on bounty. In an estate the size of the [testatrix's] estate, where the only person with a claim on bounty is an adult daughter and there is no competing claim, the contention that the plaintiff should be left to the social benefits which she has received for 15 years, or that the order should be so framed that at least some of those benefits continue to be available to her, does not meet the realities of the case and the need to apply the statutory test to the resources available.
... In my opinion, the availability of [the] Age Pension... and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant to throw burdens off public funds onto private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth in an estate it should be directed away from the less fortunate and successful of the eligible persons so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interest of the public in public funds, which can receive incidental protection from the workings of this legislation. Where wealth is available it should be used to meet needs for maintenance, education and advancement of eligible persons. The significance of social benefits is related to the available resources ... [Quoting from Wentworth v Wentworth (14 June 1991, unreported)] "The testator should not have disposed of all the family wealth in ways of his own choosing and left the family's economic casualty to relative penury or dependence on social agencies." ...
... A parent with over $1,000,000 to dispose of and no other claim on her bounty ... ought, in the circumstances of this family, do far more for her adult daughter than ameliorate immediately foreseeable capital needs. It is not appropriate to leave the plaintiff to be dependent on public funds and the Age Pension. The long estrangement is not... to the disadvantage of the plaintiff's claim ...
[158] His Honour found that the plaintiff had been left without adequate provision and ordered that provision be made for her out of the estate in an amount which would meet her immediate needs for capital (for renovations and the body corporate levy and to repay her daughter) and to leave her with a fund to generate income which would maintain her for the rest of her life (including by her drawing down on the capital).
Abrahams (by his litigation guardian the Public Trustee (Qld)) v Abrahams (2015) 13 ASTLR 406
[159] The applicant's father died on 7 January 2014, leaving nothing for him in his will. The applicant was 46 years old and the youngest of the deceased's five children. He has Down Syndrome and other medical conditions. In 2009, he suffered a heart attack which was related to his morbid obesity.
[160] The deceased's estate was valued at approximately $443,000. The applicant had assets worth about $21,000. In his will, the deceased left his estate to one of his daughters. He explained that he left nothing to the applicant because his financial and lifestyle needs were met by his social security benefits and Multicap (which provided him with accommodation via a State and Federal funding arrangement); and it was likely that anything left to him would "just sit in a bank account without actually benefiting him".
[161] The Public Trustee, as the applicant's administrator for financial matters, filed an application on his behalf for further and better provision out of the estate. Thereafter, negotiations took place and an agreement or compromise was reached between the relevant parties that further and better provision be made for the applicant in the sum of $140,000, inclusive of costs. As required, an application was made to sanction the compromise. The application for sanction was unsuccessful. The primary judge was not satisfied that the applicant "ha[d] a need of the magnitude" proposed.
[162] On appeal, the compromise was sanctioned. The Court of Appeal found that, among other errors, the primary judge failed to acknowledge the significance of contemporary International Human Rights Instruments and failed to show an appreciation of the principles which should have been taken into account in the case of an applicant with a disability (my emphasis) -
- [2] ... The primary judge failed to recognise that the applicant has the same basic human rights as anyone else and that he has a right to respect for his human worth and dignity.
- [3] That dignity would be enhanced by extra financial assistance to provide him with new clothes and furniture including a functional television set. The applicant is a valuable member of the community. He should be recognised as such by being encouraged and supported to participate more actively in the community. Such participation would be facilitated by financial assistance from the estate of his late father to attend social and recreational activities and to take an annual holiday.
[165] The nature of the estrangement and the underlying reason for it is relevant but the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act. There is no rule that - irrespective of an applicant's need, the size of the estate and other claims on it - an applicant is not entitled to "ample" provision if the applicant has been estranged from the deceased. Courts are required to pay close attention to the facts of individual cases. However, even if the applicant bears no responsibility for the estrangement, it is relevant to the exercise of the court's discretion. The poor state of the relationship between applicant and deceased may terminate the obligation of the deceased to provide for the applicant, or may operate to restrain amplitude in the provision to be made. The estrangement must be appraised and its causes considered: see the collection of authorities by Hallen J in Hampson v Hampson [2010] NSWCA 359, adopted in full in Rocco Condello v Sung Soo Kim [2018] NSWSC 394.
[166] In Rocco Condello, the applicant had no financial resources or earning capacity. He had a physical disability and was likely to deteriorate. He had ongoing financial needs. Kunc J treated his estrangement from the deceased as a neutral factor. His Honour said -
- [223] Insofar as estrangement is concerned, I regard it as a neutral consideration in connection with both the jurisdictional question and as to what provision should be made for Rocco. As a factual matter there was an estrangement, but to the extent its origins are relevant, two things can be said. First, I am satisfied it was not caused by anything done by Rocco ... Second, accepting that estrangement can reduce the amplitude of any provision that might be expected to be made ... this is not such a case because, in my view, the depth of Rocco's need would negative any such consideration.
- [224] What provision should then be made for Rocco? In my view, this is clearly a case where Rocco's dependence, impecuniosity and disability, both physical and financial, warrant provision in accordance with [the principle that an adult child's lack of reserves to meet demands, particularly of ill health, is a relevant consideration].
[167] The applicant referred me to Collet & Anor v Knox & Anor,[21] a decision of McMeekin J, which considered the conduct of executors in unreasonably engaging in litigation, in support of their arguments (set out below) about the way in which I should deal with Cecilia's conduct in this case.
[168] Mr Collet claimed a life interest in certain property of the deceased's estate, on the basis that he and the deceased were in a de facto relationship. Mr Knox, who was an executor and beneficiary of the estate, stated that that property would need to be sold to meet the estate's legal costs and outlays - thereby defeating Mr Collet's claim. McMeekin J set out the principles relevant to the role of executors faced with applications such as these as follows (citations and footnotes omitted) -
- [165] First, I observe that it has long been recognised that where executors receive notice of such a claim then they are under a duty to preserve the trust estate until the claim is resolved: Re Simpson...; Re Crowley ...
- [166] Second, the assumption that Mr Knox makes is that the court has no power to supervise or limit the executors in their expenditure of estate funds on litigation of this type ... As a general proposition I consider it accurate to assert that before embarking on expensive litigation the executors need to give careful consideration to what amounts they will expend and how best they should discharge their duties. Resort to generalisations that executors are entitled or obligated to uphold the will may provide no guidance at all in some cases. In my view this is such a case. Consistent with that view is the observation of Holmes JA in Underwood & Anor v Sheppard, a case involving family provision claims:
"The learned judge's observation that the obligation to consider the impact on costs on the estate applied with greater force to the executors than to the beneficiaries is unimpeachable. Executors bear a fiduciary duty to which they must have regard in conducting litigation affecting the estate; beneficiaries do not."
[167] Third, it seems to me that Mr Knox's statement overlooks a matter of significance. The effect of s 41 of the Act is to impose on every testator or testatrix an obligation to make "adequate and proper" provision for their spouse and children. If they fail to do so the court not only has the power, but the obligation, to ensure that is done, upon application being made. Notions that an executor can effectively determine the fate of an application by vigorously contesting it, irrespective of the sense or merits in doing so, are in my view misguided and wrong. Executors cannot ignore the duty that lay on the testator. Thus when an application is made or notified the executor's obligation is to objectively assess the evidence, impartially assess the merits of that application, and if necessary compromise the suit. That there is this obligation is consistent with the Practice Direction governing applications of this type. Paragraph 2(b) describes one of the objects of the Practice Direction as "encouraging the early consensual resolutions of applications" and paragraph 8(b) requires that the standard directions "contain a dispute resolution plan designed to exhaust the prospects of a consensual resolution of the application".
[169] McMeekin J found that it would have been apparent to the executors that the effect of their conduct was to take away from the power of the court to give Mr Collet the life interest he sought. Also, the executors were not disinterested bystanders. They had a personal interest in opposing Mr Collet's claim (if he did not succeed, they would be able to realise the property). His Honour said -
- [170] ... But where self interest and duty potentially conflict then there needs to be careful consideration of the options available and the wisdom of pursuing litigation regardless of the impact on the estate, and if it is to be pursued, how it is to be pursued.
[170] His Honour was concerned about the way in which the litigation had been conducted - there had been a three day trial in the context of a modest estate. The litigation had been pursued vigorously. The costs were disturbing and there were other "odd" things done, including ignoring the most compelling evidence.
[171] His Honour observed that the "true" principle, when it came to indemnifying a trustee or executor for their costs before trust funds were paid to anyone else, was that a trustee or executor was so protected when the costs had been properly and reasonably incurred.
[173] At the date of the deceased's death, specific gifts in the will were valued at approximately $3,800,000.
[174] Between that date and trial, the value of the assets of the estate have changed as follows:
[175] The estate's current liabilities are as follows:
[The actual amount payable to Clayton Utz depends on the outcome of the Clayton Utz litigation but so as to allow the present proceeding to conclude, the parties were prepared to proceed on the basis of this amount.]
Estimate of legal fees of trial (of the estate)[23]
[176] Thus, the net assets of the estate are presently $2,014,381.30.
[177] I note that that amount differs from the amount referred to by the applicants in their written submissions ($2,051,668.13). The difference lies in the figure used for the amount of the liability of the applicants' costs of the current proceedings. In their written submissions, the applicants estimated their costs at $300,000, not $337,286.83, the figure used in the calculations in exhibit 2. I have used the exhibit 2 amount.
[178] In addition to the payment of legal fees (in excess of $1 million) the estate's other significant expenses to date have been those associated with insuring, maintaining and improving the houses left to Cecilia and Christine (including, for example, by way of tiling, concreting, air-conditioning, painting, building work, work on a roof, a jetty and a pool fence) and paying their rates and utilities bills.
[179] Cameron and Naomi's ASD disables and limits them personally, interpersonally, vocationally and in the pursuit of education, recreation and interests. They are friendless and isolated. They are very dependent on each other and on their mother.
[180] There was no evidence before me that Cameron's cancer would return but he has a lazy eye and bladder issues. He also requires dental treatment. The evidence was to the effect that Naomi's endometriosis could reoccur and again cause her pain and require surgical intervention. She is suffering from PTSD and has other mental health vulnerabilities.
[181] As at the date of the hearing, their care, support and housing needs were met by their mother. She has created a home environment which accommodates their particular sensitivities and concerns as well as she can. She prompts their activities of daily living and supervises their finances. As Ms Coles stated, Cameron and Naomi "have and in the future will always have, a need for [the] care and assistance as is currently provided gratuitously by their very devoted mother who has adapted her life to prioritise their needs and their specific requirements over hers, despite the not inconsiderable impact on her".
[182] In 2006 and 2007, Cameron's disorder was described as "severe Asperger's Syndrome". As then predicted, notwithstanding that he accepted all treatment offered to him, his disorder has not substantially improved.
[183] Neuropsychological and clinical psychological testing by Lynda Troy in 2014 revealed (among numerous other results) that he had certain moderate to severe deficits, which caused significant functional impairment in his everyday activities. His deficits led to restrictive interests and repetitive behaviours and routines. He cannot function independently. He is not able to support himself financially or manage his own affairs. He requires support, supervision and prompting in all aspects of his life including attendance to his own cares and for safety and health issues.
[184] In Dr Wever's opinion, Naomi has deteriorated in her functioning between 2007 and 2016. Whilst she was stilted and awkward in social interactions in 2006, by 2017 she had a lack of independent functioning and high levels of anxiety.
[185] It is extremely unlikely that Cameron will be able to obtain commercial employment or engage in any remunerative endeavour. It is very unlikely that Naomi will be able to obtain commercial employment or engage in any remunerative endeavour.
[196] Michael Lee, the Director of Forensic Services at Vincents Chartered Accountants, prepared a report about Cameron and Naomi's future care requirements in terms of their needs for domestic care, funds management and housing. He did not factor into his calculations their NDIS support package.
[197] He proceeded on the basis that, upon Jennifer's passing, Cameron and Naomi would need, at best, no less than eight hours of care per day and, at worst, a live-in carer.
[198] In summary, Mr Lee estimated that the cost of care for Cameron and Naomi, as their mother aged and after her passing, would be between $3,177,911 and $5,765,347 (after tax and at present value).
[199] There was a challenge to Mr Lee's opinion on the basis that there was no evidence of the critical factual assumption upon which it was based - namely, that Jennifer provided about seven hours of care daily to Cameron and Naomi (jointly), relying on the arguments referred to above about the limited hands-on care provided to them by Jennifer.
[200] Counsel for the applicants explained that Mr Lee's evidence was not intended to quantify the applicants' claims - rather it was to "underline the severity of their conditions and the corresponding strength ... of their claims on the deceased's estate".
[201] I have treated Mr Lee's evidence as evidence that the care and support Cameron and Naomi will require (in their mother's absence) will be costly.
[202] I am required first to consider whether the deceased left the applicants without adequate provision for their proper maintenance and support.
[203] I need to consider whether the deceased has failed in his moral duty to make adequate provision for those whom the community would expect such provision to be made (Stewart v McDougall). I am not concerned with whether I might think it fairer or better for the deceased to have provided for the applicants in his will (Warriner v McManus & Warriner). The determination of adequacy depends upon a consideration of an applicant's needs (Collins v McGain). However, I am not to be narrowly focused on needs in the sense of the bare necessities of life, or the amount an applicant needs to "get by" (Baird v Harris; Zagame v Zagame; Jones v Smith). Nor is the inquiry confined to the material circumstances of the applicant (Vigolo v Bostin).
[204] I must take into account an applicant's present and future needs, and the need to guard against contingencies (Collins v McGain).
[205] I am to have regard to, among other things, the applicants' financial position, the size and nature of the estate, the relationship between each applicant and the deceased and his relationship with those who have a legitimate claim on his bounty (Singer v Berghouse). I must consider competing claims, and their relative urgency (McCosker v McCosker).
[206] Whether a breach of moral duty has occurred is determined at the date of the deceased's death on the basis of facts, whether known or unknown to him or her, and on all of the eventualities which might, at that date, have been foreseen by a testator who knew the facts (Warriner v McManus & Warriner).
[207] On the issue of relationships, although I know virtually nothing about the relationship between Cecilia and the deceased or the relationship between the deceased and the children of his first marriage, I know that the deceased chose to preference them in his will to the exclusion of Cameron and Naomi. I know that he was still married to Cecilia at his death and that there was some longevity to their relationship. I know that he trusted Cecilia to take on his role in the family trust.
[208] At the date of the deceased death, Cameron was 17 (almost 18) and Naomi was 23. Both had been dependent on the deceased for accommodation (until December 2007), and maintenance (in Cameron's case, until the deceased's death; in Naomi's case, until she turned 18). Neither of them have ever worked. Whilst there had been little or no contact between the deceased and Cameron and Naomi from about 1998 until the deceased's death - that was not their fault. At the time, they were young; they had ASD and they were dependent on their mother with whom the deceased was embroiled in litigation.
[209] The deceased was not justified in his view that Cecilia's and Denise's children's claims trumped entirely Cameron and Naomi's claims on the estate. He was wrong in thinking that they were not his children. And his view that he had - in effect - done enough for them by paying maintenance until they were 18 and providing them with accommodation until 2007 was not the view of a "wise and just" father. The community expected more of him. Because there were assets available, the community expected him to provide Cameron and Naomi with a buffer against contingencies and to ensure that they were not left destitute (Thompson v Sgro).
[210] A wise and just father would have anticipated that Cameron and Naomi's ASD would cause them to suffer functional limitations which would significantly, and detrimentally, affect their ability to support themselves, participate in society, and engage in the activities of daily living without care and support.
[211] Having regard to the size of the estate at his death, by failing to make any provision for Cameron or Naomi, the deceased failed to make adequate provision for their proper maintenance and support. Indeed, the scales tipped "rather heavily" in favour of Cameron and Naomi, in the absence of evidence about any special relationship between the deceased and the children of his first marriage, or evidence about their needs.
[212] That Naomi owned the house at Tivoli did not affect the conclusion that inadequate provision was made for her. A wise and just father would have made provision to ensure that she was well provided for and not at risk of having to fend for herself. Having regard to the size of his estate, and in the absence of evidence of any other needs-based claim upon it, it could not be said that the deceased was under no moral duty to make provision for Naomi.
[213] The respondent acknowledged that adequate provision was not made for Cameron in the deceased's will.
[214] As to Naomi, the respondent submitted -
Nomi's [sic] claim should be dismissed because her circumstances as at the date of death do not show that inadequate provision was made for her at that time.
This is particularly given she owned a house. She has now sold the house and has $50,000 in a term deposit. Most of the balance of the sale proceeds were used to pay legal fees for these proceedings. Had she not brought these proceedings, she would still have those funds.
Further, although Naomi suffers from ASD and has had prior issues with alcoholism, depression and gynaecological problems, there is little to no evidence that she was suffering from these disabilities at the date of the deceased's death.
[215] Whilst more relevant to the second stage of the application, I reject at this point the argument that Naomi's claim ought to be dismissed because she is responsible for her current, modest financial circumstances in that, had she not brought these proceedings, then she would not have had to sell her house.
[216] That argument fails to take into account the following matters:
- (a) Naomi and Cameron are eligible to bring this application and, in their circumstances, cannot fairly be said to have been unreasonable or greedy in seeking some provision from their father's estate which was of a very comfortable size at the date of his death.
- (b) Naomi has been funding not only her claim but also Cameron's.
- (c) The application was filed in 2009. It has been ongoing for many years (in making that point I have not overlooked that there was, initially, an adjournment of these proceedings by consent). It has been hard fought by the executor. There was no mediation (or attempted mediation) until 2016.
- (d) The executor acknowledged that the deceased had not made adequate provision for Cameron in his will. There is no suggestion that the executor intended to address that inadequacy outside of these proceedings.
[217] As an aside, I consider this a bold argument given the respondent's own pursuit of expensive litigation, which has depleted the estate, on the basis of "principle" rather than cost/benefit.
[218] The suggestion that Naomi was not suffering from her "difficulties" at the time of her father's death is wrong insofar as her ASD is concerned. It was first diagnosed in 2001 and her diagnosis was confirmed in 2004, twice in 2006 and in 2007.
[219] Insofar as her depression is concerned, it is unclear when it was first diagnosed.
[220] The trauma which led to Naomi's PTSD was the sexual abuse which she endured for many years before her father's death.
[221] Whilst there is authority for the proposition that her abuse, and the potential for her to develop PTSD, is relevant to my assessment of the deceased's breach of moral duty in relation to her (see Warriner v McManus & Marriner), no submission to that effect was made to me. Naomi referred (at the first stage) only to her ASD. I have proceeded therefore on the basis that the deceased ought not to have known about the potential for Naomi to develop PTSD at the date of his death.
Should the matrimonial home be exonerated from the estate for the purposes of determining the size of the pool from which provision might be made for the applicants?
[227] I must determine the size of the pool from which proper provision might be made for Cameron and Naomi and whether it is to include the value of the matrimonial home.
[228] The respondent submitted that the deceased's "primary obligation" was to provide for her, as his widow, by way of "the long term roof over her head". She submitted that the matrimonial home ought therefore to be exonerated from any provision made for either of the applicants - leaving for my consideration an estate worth less than $600,000 to be distributed among five children.
[229] The deceased's children to his first wife were present for the hearing of the application. I was informed that they supported the exoneration of the matrimonial home from the estate for the purposes of this application.
[230] The respondent made no submissions about her particular attachment to the matrimonial home apart from the fact that she had lived in it for many years. For example, she gave no evidence about the significance of its location or its features or of any particular memories made in the house or of any aspect of it which brought her particular joy. She gave no evidence of, and there were no submissions about, her inability to find, or fund the purchase of, a suitable residence if I were not to exonerate the matrimonial home from the estate.
[231] In written submissions, the respondent referred to the statements made in Golosky v Golosky, Luciano v Rosenblum and McKenzie v Topp[24] in support of the proposition that it was "well established that a deceased's spouse takes primacy in family provision claims".[25] However those three judgments (and many others) qualify the existence of the duty of a deceased spouse to ensure their widow is "secure in her home" as one which applies "in the absence of special circumstances"; "as a broad general rule" or "other things being equal".
[232] The respondent referred to Cropley v Cropley[26] and the following observation of Barrett J in further support of the submission that the matrimonial home ought to be exonerated (my emphasis) -
When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow's claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child ...
[233] Cropley involved competing claims by the widow and two of the deceased's four children for further provision from his estate. The circumstances in that case and the relative positions of the children and the widow were very different from those in this case.
[234] Importantly, immediately after the paragraph relied upon by the respondent, Barrett J said (my emphasis) -
But I must, of course, approach each applicant's application according to the two-stage approach described in Singer v Berghouse... The first task is therefore to determine the adequacy of the provision made by ...[the will] for the maintenance and support of each applicant, with the court placing itself in the position of "a wise and just, rather than a fond and foolish, husband and father" ... This does not involve any inquiry into "moral duty" but, rather, an objective examination of what is adequate in the context of the whole of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have a legitimate claim on the deceased's bounty. The claim of one applicant cannot be determined in isolation from the claims of others. An applicant's need is the first consideration and, in that, the applicant's ability to meet his or her financial responsibilities is the principal factor, with regard also being had to the applicant's standard of living.
[235] Barrett J then engaged in an analysis of the relevant relationships and the financial circumstances of each applicant. In the particular circumstances of that case, Barrett J considered Powell J's broad general rule to be applicable.
[236] The respondent also relied on Sayer v Sayer,[27] which involved a successful appeal against an order that would have required the sale of the matrimonial home, which had been gifted to the widow in the will, to support the deceased's granddaughter.
[237] In that case, the widow was physically and financially vulnerable. There was evidence of her special attachment to the matrimonial home and its garden, into which she had poured time, money and love. The evidence was to the effect that comparable accommodation was not available to her. The deceased's granddaughter was a university student. Her childhood was unhappy. Her mother was not in a position to give her any material assistance and she had no "social capital", in the form of housing or other capital owned by close relatives, available to her. However, she was young, healthy and qualified by a good education to make her way in life. She could expect satisfactory employment upon graduation and might reasonably be expected to improve her situation as time passes. The widow was not able to improve hers. Whatever provision the widow received from the estate had to be adequate for her proper maintenance for the remainder of her life.
[238] Those and many other circumstances distinguish Sayer v Sayer from the present case.
[239] In oral submissions, counsel for the respondent submitted that it would not be appropriate for me to make an order which would require Cecilia to sell the house in which she had lived for 21 years "given the strength of the authorities as to the primacy of the spouse's claim". I have already noted the qualifications made to the broad general principle of primacy in those authorities.
[240] Counsel for the respondent acknowledged that I might feel "frustrated" about the reduced value of the estate - but submitted that I had to accept it. She said, "That's what we're stuck with". She referred me to Bladwell v Davis & Anor[28] in which case Bryson JA observed that there could be no truly satisfactory outcome because no-one with a claim on the testator's bounty could receive adequate provision in relation to that person's needs except at the expense of making less than adequate provision available for some other person.
I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.
[242] It cannot be suggested that the competing factors were more or less otherwise in equilibrium in this case.
[243] Counsel submitted that, whatever I might think of the conduct of the executor in depleting the estate, it was irrelevant to the issue for me. This submission is discussed further below.
[244] The applicants submitted that Cecilia could not, by conduct which was inconsistent with her duty as executor, tie the court's hands.[29] In writing, they submitted that -
... by failing to take a commercial approach to the litigation in which she has engaged as executor, and the costs incurred in that litigation, Cecilia has brought about a position where she now seeks to tie the court's hands in making proper provision for Cameron and Naomi. She does that by seeking to exonerate the Cabana property from the burden of any order which might be made in favour of Cameron and Naomi. On the basis of her estimate of the present net distributable value of the estate - $2,041,381.30 (more or less depending on the outcome of the Clayton Utz proceeding) - the court would be left with only $546,381.30 to provide for Cameron and Naomi and accommodate the claims of the children of the deceased's first marriage.
[245] It was submitted that there had been "an extraordinary wasting of the estate" by Cecilia. Under Cecilia's control as executor, the estate had been reduced from $3,801,490.48 to $2,014,381.30. This was a reduction of $1,787,109.18 - notwithstanding increases in the value of some of the assets.
[246] The applicants accepted that, upon the death of the deceased, the estate was "pregnant with a potential liability to make a payment to Jennifer" - however that matter did not settle until more than three years after the deceased death (in September 2011), having been ongoing since 1998.
[247] The applicants undertook an analysis of the reasons for the depletion of the estate. In addition to the settlement of the de facto property law dispute, the estate had been depleted by the payment of legal fees in excess of $1.1 million; property expenses; and miscellaneous expenses.
[248] The applicants submitted that it was impossible not to be critical of Cecilia's conduct as executor. They referred to Collett v Knox, quoting from it extensively, and submitted that Cecilia had failed in her duty as executor in several ways.
[249] The applicants complained that in pursuing the de facto property proceedings for another three years after the deceased's death, she incurred legal costs (plus interest) of $534,150.15 before settling it on the basis that the estate would pay $800,000 to Jennifer (including her costs of about $300,000).
[250] The applicants observed that the legal costs incurred in her pursuit of Clayton Utz over its fees were wholly disproportionate to the amount in issue. Cecilia incurred $243,051.31 in legal fees to challenge bills totalling $194,012.70, when the best case scenario contemplated by her would be a reduction in those fees by 15 per cent. In doing so, she exposed the estate to an out of pocket loss of as much as $145,497.24 were she to "win"; or $502,093.12 were she to lose against Clayton Utz.
[251] They characterised her thinking in relation to the Clayton Utz costs proceeding as "rigid and unyielding". The referred to her evidence to the effect that she regarded it as necessary to see the proceeding through to the end - to "reveal everything" to the court - regardless of the uncommerciality of the position which has developed.
[252] They submitted that she had been similarly unyielding in her approach to the present proceeding and the costs of defending it. They referred to her evidence to the effect that she considered herself to defend the proceedings and to follow her husband's wishes, even though she feels "very sorry for the estate".
Respondent's submissions in response to complaints made about her conduct as executor
[255] The respondent defended her decisions about the conduct of the various litigation as decisions made in the course of her performing her primary duty as executor by "defend[ing] the estate and uphold[ing] the will", relying on Bovaird v Frost [2009] NSWSC 917 at [19]. The context in which that statement was made in Bovaird v Frost was very different from the present context. Regardless, I acknowledge that it has been said over many years that it is the duty of executors either to compromise a claim for further provision out of an estate, or to contest it and to seek to uphold the provisions of the will.
[256] The respondent submitted that she "had to" continue the de facto property dispute for another three years before it resolved. Whilst she acknowledged that her pursuit of Clayton Utz now looked unreasonable, she initiated it on the basis of legal advice that she had been overcharged. She did not expect the fees to be "flung out of all proportion". The amount spent - $243,051 - was spent over 11 years. It was not an unreasonable amount and, as noted, the other named beneficiaries acquiesced in her challenging Clayton Utz's costs.
[257] In relation to the present litigation, she was following her husband's wishes in challenging the applicants' assertion that the deceased was their father. She observed that the estate's costs in these proceedings are similar to the costs incurred by the applicants.
[258] Her ultimate written submission in this context was -
In any event, the issue as to whether or not Cecilia has acted against the interests of the estate is not the purpose of the current proceedings. Therefore, it is not up to this court to decide this issue in this proceeding. That would involve a separate proceeding being commenced against the executor/trustee involving pleadings and a full examination of all of the evidence regarding the conduct of Cecelia [sic] throughout the various proceedings in the administration of the estate over the previous eleven (11) year period.
A primary duty of an executor is to "defend the estate and uphold the will". To the extent Cecelia [sic] is criticised for having done this, it is premature in this proceeding, to criticise an executor for not conceding applicants' claims until this trial, when: [there was no procedure requiring formal concessions; she was not able to give any evidence about what occurred at the mediation; and her advice has been to defend these proceedings].
Conclusion about exonerating the matrimonial home
[259] I consider that there is authority for my taking into account Cecilia's conduct as executor, and any knowing pursuit by her of litigation to the detriment of the estate, in deciding whether to exonerate the matrimonial home. However, in this matter, I consider myself able to make a decision about exonerating the matrimonial home without resort to that issue. The authorities make it plain that there is no unqualified principle that primacy is to be afforded to claims by widows. I would be in error were I to exonerate the gift to Cecilia of the matrimonial home regardless of all of the circumstances and the stages of consideration described in Singer v Berghouse (Bladwell v Davis & Anor).
[260] Cecilia relied upon nothing other than her status as widow in seeking the exoneration of the matrimonial home. She gave no evidence of a particular attachment to it, or her inability to find or fund a suitable replacement for it were it not exonerated. There was no suggestion that were I not to exonerate the matrimonial home, she would be forced to live other than in the way in which she had become accustomed.
[261] There was virtually no evidence led about Cecilia's financial or other circumstances. There was no suggestion that she is at risk of financial insecurity were I not to accord her primacy by way of exonerating the matrimonial home.
[262] On the state of the evidence, as counsel for the respondent acknowledged, I may proceed on the basis that Cecilia is able to meet her needs from her own resources and has no needs based claim on the estate. Indeed, she has shown no concern about the risk of financial loss to herself (as a beneficiary) in her pursuit of litigation on "principle".
[263] Cecilia is relatively young. She was a confident witness. I infer, from the fact that the deceased entrusted her with the control of the family trust, and the way in which she handled cross-examination about the financial position of the estate, that she has some business nous. She has demonstrated no requirement for the allocation of resources in her aid. Indeed, it is Cecilia who is more likely than the applicants to improve her position in life. Cameron and Naomi are unlikely ever to be employed.
[264] In the circumstances of this case, I do not consider it appropriate to apply the broad general rule that primacy be accorded to widows. It follows that I do not consider it appropriate to exonerate the matrimonial home from the resources available to me in determining proper provision for the applicants.
Proper provision for Cameron and Naomi (second stage)
[266] I am now to determine the amount of the provision I think fit to be made out of the estate for Cameron and Naomi.
[267] My role is not to redistribute the estate in accordance with a sense of "fairness or equality" (Steinmetz v Shannon). I must respect the deceased's freedom of testamentary disposition (Pontifical Society for the Propagation of the Faith v Scales) and interfere with the will only to the extent necessary to make provision for the applicants' proper maintenance and support (Re Fulop deceased). However, if substantial interference with the will is required to make proper provision for the applicants, then I must so interfere (Gardiner v Gardiner).
[268] The assessment of what provision is "proper" requires an evaluative determination of a discretionary character; not susceptible of complete exposition; in-exact; non-scientific; and not purely mathematical (Foley v Ellis; Szypica v O'Beirne; Baird v Harris). It is necessarily fact specific (Camernik v Reholc) and, depending on the circumstances, extends to provision for enhancement of life.
[269] The applicants nominated the following as relevant to the determination of proper provision -
- They are relatively young (29 and 35);
Their mother is 71 and is finding it increasingly difficult to provide the care and support she has always provided to them;
[270] In those circumstances, the applicants submitted that they have a need for -
- accommodation, which might be met by a fund which would enable them to find accommodation were they unable to reside with Jennifer at Robina. Whilst Cameron and Naomi are the beneficiaries of their mother's will, there is no way of knowing what they might in fact inherit or what their accommodation needs might be in the future;
- enhancement of life, which might be met by a fund out of which they might purchase clothes, or furniture, medical or psychological care, community support (beyond that provided by the NDIS), driving lessons for Naomi or a holiday. The applicants relied upon Abrahams v Abrahams);
- private health insurance, so as to allow them to access better, greater, or more timely, treatment;
- a financial buffer against contingencies or a reserve to meet their future demands, including demands for psychological or medical health care;
- financial security, so as to allow them to be well provided for, rather than at risk of having to fend for themselves or at risk of changing government policy leaving them without, or with reduced, government support.
[271] On the issue of the applicants' pension and NDIS support, counsel referred to Whitmont v Lloyd and in particular its statement that "[w]here wealth is available, it should be used to meet needs for maintenance, education and advancement of eligible persons".
[272] It was submitted that I ought to disregard criticisms of Cameron and Naomi's spending (for example, on organic food or their (first) holiday) (see the submissions of the respondent below).
[273] It was submitted that the intuitive assessment, or multi-faceted evaluation which was required of me, should have regard to Cameron and Naomi's current pension eligibility criteria and make an order which preserved their pension entitlements, which were means tested (the NDIS is not).
[274] The applicants analysed the following decisions and calculated the percentage of the estate which was ultimately distributed to the eligible applicant. I did not consider the calculation of those percentages to be of any particular assistance to me in this case, dependent as they were upon the competing claims, and their number, upon the estates -
19 year old son with ASD - executor also with needs
adult child with Down Syndrome and other medical conditions
estranged adult child, problem gambler, with disabilities, on a pension and receiving significant government funded care
[275] The respondent submitted that Cameron and Naomi's "needs" did not include accommodation. She submitted that the applicants were in "secure accommodation for the rest of their lives". She submitted that there was no evidence of any other particular need that either might have. She pointed to their recent holiday. She also submitted that Cameron and Naomi were "self-sufficient" in many aspects of their daily lives.
[276] She submitted that the NDIS would assess and meet their "actual support needs". Their mother's care by way of support could not be replicated or purchased.
[277] She submitted, in Cameron's case, "Cameron won't even let his mother into his bedroom. Clearly this limits the amount of 'care' that can possibly even be provided". She noted that he could wash his clothes, prepare and cook meals, tie his shoelaces and "[g]enerally provide for his own day to day needs". She submitted that he could "learn new tasks" including how to cook and go to the grocery store and he could catch public transport.
[278] She submitted that $100,000 "has got to be a sum that's more than sufficient to cover the costs of any of his needs that may not be met by the NDIS, and your Honour has to take into account that there's a real probability that all his needs could be [met by the NDIS]".
[279] In relation to Naomi, the respondent referred to the fact that Naomi was able to purchase alcohol, electronic entertainment and "expensive organic produce" as evidence of the absence of Naomi's "needs". She was able to manage her own finances.
[280] As to the children of the deceased's first wife, the respondent submitted that I was entitled to proceed on the basis that they had no competing needs (in the sense that they have no needs which they cannot meet out of their own resources) but they were competing claims, not to be ignored.
[281] She also acknowledged that were I to find that the deceased's wishes as to the distribution of his estate were based on incorrect assumptions, then I was entitled to disregard his wishes.[30]
[282] The respondent referred to Naomi's false affidavits and submitted that clearly Naomi lied intentionally "for the purposes of getting more money from the estate". This coloured everything Naomi said and required me to carefully evaluate her evidence. The respondent did not submit that Jennifer's awareness of Naomi's false affidavits was something that should be visited upon Naomi (or Cameron).
[54] Given [the defendant's] personal circumstances, the length of her marriage to the deceased, her contribution to the common weal and the property available to meet her needs, the plaintiff's claim must fail.
[298] The obvious points of distinction between that case and the present matter are the size of the estate and the vastly difference circumstances of the widows - in particular, Cecilia's absence of need and there being no evidence of her making substantial contributions to the building up of the assets of the deceased's estate.
Preliminary matter for second stage: Conclusion about Naomi's false affidavits
[299] I find that Naomi lied about her ownership of the house because she feared that revealing it would detrimentally affect this claim or that somehow she might lose it.
[300] Being frank with her lawyers at the beginning might have allayed those fears. But they were understandable having regard to her father's choosing not to pursue contact with her or Cameron; his denying paternity; and the history of the property litigation between her parents.
[301] I find too that a desire to avoid thinking about the sexual abuse she endured; a misplaced sense of shame about the circumstances in which she came to own the house; and embarrassment about the number of times she had changed her name played into her decision to conceal (until April 2015) her ownership of the house in these proceedings.
[302] Against the background of her making false affidavits (the seriousness of which I do not underestimate), I have evaluated her evidence carefully.
[303] I found Naomi a credible witness. I have no reason to doubt that her life is as limited and as challenging as she describes. Further, her evidence about her life and her experience of the world is corroborated by the several reports of doctors and allied health specialists in evidence.
Conclusion as to proper provision (second stage)
[304] My search at this stage is not for the provision which a wise and just testator in the position of the deceased would have made for Cameron and Naomi. There will be a range of appropriate provisions. An intuitive assessment is required and minds may differ as to the provision which should be made (cf, e.g. Palagiano v Mankarios).
[305] The availability of the pension or NDIS support does not relieve the deceased from Cameron and Naomi's claim upon his estate in the circumstances of this case.
[306] I am to proceed on the basis that none of the other beneficiaries have competing needs for provision out of the estate - but I am not to ignore them or fail to acknowledge the deceased's intention to benefit them in his will.
[307] Although Naomi is not as disabled as Cameron, she suffers from PTSD which is difficult to treat. The applicants have not asked me to differentiate between them in determining appropriate provision.
[308] At the moment, Jennifer is able to provide for Cameron and Naomi a home environment which accommodates their various concerns and fears (albeit to her inconvenience and detriment).
[309] Whilst Cameron and Naomi's accommodation is secure for the moment and whilst their pensions, pooled with Jennifer's pension, provide enough money to pay for the usual outgoings of the property, it requires maintenance which they cannot afford. (In saying that, I note the complications of making provision for maintenance to a house not owned by the applicants (cf Duffy v Duffy). But I have mentioned the property's need for maintenance to illustrate the limit to the property expenses which Cameron and Naomi are able to finance.)
[310] It cannot be assumed that Jennifer's house will always be available as a residence for Cameron and Naomi after her death. It might have to be sold to meet Jennifer's own care needs, particularly because it is reasonable to infer that the applicants themselves do not have the personal resources to care for her as she ages and her needs are likely to increase.
[311] Even if the property does not need to be sold to meet Jennifer's needs (or other contingencies) it is reasonable to assume that, without their mother contributing, Cameron and Naomi will find it difficult to meet the usual outgoings of the property from their combined pension. And, as the property ages, it is reasonable to assume that the cost of its repair and maintenance is likely to be beyond the reach of their combined pensions.
[323] Obviously, those percentages depended on the value of the assets of the estate at the relevant time, over which the deceased had no control. Nevertheless it may be assumed that the deceased intended that the gift to Cecilia would be the most generous and at least equal to the sum of the gifts to his children. In other words, it may be assumed that the deceased intended that his third wife receive about one half of his estate, with the other half to be distributed among his three children roughly equally.
[324] Whilst I am to interfere with the will only to the extent necessary to give effect to the legislation, interference of a significant kind might be necessary to ensure that proper provision is made for the applicants in all of the circumstances.
[325] In the present case, I consider the amount of $400,000 to be proper provision for each of the applicants in all of the circumstances. If the other beneficiaries contribute rateably to that provision, the estate will ultimately be distributed as follows (approximately):
[326] In my view, that distribution preserves Cecilia's position as the beneficiary to whom the deceased wished to be most generous; allows for gifts of a reasonable size to the three children of the deceased's first marriage as the deceased intended; and recognises the needs based claims of the applicants upon the estate in the context of the other claims by claimants without needs.
[327] I will hear the parties as to the form of orders and costs.
[1] They also raised a foster child, who predeceased Mr Pott.
[2] The present proceedings were stayed, by consent, on 15 March 2010, pending the resolution of the de facto property proceedings.
The de facto property proceedings settled in September 2011.
Jennifer was appointed as Cameron's litigation guardian (in lieu of his original litigation guardian) on 6 September 2012.
The estate required the applicants to prove that they were the children of the deceased. They brought an application for a declaration of his paternity.
On 30 May 2014, the applicants obtained a declaration of paternity and the estate was required to pay the costs of that application. Those costs were assessed and ultimately paid, although Cecilia complained about their quantum to the Legal Services Commission.
On 13 October 2015, the applicants applied for disclosure of the family trust's records. Their application was dismissed and they were required to pay the estate's costs. Those costs are yet to be assessed.
An attempt at mediation of this matter, on 29 February 2016, was unsuccessful.
On 21 June 2019, the applicants were granted leave to proceed, certain directions were made and the matter was set down for trial.
[3] The evidence before me in affidavit form did not present a totally consistent picture of the historical narrative. However Jennifer and Cecilia were not cross-examined about inconsistencies in their narratives and I was not required to make specific factual findings about the history between the parties.
[5] Including the unpaid costs of associated proceedings.
[6] Naomi has had the following name changes, for the following reasons -
Naomi was upset that her father alleged that she was not his daughter and she did not wish to have the same surname as him.
The first name change did not make her feel better.
'Manning" is a name on Jennifer's side of the family.
Rose Naomi Manning did not sit well with Naomi. It reminded her of her grandfather. Also, the court had declared that the deceased was her father and she felt comfortable using his name.
[7] In about March 2019, she was prescribed anti-nausea medication and pain relief via suppository.
[8] The result of the tissue examination was inconclusive.
[9] He had offered Jennifer money in the mid-2000s which she had declined.
[10] Some of the monetary amounts stated in the written submissions are incorrect - either because of an error in their calculation or because they are not based on the most recent evidence of a relevant person's financial circumstances. In this judgment, for obvious reasons, I have stated the corrected or most recent amounts. The differences between the amounts I have stated and the corresponding amounts referred to in the written submissions have not mattered to the outcome in this case.
[11] Including the unpaid costs of associated proceedings.
(a) costs paid to Gall Standfield & Smith $209,051.31
(b) amount claimed by Clayton Utz (reduced by 15%) $119,942.73
(c) less costs payable by Clayton Utz to the estate (estimated) ($160,000)
(d) costs payable to Gall Standfield & Smith to finalise the proceeding $13,200
(f) less costs assessed in favour of the estate ($57,496.80)
[13] [1994] HCA 40; (1994) 181 CLR 201, 209 - 210.
[14] [2005] HCA 11; (2005) 221 CLR 191, 230 - 231 [122].
[15] [2009] NSWSC 801 [10].
[17] [2016] VCA 178 [38]. [65] - [66].
[18] [2013] NSWSC 522; (2013) 85 NSWLR 253 at 284 [127].
[19] [2012] NSWSC 1537 [159].
[22] His Honour did not accept that the property had to be sold to satisfy the executors' claim. No good reason was advanced to explain their conduct in expending about a third of the value of the estate ($70,000) in costs. His Honour allowed the respondents an amount of $10,000 as reflecting the costs reasonably incurred in reaching a stage where they ought to have been satisfied of the need to compromise, and required them to reimburse the estate to enable it to meet Mr Collett's costs: see Collett and Anor v Knox and Anor (No 2) [2010] QSC 253.
Niebour-Pott & Anor
Pott [2020] QSC 7
(1960) 104 CLR 124
(1985) 2 NSWLR 65
(1957) 97 CLR 566
(1962) 107 CLR 9
(1987) 8 NSWLR 679
(1994) 181 CLR 201
(2013) 85 NSWLR 253
(2019) 368 ALR 161
(2005) 221 CLR 191
[9] It may be noted that it has taken ten years for the application to be heard. An explanation for some of that delay has been footnoted.[2]
[10] The estate has, of course, incurred the costs of responding to the present application. It bore some of the costs of the deceased's de facto property dispute with Jennifer and the costs of another application by Jennifer concerning maintenance. It has also been involved in litigation against Clayton Utz over its fees in the de facto property dispute.
[11] The financial cost to the estate of litigation over the years has been more than $1 million. Its current net asset position is about $2 million. Its principal asset is the matrimonial home in which Cecilia resides which is valued at $1.450 million.
[12] The applicants argue that Cecilia, as executor, failed in her duty to the estate including by engaging in, or at least continuing, the litigation against Clayton Utz over its fees when the cost of that litigation (which is ongoing) significantly outweighed any potential benefit to the estate (a benefit which was not, in any case, guaranteed).
[13] One of the questions for me is whether and how I may take into account the fact that Cecilia, as executor, depleted the estate by incurring significant legal costs in deciding whether to exonerate the former matrimonial home from any order I might make for provision for Cameron or Naomi.
[14] Cameron suffers from Autism Spectrum Disorder (ASD). Life is not easy for him. In 2009, he was diagnosed with Hodgkin's Lymphoma for which he was successfully treated. Naomi also suffers from ASD. She is not as disabled by ASD as her brother but life is not easy for her either. In addition to her ASD, she suffers from post-traumatic stress disorder, having been sexually abused by her maternal grandfather. She also suffers from a gynaecological condition which, until recent surgery, caused her great pain. It might reoccur. Both are in receipt of disability support pensions. Both have been approved for NDIS funding.
[15] Cecilia, as executor, accepts that provision ought to have been made by the deceased for Cameron. She submits that $100,000 is proper. He seeks $473,750 - the maximum amount which he may receive without risk to his disability support pension.
[16] Cecilia does not accept that any provision ought to have been made by the deceased for Naomi. Naomi too seeks $473,750. Naomi's application is complicated by the fact that, in support of it, she swore false affidavits about her assets. For several years, she failed to disclose that she owned a house.
[43] The kitchen is divided into two areas: one for Jennifer and the other for Cameron and Naomi. Each area has a refrigerator, microwave, food preparation area and table and chairs. The separation is intended to prevent the intermingling of Cameron and Naomi's food with Jennifer's food and to prevent any "contamination" of Cameron and Naomi's food, utensils, crockery, containers et cetera by their mother or the chemicals she uses to clean. Cameron and Naomi will only sit at Jennifer's table if they are eating seafood and only after they have washed the chairs to ensure there is no dust on them. Jennifer is only allowed to use one side of the sink - the other side is for Cameron and Naomi. Jennifer is not allowed to use "their" dishwasher. Sometimes, because of Cameron's fear that his clothes will be contaminated by cooking smells, Jennifer cooks outside.
[44] Cameron sleeps a lot and does not get out of bed until late afternoon. He requires direction for his activities of daily living. He showers once a day, spending about two hours in the bathroom, although he may not wash himself thoroughly. He does not shampoo his hair properly. He needs to be prompted to shave and his mother assists him with it. He cannot tolerate toothpaste - he washes his teeth with bicarbonate of soda (as does Naomi). He washes his hands frequently; so frequently that his skin cracks. He has bladder problems. He experiences urgency of micturition and he wets the bed frequently. He is encouraged to sit to urinate, so as to achieve accuracy. He will not use a public urinal. Because of his concerns about hygiene, he will use a paper towel to open cupboard doors or turn on taps that he knows Jennifer has recently touched.
[45] He does not assist his mother with housekeeping, gardening or mowing. He would not clean his mother's car because "he would be too allergic to the chemicals". He cannot tolerate the noise of the vacuum. His mother is not permitted to clean his room unless he has been sick. It is covered in dust. He cannot make his bed properly and needs prompting to change his sheets. He does not like it if his mother disturbs his things. A cleaner from Anglicare comes once a fortnight. She is not permitted to clean his or Naomi's bedrooms. If he or Naomi become aware that the cleaner has touched anything in their bathroom, they will no longer use the thing.
[46] Leaving the house is stressful. He has no real road sense and can get lost. He will not take public transport by himself. Jennifer exercises supervision over his spending.
[47] Cameron and Naomi do their grocery shopping together - separate from their mother's shopping. Cameron has to "brace himself" to prepare to speak to a shop assistant. He will not walk through a certain food court section of a shopping centre because he can "feel" the fat and the oil used in cooking "on his skin".
[48] He has trouble with some fine motor skills (he only recently learnt to tie his shoe laces). He is slow to comprehend a task and responds best to visual demonstrations.
[49] He enjoys playing video games and watching movies. He reads and writes reasonably well. His mother cannot always understand what he is saying - although his sister can.
[50] He left school in year 10 as a result of pain which was related to his cancer diagnosis.
[51] In July 2009, just before his 19th birthday, he was diagnosed with Hodgkin's Lymphoma. He was successfully treated for it in 2009 and 2010. The disease is currently in remission.
[52] He had dreams of being an author but found his head "scrambled" after his cancer treatment. Although he has an interest in film writing and would like to attend university to study Arts, he is unlikely to be able to do those things.
[53] In a report dated 8 November 2012, Helen Coles, Occupational Therapist, assessed Cameron's capacity for work. In her assessment, Cameron's ASD impacts adversely upon all aspects of his life. He is vulnerable to a risk of injury in novel situations and is unlikely to ever be able to work. Ms Coles observed that Jennifer had adapted her life around Cameron's characteristics and traits to minimise his stress, confusion and insecurity.
[54] Lynda Troy, a clinical and neuro-psychologist, prepared a report about Cameron, dated 28 January 2014, based on a variety of tests as well as collateral information. Cameron's test results were consistent with a DSM V diagnosis of Autism Spectrum Disorder level 1. "Level 1" reflected his need for support: he had "difficulty initiating activities without prompting, [difficulty] communicating effectively, and his adherence to inflexible rules also interferes with his functioning and causes acute distress when varied". Cameron will make no developmental gains and his impediments will remain static.
[55] As to his ability to look after himself in the future and his ongoing needs, Ms Troy said -
[72] In the 12 months before 31 January 2019, she was hospitalised 5 times and attended numerous specialists. Non-surgical treatments failed to relieve her pain, leaving surgery as the only option. The wait for surgery via the public health system was lengthy. Her General Practitioner considered the wait "unacceptable". On 19 July 2019, she was admitted to a private hospital for a "complicated laparoscopy" which she self-funded (she does not have private health insurance). She was out-of-pocket $7,741.80 for the surgery, which placed financial strain on her family.
[73] Tissue was removed during the laparoscopy[8] and her pain has decreased. There is the possibility of its reoccurrence which would require further surgery.
[74] Naomi's general practitioner, Dr Van Driel, explained the interaction between Naomi's endometriosis pain and her ASD -
[83] She is able to catch public transport and is responsible for her safety. She is able to manage her own money, although Jennifer keeps an eye on her spending.
[84] If her "system" is "thrown out of sync" or things do not go to plan, she can get angry or frustrated. She became upset when she learnt that the deceased would not accept that he was her father.
[85] Naomi's wish is to return to university to study Arts, majoring in English, ancient history or archaeology. She would enjoy studying with Cameron and would study something he wished to study so that they could attend classes together. She has investigated the possibility of studying online.
[86] Naomi says she would like to travel including to Egypt to learn about Egyptian history and archaeology. I note that Jennifer says Naomi hates flying and suffers from claustrophobia - although she is able to manage it with a window seat. She would not like to travel alone though - she would become overwhelmed. She would like to travel with her family.
[87] She would also like to obtain her driver's licence and to possibly buy a car. It is not clear on the evidence whether she is in fact capable of obtaining a driver's licence.
[88] In 2016, Dr Wever observed that Naomi was very reliant on her mother for day to day support. He thought it unlikely that she would ever be independent. He said, of her ASD and PTSD and her ability to manage her affairs and look after herself -
The value of the estate at the death of the deceased ($3,801,490) included an amount of $2,059,101 which the estate had lent to the Ocean Projects Trust and which the trust owed the estate.
The estate had incurred $1,134,536.03 in legal costs in the past 11 years.
That amount included the estate's spending $243,051 to challenge $194,012 of Clayton Utz's fees - of which $141,000 remained outstanding at the date of the hearing.
As to whether that was "proportionate", Cecilia said, in effect, that the challenge was originally to an amount of $760,000; she received legal advice that she had "a case"; and she thought it was worth it. Once she started the action, she could not stop it. It had been running for seven years. She agreed that now it was "out of proportion" and "not quite balanced".
Even if Clayton Utz's fees were reduced by 15% (which the estate might consider a "win"), taking the costs of the action into account, the estate would only be "better off" by $63,000 - about which Cecilia said "Unfortunately, it's the way it goes". [The applicants submitted that, in fact, the more accurate best case scenario, taking into account the costs already incurred and paid, was that the estate would be out of pocket by $145,497.24.[12]]
If the estate lost against Clayton Utz, it would have to pay $141,109 to Clayton Utz, plus Clayton Utz's legal costs of $160,000, plus its own additional costs - a total of $335,000; against which would be offset costs owed by Clayton Utz to the estate of $42,000. This would leave the estate worse off by $293,000 in addition to the costs it had paid its own lawyers of $209,051 (a total of $502,051).
Cecilia had never approached Clayton Utz to see if the matter could be settled. She hoped to make the point that Clayton Utz had overcharged the estate. She did not intend to cost the estate money. She did not expect that the costs would be "kind of flung out of proportion".
Even after it was apparent to Cecilia that the cost of the exercise was disproportionate to any potential gain, it was, in her view, not worthwhile to negotiate, because it was "not just [a] cost[s] assessment": There had been "wrongdoing".
The costs incurred by the estate in defending the current application and the application for a declaration of paternity (paid and to be paid) were $346,567.
Cecilia was not embarrassed by the amount the estate spent on legal costs. She had been told that "principle costs". She felt she had to "defend" because there had been injustice. She felt "sorry" for the estate.
The original estate was reduced by $800,000 to pay Jennifer, leaving it worth about $3 million.
It was further reduced by legal fees and costs payments of more than $1.1 million.
Cash in the amount of $2,363,971.[1] had come into the estate since the death of the deceased - but the cash at bank was now only $388,696.
[119] Cecilia said she had the support of the other beneficiaries (the children of the deceased's first marriage) for the way in which she spent the estate's money. Those beneficiaries were present in court with Cecilia and there is nothing before me to suggest that she does not have their support.
[120] Cecilia said, in effect, that her attitude to the present application reflected "her late husband's wishes".
[121] She said that because Naomi had lied to the estate, it was her duty to report that to the police.
[131] A court may interfere with a testator's dispositions only where there has been a breach of a testator's moral duty in the sense that adequate provision has not been made for an applicant; and only to the extent of making adequate provision for the proper maintenance and support of the applicant.
[132] The question whether an eligible applicant has been left without adequate provision for their maintenance and support is to be determined in light of all of the circumstances, including competing claims.
[133] Whether there has been a breach of moral duty is to be determined at the date of the testator's death, having regard to all of the circumstances, known or unknown by the testator, and having regard to contingencies which the testator ought reasonably to have foreseen. (The question as to what provision ought to be made must be determined according to the circumstances that obtain at the time the application is before the court.)
[134] "Adequate" relates to the needs of the applicant. "Need" or "Needs" is a relative concept. Consideration of "needs" must be in the context of the statutory formulation. The answers to the questions whether adequate provision has been made and what provision would be proper involve value judgments upon which minds may legitimately differ. "Proper" maintenance and support may involve provision beyond bare need.
[139] While the court should attempt to keep interference with the testator's will to a minimum, if substantial interference is required in order to make proper provision for an applicant, this must be done, even to the extent of making an order that the applicant receive the whole of the deceased's estate: Gardiner v Gardiner, NSWSC, Santow J, 28 May 1998, unreported, referred to in Steinmetz v Shannon [2019] NSWCA 114.
[149] In his Honour's view, the deceased had not made adequate provision for the applicant "[j]udged by quantum, and looked at through the prism of his financial and material circumstances". Whilst that was not enough, taking into account other relevant matters, his Honour considered that the applicant satisfied the jurisdictional threshold.
[150] The plaintiff had "needs". His Honour explained that "need" in the context of the Act was not determined by reference only to minimum standards of subsistence. Nor was it limited to an immediate need for financial assistance. It was a broader concept, which required "consideration of matters necessary to guard against unforeseen contingencies". It was also used in the sense of what was necessary for the applicant's proper maintenance, education and advancement in life.
[151] The applicant was incapable of adequately providing for himself and was unlikely ever to be able to do so. Without some provision, it was highly unlikely that he could improve his station in life. He had a need for additional capital - including to assist in the provision of accommodation, or to provide an additional income (albeit modest).
[152] His Honour considered it appropriate to order that the plaintiff receive an additional lump sum, calculated as 40 per cent of the net proceeds of sale of a property which was the estate's main asset - that is an amount of about $90,500. In that case, the size of the estate limited the lump sum which could be provided.
[163] In Mckenzie v Topp [2004] VSC 90, an applicant was alone and without support except for the old age pension. Nettle J took the pension into account as a relevant consideration but did not regard it as a substitute for the obligation of the testatrix adequately to provide.
[164] The respondent relied upon a case from 1949, Re Watkins (deceased) Hayward v Chatterton and Others.[20] In that case, the Court held that a testator could take into account in the distribution of his estate that one of his three children, who suffered mental illness, "could and should be maintained free of charge" under the National Health Service Act 1946. That approach is, in my view, out of step with more recent authorities, certainly in the case of large or moderately large estates. Further, I do not consider that approach to be consistent with contemporary community concerns about human dignity and institutionalised care.
[172] His Honour was of the view that the executors had not acted reasonably. There was no impartial placing before the court all of the competing evidence by the executors. Rather, they were actively and aggressively advancing their own interests. The circumstances cried out for responsible executors to seek the direction of the court as to the appropriate course to take.[22]
[186] After the hearing, Cameron and Naomi were informed that they had been approved for NDIS funding (which is not means tested). That is welcome news, although it is reasonable to assume that that scheme and its provisions are vulnerable to changes in governments and their policies.
[187] Cameron has been approved for almost $30,000 in NDIS funding for a 12 month period (from October 2019 until October 2020). His funding includes an amount for "Core Supports" (of $18,395.73, including transport costs) and "Capacity Building Supports" (of $11,383.04). It has been explained to him that Capacity Building Supports "are intended to build [his] independence and reduce [his] need for the same level of support into the future". It has also been explained to him that ongoing funding for therapy "is subject to provision of a detailed report to provide information about Cameron's progress and should clearly state the therapy outcomes and demonstrate a link to his goals". His various goals include (but are not limited to) improving his confidence to complete daily living tasks; participating in leisure and recreational activities of his choice; improving his communication; establishing and maintaining friendships. He would also like to explore educational opportunities.
[188] Naomi has been approved for almost $23,000 in NDIS funding for a 12 month period (from October 2019 to October 2020). Her funding includes $12,989 for Core Supports (including transport costs) and $9.974.06 for Capacity Building Supports. Her goals include improving her confidence in completing daily living tasks; accessing the community; participating in leisure and recreational activities; improving her communication; learning strategies to develop social connections; and exploring educational opportunities to increase her confidence in finding employment to achieve some financial independence.
[189] It is hoped that the NDIS funded support will lead to an improvement in Cameron and Naomi's functioning but it is, of course, impossible to know the extent to which their functioning will in fact improve.
[190] I note the argument of counsel for the respondent that Cameron and Naomi's care needs are not that high. She argued, in effect, that Jennifer did not provide practical/hands-on care to Cameron and Naomi on a full-time basis or even for eight hours a day: Cameron sleeps most of the day. He and Naomi get their own meals. They attend to their own laundry. At least together, they can use public transport. A cleaner cleans parts of the house. She acknowledged that Cameron needed prompting to attend to some aspects of his hygiene but observed that he could dress himself.
[191] Whilst those statements might be factually accurate, they ignore the complexities and complications of the way in which Cameron and Naomi attend to their activities of daily living. For example, whilst Cameron can dress himself, he needs assistance to choose appropriate clothing. Whilst he does attend to his own laundry - he does so in a completely closed house. Whilst Cameron and Naomi can use public transport together, they become anxious leaving the house and interacting with other people. More significantly, the respondent's argument ignores their need for care and support beyond the provision of, or assistance with, the necessities of life such as food, shelter and clothing. It completely ignores their mental and emotional vulnerabilities and their need for security in a broad sense.
[192] Counsel for the applicant submitted that Cameron and Naomi were "moderately to severely autistic children who needed to be supervised around the clock". It may be more accurate to say that Cameron and Naomi require support and prompting and supervision in a general way (to ensure they attend medical appointments, for example) - rather than supervision in the form of constant visual surveillance. However, I agree with the submission of counsel for the applicants that the argument made by counsel for the respondent belittles the value of the care provided by Jennifer in the form of her ever-present support of her children and her prompting and guiding them throughout their days. Also, at a very practical level, I infer from the evidence of Cameron and Naomi's limited functioning that it is Jennifer who "runs" the household including by way of ensuring that the property's outgoings are paid, a cleaner is engaged and that (finances permitting) it is repaired as required.
[193] The love and support provided by Jennifer, as a mother, may indeed be irreplaceable, as counsel for the respondent submitted in support of an argument that no financial provision could make up for it. But in my view that fact increases, rather than decreases, Cameron and Naomi's needs into the future.
[194] Unless there is a significant improvement in their functioning, it is unlikely that Cameron and Naomi will be able to live independently (and extremely unlikely that they would live separately from each other). Realistically, having regard to the reports of the various experts, they are likely to always need some level of care, monitoring and supervision - even if the support they receive through the NDIS leads to some level of improvement.
[195] It is reasonable to assume that Cameron and Naomi are at risk of deterioration when their mother passes, or is no longer able to care for them, and they may require tailored support at that time. It is also reasonable to assume that Cameron would suffer greatly were he left alone in the world and he would require targeted support to deal with that eventuality.
[222] In my view, it is not appropriate to hold Cameron and Naomi responsible for their estrangement from the deceased. Because of their ages, their ASD and their parents' litigation, the deceased was, realistically, in control of their relationship with him, including the extent of their contact, and he was not motivated to pursue an order for it in the Family Court. Because of their ASD in particular, they did not have the personal resources to initiate contact with the deceased after they reached adulthood.
[223] In my view, a wise and just testator, in the deceased's position, would have made some provision for Cameron and Naomi in his will. A wise and just testator would have taken into account, in making some provision for Cameron and Naomi, that his estate was not small; they were his children; he controlled his relationship with them and the contact they had with him (that is, they were not responsible for his estrangement from them); they were unlikely to find employment; their life ahead was likely to be difficult because of their ASD; they had a need for care and support, including professional care and support, because of their ASD; their mother's finances were limited; and there was no suggestion of any other needs based claim upon his estate.
[224] Even though Naomi owned a house at the date of the deceased's death, she shared it with her mother and brother, and they were dependent upon her for their accommodation. In those circumstances, a wise and just testator would appreciate that it was not an asset that she was likely to sell. And regardless, it was a relatively modest property.
[225] Having regard to the size of his estate, the community would not expect the deceased to leave the most vulnerable of his children dependent on welfare whilst providing for his children who were able to meet their needs from their own resources.
[226] I find that the deceased failed to make adequate provision for Cameron and Naomi's proper maintenance and support in his will. I may therefore order that such provision as I think fit be made out of the deceased's estate.
[241] I note that in that case that Ipp JA began his judgment as follows, "I agree with Bryson JA, for the reasons his Honour has stated, that '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 ..." His Honour continued -
[253] Also, the applicants contended, issues which arose between the deceased and Jennifer have influenced Cecilia's decisions, as was apparent from her affidavit evidence.
[254] The applicants submitted that Cecilia had not performed her duty as executor, in objectively assessing the evidence and impartially assessing the merits of Cameron and Naomi's claims in the light of the moral duty imposed on the deceased via section 41. All of the litigation in which Cecilia engaged had been protracted and very expensive. Whatever justification there may have been at the outset to initiate or defend proceedings, the duty of an executor is not to carry on to the bitter end, regardless of the costs incurred along the way. Her duty was to get in and protect the estate for distribution to the persons entitled to it. She has breached her duty. The applicants submitted that the fact that the children of the deceased's first marriage acquiesced in the respondent's conduct made it no better.
[265] That leaves for my consideration at the second stage an estate worth about $2 million.
[283] The respondent also referred to three comparable cases - Re Anderson,[31] McGarry v McGarry,[32] and Duffy v Duffy,[33] which were cases in which the children of a deceased were awarded very little, or nothing at all, on their applications for provision.
[284] In Re Anderson, the net value of the deceased's estate at his death was $1 million (in 1979). At the date of the hearing of the application for provision, it was worth between $2 million and $2,500,000. He made provision in his will for his wife and sister. He made no provision for his son or daughter. The estate was of a sufficient size to enable all moral claims upon the bounty of the testator to be met. Provision was made for the (employed) son and daughter (both of whom were entitled to superannuation benefits) in the amount of $75,000 each. It is enough to say that the circumstances of that case, including the circumstances of the applicants; the origins of the largest asset of the deceased's estate and promises by the deceased to his father about how he would divide the proceeds of the largest asset's sale, are very different to those in the present case. It is of virtually no assistance.
[285] In McGarry v McGarry, the deceased left the whole of his estate to his widow (the defendant). The deceased had two children - the plaintiff, who was 23 and the child of the deceased and another woman, and his 16 year old child with the defendant.
[286] The deceased's obligation to his widow was held to have primacy over his other obligations. At his death, he and the defendant owned, jointly, net assets of $1,600,000, of which the family home was worth $600,000. The deceased satisfied his obligation to the defendant widow.
[287] The defendant was "a robust, intelligent and capable lady" who was likely to hold down a responsible job for years to come. She had no disability. She was not suffering from ill health. There was no suggestion that she would be forced to retire or lose her job.
[288] The plaintiff lived (rent free) with her mother, who was 59 years old and employed as a meat packer. She had no assets of substance. Nor did the plaintiff herself have assets of substance.
[289] The plaintiff had "extensive and debilitating medical problems" including cystic fibrosis, diabetes, asthma and depression. She was vulnerable to skin cancer, and needed orthodontic work and plastic surgery. Her medical expenses were "extensive". She was only able to work part time and was in receipt of a disability pension.
[290] She submitted that she had a "need" for a home - but Forster J observed that her present accommodation was "perfectly adequate" and that very few 23 year olds owned their own home. Forster J observed that she was "an attractive young woman" and there was "no evidence to suggest that ... she will not be able to marry and live a relatively normal life". His Honour recognised though that a legacy from the deceased would have represented a significant improvement in the quality of her life.
[291] His Honour found that the deceased did more than "adequately discharge" his primary obligation to provide for his widow. "Accordingly", he made inadequate provision for the plaintiff. By the time of the hearing, the net asset position of the defendant had declined by $300,000 to $400,000 but her circumstances were still relatively comfortable. A legacy of $100,000 was made for the applicant - taking into account the financial and other circumstances of the applicant and the defendant and the needs of the deceased's minor daughter.
[292] There was no appeal from that decision.
[293] With respect to his Honour, I do not consider it appropriate to limit my consideration of the applicants' need for accommodation to their immediate need for it. I also note his Honour's reference to the marriage prospects of the applicant in that case. No submissions were made to me about the "marriage prospects" of the present applicants and I will therefore say nothing about my view of the relevance or otherwise of that consideration.
[294] In Duffy v Duffy, the estate was small. The adult son of the deceased, through his tutor (his mother) sought provision from his estate. The principle defence of the defendant, the deceased widow after 16 years of marriage, was that as the resources of the estate were modest, she was entitled to primacy. Lindsay J found the case difficult. The adult son was 33. He suffered from chronic schizophrenia and intellectual disability. His capacity for remunerative employment was constrained and he was dependent upon his mother for his day to day care. He had a meritorious claim on the deceased's bounty but the property available was "of modest dimensions". Indeed, the evidence suggested that the deceased was, at his death, "borderline insolvent". The widow's claim to primacy was based on evidence of her contributions to any accumulation of wealth by the deceased and her health.
[295] The widow had contributed substantially all of her savings and earnings towards the purchase and maintenance of the matrimonial homes in which she and the deceased lived. She was in receipt of a widow's pension and other very modest rental income. If she retained ownership of the matrimonial home, then she would be able to get by and keep the deceased's creditors at bay. Also, she was in poor health and might be in need of private long term private nursing care and accommodation.
[296] The plaintiff's mother asked for a legacy of $100,000 for the plaintiff to fund renovations to the property owned by her in which they both lived.
[297] In dismissing the application (which was for an extension of time within which to make an application for provision), Lindsay J said -
[312] I consider that Cameron and Naomi have a need for an amount of money to meet their accommodation requirements in the future - in whatever form those requirements might take.
[313] Cameron and Naomi's ASD makes the world a hostile place for them. On the evidence, they live a small life - mostly confined to their home. Naomi is further burdened by her PTSD, which is difficult to treat because of her ASD.
[314] Their proper maintenance is not limited to their bare sustenance or the sufficiency of their material circumstances (Vigolo v Bostin, Blore v Lang, Alexander v Jansson).
[315] In my view, the size of this estate, and the absence of competing needs-based claims upon it, allows for provision for their advancement by way of an enhancement in their "dignity" (Whitmont v Lloyd) or more generally, whether that be by way of psychological counselling or support beyond that which is funded by the NDIS or new clothes or furniture or the purchase of items which will accommodate their allergies or family holidays or educational courses or driving lessons for Naomi or dental work for Cameron.
[316] Their need for private health care is obvious and has been demonstrated by Naomi's experience of the delays in the public system. More generally, it will provide them with access to broader, greater or more timely treatment. It may also fund dental work.
[317] Jennifer is currently able to care and support Cameron and Naomi by way of prompting, guidance and solace as well as more hands-on support, including by providing them with transport. But she is in her seventies and there is the obvious potential for her own personal future needs to take away from her ability to be as devoted to Cameron and Naomi as she is now. And of course, she will not live forever. Given their dependence upon her, it is likely that upon Jennifer's passing, Cameron and Naomi will require careful psychological support and care. Apart from the need for a reserve to deal with that contingency, I consider that they have a need for a buffer or a reserve to meet future demands including for psychological or mental health support.
[318] I consider that the applicants have a need for financial security. They are unable to work. They ought not to be left at risk of having to fend for themselves.
[319] The applicants have quantified their claim by reference to the maximum amount they may each receive whilst retaining their pension and its benefit - rather than by reference to an attempted quantification of their needs.
[320] The respondent submitted that $100,000 had to be enough for Cameron, without reference to any particular benchmark or calculations upon which that figure was based. The respondent submitted that no provision ought to be made for Naomi.
[321] In determining the amount of proper provision, I must be mindful of the deceased's intention to provide for his widow and the children of his first marriage out of his estate. As noted, there are no other needs based claims upon the estate. Cecilia, and apparently the children of the deceased first marriage, are unfazed by the depletion of the estate in the pursuit of uncommercial litigation. I have also taken into account Cameron and Naomi's dependence on each other and the likelihood that they will live together into the future.
[322] As I understand the submissions of the respondent, and exhibit 2, the estate was distributed by the deceased among the beneficiaries as follows: