Page v Hull-Moody

Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Liprini v Liprini [2008] NSWSC 423 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 Robinson v Tame (Court of Appeal (NSW), Kirby P, 9 December 1994, unrep) Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 Sgro v Thompson [2017] NSWCA 326 Shannon v Steinmetz [2019] HCASL 332 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Squire v Squire [2019] NSWCA 90 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) White v Barron (1980) 144 CLR 431; [1980] HCA 14 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5 Category: Principal judgment Parties: Julie-Anne Page (Plaintiff) Cathy Mae Hull-Moody (First Defendant) Jayde Hull-Moody (Second Defendant) Representation: Counsel: Mr P R Glissan (Plaintiff) Mr L J Ellison SC with Ms C Newman (Defendants)

Solicitors: Robert Napoli & Co (Defendants) File Number(s): 2018/388670

Judgment

1. HIS HONOUR: These proceedings involve the estate of Gay Estelle Page (the deceased) and a claim brought by one of her, now adult, children, Julie-Anne Page, for a family provision order, under Chapter 3 of the Succession Act 2006 (NSW) (the Act).
2. The deceased died on 18 December 2017, leaving a Will dated 14 April 2016. This Court granted Probate of that Will, on 15 March 2018, to Cathy Mae Hull-Moody, another, now adult, child of the deceased, the younger sister of the Plaintiff, and to Jayde Hull-Moody, a, now adult, grandchild of the deceased, and a child of Cathy.
3. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and family members, after introduction, by the name used by the family members.
4. By Clause 3 of her Will, the deceased, after payment of debts, funeral and testamentary expenses, left one-quarter of her estate to Cathy, one-quarter of her estate to Julie-Anne (on certain terms referred to below), one-quarter of her estate to Bianca Jade Labarte, who is Julie-Anne's daughter, and one-quarter to be divided between Jayde and her brother, Blake Hull-Moody, in equal shares as tenants in common.
5. (It should be noted that while the Will of the deceased referred to "Bianca Jade Labarte", Bianca's affidavits were sworn under the name "Bianca Jade Page". Moreover, it appears that the surname of Bianca's husband and children is "Labarthe". Nothing turns on the spelling error in the Will.)
6. In Clause 3(d) of her Will, the deceased directed that, before distributing Julie-Anne's one-quarter share to her (or to the Public Trustee of Queensland, if it was managing her financial affairs), Cathy and Jayde should discharge any mortgage, or debt, which may be secured against Julie-Anne's home at the time of the deceased's death.
7. From the summary of the terms of the Will, it can be seen that the deceased, effectively, divided her estate equally between her two daughters, with one half going to one daughter and her child, and the other half going to the other daughter, and her two children.
8. Although, for a time, the Public Trustee of Queensland was appointed as administrator for Julie-Anne's financial matters, at the date the deceased made her Will, at the date of her death, and at all other times (including at the date of hearing), Julie‑Anne's financial affairs had ceased to be managed by the Public Trustee. The circumstances surrounding the removal of the financial manager will be referred to later in these reasons. Also, as will be referred to later, there is a current debt, secured by mortgage on Julie-Anne's home.

Some formal matters not in dispute

1. The Plaintiff commenced the proceedings by Summons filed on 18 December 2018. The proceedings were commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
2. Relevantly, the Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.
3. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. As a child of the deceased, Julie-Anne is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c)).
4. However, under s 60(2) of the Act, relevantly for the purposes of the present case, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (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 …". This factor, however, will not be relevant, in the case of a child of the deceased, to whether the applicant is an eligible person.
5. As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
6. A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

Some background facts

1. It is next convenient to set out some facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.
2. The deceased was born in January 1936 and she died in December 2017 aged 80 years. She married Lawrence Walter Page, who is the father of the Julie-Anne and Cathy, in July 1960, and remained married to him at the date of death, although they separated in February 2016. (There are some minor inconsistencies in the date of the marriage and of the separation, but nothing turns on these inconsistencies.)
3. Although the deceased and Lawrence were not divorced at the date of the deceased's death, they had entered into a Financial Agreement, made on 2 June 2016, "pursuant to s 90D [sic] of the Family Law Act 1975 (Cth)". So far as these proceedings are concerned, Lawrence gave a family provision release (albeit not approved by the Court as no application for that approval was brought).
4. The deceased and Lawrence owned a property at Asquith, a suburb of Sydney located on the Upper North Shore (the Asquith property), as tenants in common in equal shares. There was some evidence that the deceased and Lawrence, initially, held the Asquith property as joint tenants and that the joint tenancy that was severed in 2016. Pursuant to the Financial Agreement: "4. (a) The husband shall have the right to live in the property known as … Asquith … as long as he wishes, provided that he pays the rates, taxes and other outgoings, including insurance premiums, in respect of the property and keeps it in reasonable repair …"
5. Lawrence was born in October 1936, and is currently aged 83 years old. He had lived in the Asquith property since separation. For part of the time, Julie-Anne also lived in the Asquith property with him. Indeed, she has continued to do so and was staying there at the date of the hearing.
6. In August 2018, Lawrence was taken to Hornsby Hospital. On 23 August 2018, he was transferred to Macquarie Hospital as he had been diagnosed with a heart condition. A week later, he was transferred to Mt Wilga Private Hospital, for rehabilitation, where he remained until 26 September 2018, at which time he returned to the Asquith property. On 1 January 2020, Lawrence vacated the Asquith property and was taken to Hornsby Hospital where he remained until 13 January 2020, when he was transferred to Longueville Private Hospital.

The estate of the deceased

1. On 10 December 2019, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
2. I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1 in the proceedings and from the other evidence which is not the subject of dispute. (Ex JS 1 was, in part, ambiguous so what follows corresponds with the discussion with counsel at the commencement of the hearing.)
3. In the Inventory of Property, a copy of which was attached to, and placed inside, the Probate document, the deceased's estate was disclosed as having an estimated, or known, value of $1,225,000. The estate was said to consist of the deceased's sole interest in the Turramurra property ($575,000) and the deceased's interest, as tenant in common in equal shares, with Lawrence, in the Asquith property ($650,000). In Ex JS 1, cash from a closed bank account ($5,000), was also disclosed as an asset at the date of the deceased's death. It follows, that, at the date of her death, the value of the deceased's gross estate was $1,230,000. (I have omitted, and shall continue to omit, a reference to cents.)
4. The deceased's estate, as at 7 February 2020 (the date of Ex JS1), was said to consist of the deceased's interest in the Turramurra property ($575,000), and the deceased's interest in the Asquith property ($568,375), (neither of which had been sold at the date of hearing). As at 3 February 2020, no offers to purchase the Turramurra property had been received. The parties agreed that the gross value of the estate, at the date of hearing, was estimated to be $1,143,375.
5. Cathy, as one of the deceased's executors and one of Lawrence's Attorneys, has given Julie notice that she intends to sell the Asquith property as soon as she is able. For her part, Julie-Anne agreed that she would vacate possession of the Asquith property by 28 February 2020. For some time, she has known that she will have to vacate the Asquith property. She agreed that when she left, she would leave all of Lawrence's furniture and possessions there; she would properly clean the property, including the fridge; that she would leave Lawrence's family photos and the photos of himself and other people; and that she would take all of her possessions with her: Tcpt, 25 February 2020, p 87(46) - p 88(33).

The Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
3. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330; [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
4. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]. I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value.
5. Julie-Anne's costs and disbursements, calculated on the ordinary basis, were estimated to be $60,000: Ex JS1.
6. On the first day of the hearing, senior counsel for Cathy and Jayde set out an undertaking that they had given to the former solicitors who had been acting for Julie-Anne. Before it was tendered, a copy of the inter partes undertaking, in writing, was provided to her and her counsel. The undertaking, a copy of which was provided to the Court (Ex D2), was in the following terms: "We hereby undertake to hold the sum of $48,288.69 from Julie Page's share of the estate until such time as: 1. We receive a joint request from Julie Page or her barrister Paul Glissan to release the funds to your firm; 2. An order of the court is made to release the funds to your firm or otherwise; 3. Armstrong Legal releases us from the undertaking to hold the monies in trust. In the event that court proceedings arise between your firm and Julie Page regarding the monies held in our trust account, we will pay the monies into court."

The rejection of the affidavit of Ms Meadows

1. On or about 24 January 2020, Cathy and Jayde filed, and served, an affidavit of Ms M Meadows, a person with whom Julie-Anne had come in contact. Counsel for Julie-Anne objected to the affidavit being read as it had not been served in accordance with the Court's earlier directions, and, in any event, had not been served not later than a reasonable time before the occasion for using it arose: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 10.2(1). He submitted that he had not had a reasonable opportunity to take instructions, or to prepare any affidavit in response. He also submitted that the contents of the affidavit were not relevant to the issues to be determined in the case.
2. Without going into details, the affidavit related to the conduct of Julie-Anne towards Ms Meadows.
3. I was not persuaded by counsel's reliance on UCPR r 10.2, although it was a matter upon which Julie-Anne was entitled to rely. In my view, and in the circumstances of this case, one month was a reasonable time before the occasion for using the affidavit had arisen. As to the failure to comply with directions, arguably it had been filed in accordance with the directions, but served one day late.
4. However, leave to read the affidavit was not granted because it raised issues of Julie-Anne's conduct towards Ms Meadows, which conduct, it seemed to me, was not relevant to the issues that the Court needed to determine. While I accept that the character and conduct of the applicant, before and after the date of the death of the deceased person is one of the matters to which the Court may have regard for the purpose of determining, relevantly, whether to make a family provision order and the nature of any such order (s 60(2)(m) of the Act), in this case, the conduct complained of, would not assist in determining those two issues.
5. In addition, to allow the affidavit to be read, would have required Julie-Anne to respond to it and would have necessitated her, and Ms Meadows, being cross-examined on what each had averred respectively. Cross-examination, bearing in mind the nature of her evidence, was likely to have been of some length, with the consequence that it would have unduly prolonged the hearing.
6. In all the circumstances, and in accordance with the overriding purpose to which the Court must give effect in s 56 of the Civil Procedure Act, the affidavit was not permitted to be read.

Events prior to the hearing

1. The matter was listed in the Family Provision List (as it was then called), for the first time, on 15 February 2019. Directions were made on a number of occasions thereafter, until, on 17 May 2019, the matter was listed for a private mediation which was to take place on 29 May 2019. On each of the occasions that the matter was before me, Julie-Anne had appeared by legal representative.
2. On 7 June 2019, Julie-Anne appeared in person and the matter was stood over until 12 July 2019. On the next two occasions, when the matter was listed for directions, Julie-Anne did not appear personally, or by a legal representative.
3. On 6 September 2019, whilst I was on leave, the matter came before Kunc J, in order to deal with a notice of motion, filed on 14 August 2019, by Cathy and Jayde, in which they sought dismissal of these proceedings for want of due despatch. When the matter was called, there was no appearance by Julie-Anne, and as there was evidence of service of the notice of motion, his Honour proceeded to deal with it. He made orders as sought in the notice of motion.
4. Subsequently, at 11:55 a.m., Julie-Anne appeared. It is not necessary to rehearse what she told his Honour on that date, but, after further discussion, his Honour stayed the orders that he had made until 27 September 2019 or further order. His Honour also ordered that the matter be listed for Court-annexed mediation at 2:00 p.m. on 25 September 2019.
5. The matter was again listed before Kunc J on 13 September 2019, on which occasion Julie-Anne appeared, albeit late, in person. His Honour stood the matter over until 27 September 2019.
6. The mediation was listed before Senior Deputy Registrar Bellach. The proceedings did not settle.
7. On 27 September 2019, Kunc J made directions for further evidence and stood the proceedings over to his List on 30 October 2019. On that date, Julie-Anne appeared, as did senior counsel for Cathy and Jayde, and his Honour vacated the order dismissing the proceedings and dismissed the notice of motion. The matter was then referred immediately to my List. When the matter came before me, it was set down for hearing.
8. During the course of the hearing, without expressing any final view of the result, the Court raised with counsel for Julie-Anne, the risks that she faced if her Summons was, ultimately, dismissed and the usual costs orders were made. The Court was informed that he believed that she had understood the risks: Tcpt, 25 February 2020, p 80(27) - p 81(15).

Events after the hearing

1. Following the completion of the hearing, I formed the view that because counsel for Julie-Anne had only been acting for her from 10 December 2019, he may not have known of the chronology of events that had occurred before that date as set out above.
2. I also formed the view that I should raise a matter that had not been the subject of submissions, namely that it was not until early January 2020 that the Asquith property was able to be sold, as Lawrence only then had vacated that property.
3. For those reasons, I listed the matter again on 26 February 2020, and both senior counsel and counsel appeared. Subsequently, I caused a copy of the transcript of the matters raised during the mention on that day to be provided to each of them. In my view, it was necessary to take this unusual step because I considered that each party should be given the opportunity to make further submissions on the matters that I had raised and because the time available for submissions had been extremely limited.
4. I allowed further written submissions on the basis that they would be limited to the two aspects of the matter I had raised with counsel, first, the impact of the inability to sell the Asquith property on the question of the costs of the proceedings, and second, the consequences that would follow were the Summons dismissed and Julie-Anne ordered to pay the agreed quantum of costs namely that her provision under the Will of the deceased would be eroded by her liability to pay the costs of the proceedings.
5. In accordance with the directions then made, counsel for both parties delivered written submissions on 13 March 2020.
6. Senior counsel for Cathy and Jayde noted that the Defendants had offered an inter partes undertaking to Julie-Anne on 28 February 2020 - an undertaking ostensibly given in response to the concerns I raised with counsel on 26 February - which was in the following terms: "The defendants undertake to the plaintiff that in the event her Summons for provision out of the estate of her late mother is dismissed and the defendants obtain an order the plaintiff pay their costs, the defendants will not seek to enforce that order until the after [sic] death of Lawrence Page and at a time when administration of his estate has reached a stage when a distribution of the entitlement of the plaintiff under the Will of Lawrence Page is due to take place. In this regard, the defendants will inform the executors named under the Will of Lawrence Page of their undertaking to the plaintiff and of the plaintiff's obligation to pay the defendants' costs from her entitlement under that Will."

Claim for a Family Provision Order - The Statutory Scheme

1. The principles to be applied are well known and I have dealt with them in many cases. For the benefit of the parties, I shall repeat the relevant principles.
2. Section 59(1) of the Act confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied as to matters, namely that: 1. The applicant, the person in whose favour the order may be made, is an eligible person; and 2. … 3. At the time 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.
3. Thus, to justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2).
4. Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA). The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased's Will applies unless a specific application is made and acceded to by the Court.
5. Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance or advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.

Some Additional Principles

1. Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
2. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
3. Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the court's function to achieve some kind of equity between the various claimants.
4. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
5. In Stott v Cook (1960) 33 ALJR 447 at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to the Court's own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged." (emphasis in original)
6. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."

Claim by an adult child

1. I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]-[110]; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). 3. Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545-546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M). 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "… this jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian at [117]), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
3. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
4. As Lindsay J wrote in Verzar v Verzar at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
5. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox at [18]-[19] (Basten JA), [66]-[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]-[85]; [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.

Additional Facts

1. I next set out some facts, by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59": Verzar v Verzar, at [124], but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. Julie-Anne is one of two children of the deceased. The relationship was sometimes volatile between them. In regard to Julie-Anne's conduct, I shall, later in these reasons, refer to her medical condition, which may, in part, explain some of her conduct.
2. (At times in her evidence, Julie-Anne was critical of the deceased. For her part, Cathy rejected those criticisms. However, nothing turns on this conflict. Having read the admissible evidence given by each, and seen each give her evidence, I tend to the view that Cathy's description of the deceased is likely to be the more accurate.)
3. There is evidence that Julie-Anne has used drugs and alcohol, although she states that she did so as it "provided a temporary relief [from the] constant pain" and that she has not used drugs or alcohol "for the past 8 years".
4. Julie-Anne gave evidence of Bianca telling her that the deceased wished to "make peace" before she died with Julie-Anne. Julie-Anne says that she "made a few telephone calls to [the deceased] to her mobile. I recall these calls were warm".
5. Overall, I am satisfied that the relationship between them was reasonably close, although I accept Cathy's evidence that in the last two years of the deceased's life, when the deceased was unwell, Julie-Anne contacted her only once: Tcpt, 25 February 2020, p 143(04-09).
6. As Sackville AJA noted in Foley v Ellis at [102]: "Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time."
7. Some time was spent on the issue of the relationship between the deceased and Julie-Anne, but, in my view, ultimately, nothing turns on the nature of the relationship, because in her Will, the deceased treated her two daughters the same way. Cathy described the deceased as "a very fair mother", who "treated us all the same": Tcpt, 25 February 2020, p 143(04-09).
8. The deceased clearly evinced an intention to effectively divide her estate four ways, so that her two children, and the child, or children, of each, each received one quarter.

(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

1. Julie-Anne asserted that the deceased "owed me the obligation of a mother to her daughter". I have dealt with the general principles on this topic.
2. The deceased did not have the same obligation to her grandchildren, although it is clear that her relationship with each of them was close, loving and supportive.

(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

1. As discussed earlier in these reasons, the value of the estate out of which an order could be made, taking into account the costs of the proceedings, will be in the order of $916,844. It is an estate of reasonable value.

(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

1. Julie-Anne receives a disability pension of $933 per fortnight. She says that she receives no other income. She estimates her fortnightly expenditure at $799, which suggests that she has surplus income of about $134 per fortnight.
2. She says, and I accept, that she has no capacity for employment.
3. Julie-Anne has assets, including her property at Tewantin, Queensland ($495,000), two cars ($2,500 and $1,000), a small amount of cash ($236) and furniture, household and personal effects ($3,000). Of course, but for these proceedings, she would also have had a one-quarter share of the value of the deceased's estate, which if the estimates prove accurate, and if there had been no costs of these proceedings, would have had an estimated value of about $266,700.
4. The Tewantin property is described by a real estate agent who was retained to provide a valuation as providing "challenges from a marketing perspective". There is, apparently, a significant "amount and volume of 'stuff' in and around the home". However, the home "appears to be in good overall condition". Some work, however, is required. (Tewantin is a rural town in the Shire of Noosa, Queensland.)
5. In addition, her financial resources include her interest as a beneficiary in Lawrence's estate. In Hall v Hall (2016) 257 CLR 490 at 506-507 [54]-[55]; [2016] HCA 23, French CJ, Gageler, Keane and Nettle JJ held, at [54]-[55] (albeit in the context of family law) that: "The reference to 'financial resources' in the context of s 75(2)(b) [of the Family Law Act] has long been correctly interpreted by the Family Court to refer to 'a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency'. The requirement that the financial resource be that 'of' a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support … Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it."

(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

1. Julie-Anne is not cohabiting with any other person. For a short time, she lived in the Asquith property, with Lawrence, until his hospitalisation in January 2020.

(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

1. Julie-Anne sets out details of her medical condition. She says "I suffer from bipolar disorder, general anxiety disorder, attention deficit hyperactivity disorder [and] post-traumatic stress disorder". She also admits to "a collecting-clutter problem". Other evidence reveals that she has "had long term involvement with mental health services, since childhood".
2. Many of the medical reports relied upon were from 2010 or 2011: Ex P1. The most recent report is one dated 24 February 2020, from Dr John Smart, who opines that she "has attended this practice intermittently since her childhood … suffers from longstanding anxiety and is having panic attacks …": Ex P2.
3. Another report, dated 10 March 2019, from Dr D A Kirkman, a general practitioner, confirms the diagnosis of Adult Attention Deficit Hyperactivity Disorder "which she has had since birth. This is a life-long psychiatric condition which will require Julie-Anne to have life-long supervision by treating physicians and regular supply of medication …".

(g) the age of the applicant when the application is being considered

1. Julie-Anne is 57 years old.

(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

1. Julie-Anne gave evidence about the transfer by her to the deceased and Lawrence, in November 2002, a part of the Asquith property. A copy of the Transfer, dated 15 November 2002, discloses a consideration of $200,000. There would appear to be no dispute that at least $134,000 was paid into Julie-Anne's account on 15 November 2002. There is other evidence of about $180,000 of the consideration being paid (albeit this included amounts other than cash payments to Julie-Anne's account).
2. Cathy gave evidence about the subdivision of Julie-Anne's property and that the deceased and Lawrence "saw it as a way to maximise the value" for Julie-Anne's benefit.
3. Subject to one matter, I am satisfied that Julie-Anne did not contribute, in any material way, to the estate of the deceased, financially or otherwise. I am also satisfied that she did not contribute, in any meaningful way to the welfare of the deceased. She states, however, that she "gave up the prospect of a continued career with Budget Rent-a- car [sic] to return home to help care for my father, who had been diagnosed with cancer, at my mother's request".
4. I am satisfied that Julie-Anne has provided some assistance in caring for Lawrence, although it is fair to say that her involvement in that care has been relatively recent. Cathy, also, has assisted Lawrence.
5. It is clear that Cathy played a far greater role, and in the welfare of the deceased, in the deceased's life than did Julie-Anne.

(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

1. Julie-Anne acknowledges in par 105 of her affidavit affirmed on 9 February 2019, that between 1982 and 2015, she received provision from the deceased, which she estimates to be $124,000.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. The deceased had made a Will dated 18 December 2013. In that Will, she left the whole of her estate to Lawrence if he survived her by 30 days. (In the event that he did not, the terms of the Will were the same as the deceased's last Will in relation to the distribution of her estate.) There is no evidence of any prior Will.
2. As has been discussed earlier in these reasons, the deceased did make provision, in her Will, for Julie-Anne. She says that the deceased said to her: "I recall my mother had on many occasions spoken of how her assets would be distributed after she died. Some examples are as follows. a. In 2011, Gay came to visit me in Queensland after the flooding had occurred, Gay said to me: "You and your sister will get $1 million each." Similar statements were made when she left my father and moved into 27A Royston Parade, Asquith in 2005. b. In 2012, Gay said to me: "I will pay for your medical insurance for the rest of your life." c. In 2015, when I visited Gay in North Shore Hospital after one of her treatments for breast cancer, Gay said: "I will get your teeth attended to, and your burst breast implant sorted." She would also make similar comments from time to time. d. In 2016, while at Sydney airport, Gay said to me: "You will have my car, and I will clear your name for the accident. It will be good for you. Small, automatic, and hatchback for the dogs. But you must keep it clean."
3. I have referred to the 2013 Will of the deceased.
4. It is difficult to accept these assertions of conversations with the deceased when one reads the different Wills made by the deceased, the contents of which provide a much clearer view of the deceased's long held testamentary intentions.

(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

1. Julie-Anne was not being maintained by the deceased before her death.

(l) whether any other person is liable to support the applicant

1. There is no other person liable to support the Plaintiff. However, she is entitled to, and does, receive the disability pension.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. The details of Julie-Anne's conduct, and the nature and quality of her relationship with the deceased, have been discussed earlier in these reasons.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. There was no criticism of any of the other beneficiaries, or of the nature and quality of her, or his, relationship, respectively, with, and behaviour towards, the deceased. It is not necessary to discuss, in detail, the character and conduct of the other beneficiaries as each is the sole chosen object of the deceased's bounty.
2. Julie-Anne described the deceased's relationship with Bianca as "very close" and says that the relationship was important to each of them, with the deceased providing "wonderful support for Bianca". Cathy agrees and states that the deceased "helped Bianca financially until [the deceased's] death".
3. It is clear that each of Cathy, Bianca, Jayde and Blake had a close and loving relationship with the deceased.

(o) any relevant Aboriginal or Torres Strait Islander customary law

1. This is not applicable.

(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

1. In her affidavit in reply, affirmed on 25 October 2019, Julie-Anne lists further provision made for her in 2016 and 2017, totalling $109,795. That provision was made, principally, by Lawrence. (I have referred to $90,000 of this amount paid by Lawrence in June and July 2017.)

Determination

1. Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of Julie-Anne, has not been made by the Will of the deceased.
2. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to the factual matters, so far as they are relevant to the circumstances set out below.
3. When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased, and consider what she ought to have done in all the circumstances of the case. This consideration occurs in light of the facts known at the time when the Court is considering the application. The Court treats the deceased as wise and just, rather than as a fond and foolish testatrix: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 (Lord Romer for the Board); Pontifical Society for the Propagation of the Faith v Scales at 19-20 (Dixon CJ). The Court should also make allowance for current social conditions and standards: Andrew v Andrew at [34] (Basten JA) and, where it is considered relevant to do so, have regard to the matters set out in s 60(2) of the Act to determine whether to make a family provision order and the nature of any such order.
4. Having considered the matters I am required to consider, I have come to the view that Julie-Anne has failed to establish that the deceased's Will did not make adequate provision for her proper maintenance, education, or advancement in life. The test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case. Furthermore, as I must, I have regard to, and respect, the deliberate scheme of testamentary dispositions made by the deceased as a capable testatrix is entitled to respect: Slack v Rogan; Palffy v Rogan at [127] (White J), approved in Sgro v Thompson at [83]-[87] (White JA, McColl and Payne JJA agreeing). As stated above, the deceased's decisions reflected in her Will should not merely have a prima facie effect, the real dispositive power being vested in the Court.
5. Provision was made for Julie-Anne in the Will of the deceased meaning that this is not a case where a child of the deceased has been entirely excluded from participation in a parent's estate. The provision that was made is the same provision as the deceased made for Cathy, her other child. The deceased also made provision for her grandchildren as set out above, with each of whom she had a close relationship. In Cathy's case, in particular, the claim upon the deceased's bounty was greater because of the nature of their relationship and Cathy's contribution to the deceased's welfare. I have earlier mentioned the relationship of each of the grandchildren with the deceased. Accordingly, this is also not a case in which the deceased discriminated against the Plaintiff by reason of their relationship, or otherwise.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2020