Oates v Oates

Decision date: 29 May 2025

Jurisdiction: Equity - Family Provision List

Before: Brereton J

Decision: See [137]-[140]

Catchwords: SUCCESSION – where the plaintiff is the adult child of the deceased – where the defendant is the widow of the deceased – where the plaintiff is not the issue of the defendant – where the plaintiff seeks a family provision order for his maintenance, education or advancement in life – where the deceased died intestate – where the estate of the deceased is nominal – whether to designate property as notional estate of the deceased to satisfy family provision and costs orders – where the plaintiff is entitled to a family provision order – where notional estate orders are granted.

Legislation Cited: Succession Act 2006 (NSW)

Cases Cited: Baker v Baker [2024] NSWSC 559
Benz v Armstrong; Benz v Armstrong; Benz v Armstrong [2022] NSWSC 534
Clarke v Clarke [2022] NSWSC 1721
Dmitrovic v Kleut [2024] NSWSC 1541
Gargano v Coves [2018] NSWSC 985
Graham v Vukic [2020] NSWSC 1801
Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359
Hancock, Shaun v Parker; Hancock, Lisa v Parker [2017] NSWSC 759
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Portis v Green [2017] NSWSC 1489
Sarant v Sarant [2020] NSWSC 1686
Steinmetz v Shannon (2019) 99 NSWLR 687;
[2019] NSWCA 114
Stone v Stone [2019] NSWSC 233
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Weyman v Erdi (Supreme Court (NSW), Bryson J, 3 August 1993, unrep)
Xiang bht Cao v Tong [2021] NSWSC 44

Texts Cited: N.A.

Category: Principal judgment

Parties: A T Oates (plaintiff)
J M Oates (defendant)

Representation: Counsel:
A F Stevens (plaintiff)
R Bianchi (defendant)
Solicitors:
Aubrey Brown Lawyers (plaintiff)
Ryan & Ryan Lawyers (defendant)

File Number(s): 2023/285256

Publication restriction: N.A.

JUDGMENT

Introduction

1. These proceedings concern a claim by the plaintiff, Mr Aaron Oates, for provision for his maintenance, education and advancement in life out of a notional estate of his father, Mr Steven Oates, who died intestate on 3 October 2022. The defendant is Mrs Jan Oates, who was Steven’s wife and Aaron’s stepmother. [1]

2. Steven’s actual estate is nominal. At the date of the hearing, the gross distributable estate was $3,443.62. There are two relevant assets that are the subject of an application for designation as notional estate. The first is Steven’s interest as a joint tenant of a property located in Bateau Bay, on the central coast of New South Wales. That interest passed to Jan on his death by the right of survivorship. The property is worth about $1.1m and Jan continues to reside there. The second asset that is the subject of the application is a superannuation death benefit that was paid on Steven’s death, which was $293,345 in total and has been distributed by the trustee of the fund to Jan as to 90% and Aaron as to 10%. Aaron challenged that decision but was unsuccessful.

3. By way of summary, I have concluded that a family provision order should be made for Aaron and there should be notional estate orders to enable that to occur. Aaron should receive $120,000 but, at Jan’s option, that should be paid from the proceeds of the sale of the Bateau Bay property (based on a percentage of the sale proceeds), with such sale to occur when Jan chooses or upon her death. There will also need to be notional estate orders to deal with costs.

The legislative context

4. As the son of the deceased, Aaron is an eligible person who may apply for family provision in respect of Steven’s estate: Succession Act 2006 (NSW), s 57(1)(c). The application was brought within the time permitted by s 58.

5. Administration of the estate of Steven has not been granted. An application for a family provision order may be made even though administration of the estate has not been granted: s 58(1).

6. The Court may make a family provision order in favour of Aaron in relation to Steven’s estate if satisfied that, at the time when the Court is considering the application, adequate provision for Aaron’s proper maintenance, education or advancement in life has not been made by the operation of the intestacy rules in relation to Steven’s estate: s 59(1)(c). The Court may make such order for provision out of Steven’s estate as the Court thinks ought to be made for the maintenance, education or advancement in life of Aaron, having regard to the facts known to the Court at the time the order is made: s 59(2).

7. Section 60 of the Succession Act identifies matters that “may” be considered by the Court for the purposes of determining whether to make a family provision order and the nature of any such order. Those matters are as follows:

(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.

8. While Steven’s actual estate is nominal, in determining whether to make a family provision order and the nature of any such order, the Court may take into account any property that could be designated as Steven’s notional estate: s 60(2)(c). A family provision order can be made in relation to property that is not part of Steven’s estate if it is designated as notional estate of the deceased: s 63(5). Aaron seeks notional estate orders, to the extent necessary, in respect of the Bateau Bay property and the superannuation benefits.

9. Notional estate orders are governed by Part 3.3 of the Succession Act. Section 80(1) provides:

The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies.

10. The expression “relevant property transaction” is defined in s 74 as “a transaction or circumstance affecting property and described in s 75 or 76”. Jan accepts that Steven’s failure to sever the joint tenancy in respect of the Bateau Bay property is a relevant property transaction within the meaning of s 75. This transaction is taken to have been entered into immediately before, and takes effect, on Steven’s death: s 77(3). Jan also accepts that Steven’s failure to make a nomination to direct his superannuation benefit to be paid to his legal personal representative is a relevant property transaction within the meaning of s 75. That transaction is deemed to take effect on Steven’s death.

The relevant questions

11. In this case, I need to address two interrelated questions. They are: (1) whether either or both the Bateau Bay property and the superannuation benefits (or some part of those assets) should be designated as notional estate of Steven, and (2) whether to make a family provision order in respect of that notional estate and the nature of any such order. They are interrelated because the question of whether to designate property as notional estate depends on whether a family provision order should be made and the question of whether a family provision order should be made depends on whether there is property that is or could be designated as notional estate.

12. I propose to address the interrelated questions at the same time, but keep in mind that each needs to be addressed and there are separate considerations that arise in respect of the questions. I set out below my evaluation of whether there is adequate provision for the proper maintenance, education or advancement in life of Aaron. I recognise that the words “adequate” and “proper” are relative and that there are no fixed standards: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74]. I must make an evaluative judgment having regard to all relevant circumstances.

13. In the following paragraphs I address the various matters that I consider to be relevant to the question of whether there should be a family provision order. I also address various matters that arose on the evidence and were the subject of submissions, but which I consider to be of little or no relevance.

The property that may form Steven’s notional estate

14. An appropriate starting point is the property that may form Steven’s notional estate. The nature and extent of this prospective notional estate is fundamental to my consideration about whether to make a family provision order as well as the nature of any such order. It also exposes some important matters of family history.

15. Steven’s first wife was Mrs Ruth Oates. Steven and Ruth lived in rented accommodation until 2004, when they purchased a property in Wyoming, on the central coast, for $260,000. Part of the purchase price came from an inheritance that Ruth received from her uncle. Ruth died in July 2016, aged 54. Her death was caused by complications associated with Von Hippel-Lindau Syndrome, which is a syndrome that also afflicts Aaron.

16. Steven and Jan met in early 2018 and started dating towards the end of that year. They were married in November 2019. When they met, Jan owned a property at Umina Beach. She had owned the property and lived there from about 2009. The property was sold in about August 2019 for about $557,000, which, after repaying debt, yielded a balance for Jan of around $140,000. Jan then moved into the Wyoming property with Steven.

17. In early 2020, Jan contributed around $17,000 to repay the mortgage over the Wyoming property owned by Steven (following Ruth’s death). The property was sold in about March 2020 for $615,000.

18. Steven and Jan purchased the Bateau Bay property in May 2020 for $775,000. The purchase price was funded from some of the proceeds of the sale of the Wyoming property together with a loan of $298,000, which was secured by a mortgage. That mortgage was later discharged, in part using inheritances of a approximately $900,000 that Jan received in late 2020. The decision to purchase the Bateau Bay property as joint tenants was deliberate. It was made after Jan and Steven obtained legal advice about the difference between owning as tenants in common and owning as joint tenants. Jan’s evidence, which I accept, was that she and Steven decided to pool their resources as that would allow them to live more comfortably. Her evidence was that the reason they chose to purchase as joint tenants was so that “if either of us passed away the one living could continue to have a comfortable house”.

19. It was submitted for Aaron that Jan did not contribute to the purchase price of the Bateau Bay property and that Steven contributed more financially to the property than did Jan, “yet it was held as joint tenants”. That is not a complete statement about their contributions.

20. Jan contributed to the purchase price because some $298,000 was from money that she and Steven had borrowed, but was wholly or largely repaid using money that Jan inherited. Jan also made some financial contribution to paying out the mortgage over the Wyoming property. More generally, Steven and Jan combined their financial resources which were used by them for their living expenses. Neither Jan nor Steven made material financial contributions from wages because they both lost their jobs during the COVID pandemic. They had both worked in the health system but could not keep that work because they were not vaccinated.

21. There is evidence (addressed further below) that sometime before Steven’s death, Jan contributed (on advice) $135,000 to Steven’s superannuation account, which was added to the $153,000 that was rolled-over from Steven’s previous account. That is, at that time Jan had contributed about 45% of the total amount in Steven’s superannuation account.

22. Looking at relative contributions at a very general level, and putting aside superannuation, to which I will come, Jan’s contribution to the general pool (used for living expenses and acquisition of property) was around $900,000 (reflecting inheritances and the net proceeds of the sale of the Umina property and less the money paid into Steven’s superannuation account) and Steven’s contribution was around $600,000 (reflecting the proceeds of sale from the Wyoming property). That is, Jan’s overall financial contribution to the general pool was roughly 60%. In circumstances where there was a general combining of resources, it is not of much utility to seek to undertake some kind of tracing exercise of the money used to acquire the Bateau Bay property. If it were true that more of Steven’s assets were used to acquire the property, Steven and Jan could only afford to remain there because her assets were used to fund living expenses.

23. Jan has estimated the current market value of the property to be between $950,000 and $1,110,000 based on her own internet searches. There is a recent external appraisal indicating that the property could achieve a sale price of in the vicinity of $1,150,000. Counsel for Aaron made submissions based on a value of $1,100,000. I propose to use this figure as the best current estimate of value. Jan’s 60% contribution to the general pool (putting aside superannuation) equates to approximately $660,000 while Steven’s was $440,000.

24. As I have noted, Jan accepts that Steven’s failure to sever the joint tenancy in respect of the Bateau Bay property is a “relevant property transaction” within the meaning of s 75 of the Succession Act. If Steven had severed the joint tenancy, he and Jan would have each owned the property as tenants in common, each with a 50% interest. Steven’s 50% interest as a tenant in common would have formed part of his estate. As at March 2025, that half interest was worth in the vicinity of $550,000.

25. Steven’s superannuation account held $293,345 available for distribution after his death. For the reasons given above, about 45% of that balance can be attributed to Jan’s contribution. That amount is approximately $132,000. Steven’s 55% contribution is approximately $160,000.

26. Jan also accepts that Steven’s failure to make a nomination to direct his superannuation benefit to be paid to his legal personal representative is a “relevant property transaction” within the of the Succession Act, citing Benz v Armstrong [2022] NSWSC 534 at [173]. If he had made such a nomination, the $293,345 superannuation benefit would have formed part of Steve’s estate.

27. Had the two relevant property transactions been effected, Steven’s estate (comprising his half interest in the Bateau Bay property and the superannuation benefit) would have been worth around $843,000. This figure is approximate, including because it takes the value of the Bateau Bay property as at March 2025. This is the size of the potential notional estate.

28. If Steven had undertaken the two transactions and died intestate, Jan would have received Steven’s personal effects, the statutory legacy and half of any remainder: s 113 of the Succession Act. Aaron would have been entitled to the other half: s 127. On my calculation, the statutory legacy would have been in the order of $536,277 (being $350,000 x 128.4/83.8): s 106. In round numbers, it follows that if Steven had undertaken the two transactions and died intestate, Jan would have been entitled to $690,000 and Aaron to $153,000.

29. The figure of $843,000 includes amounts that should be seen as having been contributed by Jan, because her contribution to the Bateau Bay property should be seen as greater than 50% and she paid money into Steven’s superannuation account. I calculate the value of her contribution as follows:

30. The figure of $550,000, on account of a 50% interest in the Bateau Bay property, should be adjusted to $440,000 to reflect Steven’s notional 40% contribution to the purchase price; and

31. The $293,000 in superannuation should be adjusted to $160,000 to reflect Steven’s 55% contribution to the fund.

Together, the adjusted amount reflecting Steven’s contribution to his prospective notional estate is $600,000.

Aaron’s relationship with Steven

30. In considering whether to make a family provision order and the nature of it, the relationship between Aaron and Steven is an important consideration. In considering that relationship, and otherwise, I can take into account Aaron’s character and conduct, as well as that of other persons.

31. Aaron is 37 years of age and is Steven’s only child.

32. In submissions for Aaron, it was put, and I accept, that the relationship between Steven and Aaron “was a close one, but had its ups and downs”. Aaron’s evidence was that he had a “great relationship” throughout his childhood and adult life with both his parents and that he was always “incredibly close” to his father. His evidence was that after Steven married Jan in late 2019, Steven became less willing to share things with Aaron. Jan’s evidence was that Steven “was always very close to Aaron”, but that from 2019 she noticed escalating difficulties underlying the relationship between them. I accept all this evidence.

33. Aaron’s evidence was that the downturn in his relationship with Steven intensified during the COVID pandemic. His evidence was that Jan had strong anti-mandate and anti-vaccination points of view, which Steven went along with to placate her. Jan’s evidence was that the downturn was caused by Aaron’s refusal to stand up to his wife Ashlea when, to Jan’s perception, Ashlea mistreated Steven or spoke poorly to Aaron in front of Steven. Her evidence was that tension was also caused by Ashlea’s father, Mr Larry Spring.

Specific events explored in the evidence

34. There was quite a lot of evidence in this case about a series of specific events concerning the relationship between Aaron and Steven. I can deal with them relatively briefly. Some of these matters were explored in the evidence at a level of detail that was beyond what is required for me to determine this case, and perhaps reflected the strong and bitter feelings that are now held by the parties and their families: see Hampson v Hampson [2010] NSWCA 359 at [80].

The 2011 text messages

35. In March 2011, when Ashlea was 23 years old and in the context of a temporary break up with Aaron (before they were married), Ashlea sent some extremely hurtful text messages to Aaron. Those messages came to be emailed (not by Ashlea) to Steven and Ruth. Aaron’s evidence was that he, his parents, and Ashlea had put those events behind them. Jan’s evidence was that Steven told her that he and Ruth had never gotten over them. I do not consider that rash and hurtful comments made by a 23 year old ex-girlfriend during the course of a relationship breakdown more than 10 years before Steven’s death bears upon the question of whether a family provision order should be made in favour of Aaron. At most, the texts provide some distant historical context concerning the relationship between Steven and Ashlea, which had some impact on Steven’s relationship with Aaron.

Christmas Day 2021

36. There was some focus on the events of Christmas Day in 2021. There is some dispute in the evidence over aspects of what occurred. I do not think that any of the matters of detail where there is dispute are of any significance. It seems clear that on that day there was to be a lunch at the Bateau Bay property, attended by Jan’s family. The plan was for Aaron, Ashlea and their sons to join them after lunch. However, they arrived before lunch. It seems that they were made to feel unwelcome, and so they left. There is some dispute about whether the decision to leave was Ashlea’s or a joint decision of Aaron and Ashlea. There is also a dispute about whether Ashlea called Steven a liar. These disputes concern factual matters that I do not need to resolve because they do not bear upon Aaron’s claim for a family provision order. It is clear that Aaron and his family left. At one point during the afternoon Jan sent a text to Aaron and Ashlea asking them to return, but they declined to do so.

37. According to Jan, following Christmas Day 2021, there was a period of estrangement between Steven and herself on the one hand and Aaron and Ashlea on the other. Her evidence was that, to her perception, this distressed Steven very much. Her evidence was that Aaron and Steven did not resume communications until June 2022. Aaron’s evidence was that his interactions with his father did not cease for six months following Christmas Day 2021. His evidence was that Steven and he frequently met each other in public spaces, where he and his sons would spend time with Steven, and that Steven extended invitations to Aaron and his sons to visit him at his home during times when Jan was absent. Aaron’s evidence was that his interactions with Steven continued discretely, without Jan’s knowledge, due to the tension between Jan and his own family (including Ashlea and her family).

38. It was put to Aaron during the course of cross-examination that he had no contact with his father for a period of six months following Christmas Day in 2021. He rejected the suggestion. I accept his evidence. This does not require me to reject Jan’s evidence. I accept that Steven met with Aaron and his sons over that six month period without her knowledge. No doubt Steven was distressed by the character of the relationship with Aaron and his family during that period.

39. I have concluded that Steven sometimes adopted the (very human) strategy of keeping matters from Jan when he thought they would upset her, and also was sometimes reserved in what he said to Aaron when he thought the matters may cause upset. For those reasons, I do not consider that either Jan or Aaron (or anyone else) can provide a complete or reliable account of Steven’s thoughts and feelings.

Father’s Day 2022

40. It was submitted for Jan that the deterioration of the relationship between Aaron and Steven was exacerbated by Aaron choosing to spend Father’s Day, on 4 September 2022, with his father-in-law, rather than with Steven. Jan’s evidence was that it was her perception that this hurt Steven and reinforced the previous fractures in the relationship. Her evidence was that she perceived that Steven was especially upset because Larry had been “incredibly rude” to Steven in the years prior. The evidence that Aaron did not see his father on Father’s Day was supported from evidence from Mr George Cosentino, who was a long-term friend of Steven who lived in Western Australia. His evidence was that he had a “despairingly sad conversation” with Steven on the day after Father’s Day, during which Steven said that “for Aaron to deprive me a visit with the boys is shameful”.

41. Aaron’s evidence is that he and his sons did visit Steven on Father’s Day in 2022. There is evidence of a text message that Aaron sent to his father on that day saying: “Happy father’s day old man. We’ll pop over in a few hours”. That reads like a light-hearted and playful text from a son who is close to his father.

42. Although it was not a matter raised with Aaron during cross-examination, I note that in one of his affidavits he gave evidence that he visited his father “that afternoon” but in a subsequent affidavit his evidence (seemingly assisted by his text message) was that he and his sons saw Steven at approximately 10 o’clock in the morning. This inconsistency suggests some imprecision in Aaron’s recollection of the day.

43. It was put to Aaron during cross-examination that he did not see his father on Father’s Day in 2022 and the reason is that he did not want to see his father on that day. He rejected those propositions. I reject the suggestion that Aaron did not want to see his father. The text message suggests that Aaron wanted to see Steven and planned to do so. It is likely that he did so, and I accept his evidence that he visited his father on Father’s Day in 2022. It is possible that Aaron ended up visiting Steven without his sons. I do not need to come to a conclusion about this because I do not consider that any version of the events bears upon the question of whether or not Aaron is entitled to a family provision order or the nature of such an order.

Relevance of the events

44. Although these were events that were significant to the persons involved, I do not see them as having any meaningful role to play in my evaluation. They give some light to the relationship between Steven and Aaron but they do not dispel the proposition that the relationship between Steven and Aaron, his only child, had always been close and loving.

45. Counsel for Jan submitted the events are relevant because they flowed through to Steven’s testamentary intentions. She did not submit that I needed to resolve all of the points of departure in the evidence. I accept that in a general way they provide some modest context to that issue, which I address below.

Steven’s relationship with Ashlea and her family

46. Steven’s relationship with Aaron, and his position taken on some matters concerning Aaron, was affected by Steven’s relationship with Ashlea, which was, at least at times, an uneasy one.

47. There is evidence that Steven was, at times, unhappy about the way that he perceived Ashlea to treat Aaron. There is also evidence that Steven considered that Ashlea and Aaron were insufficiently strict in the upbringing of their sons. It seems that there was concern about unruly behaviour by Aidan and Aardi that explains why the early arrival by Aaron and his family on Christmas Day in 2021 caused some stress. After the events on Christmas Day, there was, at least for a time, some estrangement between Steven and Ashlea, with each perceiving that they had been mistreated by the other.

48. The relationship between Steven and Ashlea’s parents, especially her father Larry, deteriorated from about the time that Steven and Jan purchased the Bateau Bay property, which was a few houses away from where Ashlea’s parents lived. Jan’s evidence was that she perceived that Larry ignored Steven at family events, and that Steven was hurt by Aaron’s lack of support. Larry denied ignoring Steven. Larry gave evidence about being deliberately ignored by Jan. I do not consider that the question of who ignored and who was ignored can or needs to be resolved. It is a matter of irrelevance either way.

49. I accept that at least from time to time, Steven perceived that he was not treated respectfully by Ashlea and her family, especially her father. He also perceived from time to time that Aaron was prioritising Ashlea’s family over him and was unhappy about that. He probably disagreed with some of Aaron and Ashlea’s parenting decisions, which, he thought, led to unruly behaviour, although it is important to appreciate that Steven died before Aidan was diagnosed with autism spectrum disorder and other conditions that affected his behaviour. All of this was part of the fabric of Steven’s relationship with Aaron. But none of it detracted in any fundamental way from the close father and son bond between them.

Other witnesses

50. There was evidence called in Jan’s case from family and friends who had some knowledge of the relationship between Steven, Jan, Aaron and other family members.

51. Jan’s daughter, Ms Ashleigh Alexander, gave some evidence about the events of Christmas Day 2021 and some other matters that I do not consider to be significant for the purposes of this case. She gave evidence that Jan and Steven told her that they had not seen Aaron for some months following Christmas Day 2021. However, that is consistent with Steven seeing Aaron and his children in that period without disclosing it to Jan. Her impression was that Steven loved Aaron.

52. Jan also called evidence from Ms Jennifer Rogers, who was one of Steven’s long-term friends. Her evidence did not advance matters. It supported the evidence from other witnesses that the relationship between Steven and Ashlea was, at least at times, an uneasy one and that caused Steven distress, particularly as it impacted on his relationship with his grandchildren. She too perceived that Steven always loved Aaron.

53. The evidence from Mr Cosentino was different in tone. His evidence was that the relationship between Steven and Aaron was not good, even before Ruth died, and that Steven’s relationship with his whole family, over many years, was poor. That evidence was not supported by, or consistent with evidence from other witnesses. Mr Cosentino had been very close to Steven since their early teens and I accept that they were lifelong close friends. For the most part, their relationship was maintained by frequent telephone calls. I do not think that his evidence provided a balanced view of the relationship between Steven and Aaron. That is not to say that he was giving untruthful evidence. Rather, I conclude that Mr Cosentino was a person to whom Steven turned, in particular, to express his grievances and unhappiness, which would not provide a complete and accurate insight into his familial relations.

Conclusions about the relationship between Steven and Aaron

54. I accept that Steven was at times disgruntled about family matters. His relationship with Ashlea was troubled, especially after December 2021, and that had an impact on his relationship with Aaron and his grandchildren. Jan’s relationship with Ashlea and her family was also a troubled one, and that too had an impact on Steven’s relationship with Aaron. But I accept that throughout, Steven and Aaron’s relationship was a caring and loving one, even if at times there was friction and a perception on Steven’s part that Aaron was unduly controlled and influenced by Ashlea and her family.

55. There were some “downs” in the relationship between Steven and Aaron in last years of Steven’s life, coinciding with Steven’s marriage to Jan and the tensions arising from the COVID pandemic as people responded to it in different ways with strongly held views. But I accept that nonetheless, their relationship, even during this time, was strong. Aaron was not in an easy position, given the tension between Steven (and Jan) on the one hand and Ashlea (and her family) on the other. My impression is that Aaron sought to balance that as best he could and that he tried to do so in a non-confrontational way. He did not choose to take one side and reject the other. Even while Steven and Ashlea were estranged, Aaron took steps to maintain the relationship he had with his father, and to encourage a relationship between Steven and his grandchildren. That is not to say that at times Steven may have felt that Aaron was prioritising Ashlea’s family. But Aaron could never have pleased everyone all of the time. He tried, for the most part successfully, to maintain the close father and son bond that they had enjoyed throughout Aaron’s life.

Conduct of persons after Steven’s death

56. The conduct of persons after Steven’s death is something that I may take into account, if relevant.

57. The evidence explored various matters following Steven’s death that more deeply drove a wedge between Jan and Aaron’s family. For example, Steven’s brother, Michael, was angered because he says he was called upon without proper notice do deliver the eulogy at Steven’s funeral. He blamed Jan. There appears to have been some misunderstanding. Michael was on notice about a speaking role and had prepared a short speech, but had not prepared what he considered to be a full eulogy.

58. Neither Michael nor Aaron attended Steven’s wake, which was difficult for Jan. Michael’s evidence was that he could not bring himself to attend the wake of his brother, given it was being held in the house where he had recently committed suicide. Another thing that caused deep hurt to Jan was that Michael made some social media posts that appeared to be directed towards Jan. Michael’s evidence was that he was extremely emotional following Steven’s death, that he was venting but was that he was not intending to distress Jan.

59. It is evident that family members close to Steven were deeply affected by his death. They reacted to his death in ways that were emotional and personal, but drove people apart rather than together. They are no doubt matters of particular concern to Jan, Aaron and other family members. But they are not of any significance to the matters before the Court.

60. Although addressed in the evidence, none of these matters loomed in the submissions from the parties. Counsel for Aaron submitted they had little relevance and that I could note them and move on. Counsel for Jan submitted that these matters were relevant to the nature of any order for family provision, in that it suggested against any orders that would force an ongoing connection between Jan and Aaron. I accept that the relationship between Aaron and Jan is now a poor one and that, if I was to conclude that a family provision order should be made, the nature of the relationship is relevant to the form of any order.

Steven’s testamentary intentions

61. I may consider any evidence of Steven’s “testamentary intentions” and, to the extent addressed below, I consider them to be relevant.

62. Steven did not reveal any testamentary intentions by way of a will. Aaron’s evidence was that there was a will written some time before his marriage to Jan but he does not have the document. Any such will would have been revoked by Steven’s marriage to Jan: see s 12 of the Succession Act. Steven died without any valid will.

63. As I have noted, Steven’s actual estate when he died was very small. Strictly speaking, on one view Steven’s “testamentary intentions” may be confined to his intentions about how this modest estate was to be distributed. There is little evidence about that and it is not a matter worthy of consideration given the size of that estate.

64. The creation of the joint tenancy by Steven and Jan is not a testamentary act because the nature of the ownership is such that the property would not, unless the joint tenancy is severed, be part of the estate of the first to die: see Dal Pont, Law of Succession 3rd ed at [1.13]. Nor were the steps taken by Steven in respect of his superannuation policy a testamentary act, because there was nothing in that policy that formed part of his estate.

65. Nevertheless, I accept that it is open for me to consider any intentions that Steven had as to what would occur, either immediately or in due course, in respect of the Bateau Bay property and his superannuation benefit. If those intentions are not strictly “testamentary intentions”, they can be taken into account because s 60(2) of the Succession Act provides that the Court can take into account any matter it considers relevant.

66. Jan’s evidence was that she and Steven deliberately purchased the Bateau Bay property as joint tenants in order to take advantage of the right of survivorship. I accept this evidence. Jan’s evidence was that at the time of purchase, she and Steven had a conversation about how they would hold the Bateau Bay property and also about their wills. Her evidence was that she suggested that they should leave some money to their children if one of them dies. She said that Steven said: “We need to live. They have enough money to look after themselves. We need to make sure that the survivor of us is going to be looked after and financially comfortable”. I accept that when the Bateau Bay property was purchased in May 2020, it was Steven’s intention that, if he died before Jan did, she would become the sole registered proprietor of the property and that the property would fall outside his estate. Steven took no steps to change the position before he died, for example by severing the joint tenancy.

67. Jan gave evidence that she and Steven had a number of conversations about having reciprocal wills drawn, but they never got around to doing it. Her evidence was that there was discussion that when the survivor died, the estate of the survivor would be split between Jan’s two daughter’s and Aaron’s two sons. She said that it was Steven, not her, who wanted the estate of the survivor to go (in part) to his grandsons, not to Aaron. She also gave evidence that they agreed that her daughters should get a portion more because Jan had put more money into the relationship, but they had not figured out the details. She gave evidence that at some point she told Steven that she thought that if she died first, something should go to her daughters and if Steven died first, something should go to Aaron. But nothing was formalised.

68. On 12 October 2022, which was a little over a week after Steven died, Jan, together with her daughter Ashleigh, met with Mr Martin McGrath, who was Steven’s accountant and financial advisor, and is now Jan’s advisor. Mr McGrath gave evidence. There is a detailed file note of the meeting. It includes the following:

Steve’s super – gave them a bit more information. So, Steve (sic) balance is about $280,000. $153,000 came in via rollovers from Steve’s previous super funds and contributions came in of a $135,000 from Jan and Steve. Jan is very confident that that (sic) $135,000 directly came from her mom’s Estate and kind of say regards to that as her not a financial dependent but Jan would like to allocate some funds for him. She’s very confident in discussions with her and Steve that they wanted funds just to go to each other and the kids could receive some funds out of their Estate at a later point in time. But Jan would like to provide funds for Aaron, and she would kind of suggested that $153,000 being Steve’s previous Super balance is what she’d like to provide for him.

This note records that Steven’s superannuation balance was “about $280,000”. That may have been correct at the time. By the time the superannuation came to be distributed, the balance was closer to $295,000.

69. Jan’s evidence was that she hardly recalls anything about the meeting, that she was “barely thinking, barely coping”. While Jan had some hesitancy about whether she said all those things, Mr McGrath’s evidence was that he had an independent recollection of the meeting and was confident that the file note accurately recorded what Jan said to him. I find that Jan did say the things recorded in the note, as set out above.

70. I conclude that at the time Steven died, he had discussed with Jan what he contemplated would come to be reflected in their wills, but those discussions had not resulted in a firm and precise position. I accept that he contemplated and intended that Jan would take the Bateau Bay property if he predeceased her, and vice versa. He anticipated that he and Jan would have wills that provided that the survivor would make some provision for the other person’s family but he died knowing those steps had not been taken.

71. I am not prepared to conclude that Steven had formed a firm view that, in the event he died before Jan, she would provide something for his grandsons, and not for Aaron. In her consultation with Mr McGrath shortly after Steven’s death, Jan said that she was confident from discussions with Steven that they wanted funds to go to each other “and the kids could receive some funds out of their Estate at a later point in time”. This is consistent with Steven anticipating putting into place an arrangement by which some funds would go to Aaron from Jan’s estate if Steven should predecease Jan.

72. While Steven knew and intended that Jan would have the right of survivorship in respect of the Bateau Bay property, he had an intention or expectation that provision would be made in some fashion and in some amount for Aaron, but had not taken any steps to formalise that provision. He had not concluded that Aaron would never receive any advantage from his interest in the Bateau Bay property. But he was of the view that Aaron’s interests were secondary to those of Jan.

73. That is, I accept that Steven had an imprecisely formulated testamentary intention that, in the event that Jan predeceased him, he would provide for Jan’s children as well as Aaron from his estate. He had an intention, not strictly a testamentary intention, that if he predeceased Jan, the Bateau Bay property would go to Jan by way of survivorship and an expectation that she would provide in her will for Aaron, as well as her own children. He had intended that this would be formalised by way of mutual wills, but did not take that step before he died.

74. I proceed on the basis that Steven died knowing that he had no will and would have expected, or can be taken to have expected, that the law would operate to determine how his property interests would be distributed. He did not make provision for Aaron, but that was not because he did not want Aaron to be provided for in some way. In a general and informal way, he had an expectation that after Jan was provided for by taking the Bateau Bay property, Aaron would benefit when Jan died. But he left it for the legal system to determine if and how there would be provision for Aaron.

Aaron’s financial resources and needs

Medical conditions

75. Aaron has medical conditions that bear upon his current and future financial needs.

76. Aaron was diagnosed with Von Hippel-Lindau Syndrome at age 14. His unchallenged evidence is that the syndrome affects his central nervous system. He has had various surgeries and medical procedures including:

77. seven invasive brain surgeries, which have had side effects causing reduced co-ordination and permanent loss of hearing in his left ear;

78. three sessions of stereotactic brain radiation to reduce the inoperable tumours in his brain;

79. two invasive spinal surgeries, that have left him as an incomplete tetraplegic; and

80. keyhole kidney surgery for removal of renal cell carcinoma.

81. His unchallenged evidence was that he requires surgery to remove a tumour that has regrown in his inner ear and that he has a tumour in his kidney that will require removal within two years, by way of a full nephrectomy, which will incapacitate him for some months.

82. Aaron estimates that the everyday costs he incurs as a result of Von Hippel-Lindau Syndrome is $30,000 to $40,000 per annum. His evidence was that the syndrome reduces his life expectancy and that his condition will deteriorate. He hopes that preventative treatments will become increasingly available.

83. Aaron also suffers from degenerative blindness in his right eye, which requires monthly injections at a cost of $510 each, as well as laser treatment multiple times a year at a cost of $4000 per treatment.

84. There was no medical evidence about Aaron’s prognosis. His medical circumstances have not, to date, prevented him from working full-time and establishing a business that has enabled him to provide for his family (see below). He is a hard and diligent worker. But I accept that his illness impacts on his quality of life, requires ongoing intrusive and costly medical attention, is likely to cause times of interruption to his ability to work, may require him prematurely to be unable to work at all at some unknown stage and reduces his life expectancy.

Financial circumstances

81. Aaron is employed on a full-time basis by Mitre-10 in Kincumber. He also runs a business as a construction estimator/consultant/project co-ordinator. Ashlea undertakes some part-time work in that business. For the year ended 30 June 2024, Aaron’s taxable income was $140,293.

82. The evidence indicates that Aaron and Ashlea essentially spend what they earn on household expenses, including mortgage payments and other home and utility expenses, insurance, groceries, personal and medical expenses, entertainment, transport and child expenses.

83. The family assets include the family home (estimated value - $1,175,000) and a car (value $16,950) and a modest amount of savings. Aaron and Ashlea together have superannuation benefits totalling about $191,000. They own shares in the company through which Aaron conducts his business (BTH Performance Pty Ltd). That company owns a Toyota Hilux, which is financed. The company has extended loans to Aaron in the amount of about $125,000. There is no evidence of the value of the shares in BTH Performance. Given that the company is merely the vehicle through which Aaron conducts his business as a construction estimator/consultant/project co-ordinator, I am prepared to proceed on the basis that the value is nominal. The shares may have value to the extent of the director’s loans, but that value relevantly nets off because it is Aaron’s liability. Aaron and Ashlea have debts (principally a home loan) of about $910,000, excluding the liability to BTH Performance. Putting aside superannuation (which is presently inaccessible), Aaron and Ashlea’s net asset position is about $290,000.

Was there non-disclosure by Aaron?

84. A submission was made for Jan that I should find that there was non-disclosure by Aaron as to his financial circumstances, that the Court cannot be satisfied that full disclosure has been provided and that I should find that Aaron has deliberately withheld material from the Court. It was submitted that Aaron’s failure to make full and frank disclosure is such that the Court cannot make the evaluative judgment it needs to make and as a consequence the claim must be dismissed: see Stone v Stone [2019] NSWSC 233 at [62], [64], [162]-[166]; Baker v Baker [2024] NSWSC 559 [53]-[55].

85. I do not accept that there was any deliberate non-disclosure by Aaron, or that there has been any material non-disclosure. The submission that Aaron deliberately withheld material from the Court is a serious one. In order for the submission to have any prospect of success it would have been necessary to put the allegation squarely to Aaron in cross-examination. It was not. While it is true that some documents about Aaron’s financial position, mainly bank statements, only came to light very late, I am satisfied that this is explained by the informality about the way documents were produced by the parties, arising from correspondence between the legal representatives. Nothing that was produced late suggested that it was material that Aaron wished to hide from the Court and there is no reason to think that there remains undisclosed anything that could be material. I am satisfied that Aaron sought genuinely to provide accurate information about his financial position.

Ashlea’s financial circumstances

86. I consider Ashlea’s financial circumstances to be relevant and I will take them into account.

87. Ashlea undertakes some part-time administrative work in Aaron’s business. For the year ended 30 June 2024, Ashlea’s taxable income for this work was $77,130 (although there is some suggestion in the evidence that this amount involves some income splitting between Aaron and Ashlea). She also earns around $70 to $140 per fortnight from cleaning a neighbour’s house.

88. Jan’s evidence is that it was a source of frustration for Steven that Ashlea has not sought to rejoin the workforce to contribute to the household expenses. Ashlea holds a diploma in childcare and worked as an early childcare educator until about early 2019. Jan’s evidence is that Ashlea “is fit and healthy and has enormous earning capacity being at a young stage in her career with multiple care options for their kids, including her parents”.

89. Ashlea’s evidence is that she works 10 to 15 hours a week assisting Aaron in his business and that she could “definitely not” increase her hours or take on other employment. Her evidence is that Aidan’s medical conditions has demanded her constant care and attention and has significantly shaped the family’s priorities and decisions regarding employment. Working to assist Aaron affords the flexibility that she needs to support Aidan.

90. I am not prepared to conclude that Ashlea could or should be earning more income.

Jan’s relationship with Steven

91. Jan’s relationship with and marriage to Steven were both relatively short, having started dating in late 2018 and being married in November 2019.

92. They combined all their finances at an early time in their relationship. I have noted above that the evidence indicates that Steven was concerned to ensure that Jan was properly accommodated for as a first priority if he should predecease Jan. That concern was mutual. If Jan had died first, it was Steven who would have benefited from the right of survivorship in respect of the Bateau Bay property.

93. I accept that Steven was torn at times between Jan on the one hand and Aaron and his family on the other, which caused him anxiety. I accept he met Aaron and Aaron’s sons at times in circumstances where that contact was deliberately not disclosed to Jan. He did not disclose to Aaron various matters or incidents that were causing resentment or hurt on his part.

94. There is some evidence of some fracturing of Steven’s relationship with Jan. About a week before Steven died, he conducted an internet search for “marriage counselling central coast”. The post-mortem report included a remark that at the time of Steven’s death “he had been experiencing marital issues”, but the report acknowledged that “some personal or other details provided may be inaccurate”. I place little weight on what the report says about marital issues.

95. Overall, I proceed on the basis that Steven and Jan’s relationship was one of a devoted and loving married couple but accept that there were some tensions. Counsel for Aaron submitted that this was a matter the Court can take into account, but accepted that it is not a requirement for parties to be in a happy marriage or a marriage without issues. I do not consider that the evidence of disharmony between Steven and Jan, which is limited, has any weight in my overall analysis.

96. To return to the colloquialism used by Counsel for Aaron, I conclude that Steven’s relationships with each of Aaron and Jan had their “ups and downs”, but in both cases the ups were predominant and the downs were unexceptional aspects of the realities of family life.

Jan’s financial resources and needs

97. Jan’s financial resources and needs are highly relevant to the assessment of Aaron’s application. That is because any order made in his favour comes at her expense.

98. Jan is 62 years of age. She has various health needs, including treatment for PTSD and severe depression, lower back pain and sciatica, knee injuries, dental needs and also for hearing loss.

99. Jan was employed in the healthcare system but that was terminated in September 2021 because she had not received the COVID-19 vaccination. Steven lost his job at the same time for the same reason. They tried but were unable to get new work. Since Steven’s death, Jan has tried two other jobs but was not able to cope and the work did not last.

100. Jan is currently unemployed. She has recently obtained a medical certificate stating that she is unable to work at the moment and is unlikely to be able to return to work for two years. Presently, Jan’s only source of income is from JobSeeker payments of $733 per fortnight, which she started receiving in about November 2024. I accept that Jan’s prospects of gaining meaningful paid employment in the near future are very low and are generally poor for the future in general. She is likely to have to rely on her savings, superannuation and other assets, as well as social security payments, to fund her living expenses for the rest of her life.

101. It was suggested to Jan in cross-examination that she had failed to disclose her unemployment benefits, because her updating affidavit stated that she relied solely on her savings to pay her expenses. She denied trying to hide anything. Counsel for Aaron did not take any non-disclosure point during closing address and accepted the Court possessed sufficient information to assess Jan’s financial circumstances.

102. Jan’s principal asset is the Bateau Bay property, where she resides with one of her daughters. There is no evidence of any rent or other financial contribution from the daughter, or of the daughter’s financial circumstances. Jan has estimated the current market value of the property to be between $950,000 and $1,110,000, but, as I have noted, there is a recent external appraisal indicating that the property could achieve a sale price of in the vicinity of $1,150,000. I have undertaken various calculations on the basis of a value of $1,100,000, which I consider is a reasonable estimate of value.

103. Jan would like to continue to reside at the Bateau Bay property, including for emotional reasons connected with Steven. She is anxious about the prospect of having to leave the property. She has given evidence that the property needs maintenance and repair, including to the driveway (est. $25,000) and to the back deck (est. $25,000).

104. Jan’s other significant asset is her superannuation. The amount of superannuation currently held for her is in the order of $470,000 (including approximately $264,000 that came from Steven’s superannuation) benefits. There is some uncertainty in the evidence about whether she has any access to her superannuation. Her evidence was that she relies on drawdowns from her superannuation benefits to pay household and personal expenses. Mr McGrath gave evidence that she cannot currently access any superannuation because it remains in an accumulation phase, but that, depending on the circumstances, she may be able to access some of it before she turns 65, when the superannuation would otherwise become available.

105. Jan’s other assets of note comprise a car ($39,000), shares ($34,498.42) and some money in a bank account ($1,281).

106. Jan’s expenses run to approximately $3,000 per month.

Impact of a family provision order

107. Counsel for Aaron submitted in closing reply submissions that a lump sum of $300,000 would be an appropriate provision. I asked Counsel during closing address to provide, in due course, a document identifying the relief that Aaron sought, having regard to how the evidence unfolded. I received a document identifying the “Plaintiff’s Rough Outline of Proposed Orders”, together with some commentary. In broad terms, the proposed orders contemplate a family provision order by which Aaron is to receive an amount reflecting one third of the net proceeds of sale of the Bateau Bay property, with the property to be sold no later than 6 months after Jan’s death. It is proposed that there be a charge over the property to secure this payment. The orders also contemplate giving Jan the alternative of making a lump sum payment, reflecting one third of the value of the property (said to be $366,666 at the present time).

108. An order that Aaron be paid a lump sum from the sale proceeds would permit Jan to live at the Bateau Bay property for as long as she wishes, but would require an ongoing legal relationship between Jan and Aaron. The alternative of an immediate sum would serve to sever that relationship, but may well be an amount that Jan could not pay without selling the property.

Costs

109. The question of costs is relevant and cannot be wholly put aside to be addressed after any family provision and notional estate orders have been formulated.

110. Jan’s legal costs, incurred and expected, are estimated to be $166,619.58, calculated on an indemnity basis. Most of that amount has not been paid by her, but will have to be paid. Depending on the final orders, it is an amount that will come from, and diminish, her current financial assets.

111. Aaron seeks costs in the form of a specified gross sum in the amount of $120,000, to be paid out of notional estate. There is evidence that the costs incurred and expected to be incurred by Aaron, calculated on the ordinary basis, is $143,197.00. A payment of $120,000 out of the notional estate would mean, as a matter of substance, that Jan would be required to pay that amount from assets that currently she owns.

Evaluation

112. The parties both referred to the general principles in relation to a claim by an adult child of the deceased stated by Hallen J in Gargano v Coves [2018] NSWSC 985 at [155], which have been repeated in other cases. Counsel for Aaron also referred to cases dealing with claims by a spouse, including Gargano v Coves at [160] and Steinmetz v Shannon (2019) 99 NSWLR 687. I accept that while there is no application for a family provision order by Jan (for obvious reasons), the considerations that apply to a claim by a spouse are useful in weighing up Aaron’s claim. That is because any order made in Aaron’s favour will be at the expense of Jan, Steven’s spouse.

113. The exercise I need to undertake is evaluative, taking into account the matters set out in s 60(2) of the Succession Act that I consider to be relevant, which essentially requires me to take into account anything I consider to be relevant.

114. I start with the size of Steven’s estate on the assumption that he had severed the joint tenancy and nominated his superannuation benefits. In round terms, the estate was worth about $843,000. This is the size of the potential notional estate.

115. Jan has at least the predominant reasonable claim to the prospective notional estate. She was Steven’s spouse. She is 62 and in poor health. Her prospects of gainful employment in the future are poor. Jan has a reasonable amount of superannuation but the principal asset she has to provide for her needs for the rest of her life is the Bateau Bay property. She resides there and wishes to continue to do so. No doubt she may wish to leave that property at some time in the future. She may need to do so in order to secure sufficient funds to maintain herself.

116. I take into account that Jan contributed to the prospective notional estate (by contributing more than 50% to the pool of assets she owned with Steven and paying money into Steven’s superannuation account). I have calculated (using estimates and rounding) Steven’s contribution to the prospective notional estate is $600,000.

117. Aaron, as Steven’s only child, has a reasonable expectation of some provision. An adult son who is mature, able bodied and capable of supporting himself may often not be in need of maintenance or support: see Hughes v National Trustees, Executors and Agency of Australasia (1979) 143 CLR 134 at 147 per Gibbs J. But every case turns on its own circumstances.

118. An order in Aaron’s favour is warranted because of his medical conditions, and especially the effects, both past and in the future, associated with Von Hippel-Lindau Syndrome. That syndrome puts at risk Aaron’s capability of providing for himself and his family. The extent to which it will do so remains uncertain. To date, Aaron has been able to work on a full-time basis and provide for his family. But his medical conditions impose a financial drain and create uncertainty about his ability to continue to provide. There is, of course, always uncertainty, but Aaron’s medical conditions mean that the uncertainty in his case is enhanced compared with the average.

119. I take into account that Steven’s wishes, although imprecisely formulated, were to provide first and foremost for Jan, but that he wished and hoped that there would be some amount after Jan’s death for Aaron. I am not satisfied that Steven had any firm idea to overlook Aaron in favour of Aaron’s sons. If he had formed that view, with the idea of not wishing to benefit Ashlea, it would have been a failure of moral duty on his part: see Weyman v Erdi (Supreme Court (NSW) unreported judgment, 3 August 1993) per Bryson J at 4.

120. Shortly after Steven died, Jan said to Mr McGrath that she thought Aaron should receive $153,000, being Steven’s previous superannuation balance (excluding the $135,000 she contributed to the account). That was in October 2022. The value of that balance increased by the time it came to be distributed. Jan’s statements at that time are likely to reflect what she thought Steven would have wanted, and what she considered to be reasonable. The orders I propose to make in this case are consistent with what Steven wanted, so far as that can be ascertained.

121. Taking all these matters into account, if I were to formulate a dollar figure for a lump sum amount to reflect a family provision order out of an estate in the size of $843,000 that amount would be $150,000. That figure means that the large part (around 82%) of Steven’s “estate” would go to Jan to help provide for her for the rest of her life, but would still see a substantial amount going to Aaron to assist with the considerable uncertainties that he faces with his medical circumstances. Aaron would receive 25% of Steven’s prospective notional estate of $600,000, once adjusted to allow for Jan’s contribution to that estate.

122. The $843,000 effectively includes the $30,000 that Aaron has already received from the trustee of Steven’s superannuation policy. In effect, Aaron has already received $30,000 from the prospective notional estate. Allowing for that, the lump sum amount that would reflect an appropriate order is $120,000. This would conform with the community’s expectation of a wise and just testator.

123. The amount of $150,000 is very close to what Aaron would have received under the intestacy provisions had the two relevant property transactions not occurred. This was not a factor that I took into account as part of the evaluative exercise, but it is useful to note.

124. The Court has power to make a family provision order that takes the form of payment of a share of the proceeds of sale of property supported by a charge or mortgage over the property: see s 65 and s 66 of the Succession Act. Orders that a lump sum be paid reflecting a percentage of the proceeds of sale of real property were made in Hancock, Shaun v Parker; Hancock, Lisa v Parker [2017] NSWSC 759 at [285] and Portis v Green [2017] NSWSC 1489 at [83]. In Sarant v Sarant [2020] NSWSC 1686 at [366], the Court imposed a condition that there was a charge to the estate in favour of beneficiaries, secured on real property, for a lump sum payment calculated as a percentage of the net proceeds of sale. The Court noted (at [368]) that a caveat may be lodged to protect the interest created by the charge. See also Clarke v Clarke [2022] NSWSC 1721 at [241]-[248].

125. Assuming that I am prepared to make notional estate orders (to which I will come), I would be minded to make orders of the kind articulated on behalf of Aaron in the “rough outline”, but adjusted to reflect a different share of the sale proceeds. The orders proposed by Aaron contemplated a one third share of the proceeds going to Aaron, at a current value of $366,666. On the basis of a provision of $120,000, that equates to an interest that I would round down to 10%.

126. I am sympathetic to the proposition that a charge or mortgage to protect this entitlement would keep the parties in a legal relationship, possibly for many years, and that this is undesirable. If I were to make an order, Jan should have the opportunity, if she wishes, of paying a lump sum either immediately so that there would be no need for a charge or mortgage, or to pay a lump sum at some time before any sale of the Bateau Bay property.

Notional estate orders

127. Section 87 of the Succession Act provides as follows:

The Court must not make a notional estate order unless it has considered the following—

(a) the importance of not interfering with reasonable expectations in relation to property,

(b) the substantial justice and merits involved in making or refusing to make the order,

(c) any other matter it considers relevant in the circumstances.

128. Counsel for Jan referred to a divergence of judicial opinion as to the proper construction of s 87(a), citing Xiang bht Cao v Tong [2021] NSWSC 44 at [385]-[390]. In that case, Hallen J referred to conflicting views between Beazley P and Basten JA arising from Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4. Beazley P (with whom Meagher JA agreed) (at [105]) approved what Ward J said in John v John [2010] NSWSC 937 at [117]-[118]. In those paragraphs, Ward J emphasised the views expressed by McLaughlin M in Petschelt v Petschelt [2002] NSWSC 706 at [68], to the effect that the “reasonable expectations” to be considered are not just those of the person who holds the property, but also those of the deceased, and also, possibly, those of the applicant. Basten JA (at [125]) held that s 87(a) cannot sensibly be construed as referring to the reasonable expectations of the applicant who wants a share, but does not own, the property; nor to those of the deceased person. His Honour concluded that the reasoning in Petschelt, to the extent it held otherwise, should not be followed.

129. Although there has been some support for the views expressed by Basten JA (see Graham v Vukic [2020] NSWSC 1801 at [127]), it has been said recently that the apparent conflict has not been resolved: see Dmitrovic v Kleut [2024] NSWSC 1541 at [391]. I consider that I should proceed on the basis that unless the views expressed by Basten JA find favour with the Court of Appeal, the reasons expressed by Beazley P reflect the majority position in Phillips v James and should be followed. But it makes no difference in this case.

130. Jan holds the Bateau Bay property by virtue of the right of survivorship. She has a reasonable expectation that her interest will not be taken away. However, at about the time she acquired her interest in the Bateau Bay property as a joint tenant, she and Steven contemplated that if Jan was the surviving spouse, she would provide for Aaron from her estate, including the Bateau Bay property. That tempers her reasonable expectations as the absolute owner of the property. Any orders made in this case can be sensitive to her reasonable expectation that she be able to live at the property for as long as she chooses.

131. Steven’s reasonable expectations take the matter no further. Those expectations were not relevantly different to those of Jan.

132. Phillips v James does not stand for the proposition that the reasonable expectations of Aaron must be taken into account, just that it is possible that I may have to do so. I struggle to see how his reasonable expectations could be relevant. His expectations are probably reflected by his application to the Court and the orders that he seeks. To the extent that his expectations are reflected in the “rough outline”, he seeks more than I think is justified and his expectations are, to that extent, unreasonable. To the extent I would be minded to make a family provision order, his expectations are reasonable.

133. As to the “substantial justice and merits involved in making or refusing to make” a notional estate order, provided it is tailored to accommodate the kind of family provision order that I consider to be appropriate, there is justice and merit in making the order because it is the fairest way to provide for Aaron, while being sensitive to Jan’s interests and concerns.

134. Section 88 of the Succession Act provides as follows:

The Court must not make a notional estate order unless it is satisfied that—

(a) the deceased person left no estate, or

(b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or

(c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.

I am satisfied that Steven’s estate, being nominal, is insufficient for the making the kind of family provision order that I am inclined to make.

135. Section 89 of the Succession Act provides as follows:

(1) In determining what property should be designated as notional estate of a deceased person, the Court must have regard to the following—

(a) the value and nature of any property—

(i) the subject of a relevant property transaction, or

(ii) the subject of a distribution from the estate of the deceased person or from the estate of a deceased transferee, or

(iii) held by the legal representative of the estate of any deceased transferee in his or her capacity as legal representative of the estate of the deceased transferee,

(b) the value and nature of any consideration given in a relevant property transaction,

(c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given,

(d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given,

(e) any other matter it considers relevant in the circumstances.

(2) The Court must not designate as notional estate property that exceeds that necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both.

(3) If, as a result of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, property becomes held by a person as a trustee only, the Court must not designate as notional estate any property held by the person other than the property held by the person as a trustee as a consequence of any such relevant property transaction or distribution.

I have considered, as indicated by these reasons, the matters that relevantly arise from s 89 in this case, particularly concerning the value and nature of the Bateau Bay property and the circumstances in which it was acquired by Steven and Jan, and then passed to Jan.

136. It does not follow that if I am inclined to make a family provision order, that a notional estate order automatically follows. But I am not persuaded that there are reasons to decline to make a notional estate order. The various matters that must be taken into account when deciding whether to make a notional estate order are matters I have also taken into account in considering the application for a family provision order. I have considered the matters through the lens of sections 87-89 of the Succession Act and conclude that this is a case where a notional estate order should be made.

Appropriate orders

137. I propose to accept the suggestion made by Aaron’s Counsel that I indicate in these reasons in outline the orders I propose to make and give the parties the opportunity to formulate, hopefully by agreement, a final form of orders to give effect to that indication. The outline of orders proffered on behalf of Aaron includes various machinery provisions that are appropriate and necessary but which have not been either finalised or addressed by Jan or her representatives. They should have that opportunity.

138. There should be orders that accommodate and provide for the following matters:

139. There should be a family provision order in relation to the notional estate of Steven in the form of a lump sum that equates to 10% of the net proceeds of sale of the Bateau Bay property. The orders should make provision for the definition of net proceeds of sale and stipulate the time of the sale and payment, with the sale to occur no later than six months after Jan’s death. There should also be provision for interest in the event of late payment.

140. The orders should provide for a form of security.

141. Jan should have the opportunity to consider whether she would prefer an order requiring her to pay a lump sum now (or in the near future) in the sum of $120,000 as an alternative to orders requiring payment out of the net proceeds of sale. Her decision about this may depend on matters such as whether she is able to access funds in her superannuation account to be able to make the payment.

142. There should also be a mechanism by which Jan is able to release Aaron’s entitlement to 10% of the net proceeds of sale by paying an amount equivalent to 10% of the value of the Bateau Bay property (as assessed at time she opts to make that payment).

143. There should be a notional estate order that is necessary to give effect to the family provision order. As things stand, it will only be necessary to make a notional estate order in respect of the Bateau Bay property. But final orders as to notional estate must be tailored to achieve the family provision order that is made.

144. As presently informed, I anticipate that Aaron will be entitled to a costs order in the amount of $120,000. I have not heard full argument on costs and so there may be other considerations relevant to costs that will affect the costs order. However, I indicate my preliminary view so that the parties can take them into account when formulating proposed orders. It may, in particular, affect Jan’s attitude to whether to pay a lump sum now or upon the sale of the Bateau Bay property. I recognise that a costs order will diminish the limited resources available to Jan. However, as far as I am presently aware, she has resisted any family provision order in favour of Aaron. And while I am not going to make the order sought by Aaron, he will still receive a non-negligible family provision order in his favour.

145. I anticipate that there will be ancillary matters required to give effect to these proposed orders (most or all of which are identified in the proposed outline of orders proffered on behalf of Aaron).

146. I will direct the parties to confer with a view to formulating orders that give effect to these reasons. If there are matters that cannot be agreed, I will relist the matter for further hearing.

Orders

140. I make the following orders:

141. The parties are to confer with a view to providing final orders to give effect to these reasons.

142. If there are agreed final orders, they are to be provided to my Associate by 11 June 2025.

143. In the absence of agreement, the matter will be listed for directions on 13 June 2025.

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Endnote

Where it is convenient and without any disrespect, I will refer some persons by their given names.