Piercy v Douras [2019] NSWSC 1013 | Case summary

Supreme Court of NSW|2019-04-17|Before: Henry J

Solicitors: Dakin Law (Plaintiff) Global Legal Solutions (Defendant) File Number(s): 2016/00351817

Background Facts

Joshua is the adult son of the deceased and the deceased's first wife, Judyth Piercy. In 1974, Judyth and the deceased began a de facto relationship. In 1976, Joshua was born.
While Joshua was growing up, he lived with Judyth and the deceased at the family home in North Creek Road, Ballina (family home). From about the age of 16, he started working on Sunday afternoons for extra money at the deceased's business, which was a service station in Ballina owned by JW Piercy Pty Ltd and trading as Shell River Street (Service Station).
In 1994, Joshua completed his HSC and started a carpentry apprenticeship. During his apprenticeship, he moved out of the family home for about 12 months, moving back in after its completion.
In late 1999, Joshua went overseas on a 12-month working holiday. When he returned to Australia, he moved back into the family home, working as a carpenter during the week and at the Service Station on Sundays.
Sometime in 1999, the relationship between the deceased and Judyth deteriorated. Judyth moved out of the family home and commenced divorce proceedings. She and the deceased later reconciled and were married on 29 July 2001. Joshua remained living in the family home with the deceased during the period of his parents' relationship breakdown.
As part of their reconciliation, Judyth and the deceased entered into a financial agreement pursuant to s 90 of the Family Law Act 1975 (Cth), which provided for a half-share of two properties owned by the deceased (including the family home), to be transferred into Judyth's name as a tenant in common, payment of financial support from the deceased to Judyth on an ongoing basis, and for Judyth to transfer her interests in two properties to Joshua in the event she and the deceased separated (Financial Agreement). On 31 July 2001, after she and the deceased were married, Judyth also made a will which leaves the entirety of her estate to Joshua.
In 2002, Joshua's girlfriend (and now-wife), Hayley, moved into the family home with the deceased and Judyth, which enabled Joshua and Hayley to save for their own home.
In 2005, Joshua and Hayley moved into a newly-built home of their own, and in 2008, they married. In 2012, they had their first child. They now have three children, aged three, five and six.
Between February 2002 and April 2015, Joshua was employed at the Service Station on a full-time basis and worked with the deceased. His evidence is that he earned less money when he started working for his father, but did so because the deceased said he would eventually take over the business and make more money than he was currently making (at [31], Joshua's affidavit dated 22 November 2016). Joshua's first full-time role at the Service Station was as a console operator, although he also assisted with managing staff, stock, banking and wages.
In 2006, Joshua completed a mechanical apprenticeship. He also undertook other courses relevant to the Service Station's workshop business and, in 2008, began working in the workshop on a full-time basis. In addition to his role in the workshop, Joshua continued to assist with managing staff, wages, stock and banking. After Joshua moved into the workshop, the deceased took holidays with Judyth and left Joshua to fill the deceased's role in the Service Station business, although another employee, Colin Rixon, was listed as the contact for security purposes.
In 2012, the deceased was diagnosed with mesothelioma. He had previously had other serious health issues, including a diagnosis of stage 4 melanoma in 2004 and a heart attack in 2009.
Sometime in late 2012, Joshua and the deceased had a significant disagreement about Joshua leaving the workshop unattended when, according to Joshua, he took six weeks paternity leave after the birth of his first child and, according to the deceased, Joshua abandoned the Service Station and looked for another job. The exact period of time during which Joshua stopped working at the Service Station is unclear. From Service Station records in evidence, it appears it could have been for a period of seven weeks and that he was back at work by at least 21 December 2012 (see annexures JP9 and JP10, Joshua's affidavit dated 16 July 2018). Whatever the reason or the period he was away, Joshua returned to work at the Service Station and he and the deceased came to an agreement about Joshua's working hours, duties, and amounts for which he would be paid, which was documented by the deceased (at [41], Joshua's affidavit dated 22 November 2016).
In late 2012, the deceased met Adrienne while she was working at a café in Ballina which she co-owned with her de facto partner. Adrienne had moved to Ballina from Sydney in 2009 and had operated two cafes with her de facto partner, the second of which was called "Adrienne's". Adrienne and her de facto partner separated in mid-2013.
According to Adrienne's evidence, she and the deceased got to know each other quite quickly and the deceased told her he was estranged from his family (at [11], Adrienne's affidavit dated 7 March 2017). Their relationship commenced sometime in May 2013. At this time the deceased told Adrienne he had cancer but had received the "all clear" from his doctors after successfully undergoing chemotherapy (at [12], Adrienne's affidavit dated 7 March 2017).
In late August 2013, after Judyth became aware of the relationship between the deceased and Adrienne, Judyth and the deceased separated (at [97], Judyth's affidavit dated 20 August 2018), although Judyth remained living in the family home until 17 October 2014.
From sometime in November 2013, Adrienne moved on to the deceased's Rivera motor boat to live with the deceased. The deceased stayed on the boat most nights, bringing with him his dog.
Adrienne gave up working at her café in January 2014 and, from then, spent all her time with the deceased.
In July 2014, the deceased commenced proceedings in the Federal Circuit Court against Judyth seeking to enforce the terms of the Financial Agreement. I refer to those proceedings and related property settlement proceedings together as the Family Law proceedings.
In August 2014, the deceased's cancer recurred and he began immunotherapy treatment.
On 17 October 2014, Judyth vacated the family home in accordance with interim consent orders made in the Family Law proceedings, after which the deceased and Adrienne commenced living together at the family home. Adrienne brought a few personal belongings with her and stored her furniture in a shed on the deceased's adjoining property, which was rented to third parties.
Joshua and the deceased continued to work together at the Service Station after the deceased and Judyth separated, and Joshua became aware of the deceased's relationship with Adrienne. Joshua gave evidence that, during periods in November 2014 and in January 2015 when the deceased and Adrienne were travelling, Joshua ran the Service Station business for the deceased as he had previously when the deceased was away or absent from the business (at [46], Joshua's affidavit dated 22 November 2016).
In November 2014, the owner of the property on which the Service Station was located informed the deceased that the lease would not be renewed and would terminate with effect from 30 April 2015. Joshua and the deceased discussed the closure of the Service Station, the deceased's retirement plans and Joshua's intention to set up his own mechanical workshop business (at T61:15-39 and [15], Joshua's affidavit dated 16 July 2018). On 11 January 2015, Joshua registered the business name "Ballina Rego and Mechanical", and sometime in early 2015, the deceased gave Joshua notice that his employment at the Service Station would cease on 17 April 2015 (see 2JP1 to Joshua's affidavit dated 20 August 2018).
On 26 February 2015, Joshua swore an affidavit in the Family Law proceedings on behalf of Judyth. Shortly after, in March 2015, the deceased and Joshua had a conversation in which the deceased told Joshua that, from his perspective, Joshua was taking Judyth's "side" and asked him to withdraw the affidavit. When Joshua refused to do so, the deceased told him that their relationship was over (at [49], Joshua's affidavit dated 22 November 2016). Joshua gave evidence on Judyth's behalf at the hearing of the Family Law proceedings in late March 2015.
Although they continued to work together at the Service Station, from the day of their discussion regarding Joshua's affidavit, the deceased and Joshua did not speak to each other again as "father and son" (at T35:34, [50] Joshua's affidavit dated 22 November 2016; [24] Adrienne's affidavit dated 27 April 2017).
Joshua's last day of work at the Service Station was 17 April 2015. After Joshua had left, the deceased sent him a lengthy email containing a number of allegations, including that Joshua had lied about the amount of time he had spent away from the Service Station in December 2012, had misappropriated funds from and failed to perform while working at the Service Station, and that Joshua owed the Service Station $38,385.08. The email also asserted that the deceased would be commencing legal proceedings against Joshua and that it would be the last form of communication between them. Joshua replied to the deceased's email that night to the effect that he would be making his own complaint to Fair Work Australia and also agreed that they would have no future communication.
From 17 April 2015, Joshua and the deceased did not communicate with or see each other again.
The Service Station closed down on 30 April 2015. By this time, the deceased's health had deteriorated and Adrienne had commenced a routine of intensive care for the deceased which involved her undertaking his nursing care and all other domestic activities while he was at home, taking him to various medical appointments and cancer treatment sessions, and spending time with him each day during periods of hospitalisation. This intensive care routine continued until the deceased entered palliative care in November 2015.
On 19 June 2015, the Federal Circuit Court set aside the Financial Agreement, for reasons which included that the deceased had dissipated Judyth's superannuation entitlements and failed to pay her ongoing financial support: Parke v Parke [2015] FCCA 1692 at [197] and [205]. [1] The Family Law proceedings continued for the purposes of the division of property and other assets between Judyth and the deceased.
On 31 August 2015, Joshua commenced a Fair Work claim against JW Piercy Pty Ltd, the Service Station business, in which he sought payment for unpaid wages and other entitlements in the amount of $18,902.60.
On 5 October 2015, Judyth and the deceased's divorce was finalised.
On about 1 December 2015, the deceased was hospitalised at St Vincent's Hospital in Ballina for palliative care.
On 11 December 2015, while he was in St Vincent's Hospital, the deceased and Adrienne were married. The deceased made his last will on the same day.
On 14 or 15 December 2015, Adrienne was appointed litigation guardian for the deceased in respect of the Family Law proceedings. Around this time, Judyth obtained orders for the return of $1 million which the deceased had transferred to Adrienne in November 2015, interim lump sum spousal maintenance, and orders preventing the deceased selling assets which were in his name, including the Riviera motor boat, a Winnebago motorhome and four properties.
On 1 January 2016, the deceased died. Joshua did not attend the funeral.
Joshua's Fair Work claim was subsequently undefended and, on 12 February 2016, he was awarded $18,902.66.
On 24 November 2016, Joshua filed these proceedings.
On 18 December 2017, final property orders were made in the Family Law proceedings. It is not in dispute that Judyth received a large proportion of the property and assets of the deceased's estate as a result of those orders, including the family home, the deceased's interest in three other properties, the Rivera boat, the superannuation account and other cash and chattels.

The deceased's will and statement of reasons

On 23 July 2015, the deceased made a will leaving his entire estate to Adrienne and appointing her as his sole executrix (23 July will). He also granted Adrienne his enduring Power of Attorney. The deceased updated his will on 11 December 2015 to include reference to Adrienne as his wife (11 December will).
When making the 23 July will, the deceased prepared written reasons regarding his decision to exclude certain people from his will, including Joshua (statement of reasons). The statement of reasons is attached to the 11 December will.
The 11 December will refers to the deceased making no provision for Judyth because they are separated, she "no longer takes any interest in his welfare", the Family Law proceedings will determine her entitlement to property maintenance, and for other reasons set out in the statement of reasons: cl 3. The 11 December will also states that it makes no provision for Joshua and other persons for the reasons set out in the statement of reasons: cl 4.
It is not necessary to set out the deceased's explanations in the statement of reasons for excluding Judyth and others from his will, but I have set out in full the part that relates to Joshua: "I John Wallace Piercy being of sound mind do consciously without spite or hatred want noted by the courts in case my will is contested as to the reasons that I have chosen of my own free will to leave certain people put of my will. ….. 4. My grandchildren to this date Emma and Ella Piercy from my son Joshua who I have never been allowed to bond with or have a relationship with. The second child Ella I have only seem once in passing as my son made it quite clear to me that he would rather have his mother have a relationship with them. 5. My son Joshua who I have never had a close relationship with and not without trying due to his mother's influence, He took to the stand against me in March, 2015 at the Federal Circuit Court on the grounds that he supported his mother 100%, Both him and his mother have joined forces against me to get whatever they can monetary wise and to see me go broke. He has made reference to many mutual acquaintances of his utter hatred towards me and how he wishes me dead so he can get his hands on my money and assets just like his mother. It is fact that he has told numerous people not to attend my funeral when I pass. He has never assisted me in any which way regarding helping me with household chores at home or at any of the investment properties or doing any extra work since I was diagnosed with mesothelioma in 2012. In fact he went out of his way to abandon my place of business for some time when I was diagnosed which is when I needed his support the most. He has treated me without respect or love most of his life and only came to me when he needed help or money. Example of this is when he abandoned my business he could not find work elsewhere because the community knew how he lacked work ethics and responsibilities, only after he was knocked back numerous times that he came back to me. Since closing my business it has come to light that he has been stealing money from me on a regular basis. Both him and his wife Hayley were entrusted to do my bookwork for the business which they have left in a disgraceful mess for me to try and sort out. He has also stolen a number of items from me without my knowledge from my shed. He has continuously bad mouthed me and shamed me in front of a number of people including my staff. He has advised some mutual friends that he wants to change his surname to his wifes maiden name or to his mothers maiden name because of the absolute hatred he has for me. Lastly the last straw comes as I have discovered that he has also stolen approximately $400,000.00 in cash from my shed which I had being putting away for some time, this was done once again with his mothers help as she was the only one with the shed key. So I think that they have gotten away with enough and are laughing at me all the way to the bank. Neither of them have assisted me through my treatment in any which way as they just both want me gone and then to enjoy the fruits of my hard earned labour. All he wants is everything that I have worked hard for all my life just like his unappreciative mother because they both think that it is their god damn given right as he was taught by her. Neither of them have any morals in regards to what they will do for money."
Evidence of the deceased's testamentary intentions, as set out in the statement of reasons, is evidence that the Court may take into account in determining Joshua's application for provision: s 60(2)(j) Succession Act, and I return to the statement of reasons later.

Legal principles

The Court may make an order for Joshua's provision out of the deceased's estate as the Court considers ought be made for his maintenance, education or advancement in life if it is satisfied that adequate provision for his proper maintenance, education or advancement in life has not been made by the deceased's will: s 59(1)(c) Succession Act.
The Court's assessment of whether to make such an order is to be undertaken having regard to the facts known at the time when it is considering the application (which in this case is 12 April 2019), and not when the deceased's will was made, at the time of his death or the date on which the application for provision was first made: s 59 Succession Act. This is particularly relevant in this case given the change in circumstances since the deceased's death and the hearing on 12 April 2019.
Section 60(2) of the Succession Act sets out matters to which the Court may have regard for the purposes of determining whether to make a provision order and the nature of such an order. Relevantly, those matters include: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education and advancement in life, nor does it give greater or lesser weight to any of the various matters set out in s 60(2) to which the Court may have regard for the purpose of determining whether to make a family provision order and the nature of any such order.
Determining whether inadequate provision has been made for the proper maintenance and advancement in Joshua's life requires a multifaceted evaluative approach that takes account of all the relevant circumstances of the case and is fact-specific to the application: Sgro v Thompson [2017] NSWCA 326 at [6] and [66]-[67]; Harris v Harris [2018] NSWSC 552 at [30]-[31].
As White JA in Sgro v Thompson [2017] NSWCA 326 said, at [86]: "What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
The relevant circumstances will include a consideration of Joshua's needs, although there is a distinction between needs and adequate provision and whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any consideration of the needs of the applicant also requires consideration of the size the estate and the claims of others on it: Chan v Chan [2006] NSWCA 222 at [22].
What is adequate concerns quantum, and must be relative to Joshua's needs and also to his own capacity and resources for meeting them on the one hand and, on the other, the nature, extent and character of the estate and the other demands on it and also what the testator regarded as superior claims: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9, at 19.
Proper refers to the standard of the maintenance and advancement in Joshua's life and enables the Court to consider the 'station in life' of the parties and the expectations to which they have given rise based upon how they lived and might be expected to have lived in the future: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114]; Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [72], [77]; Meres v Meres [2017] NSWSC 285 at [100].
While there are no special rules that apply to applications by adult children, the consideration of the facts that are relevant to determining whether an order for provision should be made in respect of an adult may be different to that of a child having regard to the passage of time and the differing nature of the relationship between that of a minor child and parent and an adult child and parent: Oldereid v Chan [2013] NSWSC 434 at [55]: McCosker v McCosker (1957) 97 CLR 566; Kleinig v Neal (No 2) (1981) 2 NSWLR 532.
The Courts recognise that "almost certainly views would differ" about whether parents have "a moral or natural obligation" to provide for able-bodied adult children: Hastings v Hastings [2010] NSWCA 197 at [20].
Hallen J set out the principles relevant to an application of an adult child in Carusi-Lees v Carusi [2017] NSWSC 590. I respectfully adopt his Honour's reasoning at [116]: "(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. 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]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. (c) 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]. (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 [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd at 148; Goodman v Windeyer [1980] HCA 31; 144 CLR 490 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) [1981] 2 NSWLR 532 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 [1957] HCA 82, (1957) 97 CLR 566; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; Taylor v Farrugia, at [58]. 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]; 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]. (f) 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 at 149."
I now turn to the relevant additional facts and matters by reference to s 60(2) of the Succession Act.

The relationship between Joshua and the deceased: s 60(2)(a)

There is no dispute that sometime in late February or early March 2015, the relationship between Joshua and the deceased deteriorated significantly after the deceased found out that Joshua had sworn an affidavit in the Family Law proceedings on behalf of Judyth, which Joshua refused to withdraw. While continuing to work together at the Service Station, any existing father and son bond between them ceased and they had no further conversations of a familial nature from that time.
It is also not in dispute that from 17 April 2015, the day on which Joshua ceased employment at the Service Station, he and the deceased were totally estranged and that they did not see or communicate with each other again for the remainder of the deceased's life.
What is in dispute is the closeness of the relationship between the deceased and Joshua over the period of Joshua's life prior to their estrangement and whether Joshua should have taken any steps to repair his relationship with the deceased prior to the deceased's death.
Joshua maintains that he and the deceased had a close personal and working relationship throughout their lives until their estrangement in March 2015. He gave evidence of the deceased's role in his life during his school years, which included teaching him to water ski and play squash, going to the Speedway, on work trips and on holidays together, and that he worked for the deceased at the Service Station on Sunday afternoons for extra money (at [19], Joshua's affidavit dated 22 November 2016).
Perhaps more relevant to this application, is the evidence that the deceased and Joshua continued to have both a personal and professional relationship well into Joshua's adult years. As the chronology of events indicates, Joshua lived with the deceased for most of the period between leaving school in 1994 and moving into his new home with his wife Hayley in 2005. Joshua's evidence is that he was also in regular contact with the deceased after he moved out of the family home. The deceased visited Joshua regularly, took Joshua and Hayley out for dinners, attended Joshua's rugby union games, was involved as a grandparent after Hayley and he had their first child, and bought gifts for Joshua and Hayley (at [20], [28]-[29], [80(b)], Joshua's affidavit dated 22 November 2016; [45], Joshua's affidavit dated 16 July 2018).
Judyth also gave evidence that Joshua and the deceased were close while Joshua was growing up and after he left school (at [34], Judyth's affidavit dated 20 August 2018).
Joshua's evidence is that he witnessed tension between his parents during their marriage and that he intervened when the deceased was physical towards Judyth (at [45], Joshua's affidavit dated 16 July 2018). He also acknowledges that his relationship with the deceased became more "distant" after he became aware of the relationship between the deceased and Adrienne. Joshua refused to meet Adrienne until after the legal proceedings between his parents were finalised (at [43]-[45], Joshua's affidavit dated 22 November 2016; [45], Joshua's affidavit dated 16 July 2018; [16], Joshua's affidavit dated 20 August 2018).
As to their working relationship, it is not in dispute that Joshua and the deceased worked together at the Service Station for 12 years. Joshua's evidence is that the deceased was proud of him attaining his mechanical apprenticeship certificate, trusted him to manage the business while the deceased travelled and that, apart from the disagreement in December 2012, they had very few disagreements with each other during the time they worked together at the Service Station (at [34], [36], [41], Joshua's affidavit dated 22 November 2016; at [11], Joshua's affidavit dated 16 July 2018).
Joshua contends that his estrangement from the deceased was at the deceased's instigation and followed from the email the deceased sent to him on 17 April 2015, after Joshua's final day of work at the Service Station.
Joshua was cross-examined about his attitude towards the deceased in 2015, after Joshua ceased working at the Service Station. Joshua accepted that he did not visit the deceased in hospital, did not send him any 'get well' or Father's Day cards, and did not notify him of the birth of his third grandchild (T46:2-44; T47:1-45). Joshua was also asked about an SMS he sent that described the deceased as the person "formerly known as dad". Joshua accepted that he had lost respect for the deceased and this was when there was no father/son relationship between them (T55:2).
In his statement of reasons, the deceased asserts that he and Joshua "never had a close relationship", that Joshua was influenced by his mother and treated him "without respect and love most of his life and only came to [the deceased] when he needed help or money". It also includes a range of other assertions which go to the character of the relationship between Joshua and the deceased prior to their estrangement in 2015, such as that Joshua had not assisted the deceased since he was diagnosed with cancer, and that he "went out of his way to abandon" his work at the Service Station.
The statement of reasons was written when Joshua and the deceased were completely estranged, and appear to attempt to justify excluding Joshua from the will. Given Joshua's evidence disputing the matters referred to in the statement of reasons (at [80], Joshua's affidavit dated 22 November 2016), and Joshua and Judyth's evidence of the familial interactions between Joshua and the deceased until late 2013, I consider that the deceased's assertions simply cast light on that relationship from the deceased's perspective in December 2015, rather than representing an accurate reflection of their relationship over the years: see also McDonald v O'Connor [2019] NSWSC 261 at [174].
Adrienne gave evidence which also sought to contradict Joshua's evidence about the closeness of the relationship between he and the deceased, describing the relationship as "very volatile, even aggressive" before she became a part of the deceased's life in 2013. Adrienne deposed that the deceased had given up on Joshua from the time he was about 18 years old, the deceased's objected to Joshua's lifestyle and the deceased had a negative opinion of Joshua's work ethic (at [45], [65] Adrienne's affidavit dated 27 April 2017). Adrienne has not met Joshua or personally witnessed any interactions between Joshua and the deceased. All of her evidence on those matters was based on statements made by the deceased (T113:12-27). In those circumstances, and given Joshua's own evidence and his responses to Adrienne (at [45], Joshua's affidavit dated 16 July 2018) and my conclusions regarding the statement of reasons, I do not consider Adrienne's evidence on those matters to be persuasive and I prefer Joshua's evidence. I also consider it unlikely that the deceased would have continued to employ Joshua in the Service Station for as long as he did if the assertions in Adrienne's evidence regarding the relationship between the deceased and Joshua were accurate or reflected the deceased's long held views.
Adrienne also relied on evidence from Colin Rixon, a long-term employee of the deceased who worked at the Service Station, and Philip Kerr, a friend of the deceased's who had known him for 34 years. Both of these men gave evidence to the effect that Joshua and the deceased argued, had "differences" and a troubled relationship from before the deceased started his relationship with Adrienne in 2013 (at [15] and [23], Colin Roxon's affidavit dated 12 July 2018; [9], Philip Kerr's affidavit dated 12 July 2018). While they were not cross-examined on these aspects, their evidence was of a general nature and not inconsistent with my findings below.
As Sackville AJA noted in Foley v Ellis [2008] NSWCA 288, 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."
The conclusion I draw from the evidence is that up until the second half of 2013, the deceased and Joshua had a continuing and close familial relationship which, at times, was likely strained by incidents involving the deceased and Judyth and work disagreements between Joshua and the deceased, including the incident in late 2012. I accept there were arguments and periods of volatility between the deceased and Joshua prior to 2013. To my mind, that is to be expected in the context of Joshua and the deceased having worked together closely for many years, the usual ups and downs that any father and son relationship may experience, and what appears from the evidence to have been a difficult relationship between Joshua's parents and the deceased's somewhat controlling nature. As Basten JA recognised in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [39] "indifference, irritation or even outright hostility are also "natural" characteristics of some family relationships".
I also conclude that the nature of the relationship between Joshua and the deceased changed in 2013 after Joshua was made aware that the deceased and Judyth were going to separate and after Joshua discovered Adrienne's role in the deceased's life. As Joshua accepted, after being told of these matters his relationship with the deceased became more distant and their social interactions, including visits to Joshua and Hayley's home to see the grandchildren, appear to have been almost non-existent (T68:45-50). While they remained working together at the Service Station for a further 18 months, I do not accept that they continued to have a "close and harmonious personal relationship" and would characterise it as familial, but strained, from that time.
As noted earlier, it is accepted that there was no father son relationship from sometime in March 2015 and total estrangement from 17 April 2015.
The Courts recognise that the existence of any estrangement between an adult child applicant and a deceased is a relevant factor to consider, including the causes of any estrangement between them, but the existence of an estrangement is not determinative: Burke v Burke [2015] NSWCA 195 at [95] and [103]. The term estrangement does not describe the conduct but the nature of the relationship which results from the attitudes or conduct of one or both of the parties: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [666] and [668].
This is not a case where his estrangement with the deceased disentitles Joshua from making a claim for provision. Nor should his decision to give evidence in support of Judyth, although it does suggest a closeness of a relationship with his mother in contrast to the relationship he had with the deceased at that time.
While giving evidence on Judyth's behalf may have precipitated the breakdown of their relationship and estrangement, it was the deceased's reaction to those events that was the primary cause of the estrangement. After Joshua gave evidence on behalf of Judyth in late March 2015 and the deceased sent his 17 April email, it seems unlikely that anything would mend the relationship between Joshua and the deceased (at least in the short term) and I do not accept the submission that it was incumbent upon Joshua to take steps to do so. Joshua's attitude towards and lack of contact with the deceased after their estrangement are explicable given the attitude displayed by the deceased towards Joshua, and are not matters that weigh heavily against his claim.

The deceased's obligations to Joshua and to Adrienne: s 60(2)(b)

As the deceased's only child, Joshua may be expected to be a natural object of the deceased's will. That said, there is no "presumptive testamentary entitlement of an [adult] offspring": Underwood v Gaudron [2015] NSWCA 269 at [73], and the question of the extent, if any, of a continuing moral obligation or responsibility owed by the deceased to Joshua can only be considered in the context of all the circumstances in this case.
As noted later in these reasons, it is apparent that the deceased provided for Joshua over the years. That support was more limited after Joshua left the family home and, other than providing employment to Joshua, had ceased entirely by the time the deceased and Adrienne commenced their relationship in 2013.
There is also evidence that, until he commenced his relationship with Adrienne, the deceased was aware of a moral obligation to leave his estate to his only child. The deceased acknowledged Joshua's claim by making statements to the effect that Joshua would "end up with everything" and it would all be his when the deceased "was gone" (at [76], Joshua's affidavit dated 22 November 2016). The deceased also made statements to Joshua over the years to that effect Joshua would one day take over the Service Station, although Joshua was aware that the deceased would not give him the business without Joshua paying for it (T61:8-10; [76], Joshua's affidavit dated 22 November 2016; [45], Joshua's affidavit dated 16 July 2018). The fact that the deceased's will did not reflect these statements is explicable by the subsequent breakdown of his relationship with Joshua and the deceased's desire to provide for Adrienne.
As the deceased's widow, Adrienne is the natural object of his will. While she had been his wife for only a period of weeks before he died and in a relationship with him for less than three years, there is no suggestion that theirs was anything other than a very happy relationship and that she provided the deceased with a great deal of love, care and support while he was very ill and in the last stages of his life.
There is also evidence that Adrienne left the café and made no claim on it or any property claim against her ex-de facto partner after the deceased contacted him to advise that Adrienne would be leaving because the deceased had told her he would take care of her financially and she should not be concerned about giving up her interests (at T104:15; [12]-[13], Adrienne's affidavit dated 7 March 2017).

The deceased's estate: s 60(2)(c)

The deceased's estate at the date of his death was substantial, with a gross distributable value estimated to be $5,119,281.10 (at [4(a)] and [8], Adrienne's affidavit dated 7 February 2017). That amount comprised approximately $1.2 million in cash, superannuation, shares and annuities; two properties in Ballina estimated to be worth $470,000 and $420,000 respectively; the Riviera motor boat valued at $500,000; other chattels and jewellery worth $678,786; a stamp collection estimated to have a value of $1 million; and $822,500 of property owned jointly by the deceased and Judyth as tenants in common.
There was a dispute at the hearing about the value of the stamp collection and whether it belonged to the estate. Senior Counsel for Adrienne accepted that they had not established that the stamp collection belonged to the estate (T168:15). In any event, I prefer Joshua and Judyth's evidence that it was treated as "Joshua's stamp album" while Joshua lived at the family home, Joshua took it with him when he left, and it was purchased from Joshua's grandfather's estate (T67:21; T157:13; [44], Joshua's affidavit dated 16 July 2018; [153] - [164], Judyth's affidavit dated 20 August 2018).
I also accept Joshua's valuation of $5,000 - $10,000 (T53:28) over Adrienne's valuation of $1 million in circumstances where she had not seen the collection herself, was told what the stamps looked like by someone other than the deceased and the valuation was based on internet research she did after the deceased's death (T93:10-40). The only other evidence of the value of the stamp collection was what Judyth allegedly told a third party some 30 years ago (T141:35-40), which was not put to her in cross-examination.
Accordingly, I have approached the application on the basis that the value of the assets of the deceased's estate at the time of his death was $4,119,281.10.
Since the deceased's death, the value his estate has dwindled significantly. This is primarily due to the final property orders made in the Family Law proceedings on 18 December 2017 which led to Judyth receiving a large amount of the property and other assets held in the deceased's name and in their joint names.
Further, between the deceased's death and the hearing, the estate has also paid out a range of other liabilities and testamentary expenses. These include legal costs of the Family Law and probate proceedings, tax and insurance amounts and other expenses, which I estimate to be in excess of $1 million based on the evidence before the Court (at [18] and [20], Adrienne's affidavit dated 7 February 2017; [7], Adrienne's affidavit dated 6 April 2018; [97], Adrienne's updated beneficiaries affidavit dated 10 April 2019). It has also paid legal costs in relation to these proceedings of $115,861.35 (at [3], Jade Chee's affidavit dated 10 April 2019).
Taking into account those matters, at the date of the hearing, the assets of the estate have an estimated value of $743,523.67 (at [2], Adrienne's updated executor's affidavit 10 April 2019), consisting of the following: Description Estimated $ NAB Estate Account in the name of Adrienne Piercy ATF the Estate of the Late John Wallace Piercy $196,898.67 1 Riverside Drive, Ballina, NSW $460,000.00 299 shares in Aurizon Holdings Ltd held in the name of John Wallace Piercy under management of Computershare $13,645.00 2011 Toyota Hilux registration JP-063 $20,000.00 Solicitor's trust Account $52,980.00 TOTAL $743,523.67

The unpaid liabilities of the estate at the date of the hearing (which excludes a claim by Adrienne as executor for compensation or commission), are estimated to be $99,839.43 (at [3], Adrienne's updating executor's affidavit dated 10 April 2019). That estimate includes the executor's unpaid legal costs to the completion of the hearing in the amount of $93,544.43 (at [3], Jade Chee's affidavit dated 10 April 2019).
The usual approach is that a defendant executor is entitled to their costs out of the estate on an indemnity basis, even if a claimant is successful, although some departure from that approach may be justified in certain circumstances: McDonald v O'Connor [2019] NSWSC 261 at [127].
I adopt the usual approach in this case and will take into account the estimate of Adrienne's costs on an indemnity basis in calculating the net value of the assets of the estate which are available for distribution. As Basten JA said in Chan v Chan [2016] NSWCA 222 at [54], "[i]n 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".
After taking into account all unpaid liabilities and legal costs, the net value of the assets of the estate which are available for distribution is estimated to be $643,684.24. There is no notional estate.
During the hearing, Joshua's counsel criticised Adrienne for claiming $28,164.69 as testamentary expenses, which comprised payments for outgoings related to Adrienne's occupation of the family home from the deceased's death to early 2018, and reimbursements for pet food and vet expenses for the deceased's dog. Joshua's counsel submitted that these amounts were properly characterised as Adrienne's personal expenses, rather than estate expenses, and should be treated as a benefit provided to her from the estate (T160:34-37). As no submission was made that those amounts should be reimbursed or made available for distribution from the estate, I have approached the matter on the basis that the net value of the estate that is available for distribution remains the amount identified above, being $643,684.24.
Suffice to say, what was once a considerable estate is now significantly depleted. The bulk of the available estate comprises a property at Ballina which is currently unoccupied. The evidence indicates that an amount of $350,000 would be required to make good existing defects and renovate the property to a liveable standard and it would cost $450,000 to demolish the existing dwelling and build a new house (at [79] and annexure AD8 to Adrienne's updating beneficiaries affidavit dated 10 April 2019).

Joshua's personal and financial circumstances and financial needs, and that of Hayley: ss 60(2)(d), (e), (f) and (g)

Age and personal circumstances

At the date of the hearing, Joshua was 42. He is married to Hayley and has three young children aged three, five and six years old.

Assets and liabilities

Joshua put on evidence of his and Hayley's assets, as follows: Description Estimated $ Property 35 Ridgeway, Cumbalum 2478 (home and joint asset) $600,000.00 Shares $5,374.00 NAB 212 shares $94.00 CSS 100 shares $1,484.00 QAN 255 shares $2,730.00 MPL 1,000 shares Bank account/cash (joint) $9,800.00 Superannuation $45,000.00 Joshua $47,500.00 Hayley Motor vehicles $15,000.00 2006 Toyota Hilux SR 5 $13,000.00 2012 Subaru Liberty Exiga $25,000.00 2015 Jayco Swan Outback Business - plant and equipment $40,000.00 Stamp album $5,000.00 TOTAL ASSETS $810,482.00

Joshua and Hayley's liabilities are as follows: Description Estimated $ Mortgage 35 The Ridgeway, Cumbalum (joint) $272,000.00 Credit Cards $3,757.00 Go Mastercard $5,900.00 NAB Visa Bank overdraft NAB $49,800.00 Income tax - Joshua Piercy $15,000.00 Chattel mortgages $ 2,600.00 Business creditors $ 8,000.00 Loan from Judyth Piercy ($10k business + $50k oao barrister fees $60,000.000 TOTAL LIABILITIES $417,057.00

As a result, Joshua and Hayley's net worth is currently estimated to be $393,425.00.
Joshua and Hayley set aside $240 per month into bank accounts held on trust for their children and from which expenses associated with their upbringing are paid (T55:25-50). There is no evidence before the Court as to the current cash amount in those bank accounts and they are not included in the assets listed above.

Health

Joshua is in good health. Hayley suffers from Crohn's disease, which requires ongoing specialist treatment and medication. Two of Joshua's children have a top lip frenulum which may require surgery in the future although Joshua did not provide an estimate as to the cost of that surgery.

Employment and income

Joshua is self-employed and has been running his own mechanic workshop business called Ballina Rego and Mechanical Centre since 1 July 2015. His net business income for the financial year ending 30 June 2018 was approximately $87,000, on which tax is yet to be assessed. Joshua's business employs one person and had gross sales of approximately $500,000 in the financial year ending 30 June 2018. The evidence indicates that Joshua's income and gross sales have, on average, increased since he started his business in July 2015.
Hayley works as a bookkeeper on a part-time basis (two days per week) and the equivalent of another day at home, working mostly at night when the children are in bed. She has a net monthly income of $2,780.00. I accept her evidence that she does not intend to increase her working hours, to enable her to be available to spend time with their children.
Joshua and Hayley estimate their joint average monthly expenditure to be $7,266. They are currently meeting their monthly expenses from their combined income, although there is not much "left over". They do not lead an extravagant lifestyle and take occasional family holidays in their caravan.

Financial needs

In terms of his future financial needs, Joshua requires $100,000 to purchase additional capital equipment for his business in order to grow and fully equip the mechanical workshop (at [70], Joshua's affidavit dated 22 November 2016; at [20] Joshua affidavit 8 April 2019). He also submits that he needs some further provision for contingencies and to pay down some of his mortgage. The total provision he seeks for those purposes is $250,000.

Adrienne's personal and financial circumstances and financial needs: ss 60(2)(d), (f) and (g)

Age and personal circumstances

Adrienne is 55 years old. She is single, unemployed and is currently living with friends as she does not own her own house.

Assets and liabilities

Adrienne's assets are very limited. She does not own any property, does not have any superannuation and does not own any shares or any other investments.
At the date of the hearing, the value of her assets was estimated to be $46,068.94, comprising: 1. $21,068.94 held in four bank accounts. This amount includes the residue of a lump sum payment (of $335,650) which she received in March 2016 from the Dust Diseases Authority as the deceased's widow; and 2. a second-hand 2007 Mercedes motor vehicle, valued at approximately $25,000.
Adrienne did not identify any current liabilities.
Adrienne did not identify the value of any personal items other than her car.

Health

Adrienne's evidence is that she has experienced a number of health issues since the deceased died, which has resulted in her health declining significantly, to the point where she is now in constant pain, is prevented from doing her usual day-to-day activities, requires a further operation on her left hand and is unable to work (at [8]-[16], Adrienne's updating beneficiaries affidavit dated 10 April 2019; T109:25 - 40).
There are a number of medical reports in evidence which corroborate Adrienne's evidence. These include a summary report dated 7 March 2019 from her treating general practitioner, Dr Nicholas De Marco, which indicates that Adrienne's health has deteriorated since early 2016 and lists a number of medical issues she has faced since that time (at annexure AD1 to Adrienne's updating beneficiaries affidavit dated 10 April 2019).
Dr De Marco's report identifies Adrienne's current medical issues as follows: 1. stress, anxiety and depression. The report confirms that she remains on an antidepressant medication and continues to suffer those symptoms to varying degrees but that she has always coped to date; 2. chronic lower back pain, which she developed while dealing with the physical requirements of caring for the deceased, and which has been diagnosed as mechanical and radicular back pain, which evolved to chronic pain and was exacerbated by her anxiety and depression. The reports notes that this pain may be treated by diagnostic facet joint injections which Adrienne has not yet taken up; 3. injuries to her right shoulder, both involving a SST tear, which have been managed by steroid injections, medications and physiotherapy, but which continue to cause considerable amounts of pain; and 4. a left arm nerve injury which occurred when she fell over in July 2016 which required surgery and subsequent hand therapy, and was complicated by a left elbow septic arthritis. The report notes that the nerve in Adrienne's hand has not regenerated and she continues to suffer a degree of permanent incapacity which may be improved by having a tendon transfer operation in the future.
While not referred to in Dr De Marco's report, Adrienne deposed that she remains on daily pain medication for her back (at [9], Adrienne's updating beneficiaries affidavit dated 10 April 2019).
There is also a report from a reconstructive hand surgeon, Dr Dilip Gahankari, dated 29 May 2018 (at annexure B, Adrienne's affidavit dated 31 May 2018) which opines that, even with a successful further operation, the nature of Adrienne's left arm nerve injury means that she is unlikely to work in the hospitality industry again, and her future working capacity in another industry would be better determined by a rehabilitation consultant.

Employment and income

Adrienne is currently unemployed, having ceased working at the cafe in January 2014 after she went to live with the deceased.
She has spent much of the past three and a half years engaged in her duties as an executor and dealing with various legal proceedings, namely the Family Law proceedings, probate proceedings and these family provision proceedings.
Given her age, identified health issues and the opinion of Dr Gahankari, Adrienne's future employment prospects are low. Without surgery to her left arm, retraining and rehabilitation, she may be unable to work again.
The only income Adrienne has and expects to receive in the near future is a fortnightly payment from the Workers Compensation Dust Diseases Authority in her capacity as the deceased's widow, which is currently $589 per fortnight.

Financial needs

Adrienne gave evidence of her future financial needs, which she estimates might be met if she receives all the estate assets in keeping with the will to be approximately $628,550 (at [56], Adrienne's updating beneficiaries affidavit dated 10 April 2019).
Adrienne's estimate of her future needs comprised, in large part, the amount of $450,000-$500,000, for a three-bedroom home in the Ballina area with a fully fenced yard suitable for the deceased's dog. At the hearing, Adrienne accepted that a two-bedroom home would be sufficient, for which she estimates she needs $410,000-$500,000, based on real estate advertisements for houses in the Ballina area (Ex 5).
Adrienne estimates that she requires approximately $88,550 for annual recurring personal expenses. I have approached that amount with some caution as it is based on estimates which appear high for a single person (for example, $20,000 per year on food) and includes at least one duplicate item ($2,000 for gifts). It is also an amount which Adrienne will be unable to afford on an ongoing basis if uses most of the estate's assets to purchase a property of her own (in the absence of some further income). That said, many of the figures do not seem unreasonable and it provides some guidance to the Court for her future needs, accepting that it will not fund a lifestyle similar to what she experienced with the deceased (which included business class travel).
Adrienne was challenged on her financial position and needs at the hearing.
She was cross-examined about how she had spent $314,581.06 in three years, comprising the lump sum amount she received from the Dust Diseases Authority as the deceased's widow in early March 2016 (at T117:28-38, T119:11-18).
Adrienne was vague as to the use of all the funds, although she did give evidence that she bought a small vehicle, had many out of pocket medical expenses, and that some of her clothing, furniture and other chattels located at the family home and stored in the shed on the adjoining property were ruined due to flooding in 2016 and vermin and had to be replaced (T119:1-10; [55], Adrienne's updating beneficiaries affidavit dated 10 April 2019). Joshua's counsel asked whether she had made any insurance claim in respect of those effects. She accepted that she hadn't and gave evidence that she did not know whether any insurance was available to reimburse her for those amounts (T118:35-50).
$314,581.06 is not an insubstantial sum to have spent over a period of three years, although I do not accept that it indicates that Adrienne has been so profligate that her estimate of financial needs going forward should be significantly discounted. Taking issue with how she spent those funds, such as paying for a two-week holiday to Thailand is, in my view, of no real significance in the context where she received the funds as the deceased's widow and is not making a competing claim for provision.
Adrienne was also pressed on why she has not made any financial claim in relation to the café and any other property she owned with her ex-de facto partner, or any personal injury claim for her left arm injury which she sustained in a fall at a friend's property (T104:15 - T108:19).
To the extent that she has any claim in respect of her interest in the café, her evidence, which I accept, is that it was "basically sold…for nothing" (T104:25). There is also no evidence that she and her ex-de facto partner owned any other property over which she might have a claim. In that context, I do not accept the submission from Joshua's counsel that it was unreasonable for Adrienne to have relied on the deceased's statements that he would provide for her financially and that she need not worry about abandoning any claims she might have had against her ex-de facto partner, or the suggestion that Adrienne may have available to her some other amount of money or support from which she could fund her future accommodation needs and her ongoing living expenses.
As to the possibility of making an insurance claim or medical negligence claim, I do not accept the submission that such claims can or should be taken into account in considering Adrienne's financial position and future income. They are, at this stage, entirely speculative and no figure can be placed on their value, assuming they have any value at all. I also accept that it was reasonable for Adrienne not to have pursued them yet in view of the deceased's death, her own health issues and the volume of litigation she has been involved in as executor of the deceased's estate, and that she may not do so in the future.
As noted earlier in these reasons, Adrienne was also challenged on the $28,164.69 she claimed as testamentary expenses, which was said to be to her personal benefit. A submission was also made that she has received from the estate further benefits as she lived in the family home until early 2018, free of any obligation to pay rent, utilities, insurance or mortgage repayments, and had the use of a motor vehicle paid for by the estate.
I accept the submission that Adrienne has received some non-cash benefits from the estate. In my view, those benefits are more relevant to the question of whether Adrienne should be entitled to any compensation or commission for her role as executor, rather than to the consideration of her ongoing financial needs and whether adequate provision has been made for Joshua's proper maintenance and advancement in life. To the extent it is necessary for me to comment on Adrienne's claim for executor compensation, I accept the submission of Joshua's counsel that the amount of $500 per week claimed by Adrienne is excessive and a small amount would be appropriate in circumstances where she has already received non-cash benefits from the estate, as referred to above.

Joshua's contributions to the deceased's estate: s 60(2)(h)

Joshua made contributions to the Service Station business over the years as an employee, for which he was paid, although accepting that he had to make a Fair Work claim in respect of that employment. There was also evidence that, on weekends and after work on weekdays, Joshua renovated the Service Station shop and office to improve the functionality of the business, landscaped the gardens to improve the parking and aesthetics of the business, and repaired and serviced the driveway pumps to save costs and minimise equipment downtime (at [37], Joshua's affidavit dated 22 November 2016). Joshua did not lead evidence about the value of this work, when it was undertaken, or how long it took.
Joshua also gave evidence that he worked long hours for no overtime or bonus because the deceased told him that he would receive the Service Station business one day (at [74], Joshua's affidavit dated 22 November 2016). As noted earlier, Joshua knew that he would have to pay for the business if he was to get it and was aware it was going to be closed down in 2015. I also note that Joshua's Fair Work claim did not make any claim for unpaid overtime, but was limited to unpaid leave entitlements.
As to his other contributions, I accept Joshua's evidence that he charged less than commercial rates for building the deck at the family home and, on occasions, helped the deceased with his investment properties and work around the family home, although the time he spent doing so decreased after Joshua had his own family: (at [45], Joshua's affidavit dated 16 July 2018). Such contributions are, to my mind, the kind that would naturally be expected in a harmonious family relationship.

Any provision made by the deceased for Joshua during his life: ss 60(2)(i), (k)

It was accepted that Joshua has received provision from the deceased during the deceased's lifetime. This includes the deceased providing the following: 1. paying for Joshua's carpentry apprenticeship after Joshua finished school; 2. paying for half the costs of a work utility in the amount of $18,000; 3. providing free accommodation in the family home for the period Joshua was working and living there, including from 2002 - 2005 while Joshua and Hayley lived there together, without asking for any contribution to outgoings or other living costs; 4. agreeing with Judyth to be guarantors for the loan Joshua and Hayley took out to pay for the costs associated with their new home; 5. paying $4000 towards the cost of Joshua's wedding; 6. contributing $5000 towards the cost of IVF treatment; 7. providing continuous full-time employment at the Service Station from 2002 to 2015; 8. paying the relevant fees and providing time off work to enable Joshua to qualify as a motor mechanic and a building contractor; and 9. assisting with funding Joshua's overseas trip to England in 1999 by paying for his return flights.
Based on the evidence, I also accept that the deceased loaned Joshua $155,980 in October 2006, which Joshua repaid in December 2007, although I note that Joshua does not recall this loan (at [45], Joshua's affidavit dated 16 July 2018).

The deceased's testamentary intentions, including evidence of statements made by the deceased person: s 60(2)(j)

The statement of reasons was admitted into evidence without objection and should be considered on the application, although it does not relieve the Court from engaging in the enquiry required by the Succession Act: Slack-Smith v Slack-Smith [2010] NSWSC 625 at [27].
In appropriate cases, considerable weight may be given to a testator's testamentary wishes as to who should benefit from their estate if it can be seen that the testator was capable of, and did, give due consideration to the claims on their estate. This approach recognises that a testator is in a better position than the Court to make such an assessment. But the application of s 59 of the Succession Act is "not confined by notions of reluctance to interfere with freedom of testation", and the expression of the deceased's testamentary wishes contained in the statement of reasons is just one of many matters to be taken into account: Steinmetz v Shannon [2019] NSWCA 114 at [96] per Brereton JA; Sgro v Thompson [2017] NSWCA 326 at [83]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127].
On its terms, the statement of reasons makes clear that the deceased gave consideration to Joshua as someone who may have a claim on his estate. The issue is what weight should be given to the assertions regarding Joshua's character and conduct, some of which are assertions of a very serious nature, as a justification for excluding Joshua from the will.
The statement of reasons does not need to be unquestioningly accepted as the truth of the matters referred to because, just as is the case with a living witness, those matters may be inaccurate or unreliable because of a mistake, failure of memory or a deliberate untruth: Carusi-Lees v Carusi [2017] NSWSC 590 at [59]; Worsley v Solomon [2008] NSWSC 444 at [35].
If the truth of the assertions made by the deceased about Joshua in the statement of reasons were admitted or corroborated by the evidence, then due weight might be given to them: McDonald v O'Connor [2019] NSWSC 261 at [174]. Even if Joshua cannot disprove the assertions made against him, it does not mean they should be accepted as true or operate to negate his application for a provision order: McDonald v O'Connor [2019] NSWSC 261 at [177] - [178].
Joshua denied or disputed most of the assertions the deceased made in his statement of reasons (at [80]-[81], Joshua's affidavit dated 22 November 2016), and Senior Counsel for Adrienne did not submit that the statement of reasons accurately reflected Joshua's actions. Many of the assertions made go to the nature of the relationship between the deceased and Joshua, which I have dealt with earlier in this judgment. I now deal with some of the other matters raised.
The statement of reasons asserts that Joshua stole money from the deceased's business and items from the deceased's shed, the most serious of which is an allegation that Joshua stole approximately $400,000 in cash from the shed. Senior Counsel for Adrienne conceded (rightly in my view), that it was open to the Court to find that there was not sufficient credible evidence to support a finding that Joshua had stolen $400,000 cash from the deceased's shed. I agree and do not accept the truth of that assertion or the other allegations that Joshua stole funds from the deceased's business or items from the shed.
Joshua came across as a credible and honest witness when questioned about these matters and, whilst he has an obvious interest in the outcome of the case, I accept his denial in cross-examination, as well as his other evidence that he did not steal $400,000 from the deceased's shed or take money from the deceased's business (T54:46; at [81], Joshua's affidavit dated 22 November 2016).
I also consider it implausible that, having apparently identified $400,000 missing from his shed in March 2015 on return from an overseas holiday and telling three people that it had been taken by Joshua (at [15], Adrienne's affidavit dated 27 April 2017; at [11], Phillip Kerr's affidavit dated 12 July 2018; T142:45-50), the deceased did not report the theft to the police or confront Joshua, continued to work with Joshua at the Service Station, and made no reference to it in his 17 April 2015 email to Joshua in which he made other allegations that Joshua had misappropriated funds. I also find implausible the suggestion that the deceased kept that amount of money in a satchel in a locked shed during periods when the property was unattended because "he didn't believe in banks" (T143:5-13) in circumstances where the evidence indicates that the deceased kept larger amounts of money in bank accounts, such as the $1 million which was transferred to Adrienne in November 2015.
There is no evidence about the other items supposedly stolen from the shed. The only other allegation of theft concerned the stamp collection, which I have already dealt with.
Joshua was challenged in cross-examination about other matters referred to in the statement of reasons, including that he told people not to come to the deceased's funeral and wanted to change his surname to Hayley's maiden name. Joshua denied doing so (T64:1-10) and I accept his evidence. To the extent Joshua had indicated to others his views about the deceased in a disparaging way around this time, I do not consider that doing so reflects negatively on him in the context of this application given the nature of the allegations made against him by the deceased in the 17 April 2015 email and the total breakdown of their relationship.
As to the suggestion in cl 4 of the statement of reasons that the deceased was never allowed to bond or have a relationship with his first two grandchildren, the evidence adduced by Joshua, which includes photos of the deceased with his first grandchild, suggests otherwise and is consistent with the deceased spending no time with Joshua and his family from around mid-2013 when his relationship with Adrienne commenced.
The statement of reasons was made at a time when the relationship between the deceased and Joshua had irretrievably broken down, and remained so in December 2015, when the second will was made. The emotive and vitriolic nature of the assertions made by the deceased reflects, in my view, the antipathy he felt towards Joshua for "siding" with Judyth and giving evidence on her behalf in the Family Law proceedings, rather than Joshua's failure to support the Service Station business or provide affection to his father over many years. It must also be read in the context where, only one month prior, the Court had determined that the Financial Agreement should be set aside and the deceased had previously told Joshua he did not wish to have any further communication with him.
The statement of reasons confirms the desire of the deceased to fully provide for Adrienne to the exclusion of Joshua and the deceased's view of his relationship with Joshua at the time it was made. It is of no weight as evidence of Joshua's conduct and character over the years.

Whether there is anyone else liable to support Joshua: s 60(2)(l)

Joshua's mother, Judyth, is still alive. Judyth has loaned Joshua $60,000 to support his business and help fund these proceedings.
Judyth is in a position to help financially if Joshua and his family have needs in the future, and Joshua accepted that she would do so if he needed help and she was able to (T64:29-38, T67:45-46).
Joshua is her only son and, as at the date of the hearing, Judyth's intention is to leave her entire estate to him.

Joshua's character and conduct: s 60(2)(m)

I have dealt with issues regarding Joshua's character and conduct above.

Adrienne's conduct: s 60(2)(n)

I have also dealt with the matters raised regarding Adrienne's conduct in respect of her testamentary expenses claims, her spending, and her failure to make claims against her ex-de facto partner, her past doctor/s or her accident.

Any other matter considered relevant: s 60(2)(p)

The legal costs in this matter are also relevant and it is necessary to have regard to the estimates given by the parties to completion of the proceedings.
The plaintiff's legal costs are estimated to be, on an ordinary basis, $170,847, of which $59,999.37 have already been paid (at [18], Joshua's affidavit dated 8 April 2019).
The legal fees of the estate on an indemnity basis are estimated to be $209,405.78. As previously noted, these costs have been taken into account in valuing the net value of the assets of the estate which are available for distribution.

Consideration

Joshua's counsel submits that, in light of the long, close, father-son relationship between Joshua and the deceased, the relatively short estrangement over 10 months and the great assistance Joshua gave to the deceased over the years while employed at the Service Station, the deceased continued to have a moral obligation to make provision for his only child in his will and should do so in the amount of $250,000 for his maintenance and advancement in life. It was accepted that the question of provision for Joshua's education is not relevant given his age and circumstances.
Joshua relied on the statements of Holland J in Kleinig v Neal (1981) 2 NSWLR 532 at 540 in support of the proposition that a parent testator who wishes to disinherit a child will need valid and cogent reasons for doing so. As Holland J stated: "…the question is what ought that testator have done in those circumstances. One of the circumstances must be the size of the testator's estate because a man cannot be expected to give what he cannot afford but, if he can afford it, he should provide adequately for those for whom the statute expects him to provide…The duty of a parent towards a child to provide for [maintenance, education and advancement in life] needs on his death, if he can, continues in spite of…disharmony and disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the estate, it may refuse the child's claim."
Counsel for Joshua submits that the deceased's action in disinheriting Joshua was motivated by malice, is not an indication that Joshua has no needs or is not a deserving beneficiary, and that provision should be made given Joshua's financial needs.
I accept that the deceased's exclusion of Joshua from his will was, in part, motivated by the depth of the deceased's ill feelings towards Joshua based on his perception that Joshua sided with Judyth in the Family Law proceedings and their subsequent estrangement. That conclusion is supported by the terms of the statement of reasons, which includes a number of assertions about Joshua's past conduct that are not supported based on the evidence before the Court. To that extent, the statement of reasons also suggests that the deceased's decision to exclude Joshua from his will was based, in part, on unfair reasoning.
I also accept that Joshua's conduct and character and the reasons for his estrangement from the deceased do not disentitle Joshua from any future benefit or provision from the deceased. But that conclusion does not, in my view, mean that the deceased failed in meeting any continuing moral duty he owed to Joshua, and that provision should be made for him in this case.
Here, the deceased had a good reason to exclude Joshua from his will - he wished to provide for his new wife, Adrienne.
While they had not been in a relationship for a long time, Adrienne had given up working and her interest in the café based on assurances that the deceased would take care of her financial future. She had been a constant, caring and loving companion during their relationship, albeit over a relatively short period of time, and had made considerable personal sacrifices to look after the deceased in the last 6 to 8 months of his life before he became so frail he had to move into palliative care in December 2015. She is a natural recipient of the deceased's estate and it is not surprising that the deceased wanted to provide means for her future after his death, to enable her to secure a property in which to live and funds for her ongoing living expenses.
Adrienne's financial position is parlous. She has very few assets. The assets she does have are valued at just over $46,000. She has an income of $589 per fortnight, is currently living with friends and has ongoing health issues which, at least for the foreseeable future, will prevent her from engaging in paid employment. She has significant needs and has no obvious alternate means of support.
The fact that Adrienne has already received a lump sum amount as the deceased's widow and some non-cash benefits from the estate does not diminish her need for other funds, nor does the fact that she may have spent an amount of money in one year as much as Joshua's family of five.
It follows that I do not accept the submission made by Joshua's counsel that in considering Joshua's claim for provision, the Court can proceed on the basis that Adrienne has been provided for quite generously by the estate and has already received suitable provision in the circumstances. In any event, I return to the fact that Adrienne is not a claimant for provision; she is in the will and has significant competing financial needs.
By contrast, Joshua is able-bodied, healthy, and owns his own business which is providing a stable income for him and his family, and appears to be growing. His wife, Hayley, also works and has a steady income. Together, they own their own home, are meeting their mortgage payments and other expenses, and are able to set aside money each month for their children's expenses. Joshua appears to be in a position to provide a comfortable, albeit not an extravagant, lifestyle for his family.
I accept that Joshua would be assisted by funds to discharge part of his mortgage and purchase capital equipment for his business. I also accept that he does not have his own financial buffer to deal with the vicissitudes of life. But at present, he and Hayley are able to live within their means and it is to be expected they will continue to do so in the future. Over time, their net asset position could be expected to improve as Joshua's income grows, their property value increases and they gradually pay off their mortgage. It is also relevant that Judyth is available, and has shown in the past that she has the means and is willing, to provide financial support to Joshua if needed, including for his business, and Joshua is the natural recipient of her entire estate.
The question is whether, in all the circumstances of this case, I am satisfied that the deceased has not made adequate provision for Joshua's proper advancement and maintenance in life, adjudged at the time of the hearing, where no provision was made for Joshua at all in the deceased's will.
As Hallen J observed in Philpott v Pantos [2018] NSWSC 852 at [182], "the fact that no provision is made in the deceased's Will for the applicant does not, of itself, bespeak inadequacy. A person may fail to satisfy the description of being "left without adequate provision" even though no provision is made for her in the deceased's Will".
The Courts have also acknowledged the entitlement of testators in certain circumstances not to make provision for their children: Ford v Simes [2009] NSWCA 351 at [71]; Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9.
A key matter in my consideration is the fact that the net value of the estate's assets which are available for distribution at the date of the hearing is now only $643,684.24.
The deceased may not have known the precise value of his estate when making the 11 December will, although he was presumably aware that its value was likely to decrease due to the Family Law proceedings in which his property was to be divided with Judyth. The deceased's attempt to gift $1 million to Adrienne late in 2015 suggests that may have been the case. In any event, what the deceased considered to be the value of his likely estate at the time he made the will, including if he thought it to have been a considerable estate worth over $4 million, is not to the point.
The Court cannot speculate as to what provision the deceased should have made for Joshua based on the value of the estate at the time the will was made or at the deceased's death. The Court is required to consider the circumstances at the time of hearing these proceedings. Unfortunately, for both parties, the circumstances have changed significantly since the proceedings were commenced on 24 November 2016, including the value of the assets of the estate available for distribution having decreased by almost 85% and Adrienne's health having declined significantly.
The role of the Court is not to achieve "an overall fair" disposition of the deceased's estate or equity between claimants. Nor is its role to correct a sense of wrong or hurt feelings to the extent that an applicant believes that he or she has been treated unfairly, or to reward any meritorious conduct. The Court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant: Meres v Meres [2017] NSWSC 285 at [114]; Gorton v Parks (1989) 17 NSWLR 1 at 6.
Joshua may feel he has been treated unfairly by the deceased given the terms of the 17 April email and the statement of reasons in the deceased's will. Joshua may also feel that he is deserving of provision because of their relationship prior to 2013 and the work Joshua did over the years at the Service Station. But the question is whether, in all the circumstances, community standards and expectations required more of the deceased by means of his testamentary disposition to provide for Joshua out of a now relatively moderate estate at the expense of his new wife. I accept the submissions of Senior Counsel for Adrienne that they do not.
When considering how the deceased would make his decision regarding his estate, he was faced with a moral obligation to provide for his new wife with enough to secure accommodation and funds for future living expenses in circumstances where she had given up working at his behest, has no appreciable assets or income of her own and now has health issues. This has to be balanced against any continuing moral obligation to provide for an adult son who is healthy and able to manage financially, with an expectation of support from a mother (who has been provided for by the estate by way of a significant property settlement), and who has had the benefit of significant provision during his lifetime from the deceased, including paying for his qualifications and providing employment which has enabled him to open and run his own business.
Notwithstanding the history of the relationship between the deceased and Joshua and the contributions made by Joshua over the years, in all the circumstances, it was open for the deceased to have chosen to provide for Adrienne to the exclusion of Joshua, which the evidence indicates the deceased did after consideration of his testamentary obligations.
I accept that there may be a range of views on what community standards and expectations would require in this case, particularly given the short length of the relationship between Adrienne and the deceased, and the attitude of the deceased towards Joshua just prior to and following their estrangement. In my view, these factors, while relevant, do not justify a conclusion that inadequate provision has been made for Joshua's proper maintenance and advancement in life, in circumstances where Adrienne's relationship with the deceased involved intensive domestic care and sacrifice on her part, she asserts a significant financial need (which is supported by the facts), Joshua's needs are not as compelling, the estate is not large, the distant nature of the relationship between Joshua and his father over more recent years and the provision given to him in the past. The length of Adrienne and Joshua's relationships with the deceased are relevant, but not dispositive.
Providing Joshua with $250,000 plus his legal costs on an ordinary basis (as is his contention), would leave Adrienne with approximately $228,837.24 from the deceased's estate. Based on the evidence before the Court, that amount is inadequate to enable her to buy modest accommodation in which to live and would only provide her with a fund for living expenses and some contingencies for a few years. Even receiving the whole of the estate will only leave her, after paying for a house, somewhere in the region of $143,000 to $233,000 for her future living expenses and contingences, plus her fortnightly income of $589, with no or very little prospect of any future income.
I agree with the submission made by Senior Counsel for Adrienne that the position in this case may very well have been different if the estate had remained valued at $4,119,281.10. Yet that is not the position today, and the Court should not approach the application on the basis that Joshua would have been provided for if the estate remained that size and so should also be provided for now but on a smaller scale. Joshua's application is not to be assessed based on applying some notional sliding or proportional scale to the differing values of the estate in an attempt to achieve some equality of distribution or fair result.
It follows that, I am not satisfied that, having regard to all the facts known as at the date of hearing the application, adequate provision for Joshua's proper maintenance and advancement in life has not been made by the deceased's will and I decline to make an order for his provision out of the deceased's estate.
Had I been persuaded that adequate provision had not been made by the deceased for the proper maintenance and advancement in life of Joshua, I would have ordered the provision of a relatively small legacy in his favour, in an amount of say $40,000, to provide for his advancement in life as a contribution towards the purchase of capital equipment for his business. I would also have capped the recovery of his legal costs to a similar amount to ensure that Adrienne retained sufficient funds to acquire accommodation of the type referred to in final submissions, and have a fund left over.

Costs

The parties were content for me to deal with costs in these reasons and so I have done so without the benefit of submissions on that issue but taking into account the circumstances of the case as I know them.
Ordinarily, costs follow the event unless it appears to the Court that some other order should be made: r 42.1 Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Where orders are made for the dismissal of proceedings, then, unless the Court otherwise orders, the plaintiff must pay the defendant's costs of the proceedings: r 42.20(1) UCPR.
While these rules apply to family provision proceedings, the award of costs is a matter in the exercise of the Court's discretion, which is unfettered other than to exercise it judicially: s 98(1) Civil Procedure Act 2005 (NSW).
The Court has also recognised that it may be appropriate to make costs orders in family provision proceedings which deviate from the usual course in accordance with the rules referred to above. As noted by Gaudron J in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, at [522] : "Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Succession Act which, in s.33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate." (citations omitted)
It has also been recognised that family provision cases often involve elements of judgment and discretion and can involve parties who are more concerned with vindicating their position than resolving the dispute as efficiently and cost-effectively as possible: Sherborne Estate (No 2): Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor (2005) 65 NSWLR 268; [2005] NSWSC 1003.
Joshua's claim could not, in my view, be described as frivolous or without reasonable prospects of success. This is particularly the case where, when the proceedings were commenced, the estate was worth just over $4.1 million. As I noted earlier, if that had remained the case, the outcome of these proceedings may very well have been different.
By April 2018, it was apparent that the value of the estate had reduced substantially (Adrienne's affidavit dated 6 April 2018). It may be argued that Joshua should have taken steps to cease or settle the proceedings at that point. Whether steps were taken at that time is not known to the Court. In any event, I have also accepted that this is a case on which community standards can differ, which is often the position in family provision cases.
Joshua's financial position suggests that he would need to increase his mortgage or take out a loan to pay for Adrienne's legal costs if ordered to do so, which I estimate to be in the region of $140,000 to $160,000 on a party/party basis. While his and Hayley's finances cover their expenses, provide them with a modest lifestyle and may improve in the future, they do not appear to have the capacity to cover a significantly increased mortgage or loan in respect of Adrienne's legal costs at this time.
Further, in coming to my decision on Joshua's application, I have had regard to Adrienne's legal costs by deducting them on an indemnity basis from the deceased's estate to reach a net distributable value of $643,684.24. It is on that basis that I made my assessment as to the circumstances applicable to the question of whether adequate provision was not made for Joshua's proper maintenance and advancement. If Adrienne were to obtain an order for costs in her favour, it would increase the value of the estate by an amount which may have impacted my ultimate decision.
In those circumstances, I am of the view that the overall justice of the case requires that the usual rule that costs follow the event should not apply and that no order should be made for Joshua to bear the burden of Adrienne's legal costs.
I also do not consider that I should order the estate to bear the burden of Joshua's costs. That would not be a just result either as to do so would significantly diminish the value of the estate in Adrienne's hands.
Accordingly, I will make no order as to costs with the intent that Joshua is to pay his own costs of the proceedings and Adrienne's costs are indemnified out of the assets of the estate.

Orders

For these reasons, the Court makes the following orders: 1. Dismiss the plaintiff's claim for provision out of the deceased's estate. 2. Make no order as to costs with the intent that the plaintiff is to pay his own costs of the proceedings and the defendant's costs are paid out of the estate on an indemnity basis.

Endnote

It was accepted that the judgment relates to the deceased and Judyth even though it refers to the surname Parke. 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: 09 August 2019

Piercy v Douras

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