Noble v Durrant

Noble v Durrant - [2023] NSWSC 513 - NSWSC 2022 case summary — Zoe

[7]

Background facts

Russell was married to Jacqueline Noble and they had three children: the deceased, Anthony Noble and Raymond Noble. Jacqueline Noble was also the mother of Sharon Noble (Sharon) from a previous relationship and Russell was Sharon's step-father. Russell and Jacqueline separated when all four children were young, but they all (including Sharon) grew up on the farm under the care of Russell.
Sharon was the mother of Charlotte, Carolyn and Julie. While they each share the same mother, they do not share the same father. Sharon died on 17 November 1988 at the age of 23. At the time of Sharon's death, Julie was 7 years old, Charlotte was 5 years old and Carolyn was 4 years old.
Shortly after their mother's death, Julie, Charlotte and Carolyn went to live with their step-grandfather, Russell, on the farm. He ran cattle on the farm and lived there with his daughter, the deceased, who was then 21 years old and spent weekends with Graham in Casino as indicated below. Prior to their mother's death, the three girls would often visit the farm with their mother. While the evidence is not entirely clear, I infer that the three girls were placed under the informal guardianship of Russell rather than the deceased because she was financially dependent on Russell at this stage of her life. That is consistent with the evidence of Graham, then aged 23, who was in a relationship with the deceased at that time.
When Carolyn and Julie moved to the farm, the only other person living there was the deceased. There was a three-bedroom house on the farm and Charlotte, Carolyn and Julie shared a bedroom, and the deceased and Russell each had their own bedroom.
In 1988 when Julie, Charlotte and Carolyn arrived to live on the farm, the deceased was already in a relationship with Graham who lived in Casino. They had first met when the deceased was 19 and Graham was 21. By 1988, the deceased and Graham were in a committed relationship which generally involved the deceased staying with Graham on weekends at the house he rented at Spring Grove, Casino, and then returning to the farm where she stayed from Monday to Friday working for her father on the farm. This arrangement continued throughout the period that Julie, Charlotte and Carolyn were living on the farm, only ceasing in 1998 when Graham moved to live with the deceased on the farm.
During the period that Julie, Charlotte and Carolyn lived on the farm, they were looked after by Russell, the deceased, and also by other members of the extended Noble family including Russell's sister, Ruth Noble (Ruth) who lived on an adjoining property during the initial years that the girls lived on the farm. At some time before 1996, Ruth relocated to live in Casino. Ruth did not have children of her own and was close to the girls particularly Carolyn, the youngest. It was common for her to stay at the farm for three or four nights at a time, a few times a month. Ruth died in 2014.
Russell's son Anthony lived on a property which adjoined the farm and he and his wife Sharon (Mrs Noble), had Julie, Charlotte and Carolyn to stay on weekends regularly in order to assist Russell and the deceased with their care.
In 1995, Russell started living part of the time in Casino with his new partner, Olive. Also in 1995, Graham moved from the house at Spring Grove to a rental property at Babyl Creek and the deceased stayed with him on weekends there from this time until 1998 when he moved to live with her on the farm.
In around 1996, when she was 16, Julie left the farm and went to live first with a friend in Casino and then moved to Lismore where she lived for around two years before returning to live in a property at Babyl Creek which was close to the farm in 2002.
In 1998, Russell retired from the farm and moved to live in Casino permanently. That year, Graham then moved to live with the deceased on the farm and has lived there ever since. Graham's evidence was that from time to time Russell visited the farm to help out the deceased and Graham, but on the deceased's birthday in 2001 Russell handed the property over to the deceased. Russell died in 2009 and title formally may not have passed until then, but nothing turns on this. From 2001 the deceased and Graham ran the property themselves as a beef cattle operation and, from 2010 until the deceased's death, they conducted the business in partnership. It is clear that, by the time that Graham moved there in 1998 following Russell's retirement, Charlotte (who was then 15) and Carolyn (who was then 14) had ceased living on the farm.
In around 1998, when Charlotte was 15, she went to stay with her cousin, Linda Vidler who lived in Casino, and then with Russell at his house in Casino. In around 2002, when she was 19 years old, Charlotte moved to Queensland where she has lived ever since.
In around 1997, when she was 13, Carolyn went to live with Ruth, her great aunt, at her home in Casino. In around 1998, when she was 14, Carolyn lived for around 3 months with Julie in Lismore and then, when she was 15 or 16, she moved with her boyfriend to Mackay in Queensland. While she returned to the Casino area in 2007, she never again lived with the deceased.
There are aspects of the evidence of Charlotte and Carolyn regarding the role which the deceased played in their lives in the period that they lived at the farm which is disputed by the defendants' witnesses. However, the defendants do accept that the deceased, like her father and her aunt Ruth, did assist on some level with looking after the plaintiffs.
There is also some dispute as to the extent to which Charlotte and Carolyn remained in contact with the deceased after they moved away from the farm.
There is a suggestion in the evidence of Charlotte and Carolyn that the deceased and Graham were not in a loving relationship. Each put into evidence text messages which the deceased sent to each of them in 2012 and in 2019. Graham gave evidence in his first two affidavits about the context of these text messages, on which he was not cross-examined. I accept his explanation for the text messages and his evidence that he and the deceased were in a loving, committed and genuine relationship for over 30 years. Graham's evidence was corroborated by the evidence of Julie who lived close to the farm for many years from 2002 and had a close relationship with the deceased during the last 18 years of her life. It was also corroborated by the evidence of two close female friends of the deceased, who had known her for over 25 years (being the second defendant and Melissa Brown).
The deceased and Graham tried to have children, but were unable to do so. The deceased suffered from endometriosis which caused her a great deal of pain over the years and in around 2007 she had a full hysterectomy.
The deceased was diagnosed with breast cancer in 2018 and commenced chemotherapy treatment. The evidence is not precise as to how long the treatment lasted for, or the nature of her subsequent medical advice. However, it is apparent that she could not maintain the chemotherapy treatment because her body reacted badly to it and the treatment had ceased by early 2019. She died on 16 July 2020 at the age of 53 years.

[8]

Role of the deceased in bringing up Charlotte and Carolyn on the farm

Charlotte and Carolyn each gave evidence that during the period that they were growing up on the farm, the person who mainly cared for them and Julie was the deceased because Russell spent most of his time working on the farm. Julie's recollection was different in that she gave greater emphasis to the role played by Russell in the girls' day to day lives
Charlotte's evidence was that the deceased was the person who signed permission forms for school, attended parent/teacher nights, acted as the parent helper with school excursions and plays, picked her up if she became sick at school and needed to be taken home early, made school lunches, shopped with her for clothes, cooked her meals and washed her laundry, took her to various sporting activities including training, took her to medical appointments, and provided her with comfort when she was feeling sick or upset. Charlotte said that Russell did none of these things but on "very rare occasions" he did cook a meal at dinner time. She accepted in cross-examination that there were other people who provided support and care for her during her upbringing, including Russell, Ruth, Anthony and his wife Mrs Noble who lived nearby and her cousin, Linda Vidler and her husband who lived in Casino.
Carolyn's evidence regarding the role of the deceased was very similar to Charlotte's evidence referred to in the previous paragraph.
Julie, on the other hand, recalled that Russell played a rather more significant role in their early lives, including cooking meals, making school lunches, buying clothes for them from the "Op Shop" in Casino, driving them to and from school, attending sporting events and other important events at school, taking them to medical appointments and so on. She accepted that the deceased also played a role in some of these activities. She also gave emphasis to the role played by Ruth who stayed on a regular basis at the farm and assisting with such matters as school homework, teaching them how to cook, providing emotional support, giving them tuck-shop money when they needed it. Russell was the person who interacted with the school if any of the girls were "ever in trouble" and he was the one who disciplined them if they misbehaved as children.
It is not surprising that each of the girls has a slightly different recollection of the role played by the deceased in their early lives. Both Charlotte and Carolyn accepted in cross-examination that their recollections of the support they say they received from the deceased was impressionistic, given how young they were at the time. Ultimately, nothing turns on which recollection is correct because each is consistent with the conclusion that both the deceased and Russell along with other family members, played a role in the care provided for each of the girls while they were growing up on the farm and ultimately there was no dispute that during the time Charlotte and Carolyn were growing up on the farm they were partly dependent on the deceased and lived in the same household as her.
Each of Charlotte and Carolyn gave evidence that she regarded the deceased as being the mother figure in the home throughout their childhood on the farm. However, this evidence needs to be qualified because each of them accepted that their recollections were impressionistic and there was another important female figure in the household, Ruth. As noted above, Ruth stayed at the farm regularly, often for 3 or 4 nights at a time, a few times per month and would sleep in the same bed as Carolyn when she was a small child. Carolyn would often refer to Ruth as her "mum", including in Facebook posts.
Each of Charlotte, Carolyn and Julie gave evidence that the deceased received a regular but small allowance from Centrelink as a carer for the girls. It appears from the evidence that she received this allowance rather than Russell because of a concern that Russell would not qualify for it due to his ownership of the farm. This allowance was the deceased's only income because she was dependent on Russell for whom she worked on the farm throughout the period up to 1998 and he was the person who managed the finances of the family up to that time. It appears from all the evidence that this Centrelink allowance was paid by the deceased over to Russell to assist him with meeting the family's living expenses but ultimately nothing turns on this.

[9]

Charlotte's subsequent relationship with the deceased

Charlotte stated in her first affidavit that she maintained her relationship with the deceased after she moved to Queensland mainly through telephone and text messages, but in her third affidavit Charlotte said (in response to Graham's affidavit evidence that Charlotte telephoned the deceased only occasionally) that she spoke to the deceased only on very few occasions by telephone and mainly interacted by text or social media. She said in her affidavit that she would meet up with the deceased when she visited Casino roughly once every six months and continued to have a good mother/daughter relationship with her. However, when she visited Casino, she stayed with her cousin, Linda Vidler, and not with the deceased on the farm.
Charlotte did not receive any material financial assistance from the deceased after she left the farm.
In late 2018, Charlotte made a sexual harassment claim against her previous employer which led to her ceasing work in February 2019. The sexual harassment claim was settled in November 2020 and she received approximately $100,000 from which she paid her legal costs of $50,000. Her evidence was that this caused her considerable distress and trauma which led her to cease to bother to maintain any kind of contact with the deceased (or other members of the Noble family) during the period from late 2018 until the deceased death in July 2020.
Charlotte had an exchange of text messages with the deceased in March 2019 around the time she decided to stop her chemotherapy sessions. These texts discussed possible natural therapies for her cancer and do indicate that, at this time, Charlotte was being supportive of the deceased.
Charlotte gave evidence that she received a telephone call from Mrs Noble informing her the deceased had died, and that she attended the funeral. She acknowledged that she had received a text from the deceased's phone on around 14 July 2020 stating "stay away from me now and after" but stated that she did not believe that the deceased sent it. I deal with the provenance of this text below.

[10]

Carolyn's subsequent relationship with the deceased

When she was about 13 years of age, Carolyn started living partly with her aunt Ruth in Casino and partly on the farm. Her evidence in cross-examination was that she ceased living on the farm when she was 13 or 14 which I infer was in 1998 when Russell left the farm, and that when she was around 15, she met an older man with whom she commenced a relationship. She became pregnant and in January 2001, when she was around 16 she and her partner moved to Mackay in Queensland. She remained there until 2007 when she moved back to Leeville in the Casino area and lived for a period with Ruth in her home. She did not return to live on the farm with the deceased at any time after she moved to Queensland in 2001.
She accepted she did not receive any material financial assistance from the deceased after she moved to Queensland in 2001. She may have received on occasion some small assistance with purchasing groceries, but she accepted in cross-examination that it was not material. However, she did receive significant financial support from Ruth (around $80,000), although her evidence was that she repaid all these amounts to Ruth before her death.
Carolyn gave evidence in her affidavit that she kept in contact with the deceased after she moved to Queensland in 2001, including by telephone, letter and occasional visits (between 2 to 4 per year) until she returned to live in Casino in 2007. Following her return to Casino in 2007, the deceased often looked after her children, to whom she was close, particularly when they visited the farm. The deceased acted as Carolyn's support person when she had her last child in 2015, and was with her at the time of birth. She also gave evidence that she saw the deceased for Christmas and Easter celebrations each year from the time she lived in Leeville from 2007 and also in Ballina from 2013. When the deceased was diagnosed with cancer in 2018, Carolyn stated in her first affidavit she took her to all her medical appointments apart from the chemotherapy treatments, but this was contradicted by Graham and I accept Graham's version as more reliable.
In mid-2019, Carolyn went to Ireland for a holiday with her then husband and her evidence was that she spoke to the deceased every day but noticed on her return to Casino after the holiday that there was a change in her relationship with the deceased which appears to have been caused by the dispute concerning the administration of Ruth's estate. Despite this it appears that the deceased did travel to the Gold Coast Hospital in January 2020 to see Carolyn's son, Trevor, who was receiving treatment for a serious car accident. Carolyn's evidence was that after this visit, she did speak to the deceased on a few occasions in the period up to her death but accepted that her relationship with the deceased was fractious at times, in particular from 2019 until the deceased's death.
Carolyn received a text message from the deceased's phone which told her that the deceased did not want her at her funeral and for that reason did not attend it.

[11]

Dispute regarding Ruth's estate

Ruth died on 20 July 2014. Under her will, she left a property at Babyl Creek to the deceased and Julie in equal shares, another property at Babyl Creek (referred to as the "back block") to Julie, Carolyn and Charlotte as tenants in common in equal shares, and her home in Casino to Carolyn. The executors of the will were the deceased and Julie to whom probate was granted on 19 January 2015. It is clear from the evidence that Charlotte and Carolyn refused to take a transfer of their respective interests in these properties. In particular, the executors' solicitors sent letters to them on 20 December 2019, 21 January 2020 and 14 May 2020 requesting that they sign the relevant documents to which no response was ever received (Ex 6).
The evidence indicates that there were three areas of dispute regarding the administration of Ruth's estate. The first was that the executors were required to transfer Ruth's house in Casino to Carolyn. However, she refused to sign the documentation necessary for this to take place until 9 October 2020 (ie. three months after the deceased's death). Her evidence was that the delay was caused because the Casino house had been damaged by a fire and some vandalism after Ruth's death. It appears that Carolyn wanted the executors to pay the costs of repairs to the property and they declined to so. However, there are text messages in evidence from Carolyn to the deceased where Carolyn asks for the property to be transferred to her son, Riley, and her interest in the "back block" to "Trev" who I assume is another of her sons, Trevor. This is consistent with Julie's evidence and a number of letters and emails in evidence, indicating that Carolyn refused to co-operate with the executors' attempts to distribute the Casino house to her as the named beneficiary in the will.
Carolyn's position on this issue was never properly explained either in correspondence with the executors or in her evidence. The executors had a duty to distribute the Casino house to Carolyn promptly after paying the expenses and liabilities of the testator (Ruth): GE Dal Pont, Law of Succession (3rd Ed, 2021) at [12.1]. There is no suggestion that there were any expenses or liabilities of the testator to hold up the transfer. Accordingly, Carolyn and Charlotte should have been encouraging the executors (the deceased and Julie) to distribute the two properties in accordance with the will, rather than the reverse.
The second area of dispute was that up to the deceased's death, Charlotte and Carolyn refused to take a transfer of their entitlement to one-third each of the back block (Ex 6). After the deceased's death Julie offered to buy out Charlotte and Carolyn, but this did not proceed because she separated from her husband and did not have the financial resources to make the purchase. Ultimately, the property was sold to a third party at a public auction and the proceeds were deposited into the trust account of the executors' solicitors ($137,842.43 each) and those proceeds had still not been distributed to Charlotte and Carolyn at the time of the hearing due to their failure to co-operate with the executors' solicitors (Ex 6). There is a suggestion in an email dated 26 August 2021 sent by solicitors acting for Charlotte and Carolyn at that time that they objected to the distribution of the funds because they disputed the price for which the property was sold. However, it is unclear what the dispute could be as the sale was at a public auction. In any event, Charlotte and Carolyn's delay in resolving this issue before the deceased's death by signing the documents necessary to transfer title to the property into their name is unexplained.
A third area of dispute was that Charlotte and Carolyn believed that Ruth had made a loan to the deceased to allow her to purchase a tractor for the farm, costing $50,000, and asserted that the deceased needed to repay that to the Estate. There is a text message from Charlotte to Julie which confirms that this was raised as an issue. Graham denies that this is so and gave evidence that he and the deceased funded the purchase from their own funds. I accept Graham's evidence.
Charlotte accepted in cross-examination that she made a number of complaints to Julie and the deceased regarding the handling of the estate's administration. Charlotte indicated in cross-examination that she had particularised the complaints in correspondence to the executors' solicitors, but no correspondence to that effect was produced, either in her affidavits or when called upon in cross-examination. She accepted in cross-examination that the complaints that she made caused a serious rift between her and the deceased towards the end of her life. The rift became so significant that the deceased did not wish Charlotte or Carolyn to attend her funeral. That the rift involved unpleasant and upsetting conversations between each of Charlotte and Carolyn on the one hand and the deceased on the other is confirmed by the evidence of Julie and Graham, which in turn is corroborated by Melissa Brown and the defendants.
Based on the evidence on this application, I conclude that each of Charlotte and Carolyn caused unnecessary distress to the deceased over her role as executor of Ruth's estate during the final years of her life when she was suffering from cancer. This is difficult to reconcile with the assertions in their evidence that they each regarded the deceased as a "mother figure'.

[13]

Charlotte's financial position and needs

Charlotte was born on 28 January 1983. At the time of the hearing, Charlotte was 39 years old and did not have any children. She is married to Brian Horrex and they have been together for about four years. He has a 17 year old son from a previous relationship who lives with his mother. Charlotte and Mr Horrex live in a house in Toowoomba which is owned by Mr Horrex. Charlotte sets out in her first affidavit made on 19 August 2021 her assets and liabilities. Her assets at that time were superannuation ($101,677.60); Samsung phone ($300); NAB Savings Account ($50); St George Savings Account ($21,140) (jointly with Mr Horrex); and the benefit of a gift under Ruth's will ($137,842.43). Her liabilities at that time were fees for Certificate III and IV in fitness ($6,000).
Mr Horrex included in his affidavit made on 5 November 2021 a statement of his assets and liabilities. His assets at that time were a house ($260,000); superannuation ($231,636.53); St George Savings Account ($21,140) and a Land Cruiser GXL ($110,000), having a total estimated value of $605,116.53. His liabilities at that time were stated to be Mortgage - Home Loan ($232,000); Credit Card ($15,000); HUMM Credit Card ($9,000); and Land Cruiser GXL ($110,000), being a total of $366,000.
Charlotte and Mr Horrex did not provide any updating affidavit to show their financial position as at the date of the hearing.
Charlotte stated in her first affidavit made on 19 August 2021 that after she stopped working in February 2019, she had commenced a course to qualify her to be a personal trainer. She also stated that she was receiving $1,951 per month from Workcover as a result of her sexual harassment claim. She did not update this evidence prior to the hearing. It became apparent from Mr Horrex's evidence that at the time of the hearing he worked for a company carrying on a trucking business of which his father was managing director and Charlotte was doing "some training" in that business but there was no updating evidence as to her income from this work, nor was their updating evidence of his salary from this company. Despite a call being made for his contract of employment, nothing was produced.
Charlotte gave evidence as to her needs in her first affidavit made on 19 August 2021, but not updated for the hearing as follows: 1. to purchase a property for accommodation of my own so that my future is secure in the event that something happens to my relationship with Brian; 2. a need for a lump to provide for the possibility of future psychological treatment expenses that I might have to fund myself; 3. a need for a sum of money to cover the start-up expenses for my planned personal training business and to cover some living expenses for me whilst I am establishing this business in the amount of $300,000 - $350,000; 4. a need for a lump sum to cover the unforeseen vicissitudes of life.
Charlotte accepted in cross-examination that the first time that she had disclosed the address of the property owned by her husband was when giving her evidence at the hearing. This was despite requests previously made for the address by the defendants, including by a Notice to Produce. She also accepted, correctly, that this meant that the defendants had been given no opportunity to evaluate the assertion in her affidavit that the house owned by her husband was worth $260,000.

[17]

Statutory Scheme

Chapter 3 of the Act governs the making of a "family provision order" being an order made by the Court "in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of life of an eligible person" (s 3(1)).
Persons eligible to apply for family provision orders are set out in s 57(1) of the Act, which provides as follows: 57 Eligible persons (1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person - (a) a person who was the spouse of the deceased person at the time of the deceased person's death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death, (c) a child of the deceased person, (d) a former spouse of the deceased person, (e) a person - (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.
Charlotte and Carolyn rely on s 57(1)(e) in this application.
The power to make a family provision order is contained s 59 of the Act, which provides relevantly as follows: 59 When family provision order may be made (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that - (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. …
Section 60(2) sets out the matters which may be considered by the Court for the purpose of determining whether the applicant for the order is an eligible person and also whether to make the order and the nature of any such order. Section 60 is in the following terms: 60 Matters to be considered by Court (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining - (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court - (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
The power conferred on the Court by s 59 to make a family provision order is subject to the pre-conditions stated in paras (a), (b) and (c) of s 59(1), which are that the Court is satisfied that first, the applicant is an eligible person; second, if the applicant is an eligible person by reason of paras (d), (e) or (f) of s 57(1) that, having regard to all the circumstances of the case (present or future), there are factors which warrant the making of the application; and third, that when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased. Each of these questions is referred to as "jurisdictional" in nature.
The first two questions relate to the eligibility of the applicant.
A niece of a deceased will be eligible to make a family provision claim if the niece was, at any particular time, wholly or partly dependent on the deceased and was, at that particular time or at any other time, a member of the household of which the deceased was a member: s 57(1)(e).
The word "dependent" has its ordinary meaning being "the condition of depending on something or on someone for what is needed", so that the question is whether the applicant had, at the relevant time, reliance on another to fulfil a need: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [78]. It was ultimately conceded by the defendants that both Charlotte and Carolyn satisfied s 57(1)(e) on the basis that each was partly dependent on the deceased when they lived on the farm as children and were members of the same household as the deceased at that time.
If s 57(1)(e) is satisfied, then it becomes necessary to determine if there are factors warranting the making of the application within the meaning of s 59(1)(b). In Re Fulop Deceased (1987) 8 NSWLR 679 at 681, McLelland J (as his Honour then was) said that these "factors" are "factors which when added to facts which render the applicant an 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased".
In Lodin v Lodin [2017] NSWCA 327 Sackville AJA (with whom Basten and White JJA agreed) said at [114]: Consistently with the analysis in Re Fulop, the starting point for applying of s 59(1)(b) of the Succession Act is that an eligible person such as a former spouse or grandchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased. In order to satisfy s 59(1)(b) an applicant must therefore establish that there are circumstances that justify regarding him or her as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of a familial (or, in the case of a former spouse, a previous familial) relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant.
While his Honour refers in this passage to a former spouse or grandchild (who are also covered by s 57(1)(e)), it is clear that his observations are equally applicable to a niece or nephew. Their correctness has been confirmed in subsequent decisions: see e.g. Spata v Tumino at [97].
Where the requirements of s 59(1)(a) and (b) are met, it then becomes necessary to determine whether the provision made for the applicant in the will of the deceased is adequate for the proper maintenance, education or advancement in life of the applicant. It is clear from the structure of s 59(1) that the mere fact that there are factors warranting the application does not mean that the Court should necessarily find that a family provision order should be made in the applicant's favour: Lodin at [106(ii)] and [113].
Section 60(2) sets out matters to which the Court may have regard for the purposes of determining the question posed by s 59(1)(c) (as well as in deciding the nature of any order for provision to be made in accordance with s 59(2)). This is an evaluative judgment, taking into account the matters set out in s 60(2). In relation to these matters, Hallen J said in Mallitt v Gow [2022] NSWSC 1012: [220] It can be seen that s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order. [221] In Chapple v Wilcox (2014) 87 NSWLR 646 at 649; [2014] NSWCA 392 at [7], Basten JA wrote (Gleeson JA agreeing): Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b). [222] The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. [223] The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. [224] A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub‐section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
There has been some debate in the Court of Appeal as to whether the two-stage analysis applicable to claims for family provision orders under the Family Provision Act 1982 (NSW) also applies to claims for family provision orders under Chapter 3 of the Act: see Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [26] - [41] per Basten JA and [94] - [103] per Barrett JA; Singh v Singh [2018] NSWCA 30; 17 ASTLR 317 at [279] - [281]; Bassett v Bassett [2021] NSWCA 320 at [84] - [85]. However, it is not necessary to explore this issue in the present case. First, as recognised in Sgro v Thompson [2017] NSWCA 326 at [69], the question should have no real significance provided that the nature of the first stage of the enquiry is not misunderstood, which is that s 59(1)(c) requires an evaluative assessment of whether the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life, taking into account all relevant matters and not just the applicant's financial needs.
Second, whether the analysis is described as a "two-stage process" or something else, the terms of s 59 are clear in requiring that the Court must address first the question posed by s 59(1)(c) which is whether it is satisfied that adequate provision is made for the proper maintenance, education or advancement in life of the applicant by the will of the deceased. If the Court is so satisfied, the Court is given power under s 59(2) to make such order for provision out of the deceased's estate as it thinks ought to be made. I note that Basten JA accepted that this is what s 59 requires in Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [112]. In addressing each of these questions regard may be had to the matters listed in s 60(2).
Third, it was not suggested by any of the parties that it was inappropriate for the Court, as the statute requires, to focus first on the question posed by s 59(1)(c) which is whether "adequate" provision for the "proper" maintenance, education or advancement in life of each plaintiff has not been made before proceeding (if adequate provision was not made) to determine what, if any, order ought to be made.
In Spata v Tumino, Payne JA said the following regarding the terms "adequate" and "proper": [112] In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that: [T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards. [113] What is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. The Court's assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application. This does not, however, mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate. [114] In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [12] Allsop P stated: Accepted and acceptable social and community values permeate or underpin many, if not most, of the individual factors in s 60(2) and are embedded in the words of s 59, in particular 'proper' and 'ought'. That such values may be contestable from time to time in the assessment of an individual circumstance, or that they may change over time as society changes and grows can be readily accepted. [115] Allsop P acknowledged that orders made by reference to "perceived prevailing community standards of what is right and appropriate" referred to an imprecise, variable and contestable standard. See also White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [125] - [127].

[19]

Are there factors warranting the application

For the plaintiffs it was submitted that Charlotte and Carolyn were properly regarded as natural objects of testamentary recognition by the deceased relying on three matters. First, it was submitted that both Charlotte and Carolyn had a substantial relationship with the deceased after they ceased living on the farm, keeping in touch on a regular basis. Their situation was analogous to any child who leaves home but stays in touch with his or her parents. Charlotte kept in touch with the deceased while she was suffering from cancer, texting her about natural medicines and the deceased was supportive of Charlotte during her sexual harassment matter. In the case of Carolyn, whilst the relationship was bumpy at times, it was a fairly substantial relationship none the less, as indicated by Carolyn offering to be the surrogate mother for the deceased and the deceased being present at the birth of Carolyn's last child in 2015. The rift that developed regarding the administration of Ruth's estate does not detract from the fact that each plaintiff had a substantial and long standing relationship with the deceased during their adult life.
Second, it was submitted that the size of the estate, coupled with the deceased's past relationship with Charlotte and Carolyn, meant that they should have been the natural object of the deceased's testamentary disposition. It was submitted that this could be done by Graham raising a mortgage of $250,000 on the security of the farm, Julie raising a mortgage of $200,000 based on her equity in the Casino home and the Babyl Creek block. This would allow them to raise $450,000 of which $300,000 (inclusive of costs) would go to Charlotte and $150,000 (inclusive of costs) would go to Carolyn. I note that the evidence does not establish that either Graham or Julie could raise or service borrowings of this kind.
Third, it was submitted that the fact that the deceased recognised Julie in the will was an indication that each of Charlotte and Carolyn, who are Julie's half-sisters, were also natural objects of testamentary disposition.
For the defendants it was submitted that there were no factors warranting the making of either plaintiff's application because neither should be seen as natural objects of testamentary recognition for the following reasons: 1. Neither plaintiff was made an object of bounty under any will of the deceased, even a substitutionary beneficiary under the deceased's will. 2. The plaintiffs never lived with the deceased just on their own, either as children or adults. After Russell moved off the farm and passed the property to the deceased, neither plaintiff lived with the deceased at the farm. As adults, the plaintiffs lived most of their life well away from the deceased. Even in periods of personal turmoil, when at times they returned to live in the local area, neither plaintiff turned to the deceased for refuge or asked her for support or a place to live. 3. The plaintiffs were never materially financially dependent upon the deceased, either as children or adults - such money as the deceased obtained from Centrelink during the period when they were all living on the farm was passed directly on to her father to assist him with meeting the family's expenses, which now included three small children. 4. The deceased never independently provided material financial assistance to the plaintiffs. She did not have the money to give. Such things as the giving of "tuck shop money" do not add up to material financial dependency. Any extra financial help the plaintiffs received came from elsewhere - namely their grandfather or their great aunt Ruth. 5. Neither plaintiff contributed in any material way to the welfare of the deceased or the building up of her estate. 6. There is no evidence that the deceased had ever identified herself as the plaintiffs' mother or as fulfilling that role in their lives. 7. The deceased never encouraged in the plaintiffs a belief or expectation that she would make them beneficiaries of her eventual estate. 8. For many years prior to the deceased's death, the plaintiffs had fallen out with the deceased and had greatly upset her to the point where the deceased did not want them to attend her funeral.
In my opinion, the evidence supports each of the matters advanced for the defendants as set out in the previous paragraph.
Further, in my opinion, none of the matters relied on by the plaintiffs supports the conclusion that there are factors warranting their application. In relation to the first (substantial relationship), the evidence does not, in my opinion, elevate their relationship beyond that of an aunt/niece relationship into one which placed on the deceased a social, domestic or moral obligation to provide for them, either in life or in death.
The deceased and Russell were thrust by Sharon's death into the role of caring for the plaintiffs. The deceased undertook this role at the relatively young age of 21 and she brought them up to the best of her ability, in conjunction with Russell and other members of the Noble family, until they left the farm as teenagers. In my view, in doing so she did more for the plaintiffs than the community generally expects of an aunt in her position. This did not impose on her a moral obligation to provide for them after they left the farm, in particular after her death, and nothing in their subsequent relationship can be said to have imposed on her such a moral obligation. I regard it as particularly significant that in her time of greatest need, the plaintiffs were at best absent, and at worst disruptive and uncaring of her needs and predicament.
As to the second (size of the estate), I do not regard this as relevant given that it was comprised of essentially two assets, and each of these were transferred to the persons to whom the deceased recognised she had a significant moral obligation.
As to the third (Julie is also a niece), I regard the fact that the deceased made provision for Julie in her will as telling, as it indicates that she recognised that in Julie's case there were matters going beyond the aunt/niece relationship which made Julie a natural object of testamentary disposition. I infer that the deceased recognised that the loving and supportive relationship which she had with Julie over many years prior to her death, and the fact that Julie suffers from a physical disability with which she has been burdened for almost her entire life, made her a natural object of her testamentary recognition.
For these reasons, I conclude that s 59(1)(b) is not satisfied.

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