Perez v Ciabattoni

The plaintiff's financial circumstances

1. The plaintiff's financial circumstances are dire. According to an updating affidavit filed shortly prior to the hearing, her assets and liabilities are as follows: Description of asset/liability Estimated asset value Estimated liability value Total net value of asset Motor Vehicle $7,000 Monies owed to Services Australia, Green Slip and service check of $725 $6,275 Timeshare with Wyndham South Pacific $30,000 Nil $30,000 Personal loan owed to Pioneer Credit Corp (1) Estimated amount of $14,000 -$14,000 Personal loan owed to Pioneer Credit Corp (2) $40,000 -$40,000 Personal loan owed to Natalie Perez $4,600 -$4,600 Personal loan owed to Nancy Rodriguez $950 -$950 Storage debt fees owed to Kennards Self Storage - Waterloo $1,975 -$1,975 Storage debt fees owed to Storage Plus Rosebery $589 -$589 Debt owed to ENT Clinic $360 -$360 Total $37,000 $63,199 -$26,199

1. Following her divorce from her second husband, the plaintiff received a settlement of around $250,000 which she invested, via a trust, in a property investment scheme which the plaintiff identified as "Kingdom Developments". There was some debate at trial as to whether the plaintiff continued to have an interest in "Kingdom Developments". Her evidence, which I accept, is that an amount of $196,000 has been lost due to the insolvency of the scheme. The rest of the settlement amount seems to have gone towards other expenses.
2. The plaintiff's only source of income is welfare: she receives an age pension of $2,086 per month and a carer's allowance of $272 per month, which is on account of the support she provides her daughter Natalie, who has long suffered from mental illness.
3. The plaintiff has the following monthly expenses: Expense Amount Rent $1,200 Phone $40 Groceries and food $500 Entertainment and personal services $100 Petrol $500 Medication and out-of-pocket medical expenses $300 Wyndam timeshare levy $100 Service, maintenance, insurance and registration of motor vehicle $150 Clothing $50 Parking fees $150 Gifts $120 Total $3,210

1. The plaintiff's monthly expenses exceed her pension and carer's allowance. Additionally, some of the plaintiff's outstanding debts (at [13] above) are accruing interest.
2. The plaintiff is currently living at a refuge run by the St Vincent de Paul Society. She cites her inability to provide rental references as her reason why she cannot obtain a rental property in Sydney. This, she says, is a function of having lived rent-free in her mother's house for decades.
3. The plaintiff has a number of chronic health conditions which affect her ability to work and meet her financial needs. She has osteoporosis, type 2 diabetes, hypertension, hypercholesterolemia (high cholesterol) and lymphedema. She has also reported requiring physiotherapy due to back complications. She has received treatment for all of her conditions through the public hospital system, although some of the therapy she receives involves the payment of an out-of-pocket component by her.
4. In submissions filed shortly prior to the commencement of the hearing, the plaintiff identified the following financial needs: Claimed Needs Amount Security of accommodation, a safe 2-bedroom ground floor Strata unit in the Coogee area, including purchase and content cost $1,500,000 To repay her personalty storage costs $8,000 Travel $20,000 Private health insurance, Medibank Private at $3,500 per annum $80,000 Gap medical expenses not covered by Medicare for lymphedema $18,000 Compression stockings and other health accessories and related healthcare costs $46,000 Dental and prosthetics (new dentures) $20,000 Repay Pioneer Credit Corp for credit card debt $54,000 A contingency fund, unforeseen expenses, replacement motor vehicle and miscellaneous $160,000 Total $1,906,000

1. Most of these items were not in issue. The most significant issue in relation to the plaintiff's financial need was the requirement for a sum of $1,500,000 to purchase a two-bedroom apartment in Coogee. The defendant also disputed the plaintiff's need for $20,000 to travel to Italy for a holiday and for the sum of $3,500 per year to take out private health insurance.

Legal principles

1. The present state of the law applicable to the determination of family provision claims was helpfully set out in detail by Meek J in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222]. I respectfully adopt his Honour's statement of the relevant principles.
2. The present case is another in that class of case in which the plaintiff is an adult child who has fallen on hard times. The principles collected by Hallen J in Chapman v Ingold; Estate of the Late Eleanor Merle Ingold [2015] NSWSC 1604 are instructive in this regard: "[115] In relation to each Plaintiff's claim, being a claim by an adult child, the following principles are useful to remember: (a) 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. (b) 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, 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. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia [2009] NSWSC 801, at [58]; Smith v Johnson [2015] NSWCA 297, at [92]. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland, Deceased, at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2 ; (1979) 143 CLR 134, at 148; Goodman v Windeyer, at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland, Deceased, at 411; Kleinig v Neal (No 2), at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee[1989] WAR 305; Hawkins v Prestage(1989) 1 WAR 37, at 45 (Nicholson J). (f) An 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]; Crossman v Riedel [2004] ACTSC 127, at [49]. 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]. 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; Butcher v Craig [2009] WASC 164, at [17]. (g) An 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, at 149. [116] A very similar statement of the principles which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox, at [21] (per Basten JA); at [65]-[67] (per Barrett JA) and was referred to, with no apparent disapproval, in Smith v Johnson, at [62]." [Emphasis added]
3. For completeness, I note the relatively recent discussion of whether the application of s 59 of the Succession Act involves "two-stage inquiry" (see Sgro v Thompson [2017] NSWCA 326 at [68] per White JA). In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, Allsop P (as his Honour then was) explained at [6] that this issue may be "an analytical question of little consequence" (see also Sgro v Thompson at [69] per White JA, with whom McColl and Payne JA agreed). In any event, I am mindful of the potential errors involved in the two-stage approach which White JA identified in Sgro v Thompson at [71]-[74].
4. I am also mindful of what was said by Callaway JA (with whom Tadgell and Charles JJA agreed) in Grey v Harrison [1997] 2 VR 359 at 366-367: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

What is the plaintiff's entitlement under the will?

1. The legacies referred to in Clause 3(a)-(f) of the will which are payable to the plaintiff's grandchildren, great-grandchild, and daughter-in-law amount to $350,000. I will treat the chattels under Clause 3(g) and 3(i) as having only nominal values, there being no evidence of their value.
2. As matters stand, the estate has other liabilities of around $219,000. These include claims by Huntington ($93,458 including interest), Randwick Council ($8,494 including interest), Walter Carter Funeral Parlour ($15,831) and a number of not insignificant legal expenses necessitated by the fact that the executor was unable to sell the property and administer the estate sooner. The estate will also need to pay a commission on the sale of the property and may incur expenses associated with improving it for sale. The estate has also been diminished by the defendant's costs of this litigation, which are estimated to be $176,000.

What is the value of the estate?

1. It is of fundamental importance that, in determining an application of this type, the Court can be satisfied of the true value of the estate (see Blore v Lang (1960) 104 CLR 124; [1960] HCA 73 at 136-137 per Kitto J, and at 138 per Windeyer J).
2. A significant difficulty facing the Court on this application is that the only real asset in the estate has not been sold nor is it yet ready for sale. As I explain below, this is largely, if not entirely, a circumstance of the plaintiff's own making.
3. The evidence as to the value of the property took two forms. The plaintiff relied on short-form "appraisals" of market value given by a local real estate agent as follows: 1. 20 February 2023: $3,600,000 to $3,900,000. 2. 20 December 2023: $3,600,000 to $3,900,000.
4. The plaintiff invited me to take a rough midpoint of these, which she submitted was $3,800,000.
5. The defendant tendered appraisals by another local real estate agent, as follows: 1. 14 March 2023: $3,800,000 to $4,000,000 in its current state; $4,000,000 to $4,200,000 after $50,000 in painting costs. 2. 30 January 2024: $4,900,000 to $5,390,000.
6. Correspondence between the defendant and the agent who provided the 30 January 2024 appraisal indicated that his upper estimate was on the basis of about $78,000 in renovation work first being done. He indicated that he was willing to bear those costs and to recoup them from the defendant out of the sale proceeds.
7. The defendant also relied on a valuation report prepared by Kristy Kerswell of Waterhouse Valuations dated 5 February 2024. Ms Kerswell is a registered property valuer and is a director and partner of Waterhouse Valuations. Her report, which is cogent and well reasoned, is based on her inspection of the property on 5 February 2024. Her opinion is that the property in its current state has a value of $4,150,000 but that the property is currently in a "below average condition" and that the "value would be higher if the property was renovated".
8. The evidence therefore suggests a potential range of values from about $3,600,000 up to about $5,390,000. However, for the purpose of assessing the plaintiff's claim, I need to form some view as to the value of the estate. In doing so, I give far more weight to the Waterhouse Valuation than to any of the other valuation evidence. It is cogent, reasoned, expressed by a registered valuer, and is based on a contemporaneous and thorough inspection of the property. It is also the most closely dated to the time of the final hearing (see Blore v Lang at 133 per Fullagar and Menzies JJ).
9. Doing the best I can in the circumstances, I find that the property has a current value of around $4,150,000. This accords with the Waterhouse Valuation but is also comfortably within the range of views expressed by the real estate agents.

What will the plaintiff's inheritance be?

1. Taking all of these matters into account, if the property sells for $4,150,000 after $10,000 in clean-up costs, the plaintiff will receive approximately $1,666,275 under the will. If the property sells for $5,390,000 after some modest renovations totalling $80,850, the plaintiff will receive $2,239,337.50. These amounts are derived from a spreadsheet handed up by the defendant. I did not understand these calculations to be in dispute.

Does the will make adequate provision for the plaintiff?

1. The task of identifying the plaintiff's needs is not especially difficult in this case. I will come to her strictly financial needs shortly, but it is appropriate to note that the plaintiff is currently living in penury and is in real need of a home. She is one of two children of the deceased and has fallen on hard times. I express no view as to why that is so: it is the hard fact. Her inheritance is the only realistic prospect she has of obtaining some measure of financial independence from the state.
2. Her mother clearly recognised the significant contribution which the plaintiff made to her (i.e. the deceased's) care but nonetheless intended that she should inherit only half the residue of the estate. Her mother reached her view about the plaintiff's entitlement while mindful of the plaintiff's claims but with the fairly firm indication that the 50:50 split of the residue was appropriate despite the plaintiff's potential claims to a larger share on account of work done and money's paid prior to the date of the will.
3. It is appropriate that I take that testamentary wish into account (see s 60(2)(j) of the Succession Act). However, in circumstances where the plaintiff has fallen on particularly hard times in the 10 years since the will was drawn up, the deceased's view as to the plaintiff's contribution to her care prior to 2012 does not weigh heavily in my assessment of the adequacy of her inheritance in 2024.
4. I therefore consider that it is appropriate to start with an identification of how much the plaintiff requires in order to afford a place to live.

How much does the plaintiff need to buy a home?

1. The plaintiff's affidavits contained some evidence of the asking price for two-bedroom residences in Coogee and surrounding suburbs. The plaintiff's emphasis on the importance of her being able to live in Coogee was stated to be for the dual reasons that she had lived in Coogee for most of her life, and that she needed to be near her daughter for whom she cares. The particular properties were being advertised for sale at around $2,000,000. There was however very little evidence of how large the properties are, how long they had been on the market, whether they had been to auction, how they compared to other properties in the area or anything else that would help me to understand the relative value of the properties.
2. The defendant's affidavits contained other evidence of the asking price for two-bedroom residences in Coogee and surrounding suburbs. The particular properties, in that case, were being advertised for sale at around $1,000,000. There was, as with those properties referred to by the plaintiff, almost no evidence of anything else that might help me to understand the relative value of the properties.
3. The plaintiff was cross-examined at some length about these matters. It was suggested to her that she would be able to afford a two-bedroom apartment in Maroubra (or possibly elsewhere not too far from Coogee) for around $1,000,000. The plaintiff rejected this suggestion on the basis that she had not really looked at prices, had not inspected properties, and did not know where her desired residence would be or what it would cost. She did maintain that she wished to be close to her daughter in South Coogee. She said that she could not comment on the suitability of any particular apartment referred to in the defendant's evidence without knowing whether it was a ground floor apartment and whether it had an internal laundry (which she said was a necessity for her). She also said that she did not wish to live in a building that was not owner-occupied.
4. On the other hand, it is clear that the plaintiff had not really investigated whether any of the properties which she put forward met her "requirements" (which grew in the course of her cross-examination as each potential property was shown to her) and did not offer the Court any evidence of what it would cost her to actually acquire such a residence.
5. The result is that I do not have any particularly reliable evidence as to what it will cost the plaintiff to acquire a two-bedroom residence that meets her particular needs. All I have is a selection of advertisements of properties which may or may not meet her needs.
6. The evidence put forward by both parties on this issue was evidence of advertised prices, not sold prices. I note that some of the advertisements stated a median price of two-bedroom apartments in particular suburbs. Although I would ordinarily be reluctant to place too much weight on what appears in a real estate advertisement to determine actual housing affordability in the Eastern Suburbs of Sydney, it seems to be all the evidence I have. On the basis of that evidence, I consider that the median price of a two bedroom apartment in Coogee at the moment is about $1.34M and that it is about $1M in Maroubra. South Coogee, where the plaintiff's daughter lives, is immediately between Coogee and Maroubra.
7. The community does not have an expectation that elderly parents will provide mortgage-free living for their adult children in the ordinary case (see Taylor v Farrugia [2009] NSWSC 801 at [57] per Brereton J). But for reasons already indicated, I consider that adequate provision for the plaintiff here requires a sufficient sum to acquire a two-bedroom apartment near her daughter who is in South Coogee. Given the proximity of Maroubra (and Rosebery, as to which evidence was also received) and given that the plaintiff needs to drive to see her daughters in any event, it seems sensible for her to try to buy an apartment in Maroubra or one of the other nearby suburbs that does not command the price premium which Coogee seems to command. I consider that she requires $1,250,000 to buy an apartment where she can live within a short distance of her daughter. This should be ample for a modest two-bedroom apartment and will likely even cover stamp duty.

How much does the plaintiff need for health insurance?

1. The defendant disputed that the plaintiff required a sum of $80,000 towards future private health insurance costs, which were calculated on the basis of around $3,500 per year for the rest of her expected life. It was argued that any private insurance she acquired now would not cover any of her quite serious pre-existing chronic conditions anyway.
2. My difficulty with this aspect of the plaintiff's claim is that I do not have evidence to establish what the plaintiff would actually get for $3,500 per year. Who would provide insurance? What would it cover? What would the terms be? The evidence does not allow me to answer these questions. I also do not think the community generally expects elderly parents to ensure that their adult children will have private health insurance. That general expectation is no different in this case despite the plaintiff having fallen on hard times. The plaintiff accepted that the public healthcare system has served her well to date. I accept the defendant's submission that the plaintiff's needs and the adequacy of her inheritance are not to be assessed on the basis that she needs $80,000 for private health insurance.

Other matters

1. The plaintiff says that she needs a sum to be able to travel to Italy to visit relatives. Understandably, this is something she has not been able to do for a long time. It is fair to characterise this aspect of the plaintiff's claim as being a want, not a need. Hallen J dealt with claims of this kind in Bezjak v Wyatt [2018] NSWSC 199 at [120]-[121] and in Starr v Miller; Starr v Miller [2021] NSWSC 426 at [543]-[544]. The plaintiff suggested in her evidence that she required $40,000 for this purpose. In his opening submissions, her counsel suggested an allowance of $20,000 would be appropriate.
2. In circumstances where the plaintiff's circumstances are so straitened and where she is clearly quite estranged from her brother, her desire to travel to Italy to see relatives is not unreasonable. I would allow a sum of $10,000 which should be sufficient for her to purchase a couple of return air tickets over the coming years. I note that she has an interest in a timeshare scheme which enables her to holiday closer to home from time to time.
3. Taking all of these matters into account, I consider that the plaintiff's financial needs are about$1,566,000. That amount is calculated as follows: Needs Amount Security of accommodation, a safe 2-bedroom ground floor Strata unit in the Coogee area, including purchase and content cost $1,250,000 To repay her personalty storage costs $8,000 Travel $10,000 Gap medical expenses not covered by Medicare for lymphoedema $18,000 Compression stockings and other health accessories and related healthcare costs $46,000 Dental and prosthetics (new dentures) $20,000 Repay Pioneer Credit Corp for credit card debt $54,000 A contingency fund, unforeseen expenses, replacement motor vehicle and miscellaneous $160,000 Total $1,566,000

Should the Court make an order for provision?

1. As I have already indicated, if the property sells for $4,150,000, the plaintiff will probably receive about $1,666,275 under the will. That is an amount that meets her needs as I see them.
2. There is a risk that the property will sell for less than $4,150,000. There is also the prospect that it will sell for much more.
3. The plaintiff suggested that I should deal with this uncertainty by making an order for provision expressed as a percentage of the total estate, such as 62.5% of the residue after payment of legacies and other estate expenses. This, it was argued, would address the difficulty that the actual value of the estate is presently unknown.
4. To explain why I consider it inappropriate to make an order in those terms, it is necessary to say more about the circumstances that have led to the present predicament.

The plaintiff's refusal to vacate the property

1. The chronology of the defendant's attempts to gain vacant possession of the house is as follows.
2. The defendant was made financial manager of the deceased's affairs on 1 March 2018. On 7 April 2020, the defendant's solicitor wrote to the plaintiff asking her to vacate the property. The plaintiff did not reply. On 25 November 2020, the NSW Trustee and Guardian notified its decision that approval be given in principle for the house to be sold and, relevantly, for the defendant to provide the plaintiff with an allowance of up to $50,000 to support her with relocation costs: see s 65 of the NSW Trustee and Guardian Act 2009 (NSW).
3. The defendant's solicitors again wrote to the plaintiff on 27 July 2021 asking her to vacate but also said: "Mr Ciabattoni, on behalf of Mrs Ciabattoni, needs to borrow funds to pay expenses on her behalf as well as any potential advance to you. The need to borrow funds and to set up the loan facility for future expenses is urgent."
4. The letter also provided detail about the possibility of the plaintiff obtaining the allowance which the NSW Trustee and Guardian had approved.
5. There was no meaningful reply to that letter. The defendant's solicitors wrote again on 1 December 2021. The plaintiff was again asked to vacate the property and the detail of the offer of financial assistance was repeated.
6. The deceased died on 16 January 2022. On 14, 21 and 29 March 2023, the defendant demanded that the plaintiff vacate the property. The letter of 21 March repeated that the defendant was willing to arrange financial assistance to the plaintiff to relocate. On 29 March 2023, the plaintiff finally replied through her solicitors as follows: "At this stage, our client will not be able to vacate the premises. Ms Perez requires a reasonable offer from the defendant and at least 3-4 months to remove all the items from the property. Some of the items cannot be removed without a crane and multiple removalists and my client does not have those monies to be able to move out."
7. On 27 April 2023, the plaintiff informed the defendant that she would vacate the premises by 31 October 2023, more than six months later. This prompted the defendant to file the cross-claim for possession. That claim came before Hallen J on 26 May 2023, at which time the plaintiff undertook to move out by 14 August 2023.
8. It was only at that stage that the plaintiff tried to take up the defendant's offer of some financial assistance. She asked for $30,000 to be placed in her solicitor's trust account. On 25 August 2023, the defendant wrote to the plaintiff telling her of the need to borrow funds to pay debts, ready the property for sale and provide funds to the plaintiff. The plaintiff was asked to consent to the estate borrowing funds and to a mortgage. This request was thought to be necessary because of the terms of the will which directed the defendant not to charge the property to make improvements in preparation for sale. It was reasonable of the defendant to take that view in the circumstances.
9. The plaintiff, however, did not consent.
10. Further correspondence ensued. On 8 September 2023, the defendant's solicitor explained his client's position, including the need to take out a mortgage in order to meet the expenses of the estate to cover, amongst other things, the cost of providing advance funding for the plaintiff. He asked for detail of what she needed that funding for, noting that, as a trustee, the defendant could not simply pay out funds on demand.
11. The plaintiff responded with threats to take action against both the defendant and his solicitor.
12. There followed yet further correspondence in which the defendant sought to have the plaintiff remove her possessions from the property, a process which as yet is not complete. The evidence showed that, in December 2023, many of the plaintiff's possessions were still at the property. The property - at least upstairs - looks filthy. Many of the possessions are in disorderly piles. The plaintiff did not finally identify which of those items she wishes to keep, and which should be discarded, until shortly prior to the start of the hearing.
13. In all of these circumstances, the defendant says that the plaintiff's conduct should be taken into account in determining an appropriate provision from the estate.

Is the plaintiff's behaviour relevant?

1. It has been obvious for a very long time that this is an estate that has no assets of any significance other than the Coogee residence. The deceased had debts to Huntington and the Council. The defendant, first as financial manager and later as executor, has had no funds to meet expenses without either borrowing against the house or selling it. He has been stymied on both of those fronts by the plaintiff. It has been obvious for a long time that the house needs to be sold.
2. The plaintiff lived rent-free at the property from about 2002 until August 2023. But she accepts that she knew she had to move out once her mother died. She must have known that it was only when the house was sold that the estate could be finalised, the specific legacies paid and the residue divided between the plaintiff and defendant. Most of the legatees were the plaintiff's own children and grandchildren, together with her sister-in-law, Mrs Ciabattoni (the defendant's wife). Even before her mother died, it was obvious that the house needed to be sold in order to pay for the deceased's aged care expenses.
3. The plaintiff demonstrated a very high degree of truculence towards her brother in his attempts to deal with their mother's financial affairs while she was alive and then in his attempts to administer her deceased estate. The defendant's attempts to obtain vacant possession were entirely reasonable. He even offered to borrow in order to be able to pay up to $50,000 to the plaintiff in so as to allow her to move out and to find alternative accommodation while she awaited her inheritance which, of course, would only come her way once she moved out.
4. The plaintiff's rejection of these offers was quite unreasonable. She did not offer a satisfactory explanation for not taking up her brother's offer. She said that she did not know where the money was coming from, but that is no explanation at all. It was perfectly reasonable of the defendant to offer an advance at interest on the footing that the interest expense would be deducted from her eventual inheritance and on the additional basis that she first indicate what the nature of her financial need was. As a trustee, it would have been imprudent of him to advance funds without some explanation of what they were wanted for. Her responses to these offers were dismissive.
5. It was only when the defendant brought a cross-claim for possession that the plaintiff was prepared to vacate the premises. I have already noted the state of the property upon the plaintiff vacating it. Her possessions, which are still there, could not be removed without someone incurring some cost or expending some serious effort. I can accept that the plaintiff needed some assistance, financial or otherwise, in order to remove these items, but her attitude was one of non-cooperation.
6. Had the plaintiff accepted her brother's offer, she would have been able to afford decent accommodation while waiting for the estate to be finalised, the house could have been readied for sale and then sold, the debts to her mother's aged care provider and to Randwick Council could have been paid, interest and legal expenses in dealing with both the aged care provider and the Council could have been avoided and the legacies to other family members could have been paid. She could also have received a sizeable interim distribution from the estate pending the finalisation of these proceedings, since on almost any view and even taking her claim at its very highest, both she and the defendant are bound to be entitled to a substantial inheritance from the residue even after costs.
7. I find that the plaintiff's conduct in refusing to vacate the property has served only to delay and complicate what should have been the very straightforward administration of the estate. The estate has not only borne the costs of ejecting her from the property, it has also borne the interest and legal costs to which I have referred. Her conduct has caused a delay, by years, of the payment of modest legacies to her own children and grandchildren.
8. Bafflingly, the plaintiff's delay cannot be explained as serving her own interests. It would have been very much in her interests to vacate sooner and to accept her brother's offer of financial assistance to do so, for all of the reasons indicated above. The estate would have been administered more cheaply and efficiently had she done so. These are matters that I am entitled to take into account: see s 60(2)(m) of the Succession Act.

Appropriate relief

1. I have found that the plaintiff's financial needs are $1,566,000. I have also found that the property has a value of about $4,150,000, with the result that the plaintiff should receive about $1,666,000 under the will, without taking into account her costs of these proceedings.
2. As I have indicated, the plaintiff invited me to deal with the uncertainty around the eventual sale price by finding that the plaintiff is generally entitled to some fixed percentage of the residue of the estate. For the reasons set out above, I am not prepared to accept that invitation. Although the plaintiff has some very clear financial needs, she is not generally entitled to a greater share of the estate regardless of how much the property is worth. If the property sells for $5,000,000, the terms of the will will ensure that she receives in excess of her financial needs as I see them, even after taking into account both parties' costs of these proceedings.
3. I recognise that in proceeding on the basis that the value of the estate is $4,150,000, there is a risk that the property will in fact sell for less and that, in those circumstances, the plaintiff's actual inheritance under the will will be less than the amount which I consider she needs.
4. There are four things to be said about this circumstance. The first is that the present uncertainty about the eventual sale price is largely, if not entirely, a difficulty of the plaintiff's own making. As I have said, it has been obvious for years that the property must be sold. The defendant has been actively attempting to do so since 2020 and the plaintiff has been resisting it, in my view unreasonably.
5. The second is that an application for provision usually results in a binary outcome of success or failure: see Haertsch v Whiteway (No 2) [2020] NSWCA 287 at [11] per Macfarlan, Meagher and Leeming JJA. Having reached a firm view on the evidence of what the estate is worth, it is appropriate that I act on that view notwithstanding that it leads to a negative outcome for the plaintiff. The position would be different if I were only able to reach a tentative view or if I were uncertain as to whether to accept the Waterhouse Valuation. That, however, is not the case.
6. The third is that the plaintiff's case is at its very best borderline, at least in the following sense. The defendant handed up a schedule showing total creditors of the estate of about $220,000 which were as follows: Creditors Amount Huntington Gardens $93,458 Walter Carter Funeral Parlour $15,831 NSW Trustee & Guardian $9,479 Randwick City Council - (Rates) $8,494 AGL Electricity $383 Sydney Water $554 Legal Costs - Huntington Gardens $12,000 Legal Costs - Randwick City Council $2,500 Legal costs prior to death $73,000 Disbursements $3,776

1. If the plaintiff had moved out of the property when first required to do so, the estate would have avoided at least some of the amounts which make up the total creditors' claims. I do not know exactly how much has been incurred in dealing with legal claims associated with the defendant's refusal to move out. They include, at least: 1. Costs of dealing with Huntingdon who commenced proceedings against the defendant for payment of the deceased's nursing home expenses together with interest and who also lodged a caveat on the property. 2. Costs of dealing with Randwick Council, who commenced proceedings against the defendant for payment of outstanding rates together with interest. 3. Costs of the cross-claim, which was necessitated by the plaintiff's refusal to move. 4. I infer that the defendant also incurred costs in his capacity as Mrs Ciabattoni's financial manager prior to her death in dealing with the plaintiff's attempt to have him removed from that position and his attempts to gain possession.
2. On the assumption that the total creditors' claims might otherwise have been limited to, say, $150,000 (instead of $220,000), and if the defendant's costs of these proceedings had been limited to $150,000 (instead of $176,000), then even if the property only sold for $3,800,000 the plaintiff would still have been entitled to around $1,500,000 under the will which is only slightly less than what she needs to meet her financial needs. This all means that the plaintiff is (a) unlikely to inherit an amount under the will that is less than what she needs but, (b) if she does, it will probably be because of the costs which her mother and then the estate has had to bear because of her refusal to move out.
3. The fourth is that an order for provision on a percentage basis would mean that the plaintiff would inherit more than her brother even if he secures a high sale price for the Coogee residence that would otherwise comfortably satisfy her financial needs, which I have calculated to be $1,566,000. I do not consider that to be a satisfactory outcome here.
4. I have given some consideration to simply adjourning the proceedings until the final value of the estate is actually known, however that is a course which I do not favour. The defendant has placed cogent and reliable valuation evidence before the Court which I have accepted. Even a sale towards the low end of the range is likely to produce an acceptable return for the plaintiff. If it does not, then that is almost certainly going to be a function of the costs of the proceedings and the plaintiff's delay in moving out, not of any inadequacy in the provision made for her in the deceased's will.
5. I therefore propose to dismiss the summons. I will also dismiss the cross-claim on the basis that the property is now vacant in any event. The parties asked that I not deal with the question of costs without hearing further from them.

Orders

1. The orders of the Court will be as follows: 1. Dismiss the summons. 2. Dismiss the cross-claim. 3. Direct the parties to file and serve short submissions on costs on or before 4:00pm on 8 March 2024.

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: 23 February 2024