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[2025] NSWSC 1221
Supreme Court of NSW
2025-10-17
Bennett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Pilatos v Whillier [2025] NSWSC 1221
Hearing dates: 21-22 July 2025
Date of orders: 17 October 2025
Decision date: 17 October 2025
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Bennett J
Decision: (1) The Summons filed on 10 July 2024 is dismissed.
(2) Subject to order (3), in relation to the costs of the proceedings:
(a) the defendant’s costs are to be paid from the plaintiff’s 15% entitlement in the estate of William Warren Hemmings on the ordinary basis; and
(b) the remainder of the defendant’s costs are to be paid from the estate of William Warren Hemmings on the indemnity basis.
.
(3) Within 7 days of the publication of this judgment, the parties may make an application by email to my Associate to vary order (2). Further orders will be made for the filing and serving of submissions by the parties in relation to any such application.
(4) Any further issue as to costs will be determined on the papers.
(5) The exhibits are to be returned.
Catchwords: SUCCESSION — Family provision — Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – Where the plaintiff and deceased were estranged in the final 13 years of the deceased’s life – Where the plaintiff received 15% of the deceased’s estate under the will – Where the plaintiff has few assets and relies on government support – Whether the deceased fulfilled his moral obligations towards the plaintiff.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Succession Act 2006 (NSW), ss 58, 59 60, 65
Cases Cited: Alexiou v Alexiou [2024] NSWSC 1340
Alexiou v Alexiou [2025] NSWCA 164
Bassett v Bassett [2021] NSWCA 320
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Blendell v Blendell [2020] NSWCA 154
Broadus v Cradduck [2025] NSWSC 402
Burke v Burke [2015] NSWCA 195
Frank v Angell (2024) 116 NSWLR 1; [2024] NSWCA 264
Fulton v Fulton [2014] NSWSC 619
Girotto v Girotto [2025] NSWSC 616
Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168
Howitt as Executor of the estate of the late Margaret Norma Howill v Bosschieter [2025] NSWCA 179
Hunter v Hunter (1987) 8 NSWLR 573
Ibrahim v Nasr [2021] NSWSC 1321
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Leary v NSW Trustee and Guardian [2017] NSWSC 1113
Limberger v Limberger [2021] NSWSC 474
Liosatos v Liosatos [2025] NSWSC 44
Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25
Neale v Neale [2013] NSWSC 983
Papantoniou v Foundouradakis [2023] NSWSC 1374
Pethers v Pethers (No 2) [2025] NSWSC 561
Rada v Smith [2024] NSWSC 273
Scott v Scott [2022] NSWCA 182
Seymour v Seymour [2024] NSWSC 699
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297
SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175
Toppi v Toppi (No 3) [2025] NSWSC 733
Underwood v Gaudron [2014] NSWSC 1055
Watton v MacTaggart [2020] NSWSC 1233
XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133
Texts Cited: Practice Note SC Eq 7
Category: Principal judgment
Parties: Renee Yvonne Pilatos (Plaintiff)
Warren Craig Whiller (Defendant)
Representation: Counsel:
L Sewell (Plaintiff)
P Menadue (Defendant)
Solicitors:
Prime Lawyers (Plaintiff)
Sean Wilkins & Co (Defendant)
File Number(s): 2024/00253223
Publication restriction: Nil
Mr William Warren Hemmings (William) died on 11 July 2023 at the age of 81. By Summons filed on 10 July 2024, the plaintiff, Ms Renee Yvonne Pilatos (Renee or the plaintiff), seeks an order that provision be made for her maintenance, education and advancement in life out of William’s estate under Ch 3 of the Succession Act 2006 (NSW) (the Act).
As is the usual course in these types of proceedings, and without intending any disrespect or overfamiliarity, the deceased, the parties and other protagonists in this dispute will be referred to by their first names.
Renee is the youngest of William’s three daughters. Renee’s eldest sister, Ms Sonja Astrid Ringstad, was the primary beneficiary of their father’s estate receiving 50% of it under William’s will dated 29 May 2023 (the 2023 Will). Her other sister, Mrs Dallas Lee Nolan, received the same provision as Renee, being 15% of William’s estate (each). [1] The executor appointed under the 2023 Will and the defendant in these proceedings, Mr Warran Craig Whiller (Warren or the defendant), was a friend of William and received 20% under the 2023 Will.
The deceased’s former spouse and mother of Renee and her sisters, Ms Karen Ringstad, received notice of these proceedings, but has not taken part.
The final hearing of this matter took place on 21 and 22 July 2025. Ms L Sewell of counsel appeared for the plaintiff. Mr P Menadue of counsel appeared for the defendant. Each of Ms Sewell and Mr Menadue provided opening written submissions (PWS and DWS respectively), made oral submissions, and Mr Menadue provided final closing written submissions (DCWS).
References to the transcript will be indicated by TR.
For the reasons which follow, the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life of Renee has been made by the 2023 Will. The Summons must therefore be dismissed.
“[18] In every instance, I have endeavoured to evaluate each witness’ evidence, not only in the light of their responses during cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence as a whole.
[19] This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. Among the salient principles that guide this undertaking are the following:
(1) In circumstances where events have taken place long ago, the orthodox and sensible approach for a trial judge to take in assessing the credibility and reliability of the evidence of a witness about those events is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15, Gleeson CJ, Gaudron, Kirby and Hayne JJ at [15]–[16].
(2) A proper understanding of the chronology of events is critical and contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24, Bell P (with whom Bathurst CJ and Leeming JA agreed) at [25].
(3) Judicial notice has been taken of scientific research which casts doubt on the ability of a trial judge to tell truth from falsehood accurately based on the appearance of witnesses such that trial judges should limit their reliance on the appearances of witnesses and develop their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ at [30]–[31].
(4) There are multiple problems with a trial judge making demeanour findings, ranging from systematic error or bias, memory malfunctions, the possibility that witnesses may be dishonest about only parts of their evidence, that a truthful witness may give accurate or inaccurate testimony and that a dishonest witness may appear to be truthful. A trial judge should keep in mind the guidance provided in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187, by Ipp JA (with whom Mason P and Tobias JA agreed) at [26]:
These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.
(5) A trial judge should exercise restraint when forming a view about the credibility of a witness based on demeanour in giving evidence because it is a stressful and unfamiliar experience for most people, and particular care must be exercised in making demeanour findings where a witness is from a different cultural and ethnic background to that with which the trial judge is familiar: Goodrich, Ipp JA at [21], citing Sir Thomas Bingham in ‘The Judge as Juror: the Judicial Determination of Factual Issues’ (1985) 38 Current Legal Problems 1 at 10–11. As was observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants*’* Marine Insurance Co (The Palitana*)* (1924) 20 Ll L Rep 140; [1924] 11 WLUK 83, by Atkin LJ at 152:
… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
This passage was quoted with apparent approval by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, at [30].
(6) The assessment of the credibility of a witness is a larger concept than demeanour and the latter is not to be overemphasised: White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277, Bell P (with whom White JA agreed generally at [154]–[156]) at [106], citing Goodrich at [16]–[27]. See also Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277, Bell CJ (with whom Ward P and Macfarlan JA agreed) at [102]–[103], citing White Constructions, at [106] and [138] and Goodrich, at [16]–[27].
(7) It is important to bear in mind that the ordinary human experience of a witness makes their memory of conversations fallible, as eloquently stated in the following oft-cited passage in Watson v Foxman (1995) 49 NSWLR 315, by McLelland CJ in Eq at 319 (recently approved in Touma v Highfields Australia Pty Ltd [2024] NSWCA 160, Basten AJA at [18] (with whom White and Adamson JJA agreed)):
… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
(8) Oral recollection of conversations still plays an important role as evidence in a case, as explained in ET-China.com, by Bell P (with whom Bathurst CJ and Leeming JA agreed) at [27]–[29] in the following terms (emphasis in original):
[27] Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (Gestmin):
the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. (emphasis added)
[28] Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.
[29] Context is critical for at least two reasons. Documents and events take their meaning from their context. The context in which events occurred may not necessarily be apparent to a court many years later when hearing a case. A clear understanding of context, both commercial and cultural, is also important where, as in the present case, some or all of the events under consideration occurred overseas and in settings that may differ from those usually dealt with in domestic litigation.”
“[41] The process of assessing the credibility of witnesses at trial is multi-faceted. As I said in J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214]-[215] (Mitchelmore JA agreeing):
‘[214] It is well recognised that where the credibility of witnesses is involved, the trial judge enjoys advantages over an appellate court by reason of having seen the witnesses and having been immersed in the milieu of the trial. In such a case, the trial judge’s findings are “likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence”: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (“Lee”) at [55]. Even if the Court does not expressly rely upon demeanour, as Tobias AJA held in Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29 at [84]-[85], where findings of credit are clearly in issue “it is unlikely that…presentation in the witness box was not keenly observed and taken into account” and in making such findings a trial judge “enters upon a complex intellectual process involving the interaction of documentary material, elements of testimony from different witnesses and matters of emphasis none of which readily appear from reading a transcript.”…’”
These principles summarised and set out above are respectfully adopted and applied.
To the extent submissions were made as to witness credibility or reliability, or I otherwise considered the issue relevant, I will address these issues below as they arise in my consideration of the evidence.
In the course of fact finding undertaken by the Court, there may be circumstances where the Court will draw inferences of fact from the failure of a party to call a particular witness. Justice Windeyer in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) at 320-321; [1959] HCA 8 described some such circumstances in which inferences may be drawn. His Honour described the drawing of those inferences in the circumstances his Honour described as “plain commonsense” (at 321).
Justice Hodgson (with whom Beazley JA agreed) in Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [16] said that the case of Jones v Dunkel was a particular application of the principle in Blatch v Archer (1774) 1 Cowp 63 (Blatch v Archer) at 65; 98 ER 969 at 970. Whilst the Court in Jones v Dunkel did not directly refer to Blatch v Archer, it cited Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 178 (Isaacs J); [1929] HCA 25 which in turn had cited the case and had quoted Lord Mansfield CJ’s well-known maxim from 1774 that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (Blatch v Archer at 65 of 1 Cowp 63).
On the issue of the drawing of inferences, and the what might be called the “rules” in Jones v Dunkel and Blatch v Archer, the Court of Appeal in SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175, (Stern JA, Ward P and Price AJA agreeing) at [158]-[165] stated:
“Inferences that should be drawn from the failure of the respondents to call witnesses
[158] By appeal grounds 4-6, the appellants contend that the primary judge erred in failing to draw Jones v Dunkel inferences in respect of AMA’s failure to call each of Mr Hopkins, Mr Harding-Smith and Ms Lefebvre. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63], Heydon, Crennan and Bell JJ distinguished two types of inferences that can be drawn where Jones v Dunkel applies:
‘The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. ... The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.’ (Footnotes omitted).
[159] As Kirk JA recently explained in Ling v Pang [2023] NSWCA 112 at [23] (Leeming and Mitchelmore JJA agreeing):
‘The drawing of a Jones v Dunkel inference requires the court to be satisfied that, first, it is expected or natural for the party in question to have called the person; second, the person’s evidence would have elucidated a particular matter; third, the absence of the person is unexplained: Payne v Parker [1976] 1 NSWLR 191 at 201 per Glass JA. In this case it is the first matter which is in issue. It is obvious that Mr Zhuang’s evidence could have elucidated how Ms Wang’s purported signatures came to be on the Loan Agreements. And senior counsel for the respondent accepted that there was no evidence of attempts having been made on Mr Pang’s behalf to track down Mr Zhuang, and that despite the “absconding” remark it did seem that he was potentially available.’
[160] His Honour added (at [26]-[28]):
‘The latter point, however, is more significant. In Payne v Parker Glass JA listed examples of where it would be expected or natural for the party in question to have called the person (at 201-202, citations omitted):
“The first condition is also described as existing where it would be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other.”
What underlies the principle in Jones v Dunkel is that the failure to call the witness “serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party”: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; at 320-1 at 320-321 per Windeyer J; see also Fabre v Arenales (1992) 27 NSWLR 437 at 449 per Mahoney JA. The circumstances in which such a fear may be inferred are various.
In some cases no inference will be drawn merely because corroborative or cumulative witnesses are not called: see eg the discussion in Manly Council v Byrne at [60]-[67]. Not calling yet further witnesses to establish some point already established by evidence does not suggest that the party in question fears what they might say; it is rather just a matter of not wasting the time and resources of the parties and the court.’
[161] As is well established, Jones v Dunkel cannot be used to draw a positive inference if the evidence does not otherwise admit of a rationally drawn inference: see eg Galea v Bagtrans Pty Ltd [2010] NSWCA 350 at [2] (Allsop P, Macfarlan JA agreeing). It does not permit a court to infer that the uncalled evidence would have been positively damaging to a party’s case, nor does it supply missing gaps in the evidence: RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 at [161] (Ward JA, as her Honour then was, Basten and Meagher JJA agreeing).
[162] Whilst this was not addressed by the parties during submissions**, the principle in** Blatch v Archer (1774) 1 Cow 63; 98 ER 969 also looms large in this case. In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [256], Heydon J described the following submission from counsel, regarding the principle elucidated in Blatch v Archer, as ‘correct’:
‘The underlying rationale for this principle can be simply put: a party with the burden of proof is expected to meet the requisite proof. If a party provides limited evidence when further evidence was available, a tribunal of fact is entitled to consider that failure when assessing whether the party has produced evidence to satisfy the standard of proof.’
[163] Heydon J also approved the following explanation of the rationale of the rule in Blatch v Archer from the judgment of Hodgson JA (Beazley JA agreeing) in Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [14]-[15]:
‘… in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.
…
In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so’.
[164] This passage from Ho v Powell was also recently endorsed by Kiefel CJ, Gageler and Jagot JJ in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [58].
[165] The following observation of Hodgson JA in Cook’s Construction Pty Ltd v Brown [2004] NSWCA 105 at [42] (“Cook’s Construction”), is of particular resonance in this appeal:
‘… where a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party’s favour from indirect and second-hand evidence, when the party doesn’t call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation.’” (emphasis added)
“[45] … It can also be distinguished from the principle of judicial reasoning that all evidence is to be weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted: Blatch v Archer (1774) 1 Cowper 63 at 65; 98 ER 969 at 970; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [36]. …”
The plaintiff read and relied on five affidavits, each sworn by Renee herself, on the following dates: 4 October 2024, 4 April 2025, 11 April 2025, 3 July 2025, and 15 July 2025. A costs affidavit was also provided by Renee’s solicitor, Angela Garner, sworn on 8 July 2025.
Renee was required for cross-examination.
Renee’s husband, Eleftherios Pilatos (known as Terry), did not give evidence in the proceedings, with any documents relevant to Terry’s circumstances attached to Renee’s affidavits or with evidence of Terry’s circumstances otherwise given by Renee. That Terry did not put on affidavit evidence, and thus was not available for cross-examination, was the subject of submissions by Warren.
I note that Renee was on notice as to Warren’s likely submissions as to her omission to call Terry and Terry’s mother to give evidence, at the very least from the commencement of the proceedings (see TR P4 L49-50 (regarding Terry) and P7 L18-19 (regarding Terry’s mother) and onwards).
In the context of the defendant clearly foreshadowing that submissions were proposed to made at the close of evidence in relation to Terry, and Terry’s mother, not giving evidence, I note no specific explanation was provided by Renee on this issue, short of stating she had complied with obligations under the Practice Note and “under s 60(2)” (see, for example, TR P4 L42-44). Accordingly, to the extent it may be relevant to Warren’s submissions as to any inferences to be drawn from their absence, I consider Terry and Terry’s mother’s absence was, at a general level unexplained.
The defendant read and relied on six affidavits that were provided by the following witnesses on the following dates: Warren (sworn on 25 November 2024 and 24 June 2025), Sonja (sworn on 13 February 2025 and affirmed 23 June 2025), and affidavits provided by Warren’s solicitor, Sean Wilkins (sworn on 13 February 2025, 10 July 2025 and 21 July).
Sonja and Warren were each required for cross-examination.
What follows is a background of the relevant history. This background represents the Court’s findings, except where it is indicated that only the parties’ allegations are being recorded. For reasons of economy, this background does not always include reference to versions of the facts that have been rejected.
There was little evidence before the Court of William’s early life or his work life. William was said to be a builder, to have worked on building sites, and to have lived in a home in Bronte (sometimes also referred to as Waverley). It became apparent during the final hearing that William also worked for Qantas at some point in his life. At a social level, there was evidence that William was an involved member of the Bronte Surf Life Saving Club and that he spent many evenings and weekends there. During the patrol season, William spent many weekends participating in surf carnivals and other club activities.
William was married to Karen Ringstad and together, as already mentioned earlier in these reasons, they had three daughters. William and Karen separated in or around 1988 when Renee was aged 11. They later divorced.
On separation, Karen left the family home together with the three children. A short time after this, Sonja, who by this time was around 20 years of age, moved out on her own, and Dallas returned to live with William within a year. Renee left her mother’s home when she turned 18.
In 2009, Renee married Terry. They have two children: the first child, born in 2010, and the second child, born in 2013. They live together with Terry’s mother, who is 89, in Kingsford.
Renee’s evidence is that she had a “difficult and dysfunctional relationship” with her father, and that this reflected their “family’s dynamic as a whole”. This began in childhood, and while there were periods of increased familiarity and affection, eventually their relationship broke down and they had no contact with each other from late 2010.
From the time when Karen and William separated, Renee says she saw her father for visits on the weekend and during school holidays but rarely stayed overnight. She stopped visiting William on a regular basis when she was about 15 years of age but continued to ring him about once a month.
Renee continued to have contact with William into her early twenties, however, she gave evidence that if she were to have any relationship with William, that it was on her to make it happen.
By the time of the birth of her first child in 2010, Renee believed she had forged a strong bond with William, even if it was not an emotionally strong bond. In this, Renee referred to celebrating many family occasions together, eating out, and spending Father’s Days and Christmases together. At Renee’s wedding to Terry in 2009, William walked her down the aisle, sat at the main bridal table, and gave a speech at the reception.
“[24] [The first child]’s birth was difficult and traumatic, and I required an emergency caesarean after being in labour for two days. I did not have the opportunity to tell any of my family that I had gone to hospital, and I was focused solely on trying to cope with the challenges of the birth. …
[25] Karen and the deceased came to visit me in the hospital in the evening the day [the first child] was born. They were the first family members to visit us. I recall a conversation with the deceased in words to the effect:
Me: Do you want to hold him?
Deceased: No.
Me: Are you sure?
Deceased: No.
Karen and the deceased left soon after.
[26] About six weeks after I was discharged from hospital, once I was able to drive again, I visited the deceased. He was very cold towards me and did not talk much. While I was attempting to engage the deceased in conversation, he said to me words to the effect, ‘Karen said Terry tried to choke her.’ I was shocked. I did not believe it to be true. I left shortly after.
[27] When I arrived home, I told Terry about the conversation with the deceased. Terry recounted a conversation he had with Karen at the hospital about Dallas and Sonja, in words to the effect, *‘*I said, “I’m always going to be there to look after Renee, you need to look after Dallas and Sonja”**. ***At the end of the conversation, I held her [Karen’*s] shoulders and gave her a gentle shake and said, “You’re driving me crazy.” That’s all.’ I believed Terry, as Karen had done this before, telling lies and twisting truths to sow discord and division, or in reaction to some perceived offense, not just with me but with other family members too.” (emphasis added)
I will refer to the account of the incident at paragraph [27] of Renee’s affidavit sworn 4 October 2024 as the Terry to Renee version. I note this version is silent as to whether William was also present when the incident occurred.
I also note that William’s version of the incident as recounted at paragraph [26] of Renee’s affidavit sworn 4 October 2024 (the William to Renee version), may suggest William was not present when the incident occurred, given he said, “Karen said …”.
It was not suggested to Renee in cross-examination that the Terry to Renee version and William to Renee version were not told to Renee as deposed.
Warren also gave an account of the incident (the William to Warren version), where he deposed in his affidavit sworn 25 November 2024 the following:
“[19] In 2010 the deceased at [sic] told me of the circumstances around the birth of Renee’s [first child]... He said to me: ‘Karen [the deceased’s ex-wife] called me to let know that [sic] Renee has had a baby. She asked me if I wanted to go to the hospital with her. We went to the hospital .... Terry and Karen got into an argument and Terry grabbed Karen around the neck. Terry told us that he and Renee had their own family now and that Renee did not need us anymore and not to come back to see Renee and the baby’.” (emphasis added).
The William to Warren version indicates that William was present and had observed the incident, and that the words that were said by Terry were words that were said to both Karen and William (given, on Warren’s account, William said Terry told “us” what Terry allegedly said). Warren was not cross-examined on this evidence of what William told him in relation to the incident.
In cross-examination, Renee denied there had been an “altercation” between Terry and Karen at the hospital. In answer to counsel’s questions about the physical contact between Terry and Karen, the following exchange took place (at TR P24 L5-17):
“Q. There was an altercation between Terry and your mother at the hospital the next day, which you did not see?
A. No, there was no altercation, and correct, I did not see it.
Q. Well, Terry shook your mother’s shoulders, at least, didn’t he?
A. In a joking way, yes.
Q. You haven’t said anything in your affidavit about it being in a joking way, have you?
A. I don’t remember.
Q. Terry certainly didn’t tell you that he did it in a joking way, did he?
A. Terry told me that it was in a joking way that he shook her shoulders.”
“Q. Your evidence is that about six weeks after you were discharged from hospital, you visited your father?
A. That’s correct. When I was able to drive, yes.
Q. You claim that your father was very cold towards you?
A. That’s correct, yes.
Q. And you did not talk much?
A. The conversation was limited, yes.
Q. You say that during that visit, your father said that he was told by Karen that Terry tried to choke her?
A. After I asked him why he was cold towards me, yes.
Q. He was very upset about that, wasn’t he?
A. He seemed agitated, annoyed, yes.
Q. He had a right to be annoyed, didn’t he?
A. No, because it actually didn’t happen and it was something that was said to him by my mum. And he didn’t ask me about the circumstances at all.
Q. You didn’t tell him about the circumstances, did you?
A. There was no circumstances to tell him about because that didn’t happen.
Q. What didn’t happen?
A. He was told by my mum that Terry tried to choke my mum and that didn’t happen.
Q. You didn’t tell him--
A. And that’s why he was annoyed.
Q. You didn’t tell him it didn’t happen, did you?
A. I did tell him that. That was the first thing I said, that Terry would never do that.
Q. But you didn’t know for a fact whether it happened or not, did you?
A. No, I didn’t.
Q. You say you were shocked when your father said that?
A. Of course, yes.
Q. You have no doubt your father said that genuinely, do you?
A. I do have doubt that that was a genuine comment because I didn’t think that Terry would do anything like that. So I was shocked straight away.
Q. Your father didn’t tell you to leave, did he?
A. No.
Q. And he didn’t force you to leave?
A. No.
Q. You left because you say you were shocked?
A. The first thing I wanted to do was to go home and tell Terry what I’d just heard. So shortly after that I left.
Q. Your father clearly wanted an explanation as to what happened, didn’t he?
A. No, he didn’t ask me anything. He was just telling me that’s what he was told.”
It will be noted that all three versions of this incident, being the William to Renee, Terry to Renee, and William to Warren versions, involved Terry making physical contact with Karen (either Terry shaking Karen’s shoulders or Terry grabbing Karen’s neck or Terry choking Karen), as well as words spoken by Terry. It was thus common ground between versions that there was physical contact between Terry and Karen and words were spoken by Terry.
The Terry to Renee version and William to Warren version also involved Terry telling Karen, or telling both Karen and William, that Terry would be taking responsibility for Renee, and inferentially, if not directly, that their assistance and support would not be required. In keeping with this, of the words putatively said by Terry, in the Terry to Renee version, Renee stated in cross-examination (TR P25 L36-39):
“Q. Terry said to you words to the effect that he told Karen, “I’m always going to be there to look after Renee. You need to look after Dallas and Sonja”?
A. Yes, he did.
Q. In other words, Terry made it clear to Karen that she should stay away from you?
A. No. He was making it clear that he was my husband and there to protect and look after me.”
I will refer to these words spoken as the responsibility communication, which essentially accepts Renee’s evidence as to the words spoken by Terry.
There are clearly hearsay issues with all three versions of the interaction (to use a neutral term) between Terry and Karen. None of the evidence of the various versions was objected to.
There does not appear to be any dispute that physical contact occurred between Terry and Karen. However, what is inconsistent between the versions is the nature and seriousness of that contact. I do not consider I am required to make a finding as to which version of the physical contact actually occurred, and the parties did not submit otherwise.
The evidence as a whole thus leaves unresolved whether William was present and personally observed the physical contact between Terry and Karen, whether the words spoken by Terry were directed to William as well as Karen, or just to Karen, and what exactly was said by Terry. In the absence of cross-examination or submissions on this issue, I do not consider I am able to make a finding as to whether William was physically present or not. I am satisfied, however, that William was well aware that the incident had occurred, which included both physical contact and the responsibility communication, and was, to some extent, upset by it.
Of the three versions, I am of the view that the Terry to Renee version is most sympathetic to Renee’s case in that it is likely to involve physical contact of a lesser degree of seriousness. I note, however, that the physical contact between Terry and Karen, even on the Terry to Renee version, was still serious as it involved one person (Terry) actually holding someone (Karen) by the shoulders and shaking them, coupled with saying “I’m always going to be there to look after Renee, you need to look after Dallas and Sonja. … You’re driving me crazy.”
At no point, either in her affidavit evidence or in her oral evidence, did Renee engage with the likelihood that whatever form the physical contact between Terry and Karen and words spoken by Terry actually took, and whether William observed the incident or was told about it, that as a matter of ordinary human experience, it was understandable that knowledge of the incident would cause upset (or disquiet) to William.
Further, at no point did Renee seem accept that it was within her power, being married to Terry, who was the perpetrator of the physical contact and words spoken (on any version), to attempt to provide some form of explanation to William and otherwise seek to allay her father’s upset (or disquiet). For example, when it was put to her in cross-examination that William clearly wanted an explanation as to what happened, she replied, “[n]o, he didn’t ask me anything. He was just telling me that’s what he was told.”
To the extent that the Terry to Renee version, as provided by Renee in her affidavit, was amended in her oral evidence through Renee’s suggestion that Terry shook Karen “in a joking way”, I do not accept this further evidence. This otherwise important evidence had not been included in Renee’s affidavit and was raised by her for the first time during cross-examination (as was squarely put to her in cross-examination). In offering this explanation of the shaking of Karen, I find that Renee was willing to give evidence that she considered assisted her case, being to minimise the seriousness of the physical contact in the shaking of Karen whilst holding her shoulders. Counsel for Renee did not refer to, or otherwise rely on, Renee’s evidence that the shaking was “in a joking way” in her closing submissions.
Renee and William had no contact, or limited contact, after the incident. Renee deposed:
“[28] Shortly before Christmas 2010, I tried to visit the deceased again with Terry and [the first child]. He did not let us into the house. The deceased said to me words to the effect, ‘I can’t see you guys. I’ve got to go to someone’s house to dip strawberries in chocolate.’ I was shocked and upset. I did not understand why the deceased did not want to spend time with his first grandchild. We handed the deceased the Christmas gift we had brought for him, which was a framed picture of me, Terry, and [the first child], and left.
…
[31] I did not find out the deceased had died until almost four weeks after his death, when I was contacted by the defendant. I was not aware the deceased had been ill in the 18 months leading up to his death.”
Following the incident and Renee’s attempt to visit William around Christmas in 2010 as set out above, Renee gave evidence that she tried reaching out to her father by phone over the subsequent years, with no response. No evidence accounting for these phone calls was tendered, nor was Renee’s evidence on this challenged. The Court is therefore willing to accept this evidence.
Renee also gave evidence that in 2013, when her second child was born, she sent her father a card to let him know that he had a new grandson. Renee said that she found the card she had sent in William’s residence after his death, together with a number of other cards. It was not suggested to Renee in cross-examination that she did not send this card to her father at the time it was sent, and the Court accepts Renee’s evidence that it was sent contemporaneously with her second child’s birth.
Renee also gave evidence, in her second affidavit, that she “ran into” her father at a shopping centre in Bondi Junction while she was heavily pregnant with the second child, wherein she was walking out a door and William was walking in. Renee claimed that the two made eye contact, that she froze momentarily, that she moved towards her father, but that he scowled and wrinkled his nose, then turned and walked quickly away.
It was put to Renee in cross-examination that this encounter did not happen, and that the encounter was intended to convey the impression that William knew of the second pregnancy, and the impression that her father rejected her when he never did so. Renee denied this and maintained that the encounter did occur.
To the extent that the Court is required to make a finding as to whether Renee’s version of the encounter occurred, the Court accepts that the encounter occurred as subjectively experienced by Renee. The Court does not accept, however, that the subjective observations of William by Renee could provide a proper basis for a submission that William actively rejected Renee at this time. In assessing Renee’s evidence on this, the Court has had particular regard to the legal principles in relation to witness reliability, set out above.
However, to the extent this encounter provided evidence that William knew about the second pregnancy, the Court notes that Renee has provided evidence of knowledge of the later birth of the second child by way of the card sent to William in 2013.
In the last years of his life, William lived alone. In about January 2022, William was diagnosed with pancreatic cancer. He was treated with chemotherapy and his condition remained stable for about six months.
In the latter part of 2022 William’s health deteriorated and by the start of 2023, William’s health was at a point where the treatment was no longer working.
From this time, Warren and his wife Dot, Sonja, and various others increased their care and support of William. At this point Warren would go to William’s home every three or four days, and otherwise assist William, with the assistance of Dot.
Warren asked William if he wanted him to contact Renee or Dallas, and William said no.
In cross-examination, Warren was challenged as to the extent that he assisted William, by way of William’s own recording of events in his diary (TR P64-71, see also P101, P103). Whilst the Court accepts that there may have been times when William’s diary did not record all instances of contact that may otherwise have been inferred from Warren’s evidence, or that Warren’s recall was not exact, overall, the Court accepts Warren’s evidence. The evidence as a whole supports a finding that Warren, his wife, and Sonja were amongst the closest people to William at the time of his death, and that they cared for and supported William through his illness and up until his death.
It is not accepted, as submitted by Renee, that Warren “tended to exaggerate the extent of care and assistance he was giving the deceased” (TR P103 L25-26). There is no dispute that Renee and Dallas simply were not there at those times, which explains why Renee was forced to rely upon William’s diary entries to obtain some insight into the assistance that was given to William by others in her absence. However, the diary entries of a sick and dying man might not record all instances of contact and support. Having regard to the whole of the evidence, there can be no serious dispute that, whilst others were also involved in his care, Warren (and Dot) and Sonja comprised William’s inner circle of care and support when he was in his most need.
On the issue of Warren being close to William, and the significance of the diary entries, Warren submitted that “[y]ou don’t take someone into your house for two weeks when they’re on the verge of death if you are not close to them. William was only returned to the hospice on the last day before he died” (TR P123 L49-124 L3). The Court accepts this submission.
For her part, soon after William was diagnosed with cancer, Sonja took long service leave from her nursing job in conjunction with annual leave so as she could help with his care, however, she eventually left the job as she could not handle the stress of the job and being available for her father (TR P80). She often discussed William’s care with Warren, noting that William’s independence was paramount to him and that they respected that.
Sonja was with William when he died.
Sonja is a registered nurse and has nursing qualifications. Whilst not employed at the time of the hearing, Sonja gave evidence that she has worked for nearly all of her life, despite the many health issues of which she gave evidence.
Sonja was married but had been separated for around 10 years at the time of the hearing. Sonja’s husband had been dependent upon her during their marriage, and as far as she was aware, he did not have any substantial assets. She does not have any children.
Sonja deposed that she had an ongoing and close relationship with William, which became increasingly close over the course of his life. This included caring for him during his illness toward the end of his life.
The evidence of Warren corroborated that of Sonja on these issues.
At the time of the hearing Warren was around 60 years of age, was married with two children, and worked as a firefighter. Warren’s father died when he was five and he was raised by his grandparents.
Warren has lived in Bronte for most of his life, and his father grew up with William around Bronte. Warren’s grandfather was a brick layer and did work for William. After Warren left school, he was an apprentice to his grandfather and then later to William. Warren saw William as a father figure, and they remained close up until the time of William’s death.
Two of William’s wills were before the Court: a will executed on 12 August 2020 (the 2020 W****ill) and the 2023 Will. For the 2020 Will, Warren recalls William asking him to be the executor and telling him that “Sonja will get it all. She is going to have a lot of ongoing issues with her health which will cause her a lot of trouble”. Warren also recalls that there was some discussion about possible claims by Renee and Dallas, with William stating, “I do not have any relationship with them. I don’t want them to get anything”.
In the period after the 2020 Will was made, William is said to have had several conversations with Warren and said words to the effect, “I have been told that Renee and Dallas can make a claim on my estate”, and “I am worried the girls will make a claim”.
William eventually told Warren that he had made a new will and showed him a copy of the 2023 Will. Warren asked him why he had made him a beneficiary, and William replied, “[t]hat’s what I want”.
For her part, Renee says that in her late twenties or early thirties, that she recalled conversations where William said words to the effect, “[m]y will is an equal split between you girls”. No will earlier than the 2020 Will was before the Court.
The validity of the 2023 Will has not been challenged. Clause 4 of the 2023 Will provides that 50% of the estate is to be given to Sonja, 20% to Warren, and 30% to Renee and Dallas in equal shares as tenants in common (ie 15% each). Any residue is to be given to Sonja and Warren in equal shares as tenants in common (clause 5).
Clause 6 of the will provided the following declaration:
“I DECLARE that I have not made any further provision for my said daughters RENEE and DALLAS as they have chosen to be estranged from me and because of their complete lack of concern or contact with me over many years with no attempt to reconcile.”
Under the 2020 Will, Warren was again the nominated executor (clause 2). Under this will, William left the whole of his estate to Sonja (clause 6). The 2020 Will therefore made no provision for either Renee or Dallas.
Warren deposed that the gross distributable estate as at 24 June 2025 was $2,994,929.28 (estate assets). This was mostly comprised of cash held in a term deposit, and two smaller sums held in a bank account and a solicitor’s trust account.
As at 25 November 2024, a total of $110,431 testamentary and other expenses had been paid out of the estate in the following manner:
$11,713 for legal costs and expenses associated with obtaining the grant of probate and administering the estate, which was paid to a solicitor;
$38,460 in preparing a house prior to its sale (which is understood to be the residential property listed in the inventory attached to the grant of probate); and
$60,258 on a real estate agent’s commission and expenses, presumably in connection with the sale of the house just mentioned.
As of 24 June 2025, $25,300 had also been paid out of the estate on account of Warren’s legal costs in these proceedings. Thus, without any legal costs being deducted, the value of the pre-litigation distributable estate (pre-litigation estate) would be $3,030,229.28.
Using the pre-litigation estate as a guide, had litigation not been commenced, Renee would have received an estimated legacy of $453,034.39 (being 15% of $3,020,229.28).
At the commencement of the hearing, both parties agreed that, for the purposes of the proceedings, the net distributable estate by the end of the hearing was likely to be $2,907,229.28, allowing for the estimated legal costs of the defendant on an indemnity basis.
Probate of the 2023 Will was granted to Warren on 8 January 2024. The major asset of the estate was William’s home, having been sold since his death, leaving all estate assets in cash.
In the course of cross-examination, various actions (or omissions) of Warren as executor were called into question, including in relation to his fiduciary duties. The line of questioning was objected to, and I raised with counsel my own concern as to the relevance of the evidence, noting also that the sums of money involved were relatively small, and further noting that there had been no notice that questions as to the conduct of the executor were to be raised as part of Renee’s case.
Counsel for Renee stated that the conduct of the executor was a relevant consideration under s 60(2)(n) of the Act, and that it had not been raised earlier as it was being left for cross-examination (TR P58 L14). Counsel later suggested that at paragraph [60] of PWS, the issue of the conduct of both Warren and Sonja after William’s death was indeed raised as relevant (TR P59 L19) (however on this it is noted the conduct of Warren referred to in that paragraph was that Renee was not informed of William’s death for nearly four weeks). At this point counsel submitted that “it’s entirely up to your Honour as to what weight, if any, you will place on that” (TR P59 L22-23).
In closing submissions, it was again raised that the conduct of Warren as executor was a relevant factor (TR P101-103) and the Court was invited to make further provision largely, if not entirely, from Warren’s share (TR P103 L37-39). The Court raised with counsel the seriousness of the allegations that were being made against Warren, in relation to breaches of his duties as an executor and fiduciary, and that the allegations had not been particularised, and its concerns about procedural fairness. On this issue the following exchange took place (TR P110 L39-49):
“[COUNSEL FOR THE PLAINTIFF]: … So, we’re not seeking any findings against him, and that is recognised. The amount involved is only some $20,000 odd, so it just doesn’t warrant the costs of bringing a claim [in equity] in that regard. But it is something that I would submit needs to be taken into consideration. He had the opportunity to obtain legal advice and he appears to not have, and he just appears to have gone along and felt he could do what he wanted because he was in the role of executor.
HER HONOUR: But if I was to have regard to it in relation to what you’re putting to me, that it’s a material factor, wouldn’t I need to make a finding?
[COUNSEL FOR THE PLAINTIFF]: I wouldn’t have thought you would have, but I’m in your hands.”
“[COUNSEL FOR THE DEFENDANT]: Yes. Perhaps before I start and get into the meat of my submissions, I might just actually just deal with this issue regarding Warren, and, in my submission, your Honour cannot make findings against Warren. A breach of fiduciary duty is a very, very serious allegation. There was no pleading of this; it’s all just been done on the fly. The first notice that Warren really had of any allegations against him was in cross-examination. I know they did serve a notice to produce earlier, which was honestly and accurately responded to by the defendant’s solicitor. But, as I said, my primary submission is that your Honour cannot make findings in relation to these particular matters. But I might just go through them, just in case your Honour feels that your Honour does need to make some findings.”
“[COUNSEL FOR THE DEFENDANT]: … In any event, in relation to that particular issue, my submissions are that the Court’s not in a position to make findings. Even if the Court was intending to make findings, there is no breach, or if there is a breach of the conflict rule, it is of the most minor and marginal kind. It’s really a reflection of a man, a builder, who wanted to get the estate wound up as quickly as he possibly could, and may have acted in a slightly informal manner in relation to it. But he certainly didn’t expect that he was going to end up in the Supreme Court being queried about these matters. Nobody would.”
The Court accepts the submissions of the defendant that the Court is not in a position to make findings in relation to Warren’s conduct as executor, and ought not to make such findings, for the reasons submitted. It is further accepted that even if the Court were to make findings, that any findings would be of a “minor and marginal” nature. Counsel for the plaintiff inferentially admitted as much, apparently being the reason that a separate equity suit was not undertaken. As such, and in the absence of making any findings, the Court does not give the issue of Warren’s conduct as executor weight in determining the issues before it.
For clarity, it is noted that Renee had cited other post-death conduct of Warren (and Sonja) in her opening submissions (at PWS [60](n)), being that Renee was not informed of William’s death for nearly four weeks. This conduct was clearly identified in written opening submissions, as distinguished from the conduct the subject of the allegations cited immediately above.
Unless otherwise stated, all references to statutory provisions will be to the Act.
An application for a family provision order is made under Pt 3.2 of the Act. Such applications must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time: s 58.
Only eligible persons may apply for a family provision order, as defined in s 57 (Div 1 of Pt 3.2):
57 Eligible persons
(1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—
(a) a person who was the spouse of the deceased person at the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former spouse of the deceased person,
(e) a person—
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
59 When family provision order may be made
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—
(a) the person in whose favour the order is to be made is an eligible person, and
(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
…
60 Matters to be considered by Court
(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining—
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court—
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e) if the applicant is cohabiting with another person—the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
65 Nature of orders
(1) A family provision order must specify—
(a) the person or persons for whom provision is to be made, and
(b) the amount and nature of the provision, and
(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and
(d) any conditions, restrictions or limitations imposed by the Court.
(2) A family provision order may require the provision to be made in one or more of the following ways—
(a) by payment of a lump sum of money,
(b) by periodic payments of money,
(c) by application of specified existing or future property,
(d) by way of an absolute interest, or a limited interest only, in property,
(e) by way of property set aside as a class fund for the benefit of 2 or more persons,
(f) in any other manner the Court thinks fit.
(3) If provision is to be made by payment of an amount of money, the family provision order may specify whether interest is payable on the whole or any part of the amount payable for the period, and, if so, the period during which interest is payable and the rate of the interest.
“[78] Before an order for provision can be made in favour of a child of the deceased (who is an ‘eligible person’ within the meaning of s 59 of the Succession Act), the Court must be satisfied that ‘adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person’: Succession Act, s 59(1)(c).
[79] Satisfaction in this regard is ‘jurisdictional’ insofar as it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): see, for example, as to the use of the description ‘jurisdictional’, White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; Singer at 208–210; Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [69]–[72]. Care must, however, be taken when answering this jurisdictional question not to confine the relevant consideration to an applicant’s financial or material needs; the language of ‘proper maintenance, education or advancement’ involves more than simply a question of financial needs: see Sgro v Thompson [2017] NSWCA 326 at [68]–[74] (Sgro).
[80] Once the level of satisfaction referred to in [78] has been reached, the Court has a broad discretion, ‘having regard to the facts known to the Court at the time the order is made’ (emphasis added), to make such order for provision out of the estate as ought to be made ‘for the maintenance, education or advancement in life of the eligible person’: Succession Act, s 59(2).
[81] In considering both whether to make a family provision order and the nature of any such order if the threshold required by s 59(1)(c) is satisfied, the Court is entitled to consider the broad range of matters specified in s 60(2) of the Succession Act. The breadth of the matters that may be considered under s 60(2) does not, however, authorise the making of an order which is for a purpose other than ‘the maintenance, education or advancement in life of the eligible person’. Nor does it relieve the Court of the need to make the order ‘having regard to the facts known to the Court at the time the order is made’ (emphasis added).
[82] The primary judge’s summary of relevant principles, as noted at [59] above, was not challenged. It is convenient to add a reference to McCosker v McCosker (1957) 97 CLR 566 at 571–572; [1957] HCA 82 (McCosker), in which Dixon CJ and Williams J observed that:
‘The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v. Perpetual Trustee Co. (Ltd.) [1938] NSWStRp 3; [1938] AC 463; (1938) 38 SR (NSW) 176 the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.’
[83] Kitto J’s observations in the same case at 579 are also of note:
‘The testator has shown by the terms of his will that he did not fail to consider what he ought to do for the several members of his family and that it was his deliberate judgment that some of them, including the respondent, had been adequately provided for by assistance he had given them. His opinion on the subject is, of course, by no means conclusive. But there is nothing to suggest that he was under any misapprehension, or that he was in any way prejudiced against the respondent; and the case seems to me to be one of those in which the testator is much more likely to have formed a correct conclusion on the subject of the moral obligations he owed to his family than a court can well hope to be.’
[84] In Singer at 208–209, the majority held, in the context of broadly equivalent provisions under the predecessor Family Provision Act 1982 (NSW), that:
‘It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the “jurisdictional question”. That description means no more than that the court’s power to make an order in favour of an applicant under s.7 is conditioned upon the court being satisfied of the state of affairs predicated in s.9(2)(a).’
[85] More recently, in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122] (Vigolo), Callinan and Heydon JJ observed, in relation to the corresponding Western Australian legislation, that the questions which the Court has to answer in assessing such a claim do not ‘necessarily always divide neatly into two’ and that:
‘Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.’
[86] Vigolo is also significant because three of the five justices (Gleeson CJ, Callinan and Heydon JJ) supported the continuing utility in this field of discourse of notions of moral obligation and duty. Thus, Gleeson CJ (at [25]) observed that:
‘In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text.’
See also Callinan and Heydon JJ at [121], cf Gummow and Hayne JJ at [63]–[73].
[87] It is also relevant to note that in Sgro at [83], White JA (with whom McColl and Payne JJA agreed) repeated what he had earlier said in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] as follows:
‘In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.’
These observations bear a close affinity with those of Kitto J in McCosker, noted in [83] above. Sgro was a case where, as Payne JA explained at [3], one sister’s claim ‘was founded upon what all members of the family understood as her claim to the Greystanes property upon her parents’ death, Rosa [another sister] having earlier received the Merrylands property in a way all members of the family understood as comprising an early inheritance.’ At [76]–[78], White JA relevantly held that:
‘76 [T]he primary judge did err in principle in his assessment of the significance of Rosa’s having been given the Merrylands property in 1985 as her early inheritance. There is no doubt that the primary judge took that transaction into account as one of the material considerations. His Honour did so in considering the provision made for the applicant by the deceased during the deceased’s lifetime … and as evidence of the deceased’s testamentary intentions … In the section of his reasons headed “DETERMINATION” the primary judge referred to the deceased’s having made generous provision for Rosa during her lifetime by, amongst other things, giving her an unencumbered house … His Honour then went on to say that the level of provision made during the lifetime of the deceased could not alone determine what was proper on the deceased’s death, albeit it was one of the matters to be taken into account in determining what is “proper”.
77 But in considering Carmela’s competing claim on the estate, the primary judge said (at [133]) that:
“Her competing claim is not founded upon any competing financial need, but on her contributions to the deceased, both financially and in other ways, during the deceased’s declining years.”
78 Carmela’s competing claim was not founded only on her contributions to the deceased during the deceased’s declining years. Fundamentally, it was founded upon what all members of the family recognised as her moral claim to the Greystanes property upon her parents’ death because her sister had received an early inheritance of the Merrylands property.’”
“[50] The principles which govern the determination of an application for a family provision order under the Succession Act, …, are settled. They were not the subject of any material dispute in the submissions of the parties.
[51] Arthur, as a child of Con, was an eligible person pursuant to s 57(1)(c), Succession Act. It was for Arthur, as the applicant for a family provision order, to establish an affirmative case for displacement by the Court of the testator’s clearly stated testamentary wishes: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [103] per Barrett JA (Gleeson JA agreeing).
[52] Pursuant to s 59(1)(c), the Court was empowered to make a family provision order in relation to Con’s estate if satisfied that, at the time the Court was considering the application, ‘adequate provision for the proper maintenance, education or advancement in life’ of Arthur had not been made by the Final Will or by the operation of the intestacy rules, or both.
…
[55] Where satisfied of the applicable matters in s 59, the Court ‘may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made’: s 59(2). Pursuant to s 60(1), in determining whether to make a family provision order and the nature of any such order, the Court may have regard to the matters set out in s 60(2). This is a broad discretion and pursuant to s 60, the Court is entitled to consider a broad range of matters: Bassett v Bassett at [80]-[81]. The appropriate order should be made by reference to ‘perceived prevailing community standards of what is right and appropriate’: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 (Andrew v Andrew) at [16], cited with approval in Angius v Angius [2025] NSWCA 113 (Angius v Angius) at [24] per Mitchelmore JA (Bell CJ and Ball JA agreeing). Justice Mitchelmore in the same passage also cited with approval the description given in Andrew v Andrew of the standard in s 59(2) as ‘imprecise, variable and contestable’. An exercise of the Court’s power to make a family provision order calls for a ‘multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application’: Lalic v Lalic [2022] NSWSC 31 at [51] per Henry J, cited with approval in Angius v Angius at [25].
[56] There is a considerable degree of overlap between the formation by a Court of the requisite state of satisfaction under s 59(1)(c) and the determination under s 59(2) of whether or not to make an order for family provision and, if so, in what amount. …”
“[7] As appears, before an order under s 59 may be made the Court must be satisfied that ‘adequate provision for the proper maintenance, education or advancement in life’ of the claimant ‘has not been made by the will of the deceased person’. If so satisfied, the Court may ‘make such order for provision... as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person’. Here the relevant objects are maintenance and advancement in life, in circumstances where no provision was made for either claimant.
[8] As the majority (Mason CJ, Deane and McHugh JJ) observed in Singer v Berghouse (1994) 181 CLR 201 at 210; [1994] HCA 40, each of these ‘twin tasks’ involves similar considerations, because in each the Court has to assess what is the ‘proper’ level of maintenance and what is ‘adequate’ provision. As has been observed, these terms are relative and require that regard be had, among other things, to the matters set forth in s 60(2), including the claimant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the claimant and the deceased, and the circumstances and needs of other claimants, beneficiaries and potential beneficiaries.”
On the issue of the application of s 60(2) matters to any determination under both s 59(1)(c) and 59(2), see also Bassett (Bell P, Leeming and Payne JJA at [170]-[171]) and Scott v Scott [2022] NSWCA 182 (Meagher JA at [17], Ward P and Kirk JA agreeing) (and by judges at first instance: Fulton v Fulton [2014] NSWSC 619 (Hallen J at [309]-[311]); Leary v NSW Trustee and Guardian [2017] NSWSC 1113 (Ward CJ in Eq at [49]-[51]); Watton v MacTaggart [2020] NSWSC 1233 (Ward CJ in Eq at [37]-[38]); Ibrahim v Nasr [2021] NSWSC 1321 (Leeming JA at [100])).
“[473] I have, in many cases, referred to some general principles in relation to a claim by an adult child of the deceased. I repeat the principles that I have set out:
(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, and where that is feasible; where funds allow, to provide them with a start in life — such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation’: Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]–[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 at [109]–[110] (Beazley P, McColl and Gleeson JJA agreeing).
(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] (Brereton J).
(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) at 545–546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309–310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44–45 (Nicholson J); Taylor v Farrugia at [58].
(e) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]–[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]–[90] (Martin CJ).
(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 (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2.
[474] A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], was cited with approval in Chapple v Wilcox at [21] (Basten JA); and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson at [62] (Sackville AJA).”
“[469] The Act makes no mention of ‘estrangement’ between an applicant and a deceased person. There are no rigid rules as to the consequence of such estrangement and each case will necessarily turn on its facts. As Lindsay J recently remarked in Alexiou v Alexiou [2024] NSWSC 1340, at [95]:
If the fractured relationship between the plaintiff and the deceased be characterised (or not) as an ‘estrangement’, so be it. The factual matrix is more important than any single label attached to the relationship.
[470] For the purpose of determining whether to make an order for provision, and the nature of any such order, matters that may be considered by the court in the exercise of its discretion under s 59(2) include the nature and duration of the applicant’s relationship with the deceased, as well as any other matter the court considers relevant in existence at the time of the deceased’s death: s 60(2)(a) and (p) of the Act.
[471] Evidence of estrangement plainly speaks to the nature and duration of the relationship between an applicant and the deceased person. If the estrangement persisted at the time of the deceased person’s death, that would ordinarily also be a relevant matter for the purposes of s 60(2)(p) of the Act.
[472] The underlying circumstances of the estrangement, as distinct from the state of being estranged itself, may also fall within the consideration of the character and conduct of the applicant before the date of the death of the deceased person: s 60(2)(m) of the Act. In this regard, I am guided by the following remarks of Lindsay J in Alexiou, at [90]:
The Succession Act contains no provision in the same terms as section 3(2) of the Testator’s Family, Maintenance and Guardianship of Infants Act 1916 NSW, which empowered the Court to ‘refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order’. Although section 60(2)(m) invites the Court to consider ‘the character and conduct’ of a claimant the Succession Act stops short of a character assessment in terms of a ‘disentitlement’ to relief, requiring instead a broader, more holistic assessment of relationships and the particular circumstances of the case at hand.
[473] Section 59 of the Act undoubtedly interferes with the freedom of testamentary disposition, and if the provision made for an eligible applicant is less than adequate for their proper maintenance and advancement in life, provision must be made: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114, White JA at [52], and Brereton JA at [96].
[474] Relevant principles in relation to estrangement in provision claims have been ‘comprehensively considered’: Portis v Green [2017] NSWSC 1489, Kunc J at [55], referring to the summary of Hallen J in Underwood, at [230]–[244].
[475] Relevantly, in Underwood, Hallen J at [231] distilled the following principles which provide some useful guidance in this context:
(a) The word ‘estrangement’ does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].
(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that:
‘… the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.’
(c) There is no rule that, irrespective of a Plaintiff’s need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to ‘ample’ provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
(d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’: Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.
(e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed):
‘If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator’s will.’
(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court’s discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3].
(g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].
(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken 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 raw emotions experienced at the time: Foley v Ellis, at [102].
[476] I am also minded to observe the following from Hampson v Hampson [2010] NSWCA 359, where Campbell JA (with whom Giles JA and Handley AJA agreed) stated at [80] (emphasis in original):
The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.
[477] By way of summary, while the nature of the estrangement and the underlying reason for it are relevant to an application for provision, estrangement of itself is not determinative of the application. It does not, without more, disentitle the applicant from provision, nor does it automatically justify their exclusion from the bounty of the estate. There is no presumptive right of testamentary entitlement for offspring in this jurisdiction, nor is there any presumptive right to disinherit in cases of estrangement: Underwood v Gaudron [2015] NSWCA 269, Basten JA (with whom Macfarlan and Ward JJA agreed) at [73].
[478] If any provision is to be made, estrangement between the applicant and the deceased may operate to reduce the applicant’s claim on the deceased’s estate or ‘restrain amplitude in the provision to be made’: Underwood, Hallen J at [231(g)]; Pulitano v Pulitano [2019] NSWSC 1688, Henry J at [250], citing Keep v Bourke [2012] NSWCA 64, Macfarlan JA at [49].
[479] However, estrangement between an applicant and the deceased person is but one factor to be taken into consideration and, where the negative consequences of the estrangement are kept within reasonable bounds, it is not to be ‘given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience’: Andrew, Basten JA at [40].
[480] As a matter of ordinary expression, the state of being ‘estranged’ connotes a condition or situation which has persisted at least for a period of some length: Oxford English Dictionary, online 2nd ed, May 2025. There has been suggestion among some of the authorities cited above of some differentiation between instances of ‘temporary’ or ‘short-term’ estrangements, such as where an otherwise long and loving relationship between a parent and child has been ‘ruptured shortly prior to death’ on one hand, with instances of ‘longstanding’ or ‘long-term’ estrangement on the other: see, for example, Georgopoulos v Tsiokanis [2022] NSWSC 563, Hallen J at [157]–[158]; Underwood, Hallen J at [73]. There is no clear dividing line between these vague descriptors – which are in any event relative terms – and in circumstances where both situations would likely be relevant to the nature or duration the applicant’s relationship with the deceased, and because each case is confined to its own facts, the utility of any label or sub-category of estrangement relative to its length appears limited.
[481] In a similar vein, the use of the term ‘estrangement’ generally in family provision cases is not without controversy. In that regard, in Rada v Smith [2024] NSWSC 273, Kunc J at [26]–[28] said:
[26] However, I do not wish to leave this topic without making a more general observation. In my view, ‘estrangement’ should be banished from the family provision lexicon as some kind of freestanding, established consideration. It has come to be treated as though it appears as one of the matters specified in s 60(2) of the Act.
[27] I respectfully add my voice to other judicial expressions of caution about the utility of the term. It assumes what it seeks to prove. It is a word already loaded with moral obloquy which risks diverting the Court and the parties into an ultimately fruitless attempt to assign blame for conduct which took place long ago, often in emotional circumstances, and in a context which is impossible to recreate years later in a way that is both fair and proportionate to its ultimate importance to the outcome of a given case. Obviously one of the fundamental difficulties with that task is the necessary unavailability of one of the protagonists to give evidence.
[28] ‘Estrangement’ should be replaced with the neutral expression ‘lack of contact’. As such, it falls within at least sub-sections 60(2)(m) and (p) of the Act. So understood, it invites a factually more objective inquiry in the sense of ascertaining what contact there was or was not. To the extent that the reasons for the lack of contact need to be explored, the experience of the Court is that, generally, only the most egregious conduct on the part of either the deceased or the applicant will have any impact on the multifactorial discretionary exercise in which the Court is engaged. And only in the most extreme cases will it be decisive of the outcome. In the vast majority of cases it will have no impact because the Court understands that disagreements, moments of irritation, and words said in haste and repented at leisure are an ordinary incident of family life.
[482] Although I have used the words ‘estrangement’ and ‘estranged’ in this judgment, I do so in accordance with the established principles that it is not a freestanding criterion in the Act. It is simply part of the objective assessment of the nature and duration of the applicant’s relationship with the deceased, as well as any other matter the court considers relevant in existence at the time of the deceased person’s death in accordance with s 60(2)(a) and (p) of the Act, respectively.”
“[492] As long ago as 1980, in White v Barron, at 440, Stephen J wrote:
‘[T]his jurisdiction is pre-eminently one in which the trial judge’s exercise of discretion should not be unduly confined by judge-made rules of purportedly general application.’
[493] As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as ‘principles’ or ‘general principles’ to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
[494] It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar, at [131]:
‘Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19].’
[495] The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA at [18]-[20], and by Barrett JA at [66]-[67]; in Burke v Burke (No 2) [2015] NSWCA 195 at [84]-[85]; in Yee v Yee [2017] NSWCA 305 at [172]; and very recently, by White JA, in Steinmetz v Shannon at [37]. They must be remembered.”
In these proceedings, it is common ground that Renee is an eligible person, being the child of William (s 57(1)(c) of the Act) and that the application by Renee was made within time (s 58 of the Act).
What remains in dispute and requires determination by the Court are the following issues:
Has adequate provision for the proper maintenance, education or advancement in life of Renee not been made by the will of William (s 59(1)(c) of the Act)?
If the answer to Issue (1) is yes, what, if any, order does the Court think ought to be made for the maintenance, education or advancement in life of Renee, having regard to the facts known to the Court at the time the order is made (ss 59(2), 65 of the Act)?
[I]n exercising its statutory powers in the determination of an application for a family provision order the Court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating the deceased as wise and just rather than fond and foolish (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20), making due allowance for current social conditions and standards: (Goodman v Windeyer (1980) 144 CLR 490 at [502]; Andrew v Andrew (2012) 81 NSWLR 656 at [12] and [16]; Chapple v Wilcox (2014) 87 NSWLR 646) and, generally, consulting specific statutory criteria so far as they may be material: Bassett v Bassett [2021] NSWCA 320 at [170]-[171].
In accordance with the relevant legal principles set out above, the Court has endeavoured to evaluate each witness’ evidence, not only in the light of their responses during cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence and circumstances as a whole.
Having undertaken a “multifaceted evaluative” assessment in relation to the totality of the evidence in all of the circumstances, the Court is of the view that adequate provision for the proper maintenance, education or advancement in life of Renee was made by the 2023 Will.
Renee expressed some doubt about the security of her family’s ongoing living arrangements. She stated that her mother-in-law was in deteriorating health, and that it was unclear how long she can live at home. Renee asserted that if or when her mother-in-law goes into aged care, their family will need to find alternative accommodation.
Over the course of the proceedings, there were assertions made by both parties about the current house in which Renee’s family are living. Valuations made by real estate agents engaged by the parties indicate that the property, which is owned outright by Terry’s mother, is valued between $2,400,000 and $3,000,000. Terry is one of four children.
Renee deposed that she experiences ongoing mental health issues, including anxiety and depression, for which she has struggled to find treatment. She stated it was “almost impossible” to find an appropriate psychologist who bulk bills in the city or eastern suburbs of Sydney, and the few who do bulk bill are not accepting new patients. She said she could not afford to pay the gap between the Medicare rebate and the private consultation fees.
Other than her subjective descriptions of her mental health, Renee did not include in her evidence any medical reports going to her mental health or of any past or present mental health diagnosis.
Renee also deposes that the first child has struggled with mental health difficulties, saying that he suffered from anxiety, learning difficulties, and suspected attention deficit hyperactivity disorder (ADHD). These difficulties are asserted to be ongoing, and to have caused difficulty at home, as well as making it difficult for Renee to find work.
No medical or other health professional report was before the Court to support Renee’s claims in relation to the first child’s various diagnoses, with Renee accepting in cross-examination that the first child has never actually been diagnosed as having a “mental health issue” (TR P30 L23-24). Before the Court was a mental health care plan, referring to “behavioural problems”, and a referral to a psychologist .
Renee stated that whilst the first child struggled to cope during primary school, he has begun to “thrive” after starting high school, and that she and Terry continue to provide additional learning and support.
In her updating affidavit sworn 3 July 2025, Renee deposed she had a gross monthly income of approximately $3,345, and that she estimated her net monthly income as approximately $2,995 (ie, $35,940 annually).
In the same affidavit, Renee stated her only source of income was payments from Centrelink, which totalled $1,544.24 per fortnight (ie, $40,150.24 annually).
These sums were clarified with Renee in cross-examination (TR P41 L1-6), where she indicated she was not sure of why there was a difference between her monthly estimate of $2,995 and the total of the fortnightly payment from Centrelink, and suggested the difference may be because of tax, but she was not sure (TR P41 L8-20). What Renee was able to positively confirm was that she received $1,544 per fortnight (TR P40 L24).
Monthly expenditure for the family was said to be $3,030 (ie, $36,360 annually). Given the clarification by Renee in the witness box, it would seem that Renee’s own regular income (without considering Terry’s income) exceeds the expenditure of her family, even before taking into consideration potential income from further sources, as is detailed below.
Renee provided a table of her Assets and Liabilities as at 3 July 2025 indicating her sole assets having an estimated value of $41,646; Terry’s sole assets at $7,420; further joint assets at $9,409; totalling $58,475. Renee’s sole liability was a “HECS-HELP debt” of $8,500.
The evidence was unclear as to the extent to which Renee’s income extended beyond the Centrelink payments, as during cross-examination Renee stated that, “we [Renee and Terry] at times would take drawings from the business if there was money in the account from the business to help us basically for living costs”: (TR P33 L46-48). Renee’s reference to “the business” is a reference to a small business owned together by Renee and Terry as a family partnership (the Partnership). It was also revealed in cross-examination that an additional sum received by Renee from the Partnership may have been in the order of $15,000 (TR P40 L20-22), however, the evidence on this was not clear.
Renee conceded in cross-examination that she had not otherwise disclosed that she had withdrawn money from the Partnership for personal expenses: (TR P37 L36-38).
Renee stated she was not currently employed, and that she was not actively seeking work at the moment as she was caring for her children. She stated that the first child, in particular, needed a higher level of care and support with his mental health and learning difficulties.
Renee said she wants to have some money as a “buffer” for any unexpected emergencies or contingencies in life. Renee has approximately $38,857 of superannuation.
In relation to Terry, Renee gave evidence that Terry’s current monthly and net income was approximately $1,500 per month (i.e. $18,000 annually). Renee said that Terry was self-employed and that he worked in the Partnership. She said the Partnership had started in January 2019, although Terry had commenced his own photography business shortly after the birth of their first child which transitioned to an eBay business prior to her joining: (TR P39 L28-45). The Partnership buys and sells used cameras and photographic equipment on eBay. Renee said that Terry stopped full-time work in 2010 after the first child was born to help care for her and for the first child.
As already noted, there was no evidence directly from Terry, with all evidence as to Terry’s circumstances led through Renee.
In cross-examination, Renee was taken to a “Westpac Life” account document from 2022, in Terry’s name, which recorded an opening balance at that time of $34,986.76. Renee confirmed it was Terry’s money, and while she was unable to explain where it had come from or how long he had had it for, she stated it was there as their “buffer” (TR P31 L9-20).
Of this same account, Renee was asked about withdrawals made from it in 2024. She stated she could not remember each transaction, but went on to explain, “we [her and Terry] were also supplementing our business, which is what we run together, our partnership, so it could have had something to do with putting, injecting funds into our business” (TR P31 L41-43).
The Partnership was the subject of considerable cross-examination, with the evidence disclosing that in the past few years the Partnership either made a loss (the tax returns prepared for the Partnership showed a $15,663 loss for 2022 (TR P35 L16-17), and a $9,322 loss for 2023 (TR P38 L18-20)) or a very slim profit (eg, $2,285 profit for 2024 was recorded on the tax return for the Partnership for that year (TR P38 L26-28)). Given the losses and very slim profit of the Partnership, the following propositions were put to Renee (TR P38 L30-L32):
Q. According to the partnership tax return, over a period of three years, the business has made only the most marginal of profits?
A. That’s correct, yes.
Q. If that document is correct, the partnership is utterly pointless, isn’t it?
A. No.
Given the losses of the Partnership, counsel also put to Renee that, “in a sense you’d be better doing absolutely nothing”, to which Renee responded, “[n]o, because we’re actually building our skills. …” (TR P40 L1-2).
The following propositions were put to Renee in relation to “outside” employment (TR P38 L36-P39 L19):
Q. You and your husband would make a good deal more money if you went out and became employed?
A. I don’t know if I agree with that. And there’s reasons why we don’t go out and have jobs outside of the home.
Q. There is no reason whatsoever why your husband cannot go out and obtain full-time employment?
A. Actually, he’s with me and supporting me while I’m raising my two kids, which I’m struggling to do. So we are a very tightknit family. We work together. We’re a really strong team and I can’t do that on my own, I can’t raise the two kids that I’ve got at the moment on my own, it’s too much.
Q. They spend most of their time at school?
A. Yes.
Q. It is not necessary for two parents to be at home for that reason?
A. When they’re with us in the morning and of an evening, which is obviously when we’re together, we need each other to keep everything going. We’re also looking after Terry’s mum, so we’ve got a full house, a lot of stress and a lot of anxiety. So we work together as a team. We’d have very short working hours if we weren’t there to get our son, one in particular, off to school and of an evening to do his homework and organise himself so that we can get that done, get his assignments done. It’s a two person effort.
Q. There is absolutely no reason why your husband cannot go out and work full-time?
A. No, he’s there to support me because we absolutely can’t - one can’t do it on their own. It’s - we have, like I said, a child that really needs that support, not just from me who has my own anxiety and struggles to deal with him at times, my husband is there to help me but also my son.
The evidence of Renee is that the reason she currently does not seek employment outside the home is because she would like to stay home to care for her children. This oral evidence appears to clarify Renee’s affidavit evidence, which was unclear as to the timing of when mental health issues impacted upon employment: “I suffer from anxiety and depression, which is debilitating at times. My mental health issues have made it difficult for me to find and keep employment, especially after [the first child] was born” (emphasis added).
Further, it is Renee’s evidence that the reason that Terry does not seek outside employment is to support Renee, while she supports the children, and otherwise support the children himself.
Supporting Terry’s mother is also a part of the home support that is provided by both Renee and Terry.
“I was born with Encephalotrigeminal Angiomatosis which is also called Sturge Weber Syndrome (SWS). SWS is a rare neurological and vascular disorder. It is characterized by a facial birthmark (called a ‘port wine birthmark’), and abnormal blood vessels in the brain, eyes and other organs and in the endocrine system. People afflicted with SWS suffer from one person to the next. Chronic headaches migraines, epilepsy, hydrocephalus, glaucoma, hemiparesis and paraesthesia are some of the conditions which can occur in people with SWS.”
It was not contested by Renee that Sonja suffers from that condition (TR P18 L4-9), and that she will have increasing medical needs in the future (TR P101 L15-16).
Sonja also gave evidence that she has suffered from epileptic seizures from the time she was born up to the age of 18 months old, which she was “cleared of” when she was around 10 years of age, however, that her medical prognosis is that she is at risk of developing epilepsy again as she gets older. She said she was also at risk of other neurological complications such as spontaneous brain haemorrhage.
Sonja stated that she had been diagnosed with glaucoma when she was 5 years old and treated for that condition since that time. From the age of 10 she underwent the first of multiple eye operations over a period of almost 10 years, with resulting total permanent loss of vision in her right eye. During that period, she suffered eight retinal detachments, haemorrhages and eye implant rejections, followed by multiple ophthalmic plastic surgery procedures to stabilise the eye. The medical advice she received was that the chronic pain she was suffering would only be cured by removing the eye, however this was not done as she was at high risk of uncontrollable haemorrhaging due to her SWS.
Sonja provided further detail of significant and associated medical conditions, and associated pain, from which she suffers, and the likelihood of their future progression. She provided medical reports that referred to her medical conditions and continuing need for treatment from treating doctors.
Sonja deposed that she has a private health fund, which covers some of her medical treatment and that most of her medical care is not covered by Medicare (from which it might be inferred that Sonja has to bear at least some of her own medical costs directly). She deposed that she expects the cost of her treatment to increase as she ages.
Sonja deposed that she is trained as a registered nurse but was not working at the time of the hearing.
After the death of her father, Sonja sold her house in Blacktown and moved out of Sydney. The Court accepts her evidence that this move was something she had been planning to do for some time.
Sonja was cross-examined on the issue of the sale of the house in October 2023 being so soon after the death of her father in July, and Renee submitted that, as part of considering Sonja’s post-death conduct (in accordance with s 60(2)(n) of the Act), “Sonja changed her financial position since the deceased’s death by selling her property and is currently living off the proceeds of sale as she waits the benefit of her inheritance. Had she waited to receive her inheritance before selling, she would likely be in an improved financial situation” (PWS [60](n)(ii)).
To the extent the inference is sought that Sonja was intentionally seeking to diminish her financial situation (which was not explicitly put), the Court declines to draw such an inference. While the Court may have regard to post-death conduct under s 60(m)-(n) of the Act, the Court does not accept the submission that Sonja’s conduct in selling her house, which may have had the consequence of a changed financial situation, is a material fact in considering the issues before the Court. The explanations given by Sonja as to why she sold the house when she did are reasonable and accepted and the Court does not consider that those reasons reflect negatively upon her.
In terms of her financial position, Sonja said she had approximately $199,000 in the bank (which had reduced to $159,000 closer to the hearing date), and $371,745 in superannuation. She explained that the money in the bank was mainly what was left over from the sale of her house, which was sold for $842,000. The sale costs were around $15,000, the sum required to pay off her outstanding home loan was $313,360, and further sums were expended on other items, including on buying a new car and in caring for her dogs. These explanations are accepted as to why Sonja’s bank account was reduced over time.
Sonja said she was not working at present, and that she was very stressed by the dispute over her father’s will. She said she has always been a worker and that she would get another job, even if it is not in nursing, which is a very demanding job. She would like to buy a property so she will have secure accommodation as she gets older. She said will need a house with a back yard for her dogs, which are her companions and part of her family. She has not been able to have children.
Of the beneficiaries to the 2023 Will, only Sonja has raised her “financial, material and other” circumstances as a competing claimant (see paragraph 18.12 of the Practice Note SC Eq 7).
Beneficiaries (who are not also making a family provision claim) are entitled to elect not to make disclosure about their financial resources and material needs. On this issue, in Papantoniou v Foundouradakis [2023] NSWSC 1374, Meek J explained the following at [124]-[126]:
“[124] A beneficiary may remain silent about such matters, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s preferable disposition to him or her as the sole beneficiary, regardless of his or her financial position or needs: Jodell v Woods [2017] NSWSC 143 at [29]-[30] per Hallen J citing Sammut v Kleemann [2012] NSWSC 1030 (Sammut v Kleemann) at [137]-[140] per Hallen J.
[125] Where beneficiaries do not make a disclosure of their financial circumstances, it has been said that the Court proceeds effectively on the basis that such a beneficiary is not contending that their financial circumstances are such as to reduce or limit what might be assessed as proper provision for the applicant: Field v Inglis (Supreme Court (NSW), Young J (as his Honour then was), 8 February 1994, BC9402261, unrep) at 2.
[126] However, the effect of s 61(1) of the Succession Act is that the Court cannot disregard the interests of beneficiaries of the estate as such: Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 at [68] per Sackville AJA; Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641 at [35]-[37] per Basten JA (as his Honour then was) (Macfarlan JA and Ward JA – as the President then was – agreeing).”
More recently in Liosatos v Liosatos [2025] NSWSC 44 at [79]-[152], Meek J discussed the importance of Notices of Claim when it comes to considering the terms of s 61 of the Act, in the context of a Court potentially disregarding the interests of persons who are not beneficiaries and may have made a claim, but have not.
Having regard to the above authorities, I note that there was no obligation on Warren to raise his financial or other circumstances in these proceedings, and importantly, consider he is entitled to look to this Court to not disregard William’s freedom of testamentary disposition and William’s preferable disposition to him as beneficiary, regardless of Warren’s financial position or needs.
The Court accepts that William had a moral duty to make some provision for Renee, as she submitted. However, the Court is of the view that he discharged that duty in the provision that was made for her under his final will, the 2023 Will. As Warren submitted, if this application had not been made, that provision would have been in the order of approximately $450,000. The Court further accepts Warren’s submission that this amount will go some way in meeting many of the claimed needs of Renee, which Renee summarises as a “need [for] secure accommodation and a motor vehicle, as well as funds for retirement and a buffer against contingencies” (PWS [65(c)]).
It is obvious that the amount of about $450,000 would not, of itself, provide “secure accommodation” for Renee. However, the Court finds that Renee did not establish, by way of evidence before the Court, that she does not currently have secure accommodation.
The basis of the submission as to the insecurity of her accommodation appeared to be that Renee lives at Terry’s mother’s house and should Terry’s mother need to move into an aged care facility, then the house would likely have to be sold to cover those costs. That possibility rises no higher than speculation. Renee gives evidence that she and Terry currently provide care for Terry’s mother. As Renee and Terry do not work in outside employment, an alternative possibility could include that if Terry’s mother’s needs increase, Renee and Terry will continue to be able to provide home based care and thus remain in the home where they live. The Court concludes that each of these possibilities are speculation and do not assist the Court in its assessment of the evidence put before it.
Even if Renee had established a lack of secure accommodation, the Court would still not have found that adequate and proper provision had not been made for Renee. As the authorities have suggested, with which the Court agrees, the community does not expect a parent to look after their children for the rest of the child’s life, especially where there is someone else, such as a spouse, to do this. In Renee’s circumstances, there is no doubt that each of Terry and Renee understood that Terry had a responsibility to look after Renee, and noting the “responsibility communication”, as much was communicated to William.
This latter evidence also goes to William’s assessment of Renee’s needs as a wise and just testator, having been informed, directly or indirectly, that Terry had declared that Renee’s family were no longer responsible for her.
In closing submissions, Renee clarified that she was not seeking funds for an unencumbered property, but rather, “a greater sum to be able to pay towards a deposit on a property that they [presumably, Renee and Terry] would be likely to obtain a mortgage if required” (TR P97 L26-29). Having regard to the objectively established facts in this matter, together with the apparent logic of events and probabilities of human behaviour, it is not accepted that this proposal provides a proper basis for the Court to find that adequate and proper provision has not been made for Renee, nor that further additional funds from William’s estate ought to be provided to Renee to form a part of a deposit on a property.
Renee’s evidence is that she wished to continue to live in the Randwick area, and that a two-bedroom unit would, on her estimate, cost around $950,000-$1,050,000. She estimated the rent for a similar property to be $750-$820 per week for a property of similar size and location, however, she also said that she and Terry “will likely struggle to obtain a lease on a rental property given our modest income and employment status”.
Given this acknowledgement by Renee that she and Terry would struggle to obtain a lease, the available inference to draw from this is that she and Terry would also struggle to secure a loan, given their “modest income and employment status”, notwithstanding any deposit otherwise available. Further, if they were to obtain a loan, no evidence has been provided which would suggest that they would be able to service that loan, as well as service the “hidden expenses” which come with owning residential property such as council rates and insurances.
The authorities have stated that, where funds allow, a testator might provide a child with a start in life, such as through funding a deposit on a home. I do not consider that the circumstances of this case fall into that category. First, although this might be considered a moderately large estate, the competing claims, in particular that of Sonja, are strong. Second, the circumstances in which Renee finds herself are not that which would reflect further provision giving her a “start in life”. Renee has an established family and has an established lifestyle based upon her own choices, which include that both she and Terry have made the choice to not work outside the home. In these circumstances, the Court does not consider that William’s estate, and thus the other beneficiaries of the estate, should bear the burden of Renee and Terry’s lifestyle choices.
The importance of applicants providing a “sound evidentiary foundation” when claiming accommodation as a “need” was highlighted by the Court of Appeal in Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 at [85] (see also [84]) (Sackville AJA, Macfarlan and Ward JJA agreeing), as was the importance of distinguishing between what is “desired” as opposed to what is “needed” more generally (at [85]). The Court is not satisfied that Renee has provided a sound evidentiary foundation for her claim she does not have secure accommodation, and in relation to her claim for funds towards a deposit.
I also accept Warren’s submission that it was “expected or natural” for Renee to have put on evidence from Terry’s mother on this issue, and that she has failed to do this. That is, I find there is an unexplained failure by Renee to call Terry’s mother on the issue of the security of Renee’s tenure in her (Terry’s mother’s) home, and I draw the inference that the uncalled evidence would not have assisted Renne’s case. In drawing this inference, I note I am not permitted to infer that the uncalled evidence would have been positively damaging to Renee’s case and that the inference will not fill any evidentiary gaps.
Having drawn that inference, I do not think that inference takes the matter any further, given that, for the reasons already explained, I am not satisfied in the first place that there was a proper evidentiary basis to positively find that “Renee does not have security of accommodation” as submitted by Renee (PWS [65(a)]). Such was the risk of relying on indirect and second-hand evidence, the peril of which was highlighted by Stern JA in SSABR at [165].
I do not accept that Terry’s failure to give evidence on this issue (ie, security of accommodation) falls into the same category, as Terry’s views and understandings will only be secondary to those of Terry’s mother, who is the owner of the property, and thus might not rise higher than a wish or speculation on his part.
The details of Renee’s financial circumstances are set out above.
Regarding those financial circumstances, the defendant has criticised Renee for not calling Terry to give evidence, and as part of this relies on the requirements of applicants for family provision to make full and frank disclosure (DCWS [38]-[41]).
The Court notes these criticisms; however, it is also noted that even taking Renee’s evidence of her financial circumstances at their highest, the Court does not consider that they support a finding that William had not already made adequate and proper provision for Renee in his will. Having regard to the evidence Renee put before the Court, clarified when she gave oral evidence, it has been found that Renee’s income through her Centrelink payments is greater than the family’s expenses, and this is before taking into account Terry’s income or any extra funds that may be potentially available from the Partnership (although the tax return for the years in evidence suggest that little if any surplus would be available from this source). The Court does not consider this evidence establishes a need that would lead to a conclusion other than that Renee was adequately and properly provided for in the 2023 Will.
On the issue of future provision by Terry’s mother, Warren submitted that Terry “will surely receive a substantial inheritance from him mother. If not, he will have an excellent claim for family provision” (DCWS [11]).
I do not accept either of those propositions. As to the first proposition, as Terry’s mother is still alive, and as far as is known by the Court, has mental capacity to make a will and change a will, the Court cannot conclude that Terry will receive a substantial inheritance, or any particular inheritance at all. This issue was addressed by Hallen J in Neale v Neale [2013] NSWSC 983, where it was stated (at [13]-[14]):
“[13] In a case such as this one, that an applicant is, or may be, a beneficiary named in the Will, or on intestacy, of a person who has not died is, in my view, irrelevant otherwise. The potential inheritance of an applicant is too speculative to be considered as a financial resource, given that a testator can, ordinarily, change his, or her, Will, and because a Will has no legal effect until the death of the testator. Testamentary intentions may change. At the date of death, which may be some time away, the applicant may no longer be a beneficiary named in the Will, or the person may not have died intestate. At the date of the hearing of the claims, assuming the testator or intestate is alive, the applicant for a family provision order would have no entitlement to, control over, or relative certainty of receipt of, property of the testator or intestate.
[14] Although stated in a completely different context, I respectfully, agree with the general principle stated by the Full Court of the Family Court in White and Tulloch v White (1995) 19 Fam LR 696. In that case, a subpoena was served upon the mother of a party to proceedings under s 79 of the Family Law Act 1975 (Cth), to produce documents including the mother’s Will, prior Wills and evidence of her financial circumstances. The mother objected to production and what was said by the Full Court of the Family Court applies equally to a case in which a family provision order is sought:
‘... in our view, such an expectancy could not be said to be a financial resource, that term connoting some degree of entitlement to, control over, or relative certainty of receipt of property. In this context we refer to the submissions of Mr Rose which pointed out that a will is a mere expression of intention at the time it is made and may be freely revoked or altered (see Vynior’s Case (1610) 77 ER 597 Westminster’s Deed of Appointment; Re Kerr v Westminster [1959] 2 WLR 299 at 302 Halsbury’s Laws of England, 4th ed, vol 50, paras 201, 202, 216), and that it has no legal effect until the death of the testator.
...
As a matter of principle and day to day management of trials, it would not ordinarily be appropriate to perform that exercise largely by detailed reference to the property of a third party or to require a third party to make a detailed disclosure of his or her testamentary intentions and financial circumstances. It would be highly undesirable that in a property proceeding between husband and wife significant amounts of time should be devoted to a detailed examination of such matters.
...
It is ultimately a question of fact and degree. During the course of argument a number of obvious examples at each end of the spectrum were referred to. In a case where the testator had already made a will favourable to the party but no longer had testamentary capacity and there was evidence of his or her likely impending death in circumstances where there may be a significant estate, and where there was a connection to s. 75(2) factors, it would be shutting one’s eyes to realities to treat that as irrelevant. On the other hand, the bald assertion that one of the parties has an elderly relative who has property and is or is likely to benefit that party is so speculative that it would be inappropriate to contemplate it as relevant in a s. 79 determination, it being too remote to affect the justice and equity of the case in any worthwhile way.’”
In relation to the Jones v Dunkel inference sought by the defendant in the context of Terry’s mother not giving evidence, it was said there was a “clear inference is that Terry will benefit in some way” (TR P116 L25-32). I do not propose to draw this particular inference for the reasons set out above. Further, to draw this particular inference as sought would be to impermissibly supply missing gaps and to infer in a way positively damaging to Renee’s case.
As to the second proposition, I do not accept that a Court ought to give any weight to any potential claims for family provision at a future stage, given the uncertainties of the evidence before the Court, but mostly, given that any potential claim is a matter of speculation. As much was eventually conceded by counsel for the defendant (TR P117 L14-37).
Renee submits that any further provision should be borne solely by Warren (PWS [65(b)]), a submission which implicitly acknowledges the strong claim by Sonja. In making this submission, Renee asks the Court to give weight to the allegations she has made in relation to Warren’s conduct as an executor (TR P103 L32-33). As explained above, the Court has determined not to give weight to the allegations made in relation to Warren’s conduct as executor. Renee also asks the Court to accept that Warren tended to exaggerate the extent of care and assistance he was giving William: (TR P103 L25-26). As explained above, the Court has declined to accept this proposition.
Renee initially submitted that William owed no moral obligation to Warren (TR P94 L16). However, she later clarified that her submission was that “the greater moral obligation” owed by William was owed to his daughters (TR P108 L32-33). On the issue of moral obligation, the Court has already found that Warren (and his wife Dot) provided care and support to William when he was in his most need. The Court also accepts the submissions of Warren extracted below (TR P123 L36-42):
“In my submission, he cannot just be brushed aside because he’s not a blood relative. Often in life we create bonds with people who are not blood relatives which are far stronger than with those who are, and those people are a much more deserving object of testamentary disposition than others, than those who are close family members. It’s clear from the evidence he knew the deceased all of his life. He described himself as having a father/son relationship with the deceased.”
The Court does not accept the submission that the evidence supports a finding that Renee has “fallen on hard times”. There is no suggestion that there is anything new or changed in Renee’s circumstances, but rather, that Renee’s current circumstances are a continuation of a fairly consistent lifestyle for a large portion of her adult life. But for the birth of Renee’s second child in 2013, the Court accepts the submission of Warren that there have been no significant changes in the material or financial circumstances of Renee between 2010 and 2023.
If the Court were to have found that Renee had fallen on hard times, the community may expect that parents provide a “buffer against contingencies” where assets are available, and some other “provision for their retirement where otherwise they would be left destitute” (Limberger at [473(c)]). However, in these circumstances, the Court still would not have found adequate and proper provision had not been made. Given the size of the estate and the competing calls upon it, the assets cannot be considered as “available”. The Court also does not consider that, if Renee is not provided further provision for her retirement, she would be left destitute.
Moreover, whilst it was submitted by Renee that she had “fallen on hard times financially, due to limitations with her mental health that prevent her from working outside the home” (TR P97 L3-4), Renee’s own evidence provided in the course of the hearing would not allow the Court to make such a finding. Renee’s evidence is that the primary reason she does not work in outside employment is because she wishes to care for her children, rather than any limitation imposed by any mental health conditions.
To the extent Renee wished to rely on any mental health condition as being a barrier to employment, or as otherwise being a material matter for the Court to have regard to, the only evidence before this Court was self-reported, as opposed to medical reports from health professionals.
This is not to say that the Court has not taken into account Renee’s self-report of past mental health issues and their past impact on her life, and current mental health issues and their impact on her life at the time of the hearing (neither of which were challenged). That is, the Court has taken this evidence into account to the extent the probative value of self-report evidence will allow.
Renee submitted that “one of the biggest issues in this case is the issue of estrangement, or lack of contact as Kunc J has started referring in his decision of Rada v Smith” (TR P97 L48-49) (the decision referred to by Renee is Rada v Smith [2024] NSWSC 273 (Rada v Smith)). Renee did not dispute that she and William were not in any meaningful contact from the end of 2010 and stated that what was disputed was the statement made in clause 6 of the 2023 Will. It was submitted that, “[i]n somewhat childish terms, he indicates that Renee has chosen to be estranged from him. He alleges a complete lack of concern, or contact with him, with no attempt to reconcile” (TR P98 L2-4).
The Court accepts that the terms of what William has set out in clause 6 will go to the assessment of William’s “broad appreciation of the relationship” between himself and Renee, and that his broad appreciation, as therein set out, can be taken to have formed a part of William’s own due consideration of Renee’s moral claim on his estate.
In Girotto v Girotto [2025] NSWSC 616 (Girotto), Kunc J considered notes that had been made by a deceased testator that were said to provide evidence of the testator’s “broad appreciation of the relationship” with her sons, but where one son claimed the notes contained errors and inconsistencies. In relation to the use of that evidence, Kunc J stated (at [88]-[89]):
“[88] I have considered Maurisio’s submissions regarding what were said to be errors and inconsistencies in Bertilla’s notes. It may be accepted that relevant errors or inconsistencies could either favour someone for whom provision is made (e.g. wrongly attributing to that person benefits provided to the deceased) or disfavour someone for whom no or inadequate provision has been made (e.g. wrongly attributing to that person unsatisfactory conduct towards the deceased).
[89] However, applying the approach of Slattery J in Kouroutis (see [65] above), I am not satisfied that Bertilla’s ‘broad appreciation of the relationship’ (being either the relationship between the brothers, or her relationship with Maurisio or Dante) was demonstrably materially incorrect such that the Court should infer that Bertilla ‘did not soundly evaluate’ Maurisio’s (or, for that matter, Dante’s) claims upon her testamentary bounty. Given the independent and objective evidence, and the Court’s view of the respective credibility of each brother, the Court is well satisfied that Bertilla was correct in her assessment that as between her two sons Dante was the one far more sinned against than sinning and that she could rationally give that dispositive weight in how she should divide her estate between them. The same applies to her assessment of Maurisio’s conduct towards her.” (emphasis added)
Having regard to the terms of clause 6, and in the context of the findings made above, the Court is of the view that William’s “broad appreciation” of his relationship with Renee, as reflected in clause 6, was not demonstrably materially incorrect, and the Court therefore declines to infer that William did not soundly evaluate Renee’s claims upon his bounty. For this reason, the Court gives weighted consideration to the testamentary intentions of William as contained in the 2023 Will (S**lack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] (White J)).
Having considered the terms of clause 6, and in particular, the reference to having not made “further” provision for Renee, the Court finds that this is an implied reference to the provision that has already been made by William, being 15% of his estate, and that this clause indicates that William had already made an assessment as to Renee’s moral claim. The Court finds that William made a deliberate decision as to the proportion of his estate that he would provide to Renee, with clause 6 explaining why that provision was not greater. In this, the terms of the 2023 Will itself are evidence that a consideration of Renee’s moral claim had been undertaken and, moreover, that the consideration resulted in provision to Renee. It will be noted that no submission is made that the provision for Renee in the 2023 Will was a “token” amount.
Furthermore, when considering the leading cases of estrangement, there is a near uniform commonality between them in that the plaintiff has received no provision at all under the relative deceased’s final will. The primary cases relied on by Renee, being Underwood v Gaudron [2014] NSWSC 1055, Burke v Burke [2015] NSWCA 195, Hunter v Hunter (1987) 8 NSWLR 573, Rada v Smith, and Toppi (No 3), were all were cases where the plaintiff received either no provision or such token provision that it should be regarded as being of no provision (see Toppi (No 3) at [487] where the provision of shares to the plaintiff were, effectively, worthless). But that was not so in the present case. William, did in fact make provision in his will for Renee, with the statement at clause 6 of the will explaining why he did not leave even further provision.
The Court is also of that view that William was not “demonstrably materially incorrect” to have considered that Renee had “chosen to be estranged”, that there was a “complete lack of concern or contact”, and that she had made “no attempt to reconcile”. By her own evidence, Renee admitted that she had made no effort to reengage William, other than the occasional attempt at calling him over the course of several years. She certainly never sought to visit him again or to check in with him as he aged (TR P26 L31-P27 L7). In this context, the Court does not consider the terms of clause 6 to be demonstrably materially incorrect.
Renee also relied on the decision in Seymo**ur v Seymo**ur [2024] NSWSC 699 (Seymour) in support of her claim to inform the lack of contact issue. Of the significance of this case, Renee submitted (TR P95 L39-47):
Much like the deceased in the matter before you, the father did not take any active steps to develop a relationship with his son when he was an adult, and relied on the child to do so. In the case before you, we have the deceased telling his daughter that if he (as said) wanted a relationship, it was on her. And yet, after developing a relationship, particularly at the time he became he became a grandfather, he seemingly was willing to let it deteriorate to the point of irretrievable breakdown and did not make any attempts to contact or connect with his daughter over an event he was not part of, nor was Renee, and made no attempt to repair the relationship after the alleged event.
“[80] Mark’s distant relationship with the deceased does not neutralise his claim. The circumstances of this case bring to mind the intuitive observations of Robb J in Kitteridge v Kitteridge [2022] NSWSC 193 at [116] – [117] there [sic] Robb J stated that in applying the Succession Act to make family provision orders that reflect contemporary community standards, parents engaged in bitter marriage breakdowns should be expected to (a) spare their children from the need to choose between their parents, (b) understand the likelihood that children are likely innocently to suffer emotional injury from the breakdown, and (c) recognise that when a child is forced to make an unsatisfactory choice between parents the parents should take responsibility to break down emotional barriers created by the parents conduct and not rely upon child to do so.”
Having regard to the factual background outlined above, there is no basis to find that the separation and later divorce between Karen and William was a “bitter” marriage breakdown, and there is no evidence to support a finding that the three children were forced to choose between their parents, nor that the children have suffered emotional injury from the breakdown. It is in this context Slattery J in Seymour suggested that “parents should take responsibility to break down emotional barriers created by the parents conduct and not rely upon child to do so”.
In any event, the plaintiff in Seymour had received no provision under the will, and it was in those circumstances that Slattery J found that the “distant relationship with the deceased does not neutralise his claim”. It was William’s own assessment of the circumstances that suggest that he, like how a wise and just testator would have viewed the situation, was of the view that the lack of contact with Renee did not neutralise her claim, resulting in him making the provision he did.
In all of this, there can be no dispute that Renee was not available to William in the last 13 years of his life to provide the care and support that is a feature of some child/parent relationships, especially when a parent is aging.
The Court does not accept that the issue of estrangement is one of the biggest issues in this case. It is one of a number of matters that is properly considered. However, in and of itself, it is not dispositive.
The primary focus of the Court in this case is that, without more, William left 15% of his estate to Renee, which amounted to close to half a million dollars at the time of his death, and which, in the Court’s view, represented adequate and proper provision.
Another material issue is that both Terry and Renee have made lifestyle choices not to take up employment outside their home, with the consequence that they predominantly subsist on Centrelink payments, and thus their assets and income are modest, at best. Aside from the desire to be at home with their children, there is no evidence that Terry and Renee are currently not capable of obtaining gainful employment outside the home. As Terry and Renee have made this election, with the clear impact that that decision will necessarily have upon their resulting assets and income, the Court is not persuaded that William (and now William’s estate) had a moral obligation to put them in a position that they themselves had not chosen to prioritise. In stating this, the Court does not criticise Renee and Terry for making the decision to remain at home and care for their children. Rather, that decision and its necessary consequences are not a basis on which to ask this Court to find that William did not make adequate and proper provision for Renee in his will.
In applying the framework set out in Alexiou CA (at [50]ff (Free JA, Payne and Stern JJA agreeing)), it was for Renee to establish an affirmative case for displacement by the Court of the testator’s clearly stated testamentary wishes (Alexiou CA at [51] (Free JA, Payne and Stern JJA agreeing)). The Court is of the view that Renee has not established such an affirmative case, and that there is therefore no proper basis for this Court to displace William’s wishes.
In forming the opinion that adequate provision for the proper maintenance, education or advancement in life of Renee was made by the 2023 Will, the Court has had regard to Renee’s financial and material needs, but also to a broad range of matters, including those matters listed in s 60(2), which included the provision already provided to Renee, competing claims, and the nature and extent of the estate, together with the nature of Renee’s relationship with her father. The nature of that evidence included that Renee was not in contact with her father for the last 13 years of his life and, as a consequence, was not available to provide care, comfort and support to William as he aged and suffered an illness that led to his death.
In the event the Court has erred in reaching its conclusion under Issue 1, in utilising the power of discretion under s 59(2) of the Act, the Court will still not make an order for further provision for Renee out of William’s estate. In declining to exercise this discretion, the Court affirms the matters considered and raised in Issue 1, being facts known to the Court at the time of the hearing, including those matters listed under s 60(2).
The relief sought for further provision for Renee out of William’s estate is therefore declined.
The Court has the jurisdiction to order that the costs of family provision proceedings be paid out of the estate or notional estate of a deceased person in such manner as the Court thinks fit: s 99 of the Act. This correlates with the Court’s broad power to award costs under Civil Procedure Act 2005 (NSW), s 98.
The costs principles to be applied in family provision proceedings, in contexts where the plaintiff has been successful, as well as unsuccessful, have recently been summarised by Meek J in Pethers v Pethers (No 2) [2025] NSWSC 561 (Pethers No 2), which is repeated and gratefully adopted (footnotes omitted, emphasis added):
“Costs principles in family provision proceedings
General principles
[22] Decisions made by the Court about the costs of proceedings like other aspects of the Court’s jurisdiction are made in accordance with applicable legislation, rules of court and Practice Notes, having regard to the underlying purposes to be served by those provisions.
[23] The purpose and underlying rationale for an award of costs is essentially compensatory in the sense of being awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. Costs are not awarded by way of punishment of the unsuccessful party.
[24] The context of the purposes of family provision legislation has been outlined in a number of cases including recently by myself in Liosatos v Liosatos [2025] NSWSC 44 (Liosatos) at [12]-[20].
[25] Specifically, in 2008, legislative reforms focused on widely held concerns about the increasing and disproportionate costs of family provision proceedings. Costs concerns were addressed by a number of different strategies, including enactment of regulation making power with respect to costs and advertising, and encouragement for the settlement of family provision matters before they go to a hearing, if possible, by requiring referral of all matters to mediation before making a family provision order unless there are special reasons why the matter should not be mediated. Those objectives are evident in the provisions of ss 98(1), (2), (4)(b) and 99(2) of the Succession Act 2006 (NSW) (Succession Act).
[26] The current legislative framework which provides the rationale for making costs orders in family provision cases includes:
(1) Civil Procedure Act 2005 (NSW) (CPA), especially s 98;
(2) Succession Act, especially s 99;
(3) Trustee Act 1925 (NSW) (Trustee Act), especially s 59;
(4) Uniform Civil Procedure Rules 2005 (NSW) (UCPR), especially Pt 42; and
(5) Practice Note SC EQ 07 – Probate and Family Provision List (PN EQ 7).
[27] Costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act.
[28] The Court has full power to determine by whom, to whom and to what extent costs are to be paid and may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
[29] Generally, if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs.
[30] If the Court makes an order for dismissal of the proceedings, unless the Court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed.
[31] Generally, costs payable to a party under an order of the Court are to be assessed on the ordinary basis.
[32] Some striking and important coherences are evident between purposes informing costs orders generally in the conduct of civil litigation and those specifically in the conduct of family provision proceedings.
[33] The overriding purpose in the conduct of civil litigation is that parties should assist the Court in facilitating the just, quick and cheap resolution of real issues in such litigation and that the proceedings should be conducted in such a way that the cost of the parties is proportionate to the importance and complexity of the subject-matter in dispute.
[34] Likewise, in family provision proceedings, the Court expects that the resources of an estate and of the Court will not be used in a manner that is out of proportion to the size of the estate or any provision that may be made.
…
[37] It has been said that s 98 of the CPA confers a very wide costs discretion. It enables the Court to decide who should bear the costs of litigation before it, quite independently of whether those costs do, or do not, amount to testamentary expenses.
[38] The nature and scope of the Court’s ‘costs jurisdiction’ in family provision proceedings has been the subject of elucidation both in caselaw and extrajudicially.
[39] In specialist lists of the Court’s business, as noted by Lindsay J, the Court routinely departs from the general rule that ‘costs follow the event’ so as to accommodate the purpose for which a particular jurisdiction exists.
[40] If family provision claims are coupled with other relief such as a probate suit, a Will construction suit, or a trust or estoppel claim, other statutory principles inform the discretionary award of costs.
[41] In family provision proceedings per se or family provision proceedings that are coupled with other estate litigation, elements that impact upon the question of costs include:
(1) the role the parties play in the proceedings, including in particular whether they have a representative role in respect of the estate;
(2) the subject matter of the litigation and whether a particular part of the estate property (or any designated notional estate) in the opinion of the Court is the real subject matter of the proceedings;
(3) whether the estate representative as an executor or administrator or properly described as a ‘trustee’ has had the benefit of judicial advice in respect of defence of the proceedings, or, if appointed pursuant to r 7.10(2)(b) of the UCPR to represent the deceased’s estate, has sought advice or is able to obtain advice; and
(4) whether there are limitations on designating property for the purposes of making a costs order.
…
[43] The precise approach to costs under the various family provision legislation that has prevailed in New South Wales has certain common elements but is nonetheless sensitive to precise statutory provisions applicable in each case. Thus, in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 (Chapple v Wilcox), Basten JA (with whom Gleeson JA at [150] relevantly agreed) stated:
25. The costs of the trial and the appeal should be considered separately. With respect to proceedings under the repealed Family Provision Act, this Court accepted that s 33(1) of that Act conferred a broad discretion as to costs payable out of the estate, not constrained by the general rule that costs follow the event: Diver v Neal [2009] NSWCA 54; 2 ASTLR 89 at [75]-[78]. If the new Act applied, Diver v Neal said that s 99(1) of the Succession Act provides a general power, not confined by the considerations identified in s 33: at [81].
26. Neither s 99, nor its predecessor, apply to costs as between party and party, as opposed to costs to be paid out of the estate….
[44] Evident from what I have indicated above, the role that the parties play in the proceedings has an impact upon the nature of the costs orders made. The defence of family provision proceedings is in most cases undertaken by a party in a form of representative role whether that person be an executor under a Will, an administrator of the estate or a person who is not an administrator but has been appointed pursuant to court rules.
[45] Representative costs in defence of family provision proceedings, unless unreasonably incurred or incurred in circumstances in which the representative has in substance acted for his or her own benefit rather than for the benefit of the estate, will ordinarily fall within the description of being a ‘testamentary expense’ and for that reason be payable out of the estate, calculated on the indemnity basis.
[46] Generally speaking, and subject to any applicable costs offers, ordinarily the costs of the successful plaintiff will be paid out of the estate calculated on the ordinary basis.
[47] More vexing questions arise in respect of costs of unsuccessful plaintiffs in family provision proceedings and in this respect caselaw reveals a greater degree of variation and flexibility of principles and costs’ guides. Nonetheless, some observations can be made.
[48] First, it has been said that family provision cases stand apart from cases in which costs follow the event and that costs in family provision cases generally depend on the ‘overall justice of the case’: Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 at 709; (1993) 114 ALR 521 at 522 (Singer No.1) per Gaudron J.
[49] Secondly, the Court of Appeal has acknowledged that:
the ‘overall justice of the case’ referred to by Gaudron J is ‘not remote from costs following the event’: Jvancich v Kennedy (No 2) [2004] NSWCA 397. The only difference is that family provision cases call for additional ‘liberality and discrimination’ in considering whether to exercise the discretion to override the usual rule: Chapple v Wilcox [2014] NSWCA 392 at [138]-[139].
[50] Thirdly, contrary to the submissions of Mr Gunning (see below), the financial circumstances of an unsuccessful applicant may in family provision proceedings be material consideration, though not necessarily a compelling (let alone decisive) consideration, in assessing an appropriate costs order.
[51] In Singer No.1, Gaudron J observed that:
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.
[52] More recently, the Court of Appeal in Haertsch v Whiteway (No 2) [2020] NSWCA 287 (Haertsch) per Macfarlan, Meagher and Leeming JJA summarised the position regarding costs of unsuccessful applicants as follows:
It is not uncommon, though atypical, for an unsuccessful applicant not to be ordered to pay the defendant’s costs where the applicant is or would become impecunious and the claim for provision was reasonable or borderline: see eg, with no attempt to be exhaustive, Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; Moussa v Moussa [2006] NSWSC 509; Bevilacqua v Robinson (No 2) [2008] NSWSC 520; Ray v Greenwell [2009] NSWSC 1197; Dugac v Dugac [2012] NSWSC 192; Raiola v Raiola [2014] NSWSC 1172; Purnell v Tindale [2020] NSWSC 746.
…
The impecuniosity of an unsuccessful party, without more, is no reason to deprive a successful party of an order for costs to which they are otherwise entitled: Sassoon v Rose [2013] NSWCA 220 at [10] (Meagher JA, Gleeson JA agreeing); Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [26]-[27]. However, the irrelevance of impecuniosity is said to be ‘subject to some relaxation in family provision cases’: Chapple v Wilcox at [141]. One reason that the impecuniosity of an unsuccessful applicant for family provision is of greater than usual relevance is that adverse costs orders might alter the basis on which the claim for provision was rejected, and thereby cause or justify a further application: McCusker v Rutter [2010] NSWCA 318 at [34].
…
[54] Whilst Haertsch involved an application under the Family Provision Act 1982 (NSW), the comments and guidance of the Court of Appeal regarding costs in the judgment are clearly of general relevance and application to family provision claims under the Succession Act.
[55] The default rule in r 42.1 of the UCPR (and I infer also r 42.20 UCPR) applies to family provision proceedings. However, it has been said that ‘its application remains subject to the Court exercising greater than usual ‘liberality and discrimination’ in deciding whether to depart from it’.
[56] It is notorious in succession law that predictability of the outcomes of family provision claims is not quantifiable by the parties’ legal advisers prior to judgment with anything like the degree of certainty that applies in other areas of civil law.
[57] Further, it has been said that ‘although family provision claims can only succeed or fail, those binary outcomes tend to conceal difficult and even “borderline” questions of the nature of the evaluative and discretionary judgment of such claims. That is one reason for the more liberal approach to costs.’”
If successful in her claim, Renee sought an order for her costs (TR P104 L41).
Warren submitted that Renee’s application should be dismissed with costs, and that those costs should be charged against her entitlement under the will (TR P125 L11-14).
Having regard to the legal principles set out above and noting that costs are to follow the event unless it appears to the Court some other order ought to be made, the Court sees no reason to depart from costs following the event. While there are instances where an unsuccessful applicant for family provision will not be ordered to pay the costs of the defendant, the Court is not of the view this is not one of those instances. This was not a case which could be considered “borderline” in terms of merit, nor are there other factors that in any material way would justify a relaxation of the usual costs order.
Costs payable by a plaintiff in these circumstances are generally paid on the ordinary basis and will be so in this instance.
In coming to this conclusion, the Court is mindful of what was said recently by the Court of Appeal in Howitt as Executor of the estate of the late Margaret Norma Howill v Bosschieter [2025] NSWCA 179 (Howitt) in relation to a Court potentially having regard to any putative impact of legal costs and potential costs orders may have on the financial position of a plaintiff. At [115] of Howitt, Free JA (with whom Ward P and Kirk JA agreed) stated:
“A trial judge must exercise considerable caution in circumstances like these before attaching weight to what is anticipated to be the adverse impact of legal costs and potential costs orders. While it is ultimately a discretionary matter for the Court whether or not to take such matters into account (Bassett v Bassett [2021] NSWCA 320 at [198]), there are bound to be significant complications involved in taking them into account. In most cases, there will be material uncertainties when anticipating the likely outcome as to costs. Those uncertainties will affect how much a party pays for its own costs, as well as the extent to which that party may need to pay the costs of others, or have the benefit of costs orders imposed on others. For example, the orders ultimately made by the Court may be affected in significant ways by offers of compromise about which the Court will usually be ignorant at the time of making an order for family provision: see Bassett v Bassett at [120].”
For the reasons set out above, the Court makes the following orders:
The Summons filed on 10 July 2024 is dismissed.
Subject to order (3), in relation to the costs of the proceedings:
(a) the defendant’s costs are to be paid from the plaintiff’s 15% entitlement in the estate of William Warren Hemmings on the ordinary basis; and (b) the remainder of the defendant’s costs are to be paid from the estate of William Warren Hemmings on the indemnity basis.
**********
Clause 4(c) of the 2023 Will gives to Renee and Dallas “30%” of William’s estate “in equal shares as tenants in common”. The parties treated this as Renee and Dallas each being entitled to 15% of William’s estate.
Pilatos
Whillier [2025] NSWSC 1221
(2024) 116 NSWLR 1
(2001) 51 NSWLR 572
(1987) 8 NSWLR 573
(1959) 101 CLR 298
(1929) 43 CLR 163
(2013) 85 NSWLR 253
(1999) 161 ALR 599
(2021) 388 ALR 128
(2003) 214 CLR 118
(2006) 66 NSWLR 186
(1995) 49 NSWLR 315
(2019) 266 CLR 129
(2013) 85 NSWLR 154
(2011) 243 CLR 361
(1992) 27 NSWLR 437
(2012) 247 CLR 345
(2023) 97 ALJR 857
(2001) 202 CLR 439
(1980) 144 CLR 431
(1957) 97 CLR 566
(2005) 221 CLR 191
(1960) 33 ALJR 447
(2014) 87 NSWLR 646
(2012) 81 NSWLR 656
(1994) 181 CLR 201
(1989) 1 WAR 37
(1979) 143 CLR 134
(2019) 99 NSWLR 687
(1962) 107 CLR 9
(1980) 144 CLR 490
(2015) 324 ALR 641
(1995) 19 Fam LR 696
(1993) 67 ALJR 708
(1993) 114 ALR 521
(2005) 65 NSWLR 268
(2019) 265 CLR 164