Poche v Poche

The deceased's last will

1. By her last will made on 10 March 2015, the deceased left: 1. a legacy of $20,000 to her cousin, Judith Hartwig; 2. 15% of her cash, shares and deposits (cash assets) to Adam; and 3. 85% of her cash assets, her 50% interest in the Dacre St property and the residue of her estate to Wayne.
2. The will includes, at paragraph 5, a statement as to the reason the deceased had not bequeathed any further of her estate to Adam which is, in summary, because the deceased had, in her lifetime, given or procured the transfer of eight identified classes of assets to Adam, most of which relate to the Poche Engineering business.
3. In paragraph 6 of the will, the deceased sets out further reasons in which she acknowledges that Adam was given the identified assets with an associated $2.4 million loan, asserts that the value of the assets he received outweighed the loan and more than Wayne has received, and makes statements critical of Adam and his conduct towards her.
4. Adam disputes the accuracy of the deceased's statements in clauses 5 and 6 of the will. I return to that issue later in these reasons.

The deceased's estate

1. Probate of the deceased's last will was granted to Wayne on 13 October 2016.
2. The deceased left an estate with an estimated value, for probate purposes, of $2,035,530, comprising the deceased's 50% interest in the Dacre St property (then valued at $1.15 million), cash assets, which included superannuation ($862,530) and a Volkswagen Tiguan motor vehicle ($23,000). At the time of probate, Adam's 15% entitlement under the will was valued at around $129,379.50.
3. The legacy to Judith Hartwig has been paid out by the estate, amounting to $21,350 (including interest). The estate has paid other expenses since the deceased's death, including $59,710.24 in legal fees relating to these proceedings, probate fees totalling $9,916, funeral expenses in the amount of $17,750 and accounting fees totalling $10,989. It has also sold the deceased's motor vehicle for $17,000 which was deposited into the estate's bank account.
4. The gross estate (excluding legal costs) is currently valued at $2,371,927.04, as follows: Assets Value 50% share of Dacre St property (agreed value $3.35 million) $1,675,000.00 CBA Complete Access account $170.00 Netbank Saver account $596.00 Westpac Choice account $14,967.52 Westpac Business Transaction account (superannuation) $750,618.28 Tax refund $6,800.00 Add back legal costs $59,710.24 Sub-total $2,507,862.04 Less anticipated expenses (excl legal costs) Accounting, audit, ASIC and ATO fees $9,000.00 Tax in superannuation benefit [1] $126,935.00 Sub-total $135,935.00 TOTAL $2,371,927.04

1. In his executor's affidavit dated 2 July 2019, Wayne makes a claim of $10,000 for commission as executor of the deceased's estate, at a rate of 0.05% of the value of the estate, and $10,000 for the costs of completing administration of the estate, including the passing of accounts and claiming commission. As these amounts are not agreed by Adam and were not included in the supplementary submissions received from Wayne's Senior Counsel on 12 August 2019, I have not included them in my calculations.
2. Based on the above, I calculate the total estate to be $2,371,927.04 and the value of the cash assets [2] available for distribution to be $696,927.04. Based on Adam's entitlement under the deceased's last will to 15% of the cash assets, I calculate his existing entitlement to be $104,539.06, and Wayne's total entitlement to be $2,267,387.98 .
3. This calculation does not take into account legal costs, which I deal with in more detail later in these reasons.

The Poche family and the Poche Engineering business

1. Adam started working in the Poche Engineering business when he was 19 years old. He started as a salesman and has been mainly involved in dealing with customers and the management of the business.
2. During 1998 to 2003, and while working for the Poche Engineering business, Adam completed a Diploma in Financial Advising from the Securities Institute of Australia.
3. Wayne began working at the Poche Engineering business in 1989, when he was 18, initially as an apprentice fitter and turner. He completed his apprenticeship in about 1993.

Poche family property transactions: 1995 to 2003

1. In 1995, Adam and his wife, Melissa, moved into the Bay Pde property. At the time it was owned by Poche Engineering Pty Ltd (PE), one of the Poche Engineering business corporate entities. Fred had inherited the Bay Pde property from the estate of John Stepanoff, known to the Poche family as Uncle Jack.
2. After moving into the Bay Pde property, Adam and Melissa spent approximately $60,000 to $80,000 in maintenance and repair costs. Between 1995 and 2000 (when title was transferred to them), Adam and Melissa did not pay any rent to PE or Fred.
3. In 1995, Adam and Melissa bought an investment property at Mendos Place, Engadine (Engadine property) for $215,000. They paid $40,000 deposit and obtained a loan and mortgage for the balance.
4. On 28 February 1998, Poche Engineering Services Pty Ltd (PES) (another Poche Engineering business entity) and Wayne purchased a property at Banksia Street, Botany (Banksia St property) for $291,000 as tenants in common in equal shares. PES paid the deposit of $29,100 and a loan and mortgage was obtained from the ING bank for the balance
5. On or around 6 October 2000, PES transferred its half share in the Banksia St property to Kim and the ING bank mortgage on the property was discharged. By that time, PES had made mortgage payments to the ING Bank totalling $62,133.17.
6. On discharge of the ING mortgage, Wayne and Kim refinanced and obtained a loan and mortgage on the Banksia St property from the State Bank, which they paid. The State Bank mortgage was discharged when Wayne and Kim sold the Banksia property in 2003. (T204:32-205:6; Ex 11)
7. Sometime in 2000, following a discussion with Fred, Adam agreed to transfer the Engadine property to Wayne and Kim. In exchange, Fred agreed to give the Bay Pde property to Adam and Melissa.
8. On 6 September 2000, the Bay Pde property was transferred from PE to Adam and Melissa. Adam and Melissa paid the stamp duty on the transfer. At the time, the Bay Pde property was valued at $580,000, had no mortgage but was held as collateral security for PE's business.
9. On or about 23 October 2000, Adam and Melissa transferred the Engadine property to Wayne and Kim. Wayne and Kim paid the stamp duty on the transfer. At the time, the Engadine property was valued at $300,000, Adam and Melissa had paid $25,000 towards the mortgage (in addition to the $40,000 deposit) and a mortgage of $150,000 remained.
10. In 2003, Wayne was diagnosed with cancer, lymphoblastic lymphoma. He started chemotherapy treatment in August 2003, which lasted for two and half years.
11. That year, Wayne and Kim sold the Engadine property for $410,000 and the Banksia St property for $410,000. They purchased a property in Chifley for approximately $710,000 which had a mortgage of $340,000 which they paid.

Events leading to transfer of Poche Engineering business to Adam: 2005 to 2008

1. By 2005, Adam and Wayne were handling the day-to-day operations of the business and Fred was considering retirement. Adam focussed on the finances, customers and back office and Wayne managed the manufacturing processes as the factory floor manager.
2. At this time, the Poche Engineering business comprised three entities.
3. The main trading entity was PES. Since around 2002, PES had operated from a factory located at Broadhurst Road, Ingleburn (Ingleburn property), which was owned by another Poche Engineering business entity. In the 2005 financial year, PES had sales of $2,673,941, total assets valued at $541,366, total liabilities of $505,457 and total equity of $35,909 (CB1183-7).
4. PE was the other trading entity. It owned a factory located at Sir Joseph Banks Street, Botany (Botany property) that was rented to a third party. The business had operated out of the Botany property from around 1985 to 2002. In the 2005 financial year, PE had total assets of $1,052,406, total liabilities of $674,843, and total equity of $377,563 (CB1164-1173).
5. The third entity was Poche and Sons Pty Ltd (Poche and Sons), the trustee of the Poche Family Trust. Poche and Sons owned the Ingleburn property. In the 2005 financial year, the Poche Family Trust had total assets of $2,012,842, liabilities of $2,016,508 (the bulk of which was a bank loan of around $1.99 million) and net assets of -$3,665 (CB1202).
6. In addition, the deceased and Fred were members and beneficiaries of the Poche Superannuation and the FAP Superannuation funds which, for the 2005 financial year, had member balances totalling $931,515. According to Adam's evidence, the money in the superannuation funds had been accumulated by Fred taking around $150,000 to $180,000 from the Poche Engineering businesses over a six year period (Affidavit, Adam Poche, 2 February 2018 at [75]).
7. Sometime in 2005, Wayne, Adam and Fred, together with a business consultant, Rick Manietta, met and discussed options to enable Fred to retire and gradually withdraw from the Poche Engineering business.
8. Mr Manietta had prepared a written proposal that detailed a refinance structure which relevantly referred to borrowing $1.5 million to go towards the payout of debt, PES borrowing $250,000 to purchase Telstra share options from the Poche Family Trust, and Fred and the deceased borrowing $187,000 to purchase the 38ft Mariner boat from their superannuation fund (and thereby make the fund compliant). Fred had purchased the Mariner boat in around 2000 and it had been used by the family since that time.
9. Mr Manietta's proposal also recommended that Fred and the deceased sell 100% of their shareholding in PES to Adam and Wayne for $1 million, with Fred and the deceased investing the sale proceeds into their superannuation fund.
10. Wayne's evidence about that meeting, which was to the effect that he felt ambushed by it and was asked to put in the proceeds of his Chifley house and, with Adam, borrow the balance of $2 million to buy the Poche Engineering business, was challenged in cross-examination. Wayne did not have a clear recollection of everything that was discussed at the meeting or about the proposed structures. He accepted that, at the time, he did not want to go into debt, believed that he would not have to purchase the business from Fred on his retirement and understood that the family companies carried significant debt of around $2.3 million in around 2006 to 2008 (T174:20-32; T177:44-47).
11. The evidence indicates that nothing was done to progress the sale by Fred and the deceased of the Poche Engineering business to Adam and Wayne following the meeting with Mr Manietta. Although, presumably acting on Mr Manietta's advice, in late 2005, Fred purchased the Mariner boat in his name and took out a loan from the National Australia Bank (NAB) in the amount of $187,000 which was secured by a mortgage over the Dacre St property (CB 673).
12. When Fred died in 2006, the deceased inherited his estate, which relevantly included the Dacre St property, the Mariner boat, shares in the Poche Engineering business and his interest in the Poche Superannuation and the FAP Superannuation funds. She also became responsible for existing NAB liabilities, of around $2.3 million.
13. On 22 May 2006, just after Fred died, Wayne and Kim purchased a property at Lucas Avenue, Malabar (Lucas Ave property) for $900,000, with a mortgage of $600,000. They paid the deposit of around $360,000 after selling their Chifley property. It is not in dispute that PES contributed towards the mortgage payments on the Lucas Ave property, paying around $28,800.
14. Wayne's evidence is that Adam told him not to worry about PES paying the mortgage repayments as he had a "share portfolio funded by the company" and they were getting "looked after equally as well" (Affidavit, Wayne Poche, 26 March 2017 at [42]; Affidavit, Wayne Poche, 5 September 2018 at [27]-[29]). Adam denies the conversation with Wayne relating to a share portfolio paid by the family business but does not dispute that he said that he was being looked after equally as well (Affidavit, Adam Poche, 2 November 2018 at [40]).
15. Adam and Wayne continued to work at the Poche Engineering business after Fred's death. It is not in dispute that they did not get along. According to Adam's evidence, it was untenable for him to work with Wayne so his offer was always either to acquire the business or simply leave (Affidavit, Adam Poche, 2 February 2018 at [35]).
16. In around March 2008, Adam, the deceased and Wayne attended a meeting with Philip Passaro, the accountant for PES and related entities, to discuss the future of the Poche Engineering business.
17. Although there is conflicting evidence as to who initiated the meeting and why, I am satisfied that the differences between Wayne and Adam and their working styles and the challenges faced by PES as a consequence of the global financial crisis and loss of a customer were key factors.
18. At the meeting, Adam, the deceased and Wayne discussed a range of options and reached agreement on what would happen with the Poche Engineering business going forward. While there is also conflicting evidence as to what was discussed and all that was agreed, it is not in dispute and accords with Adam's contemporaneous diary note and a letter written by Adam in July 2009, that Adam, the deceased and Wayne agreed that: 1. Adam would take ownership of the Poche Engineering business with all assets and debts, thereby leaving the deceased debt-free; 2. Wayne would build onto the Dacre St property and would be given the house when the deceased died; and 3. Wayne would leave the Poche Engineering business but receive $1,500 per week adjusted to CPI every end of financial year and keep one of the two company cars with all other expenses paid by the company ceasing. There is a dispute as to how long Wayne was to be paid $1,500, which is not now necessary to resolve.
19. According to Adam, it was also agreed that he would receive the remainder of the deceased's estate when she died and the Poche Engineering business would pay half of Wayne's rent if he opted to build.

Transfer of the Poche Engineering business to Adam: July 2008

1. In July 2008, the deceased transferred her interests and shares in, and Adam became the owner of, the Poche Engineering business entities and associated assets.
2. The unaudited 2008 financial year statements and other documents in evidence disclose that, at around the time of the transfer of the Poche Engineering business to Adam: 1. PES had sales of $4,193,982, profit after tax of $73,968 and retained profits of $296,686. It had total assets of $1,362,241, made up principally of trade debtors of $515,505, inter-company loans of $232,971, stock of $127,500 and plant and equipment valued at just over $630,000. It also had total liabilities of just over $1 million, the bulk of which were employee entitlements of $524,038 and hire purchase charges relating to the plant and equipment of $247,158, leaving it with overall net assets and equity of $297,686 (CB682-8); 2. PE owned the Botany property which was, as at 1 April 2008, valued at between $650,000 and $750,000 and subject to a mortgage in favour of NAB. It was leased to a third party and generated income of around $42,000. PE's financial statements show that PE had total assets of $311,129 (the Botany property was valued at cost at $270,387), total liabilities of $334,332 (the bulk of which were loans to PES and the Poche Family Trust) leaving it with a negative net assets and equity of -$23,203 (CB1374-5); 3. Poche and Sons, as trustee of the Poche Family Trust, owned the Ingleburn property which was, as at 2 April 2008, valued at $1.8 million and subject to a mortgage in favour of NAB. The financial statements show total assets of $1,861,489, the bulk of which was buildings at cost of $1.37 million, "shares in other companies" of $251,331 and a loan from PE of $190,255. It had total liabilities of $1,877,042, made up of loans from the deceased of $1,746,851 and PES of $103,847, leaving an overall negative net assets and equity of -$15,553 (CB1409-10); and 4. there were existing NAB liabilities totalling $2,307,661.34, which comprised, at the time, a PES overdraft facility in the amount of $150,000 (which was guaranteed by PE, Poche and Sons and the deceased); an outstanding bill facility in the amount of $1,963,000 in the deceased's name; and a flexi-plus mortgage loan in the deceased's name which, at 9 July 2008, had a debit balance of $194,661.34 and related to the Mariner boat (NAB liabilities) (CB663-5; CB676).
3. The transfer of the Poche Engineering business to Adam and assumption of the deceased's debts were affected by the following transactions.
4. On or around 16 July 2008, PES transferred the goodwill, plant and equipment to Poche Engineering Australia Pty Limited (PEA), the General Partner in the Poche Engineering Australia Limited Partnership (PEALP). PEA did not pay any consideration for the transfer of the PES business but assumed the liabilities for employee entitlements and the hire purchase charges for the plant and equipment.
5. On the same day, Poche and Sons was appointed trustee for the Poche Property Trust, a new trust vehicle set up by Adam. The Botany property was transferred from PE to Poche and Sons for $700,000. The Ingleburn property was transferred from the Poche Family Trust to the Poche Property Trust for $1,500,000.
6. On or around 17 July 2008, Westpac Banking Corporation approved a commercial bill line in the sum of $2,245,000 and an overdraft facility in the sum of $150,000 (Westpac loans) to enable Adam and his associated entities to pay out the existing outstanding NAB liabilities totalling $2,307,661.34. The Westpac loans were secured by mortgages over the Botany property, the Ingleburn property and the Bay Pde property.
7. As a consequence of the transactions, the NAB liabilities were fully discharged, the Dacre St property was unencumbered and the deceased was left debt free.
8. In around July 2008, Wayne ceased working for the Poche Engineering business. While he was not paid out for any long service leave or holiday entitlements, PEA commenced paying him $1,500 per week and for expenses relating to a company car. Those payments ceased in August 2009 following a dispute between Adam, the deceased and Wayne to which I refer below.

Renovations to Dacre St property and transfer of 50% interest to Wayne

1. During late 2008 and early 2009, Wayne and his wife Kim built onto the Dacre St property. During the renovations works, the deceased moved out of the Dacre St property for approximately nine months. It is not in dispute that Adam and Wayne each paid 50% of her rent, of around $19,500.
2. In December 2008, the deceased transferred a 50% interest in the Dacre St property to Wayne and Kim which was recorded, for stamp duty purposes, at $550,000. The Dacre St property had been valued, as at June 2008, at $1.1 million.
3. Wayne's evidence, which was not challenged in cross-examination and I accept, is that the deceased transferred the 50% interest to him in recognition that he and Kim were paying for the renovations.
4. There is a conflict between Adam and Wayne's evidence as to the extent and cost of the renovations and whether the deceased also contributed to the cost and, and if so, in what amount. Given the passage of time and the deceased being unavailable to corroborate some of the assertions made, it is not now possible to resolve those disputes. In any event, I accept that Wayne and Kim contributed somewhere between $450,000 and $500,000 to the cost of renovations undertaken to the Dacre St Property in 2008/2009 and in 2011 using the net proceeds from the sale of their Lucas Ave property (of around $391,000), a loan from Westpac (of $65,000) and other available funds.
5. Wayne and Kim moved into the Dacre St property with the deceased in 2009. The deceased lived upstairs and Wayne and his family lived downstairs. After they moved in, Wayne and Kim paid for all council and water rates and charges, electricity and gas charges. The deceased paid for her own telephone and internet charges.

Disputes between Adam, the deceased and Wayne: July and August 2009

1. The transfer to Wayne and Kim of the 50% interest in the Dacre St property led to increased tension between Adam on the one hand, and the deceased and Wayne on the other.
2. On or about 12 July 2009, Adam sent a letter to the deceased, Wayne and Kim marked "without prejudice". It was written after Adam had done a search on the title of the Dacre St property and found out that the deceased had transferred the 50% interest in the Dacre St property to Wayne and Kim. The letter is four and a half pages long and, in my view, instructive as it provides an insight into the family dynamics at the time.
3. In the letter, Adam refers to the "growing issues within our family" and that he had chosen to write rather than "everyone having a screaming match". He refers to the unequal treatment of he and Wayne over the years and that he considered that the agreement reached at the March 2008 meeting was now "blown… out of the water" as Wayne and Kim had been given half of the Dacre St property. Adam refers to the support given to Wayne and Kim over the past year by the Poche Engineering business, which he estimates to be worth $130,000, including wages of $78,000. The letter ends by stating that he will not tolerate Wayne and Kim relying on him to provide them with an income.
4. Sometime in late July or early August 2009, Adam, Wayne, the deceased and Melissa met at the Dacre St property. It is not in dispute that Adam and Wayne discussed Wayne coming back to work with Adam at the Poche Engineering business with Adam, which Wayne refused. It is also not in dispute that Adam told Wayne that he was unable to continue paying Wayne $1,500 per week. Around this time, PES's payments to Wayne of $1,500 per week ceased.
5. On 19 August 2009, the deceased sent a letter to Adam. She states her reason for writing to be because she finds it "very difficult talking to [him] on the phone or in person" as he "becomes aggressive and dominating as soon as [she] says something [he] does not agree with".
6. In her letter, the deceased expresses disappointment that Adam has stopped paying Wayne $1,500 per week with CPI for life, which she asserts was the option agreed in return for Wayne leaving the business. The deceased explains that she gave Wayne 50% of the Dacre St property because he had spent $500,000 on the house. She also refers to Wayne and Kim being "extremely helpful and kind… since Fred died" and that she had been invited to their home at least once a week and they took time to call in, whereas Adam drove past "at least 14 times a week" and never called in.
7. At the end of the letter, the deceased refers to Adam as her son and states that she loves him very much and adores his boys. She also states that it looks like everything is going in a "devastating way and the whole family in tatters… [so] please just you and me try to work this all out".

The dispute about the Mariner boat

1. The deceased's 19 August 2009 letter to Adam also refers to the Mariner boat. In the letter, the deceased states that, at the March meeting, they decided that she would keep the boat, Adam would maintain it with the help of Wayne and that "the factory" could pay off the $180,000 that Fred had left. The deceased refers to the prospect of selling the boat as she has not had a holiday for ten years and would like to travel.
2. On or around 25 August 2009, Adam sent a letter to the deceased headed "letter of demand". It is stated to be written "in response to written accusations of abuse (for which I absolutely deny) and an attack on my overall character".
3. In his letter, Adam demands that the deceased sign over to him ownership of the Mariner boat by no later than 31 August 2009 because his business has paid all expenses. The letter asserts that Adam has been trying to negotiate a solution regarding Wayne's financial future, that Adam is "astonished" that the deceased can oppose him "so bitterly" and asserts that Wayne has little regard for his own disputes. The letter concludes by inviting the deceased and Wayne to list any items for which Adam's business is funding that they intend to sell or have little use for and he will take it off their hands.
4. On 26 November 2010, Adam sent another letter to the deceased about the Mariner boat demanding that she immediately transfer ownership to him by providing him with a signed copy of the registration papers. He threatens to cease making any further payments and to engage lawyers to seek reimbursement of all the moneys he has expended on the boat if she does not agree to do so.
5. The lawyers then got involved; Philip Monardo, at Monardo Solicitors, for the deceased and Patrick Lim, at Patrick Lim & Associates, for Adam. Over the course of about nine months, [3] they exchange correspondence about the Mariner boat. Ultimately, the dispute was resolved and the Mariner boat was transferred to Adam, in return for which Adam agreed to waive all claims in respect of the boat.
6. Wayne's evidence is that, other than an exchange of correspondence in December 2011 and two discussions with Adam in February 2012 and August 2012, he did not have any further conversations with Adam except for exchange of pleasantries when they saw each other at functions until shortly before his mother passed away.

Correspondence between Adam and Wayne after the deceased's death

1. On 19 July 2016, Wayne wrote to Adam about the deceased's will (CB 2721). The letter sets out the details of the will and attaches a copy. In the letter, Wayne offers to compromise "this break-up" by giving Adam 40% and Wayne taking 60% of the deceased's investments, which Wayne estimates would give Adam a distribution of around $334,000. The last paragraph states that the letter is "without prejudice", is "by no means a legal letter" and hopes that they "can work this out ourselves".
2. On 27 July 2016, Adam responded to Wayne's letter by email, copied to Adam's solicitor in these proceedings. In his email, Adam refers to his disappointment with the will and that it was drawn at a time when there were concerns about the deceased's onset of "Alzheimers".
3. In his email, Adam rejects Wayne's offer and asserts that a proper and fair distribution would be 50% of the entire estate, including 50% of the Dacre St property. He responds to the reasons set out in the deceased's will, asserting that he did not receive assets and value of the nature described, that the total value of the assets received were $2.85 million with a debt of over $2.4 million, and that he provided the deceased with a fully maintained car, fuel and a fully paid mobile phone. Adam contends that he only received a value of $109,240 "for taking responsibility for all debts and exposures faced by [the deceased] that eventually cost him and Melissa over $1 million in ongoing business losses". Adam's letter refers to Wayne and Kim receiving 50% of the Dacre St property without his knowledge, which he describes as "an injustice".
4. Adam's email also states that, unless they agree to a position where he receives half of the estate, he will instruct his lawyers to lodge a caveat on probate and file a claim for provision, noting that his lawyers had already given him an estimate ranging between $175,000 and $200,000 for his fees alone.
5. As noted earlier, Adam commenced these proceedings by summons seeking provision under the Succession Act filed on 28 October 2016.

Legal principles

1. The Court may make an order for Adam's provision out of the deceased's estate if it is satisfied, at the time when the Court is considering the application, that adequate provision for his proper maintenance, education or advancement in life has not been made by the deceased's will: s 59(1) of the Succession Act.
2. If the Court is satisfied, then it may make such order for provision out of the deceased's estate as the Court thinks ought to be made for the maintenance, education or advancement in Adam's life, having regard to the facts known to the Court at the time the order is made: s 59(2) of the Succession Act.
3. Section 60(1)(b) of the Succession Act provides that the Court may have regard to a range of matters set out in sub-section (2) for the purposes of determining whether to make a provision order and the nature of such an order.
4. The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education or advancement in life, nor does it give greater or lesser weight to any of the various matters set out in s 60(2) to which the Court may have regard for the purpose of determining whether to make a provision order and the nature of any such order. Thus, the Court evaluates the provision actually made in the deceased's will against the requirement for adequate provision for the maintenance, education or advancement in Adam's life.
5. A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the proper maintenance, education or advancement in the plaintiff's life: Sgro v Thompson [2017] NSWCA 326 at [6] and [66]-[67]; Harris v Harris [2018] NSWSC 552 at [30]-[31].
6. The relevant circumstances will include a consideration of the plaintiff's needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any consideration of the plaintiff's needs also requires consideration of the size the estate and the claims of others on it: Chan v Chan [2016] NSWCA 222 at [22].
7. The words "maintenance", "support" and "advancement" are not defined in the Act, but the concept of advancement can extend (in appropriate circumstances) to the provision of a sum of money to enable improvement of a person's prospects in life: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at 228-229 (Callinan and Heydon JJ).
8. The question is not just whether the provision is "adequate" but whether adequate provision for the "proper" maintenance, support and advancement of the plaintiff has been made. This requires consideration of all the circumstances of the case: McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at 571-572 (Dixon CJ, Williams J).
9. The determination of what is adequate provision for the proper maintenance, education and advancement in life of a plaintiff is to be guided by applying the Court's assessment of what is considered to be right and proper according to contemporary accepted community standards (Squire v Squire [2019] NSWCA 90 at [10]) or what is considered to be the moral duty of the deceased (Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [44], [109]).
10. In appropriate cases, if the deceased was capable of, and did, give due consideration as to what provision for a plaintiff's maintenance, education or advancement is proper, considerable weight may be given to the deceased's testamentary wishes. This approach recognises that a testator is in a better position than the Court to make such an assessment. But the application of s 59 of the Succession Act is "not confined by notions of reluctance to interfere with freedom of testation", although the Court's assessment as to what is proper provision must be made when the Court is considering the application, rather than at the time of the deceased's death or will: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [96]; Sgro v Thompson [2017] NSWCA 326 at [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127].
11. Adam makes his claim as an adult child of the deceased. As there is no predisposition for or against the making of orders for provision for adult children, Adam's application must be dealt with on its merits based on the evidence before the Court: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [166]-[169]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [37].
12. Guidelines in relation to claims by adult children have developed in the authorities. They provide a "useful touchstone" and give assistance because they constitute a reflection of community values which assists with decision-making: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [19] and [67], quoted with approval by Brereton JA in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [106]-[108].
13. The guidelines relevant to an application for an adult child are set out by Hallen J in Rogers v Rogers [2018] NSWSC 1982 at [207]. I respectfully adopt his Honour's reasons set out there as follows: (a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set [their] child 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]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond [2015] NSWCA 42 at [109]. (c) Generally, also, "the community does not expect a parent to look after [their] children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58]. (d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37 at 45; 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]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.

Additional facts and matters: s 60(2) of the Succession Act.

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

1. The evidence establishes that the relationship between the deceased and Adam, particularly in the years after Fred died, was somewhat turbulent and marked by disagreements between them. Adam's own evidence refers to his relationship with the deceased as "difficult" since adolescence, "volatile" during his life and "disastrous" over the last ten years since the death of Fred. Adam's explanation is that the deceased was closer to and favoured Wayne which led to tension between Adam and the deceased.
2. The tension between Adam and the deceased is made clear by the terms of their correspondence in 2009 relating to the transfer of the 50% interest in the Dacre St property to Wayne and the dispute about the Mariner boat. The nature and content of that correspondence also make clear that Adam considered that the deceased treated him unfairly, as compared to Wayne, something which the deceased rejected.
3. In my view, the contents of the deceased's August 2009 letter and the changes made to her testamentary wishes as recorded in her final will, reflect the deceased's disappointment in Adam, particularly his decision to cease paying Wayne what she considered had been agreed in March 2008 and his demand for the Mariner boat. That said, the deceased's letter also refers to her love for Adam, as her son.
4. There was no submission that there was a complete or irretrievable breakdown in their relationship or that Adam and the deceased were estranged during later years, although there is disagreement about the closeness of their relationship and extent of contact after Fred died.
5. No doubt the disagreements and tense relationship between the deceased and Adam led to periods of little contact between 2008 and 2016.
6. Adam explained in cross-examination that he did not visit the deceased at the Dacre St property, which he said was due to his dispute with Wayne. He also gave evidence that the deceased would come to his house, he spoke to her on the telephone at least twice a week in the last five years prior to her death and that he also saw her on special occasions, such as on Mother's Day and Christmas (T62:47-63:16).
7. Wayne contends that Adam had little contact with the deceased after Fred died but accepts they saw each other for occasional dinners and for lunch on Mother's Day and at Christmas. There are photographs in evidence of the deceased, Adam and his family at different events, such as Christmas and his son's graduation.
8. In addition to keeping in contact with the deceased, Adam also gives evidence that he contributed to her welfare by paying for certain expenses, such as a holiday, her phone and a car. There is no evidence that Adam provided other forms of care and assistance to the deceased on a routine or daily basis, such as that provided by Wayne and Kim.
9. The conclusion I draw from the evidence is that there was a continuing and familial relationship between Adam and the deceased, although I would describe it as strained and much less close than the deceased's relationship with Wayne, and also marked by periods of significant disagreement and less contact after Fred's death.

The nature and extent of any obligations or responsibilities owed by the deceased to Adam and to Wayne: s 60(2)(b)

1. Adam's evidence is that the deceased did not have any obligations or responsibilities towards him because he had assumed all her liabilities and indebtedness by taking over the Poche Engineering business (Affidavit, Adam Poche, 10 February 2017, para [29]).
2. Nevertheless, as her son, Adam was a natural object of the deceased's testamentary bounty. The same, of course, can be said about Wayne. The deceased's last will, and her earlier wills, recognise Adam and Wayne as competing claimants on her estate and that she had some continuing moral obligation to each of them.
3. Over the years, the deceased (with Fred) provided support to both Adam and Wayne, although there is a debate as the value of the financial support provided to each of them.
4. In final submissions, Adam's Senior Counsel accepted that Wayne had a legitimate expectation to the deceased's 50% interest in the Dacre St property and Adam accepted in cross-examination that he was not surprised and expected that the deceased would leave it to Wayne (T33:3-10).

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

1. I have already outlined the nature and extent of the deceased's estate.
2. The value of the estate available for distribution is not insignificant, around $2.3 million if the 50% interest in the Dacre St property is included.
3. The value of the estate's cash assets which are available for distribution is around $696,000, and would be much less, around $398,000, if Wayne's costs of the proceedings were to be deducted.

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

1. At the date of the hearing, Adam was 51. He lives with Melissa, aged 52, and their three sons, Max, Jack and Charlie (aged 20 and 18) at the Bay Pde property, which they own.
2. Before turning to Adam and Melissa's current circumstances, it is necessary to say something about the sale of the Poche Engineering business in 2017 and other matters which impact on their present financial position.

Poche Engineering business: post 2008 and sale in 2017

1. Adam's evidence is that, after he took over the Poche Engineering business, it suffered a downturn in business and recorded losses, which ultimately led to what he describes as its "demise".
2. He says that the difficulties facing the business were caused, in part, by the effects of the global financial crisis in 2008/2009 and the loss in 2009 of a major customer, Hitachi Construction Machinery Co Limited (HCM), which led to litigation concerning alleged copyright infringement.
3. The financial statements in evidence identify a nearly $2 million reduction in sales in the two years after Adam took over the business; from around $4.2 million by PES in the 2008 financial year down to around $2.4 million by PEA in the 2010 financial year. The evidence also confirms that HCM and PEA were involved in ongoing disputes that led to PEA commencing legal proceedings against HCM in 2009 which were resolved in 2011 with PEA paying out to HCM the sum of $30,000.
4. Adam also says that losses were incurred after he spent over $1 million redesigning the Ingleburn property to make it fit to take on work after a request in 2012 from an important customer, Sandvik AB, to take over their manufacturing business in Newcastle. Adam's evidence is that this work did not eventuate in any significant amount due to the drop in coal prices. It is not possible to assess the cost of this work or the impact on the business as there are no financial statements in evidence relating to the Poche Engineering business after the 2010 financial year or other documents in evidence relating to the works undertaken at the Ingleburn property.
5. Adam's evidence is that, in 2014, he undertook a restructure of the Poche Engineering business to try and manage the issues it faced. PEA sold the goodwill, plant and equipment to Poche Engineering Holdings Pty Limited; a new company also named Poche Engineering Australia Pty Ltd was incorporated and started trading the business; and PEA and another related company that provided labour to PEA were both placed into voluntary liquidation.
6. Adam's evidence is that by late 2016, he concluded that he should try and sell the business as the cost base was too high, demand from customers was low and many were not paying within 30 days. There were also ongoing costs associated with short-term finance of $300,000 related to the business and it could no longer meet expenses which gave rise to a risk of insolvent trading. Adam also gives evidence that he expected to receive a "fair entitlement" from the deceased's estate and use the proceeds to meet the financial difficulties faced by the business.
7. Contracts were exchanged on 28 March 2017 for the sale of the Poche Engineering business and assets and the Ingleburn property for a total purchase price of $3,850,000. The business and assets were sold for $1.4 million. The Ingleburn property was sold for $2,450,000, with the sale completing on 24 May 2017.
8. The Business and Asset Sale Agreement includes a non-compete clause that prohibits Adam from working in any business in competition with the sold business for a maximum period of three years. I note that Adam's evidence was that it prohibited him from working for five years (Affidavit, Adam Poche, 10 April 2018, para [64]).
9. Some months after the sale of the business, the newly established company, Poche Engineering Australia Pty Ltd, was placed into liquidation.
10. Adam's evidence is that, after paying secured and other creditors (including the ING bank which, at the time, held mortgages over the Ingleburn and Botany properties (CB447 and 449)), he received $1,172,452.68 and continued to have other liabilities from the liquidator of one of the family companies and the ATO of $496,904.84, according to documents in evidence (CB1741 and 1742).
11. Adam's evidence is that he dispersed the $1,172,452.68 he received from the sale of the business as follows: 1. $170,000 was placed into Adams and Melissa's superannuation fund, known as the Adliss Superannuation Fund; 2. $50,000 was paid to the ATO to meet personal income tax liability for the financial year ended 30 June 2017; 3. $300,000 was spent buying shares in Comet Ridge Limited; 4. $265,000 was paid towards legal expenses; and 5. the balance of $387,452.68 was placed into an account to meet his family's expenses and the costs of these proceedings. Adam's evidence is that this amount was consumed within a short time to meet mortgage repayments, living expenses and to pay some legal costs.
12. According to Adam's 10 February 2017 affidavit, prior to the sale of the business, he and Melissa had no monthly income because the business could not afford to pay them and they met their monthly expenses, estimated at that time to be $11,000 per month, on credit facilities secured against assets and repayment of loans made by them to the Poche Engineering business.
13. Adam was cross-examined on this evidence and said that he and Melissa were receiving amounts from the business equivalent to "our weekly wages" of around $87,000 each on which no tax was paid because they were categorised as loan repayments (T53:18-44). Their income tax returns also demonstrate that Adam and Melissa had combined taxable income of $202,048 and $95,181 in the 2016 and 2017 financial years.
14. I also note that, in his February 2017 affidavit, Adam estimates the value of his total assets to be $5,910,000 based on a valuation of the Ingleburn property at $1.8 million and the Poche Engineering business of only $250,000, yet those assets were sold for a combined value of $3.85 million only six weeks later.
15. In those circumstances, I do not accept Adam's February 2017 estimate of the value of his assets and liabilities or his evidence that he had no monthly income to be an accurate reflection of his financial position at that time.

Financial position in 2018

1. Adam's evidence is that, as at April 2018, he and Melissa were unemployed and their only income was the rental from the Botany property, which they had retained after the business was sold.
2. According to his summary of assets and liabilities, he had assets valued at $4,194,670, which included the Botany property valued at $1.3 million (which was not subject to any encumbrance) and the Bay Pde property valued at $2.2 million subject to a home loan of $1,515,000. They had other estimated liabilities of $1,230,500, of which $1.1 million was attributed to "liquidators and creditors". As noted above, the documents in evidence identify $496,904.83 relating to claims by a liquidator and the ATO. It is not clear what the balance of the claimed liabilities, around $600,000, comprises. As noted at [134], Adam's evidence is that he did not use the funds received from the sale of the business to pay down his home loan or those other liabilities.
3. In April 2018, Adam estimated his monthly expenditure to be $38,316, of which $26,000 was for legal fees.
4. In addition to the legal costs of around $640,000 which Adam has paid in these proceedings, Adam's evidence is that he has spent a further $210,000 on legal fees incurred in pursuing legal proceedings to recover $418,000 which he and Melissa advanced to acquire shares in a company, referred to in this case as the Shilkin proceedings.
5. According to Adam, he and Melissa advanced the $418,000 in 2012 and 2014 using funds from their superannuation account and commenced the Shilkin proceedings in March 2018. Documents in evidence indicate that Adam and Melissa advanced the funds from 2011 to 2016.
6. Adam's evidence is that he has asked his solicitor to discontinue his and Melissa's claim in the Shilkin proceedings because of doubts about the ability to recover from the named defendants and no longer having the financial resources to maintain the proceedings. In other words, and as was put to and accepted by him in cross-examination, $630,000 of Adam's "hard‑earned money has been waved goodbye" (T78:36-37).

Current employment and financial position

1. Adam has not worked since he sold the Poche Engineering business in mid-2017. He suffered from some health issues in 2019 and claims that he is unfit to work for 12 months from July 2019, to which I refer below.
2. Melissa commenced full-time work as a Client Service Officer in late November 2018. She has a net monthly income of $3,670, which increases to $4,438 if she does overtime.
3. Adam and Melissa estimate that their combined monthly income, after tax, is $11,063. In addition to Melissa's income, they receive $4,588 per month in rent from the Botany property and approximately $2,500 in return from their racehorse activities.
4. Two of Adam and Melissa's sons (aged 20 and 18) are at university. They occasionally work part-time but do not contribute to household expenses.
5. Adam's evidence is that his other son (aged 18), has a strain of Autism (Asperger's syndrome) and requires ongoing support as he has difficulties maintaining employment or study.
6. Adam and Melissa support their sons by paying for their car and health insurance, petrol and mobile phone charges.
7. Adam and Melissa estimate their monthly expenditure to be $21,327, which is almost double their current monthly income. Adam's evidence in his affidavit of July 2019 was that he and Melissa are reliant on their credit cards to pay their monthly expenses and borrowing against the equity in property.
8. Adam and Melissa's monthly expenses include $6,066 in mortgage repayments on the Bay Pde property, $2,000 on groceries, $2,130 on life insurance policies, around $1,300 on membership fees to yacht, golf and turf clubs, just under $1,000 for five mobile phones, internet and Foxtel, around $2,400 on maintaining and training their racehorses and $2,125 on other expenses, including hobbies, gifts, clothes and shoes.
9. At the hearing, the Bay Pde property was valued at $1.9 million. It is subject to a Macquarie Bank home loan and mortgage of $1,590,174.
10. According to a building inspection report prepared by Mr Weeks from Jim's Building Inspections dated 27 June 2019, the Bay Pde property is in a fair condition, although considerable remediation works are required due to subsistence within the subfloor structure and further maintenance of the property is required to rectify three minor defects. Mr Perigo, a building consultant, examined Mr Weeks's report and provided what was described as a "guesstimate" to Adam's lawyer of the likely cost to rectify the structural damage to be $116,500.
11. As at the date of the hearing, Adam and Melissa's assets and liabilities were identified as follows: Assets Estimated Value Bay Pde property (agreed value) $1,900,000.00 Botany property $1,500,000.00 Interest in horses $26,000.00 Mariner boat $130,000.00 Bank accounts $34,377.00 2005 Toyota Hilux vehicle $2,000.00 2005 KIA Carnival vehicle $525.00 Jewellery $12,000.00 Superannuation $99,511.00 Balance of MCM loan $124,309.12 Total assets $3,828,722.12 Liabilities Home loan: Bay Pde property $1,590,174.00 MCM loan: mortgage over Botany property $650,000.00 Credit cards $15,662.00 Legal fees: Horton Rhodes Legal (Shilkin proceedings) $34,116.00 Invoices: P J Passaro & Co $9,460.00 NSW Revenue Land Tax $15,365.00 PAYG withholding obligations $263,805.00 Total liabilities $2,578,582.00 TOTAL $1,250,140.12

1. Adam's evidence is that he obtained the MCM loan, of $650,000 on 18 July 2019. Adam used around $285,000 of those funds to discharge the existing Commonwealth bank mortgage over the Botany property, $190,000 for legal costs relating to these proceedings and around $124,000 to meet his and his family's daily living expenses and liabilities.
2. Thus, in summary, Adam and Melissa's current financial position is that they have assets worth $3.8 million, significant debt of around $2.5 million and not enough income to meet their monthly expenses.
3. Adam attributes his current financial position to the failure of the business to support the burden of debt associated with it and then having to sell valuable assets, including the business operation itself, to retire debt. He submits that he was left with very substantial debt which is growing.
4. At the hearing, Adam was challenged on his spending habits and some of the financial choices he has made which had led to his current financial position. He was also taken to a number of statements of bank accounts he and his wife operated in 2018 and 2019 and cross-examined about the debits and credits made.
5. In response to questions about the regular withdrawals of cash sums between $600 to $3,000, Adam's evidence was that they were to pay "bills and living expenses", although he could not identify what bills and could not explain what some other cash withdrawals of some thousands of dollars were for (T85:39-48; T89:27-50; T94:7-12).
6. In cross-examination Adam sought to explain the need to regularly take cash out because he and Melissa did not often use credit cards, contrary to his evidence in his 5 July 2019 affidavit that he and Melissa are reliant on them (T89:31-32; T90:39-49). He also accepted that he and his wife had spent money on holidays and other activities, relating to horse racing, club memberships, holidays and parties, and that he had not used any of his cash flow over the years to make repairs to the Bay Pde property (T112:7-13; T112:21-36; T122:20-47; T124:1-10).
7. In cross-examination, Adam also accepted that the money he used from the sale of the business and Ingleburn property to invest in Comet shares was money that he could have used to pay off his mortgage and that the investment in those shares (which he sold and then invested the sale proceeds in other companies) had, in the space of 12 months, not made a return but yielded a loss (T77:22-24; T77:40-44).
8. He also accepted that he chose to pay $418,000 for the Shilkin investment and associated legal fees of $210,000 when he had debts over his assets (T79:9-30) and that, together with the $650,000 for legal fees on these proceedings, was money that he did not have to spend if he did not want to (T80:22-23).
9. In my view, this and other evidence as to the use to which the net proceeds of sale from the business was put and Adam and Melissa's regular expenditures demonstrate that their current financial circumstances have been caused, at least in part, by their own lifestyle and business decisions, rather than just the debts associated with running and then selling the Poche Engineering business.
10. I accept that some of their decisions could be categorised as 'well-intentioned, but improvident, investment decisions". I also accept that those decisions and the decision to continue to maintain a certain lifestyle involving not insignificant discretionary spending when in debt and with reduced income do not disentitle Adam from his claim for provision. They are, however, together with Adam's needs, factual matters which can be taken into account in the context of the available estate and a consideration of the effect on Wayne's competing claim: Bates v Cooke [2015] NSWCA 278 at [1], [3], [68]; Sgro v Thompson [2017] NSWCA 326 at [40], [93], [94]; Hampson v Hampson [2010] NSWCA 359 at [80].
11. Another issue that was raised in submissions was the adequacy of Adam's production of documents relating to his financial position.
12. During the course of the hearing, it became apparent that some financial records which were caught by the terms of a notice to produce issued by Wayne had not been produced by Adam. Other records were also heavily redacted which made it difficult to identify the source of sums of money credited to and debited from Adam's accounts.
13. Documents were produced in the course of the proceedings in response to this criticism and Adam's Senior Counsel accepted that they should have been produced earlier (T99:29).
14. It is troubling that, in a case that had gone on for over two years, documents relating to Adam's financial position were being produced on the second day of a three day hearing. Despite the late production, and as Wayne's Senior Counsel noted in final submissions, there remained other gaps in the records produced by Adam. For example, no statements for certain credits cards other than for very limited periods were produced. Nor were documents produced for the 2017 and 2018 financial years for PEA, Poche and Sons, Poche Engineering Staffing Pty Ltd or Poche Holdings Pty Ltd.
15. It is incumbent on an applicant for provision to disclose to the Court as fully and frankly as possible all details of their financial and material circumstances: Cringle v Cringle [2018] NSWSC 1558 at [35] and the cases there cited; Stone v Stone [2019] NSWSC 233 at [60]; Blendell v Byrne [2019] NSWSC 583 at [561]-[564].
16. No submission was made that the inadequacy of the disclosure was such that Adam's claim should be dismissed. It is, however, of some concern and makes it difficult to have a precise understanding of Adam's financial position and that of his companies, particularly leading to the time the Poche Engineering business was sold.
17. That said, I have concluded that the documents provide a sufficiently broad picture of Adam's current assets and liabilities to understand what his financial position is today and, subject to my earlier comments, I am satisfied that there is material before the Court from which it can assess how his financial position has changed over time.

Health

1. In March 2019, Adam underwent an aortic valve replacement. His recovery was complicated by an infection which required prolonged treatment with intravenous antibiotics. There is also evidence that he suffers from a number of other health issues, including diabetes, obesity, depression, insomnia, a fatty liver and gout. He takes five different medications daily and more when required.
2. Subject to what follows, there is no evidence that Adam's health issues prevent him from obtaining employment and working.
3. Adam gives evidence that he has been diagnosed with a Major Depressive Disorder and was told that he is unfit for any work over the course of the next 12 months. He relies on a report dated 1 July 2019 from Dr Ben Teoh, a Consultant Psychiatrist and Physician in Addiction Medicine.
4. On the first day of the hearing, objection was taken to Dr Teoh's report on the basis that it had been prepared for legal proceedings from a non-treating doctor, it was served late and no prior notice had been given or a request for expert evidence to be adduced. After some debate, Wayne's Senior Counsel accepted he could deal with the report if Dr Teoh was made available for cross-examination over the telephone, which he was on the second day of the hearing. On that basis, it was admitted into evidence.
5. Dr Teoh examined Adam on 21 June 2019. Adam had been referred to Dr Teoh by a lawyer working at the firm engaged for Adam in these proceedings.
6. Dr Teoh's report states that Adam's presentation was consistent with a diagnosis of Major Depressive Disorder, that Adam will require treatment which he will likely respond to, including counselling and pharmacological therapy, and that Adam is not fit to work at all for 12 months.
7. Dr Teoh's opinion is based on a history provided by Adam when they met. That history refers to the conflict between Adam, Wayne and the deceased over financial matters, the deceased having left a will that was "unfair" to Adam and that he was "resentful" with the financial situation in which his family had left him.
8. Adam also reported to Dr Teoh that he had been "lacking motivation and interest in his usual activities", he had "lost his confidence" and "become socially isolated … not [being] communicative both to his family and friends".
9. Adam was challenged in cross-examination about what he told Dr Teoh, particularly his claim to be socially isolated and not communicative with his family and friends. In my view, Adam's evidence on these matters was unsatisfactory and, together with Dr Teoh's evidence at the hearing, raises significant doubts as to the reliability of the conclusions reached in Dr Teoh's report.
10. In cross-examination, Adam accepted that he told Dr Teoh that he felt socially isolated and was not communicative with family and friends. He also accepted that these feelings related to the last couple of years and not just the previous days (T115:18-20; T115:25-27; T115:29-30). Yet evidence in the form of photographs, Facebook posts and Adam's answers in cross-examination demonstrated that Adam was going out and socialising with friends and family on a very regular basis over the past couple of years and as recently as April, June and July 2019.
11. There is evidence that Adam attends the races with his wife on what appears to be a weekly or fortnightly basis, including two days after he saw Dr Teoh on 21 June. Adam also held a birthday party for himself in April 2018 at which 150 to 200 people attended; he socialised with family and friends at his son's 21st birthday earlier in 2019; and went on a family holidays to the Gold Coast and attended the Magic Millions event in January 2018 and 2019 (Ex 7, 8 and 9; T123:11)
12. Adam's attempt to justify what he meant when he told Dr Teoh that he was socially isolated and uncommunicative with friends and family was also unpersuasive and lacked credibility, referring as he did to only parts of his life being socially isolated, social isolation resulting from his relationship breakdown with Wayne and being isolated from sections of "our (Wayne and Adam's) community" (T115:38-43; T120:30-36). On Adam's own evidence, he has been socially isolated from Wayne's since around 2009. In any way, there was no such qualification mentioned in Dr Teoh's report.
13. Adam's statement to Dr Teoh that he lacked motivation and interest in his usual activities was also undermined by evidence that he has continued to play golf, goes to the races and goes out on the Mariner boat (T54:47-55; T116:10-22; T120:25-26; T120:42-47).
14. During cross-examination, Dr Teoh accepted that Adam did not tell him that he was a very regular attendee at the races and he had the impression that Adam was leading a fairly lonely existence day to day. He also accepted that if Adam was not socially isolated, did not lack communication with his friends and family and led a basically ordinary social and family life, it would be very hard to conclude that he suffered a major depressive disorder (T193:18-21).
15. In re-examination, Dr Teoh explained that his opinion may depend on the severity of the social isolation and that a person could be very depressed but still make an attempt to go out and do things that appear to be normal. In that case, his evidence was that he would need to ask the patient how they were feeling at the time when they were socialising. There is no evidence that he did so in respect of Adam.
16. During closing submissions, Adam's Senior Counsel submitted that the cross-examination would not lead to the Court concluding that Adam has no depressive illness and could rely on Dr Teoh's diagnosis that he will recover and be fit for work in 12 months.
17. I am not persuaded by that submission and have concluded that I cannot rely on the conclusions in Dr Teoh's report.
18. Dr Teoh's opinion was based on Adam's subjective reporting of his symptoms and Adam's creditability about his symptoms was adversely impacted during cross-examination. There is also positive evidence which refutes Adam's claims that he was socially isolated, not communicating with his family and friends and not undertaking an interest in his usual activities, and Dr Teoh accepted it would be very hard to conclude that Adam suffered from a Major Depressive Disorder if Adam was socialising in the way he has been: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 at [45].

Future work prospects and needs

1. Adam's only formal qualification is his Diploma in Financial Advising.
2. He gave evidence that, once Dr Teoh deemed him fit to work, he intended to start a business, although he did not know yet what type of business.
3. Adam has made enquiries into purchasing management rights in resorts, which would cost $2 to $2.5 million and would require him to sell the Botany property in order to obtain a business loan. He has also considered purchasing a caravan park (but does not provide any evidence of its purchase price) and a charter boat for around $450,000. He submits that running these businesses are within his level of experience and will provide him with the best chance to provide for his family as he has done over the previous two decades.
4. In terms of his future financial needs, Adam requires funds to start or acquire a business, complete the building repair works on the Bay Pde property, reduce his liabilities and contribute to his and Melissa's superannuation.

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

1. At the date of the hearing, Wayne was 48 years old. He is married to Kim and they have two children, Ben (aged 16) and Sophie (aged 11).
2. Wayne is currently employed by DP World as a forklift driver. He has been employed by DP World since around 2009, although it was only recently that he was employed on a full time basis. For many years his work varied from 2-3 to 3-5 days per week.
3. It is not in dispute that there are risks with Wayne's employment. At the hearing, there was evidence that DP World was requesting voluntary redundancies and the shipping industry was experiencing a major downturn and increasingly adopting automated systems.
4. Wayne has poor health for his age, is deaf in his left ear and has been diagnosed with cancer twice. In 2003, Wayne was diagnosed with lymphoblastic lymphoma and underwent two and a half years of chemotherapy. He is currently in remission and has not required active treatment for over ten years. In 2010, Wayne was diagnosed with testicular cancer, which was treated with surgery. He did not have any chemotherapy for this cancer.
5. Wayne is concerned he will be unable to obtain employment in the future if he is made redundant, because of his age and deafness in one ear.
6. Kim is currently employed as a legal secretary on a part time basis.
7. Wayne and Kim's combined monthly income, after tax, is approximately $9,759.98. According to Wayne's notice of income tax assessment, he had taxable income of $142,564 for the 2019 financial year. [4]
8. Wayne and Kim's monthly expenditure is estimated to be $9,895, which is slightly above their monthly income. Their expenses include $1,625 on groceries, $1,248.00 on personal loan repayments, $1,423 in education costs for their children and $1,200 on other expenses, including Christmas and birthday presents and holidays.
9. In December 2018, Wayne and Kim obtained personal loans in order to repay the mortgage over the Dacre St property, which was due for repayment in March 2019. Wayne's evidence is that the mortgage could not be refinanced as the deceased's authority was required.
10. Wayne and Kim's assets and liabilities, as at the date of the hearing, are as follows: Assets Estimated Value Bank accounts $530 50% share of the Dacre St property $1,675,000 2018 Nissan X-Trail motor vehicle $34,000 2018 Holden Barina $11,500 Boat $100 Superannuation $449,976 Sub-total $2,171,106 Liabilities Personal loan - Wayne Poche $48,000 Personal loan - Kim Poche $19,085 Car loan $42,682 Credit cards $6,189 Sub-total $115,956 TOTAL $2,055,150

1. In terms of his future financial needs, Wayne gives evidence that he will use the money he receives from the deceased's estate to repay his debts, contribute to his superannuation fund, and pay for works required to the Dacre St property, namely, repainting the outside of the house and renovating downstairs, at a cost of $80,000-$120,000.
2. Wayne also proposes to use the funds to take his family on a holiday after these proceedings, which he submits have been long and stressful for him and his family. He estimates the costs of that holiday to be $20,000. He will also need to buy Sophie's uniforms, textbooks and a laptop for high school, at an estimated cost of $3,000 and a new family computer costing approximately $2,500.

Adam's contributions to the deceased's estate or welfare: s60(2)(h)

1. I have already referred to the contributions Adam made to the Poche Engineering business before he took it over in 2008. He was a senior employee and, with Wayne, ran the day to day operations prior to and after Fred died, which was of benefit to the deceased's estate in a general way.
2. The terms on which Adam agreed to take over the Poche Engineering business enabled the deceased to be left debt free, with a significant superannuation account and an unencumbered Dacre St property. I accept that, in doing so, Adam received value in return, by way of the Poche Engineering business and the associated property assets.
3. Adam's evidence is that, after 2008, he continued to contribute to the deceased's welfare and upkeep by making other financial contributions, which included: 1. $5,000 for holidays; 2. just over $10,000 for mobile phone related expenses; 3. expenses relating to a motor vehicle owned by Poche Engineering Holdings Pty Limited and provided to the deceased in 2008 and petrol, insurance, registration and annual services from 2008 to her death; 4. 50% of the deceased's rent during the period when renovations to the Dacre St property were being undertaken in 2008-09; 5. $10,807.64 during the period 1 July 2008 to 30 June 2009 for "various things", including cab charges; and 6. $64,496.10 in relation to the deceased's capital gains tax liability in connection with the sale of the Botany property to Poche & Sons as trustee for the Poche Property Trust.
4. Accepting that it was for the deceased's benefit, the $5,000 for holidays is, to my mind, a contribution of the kind that could naturally be expected to be made to a mother by an adult son who, in the words of his Senior Counsel, lived an affluent middle class lifestyle by the standard of some Australians (T232:2-3).
5. The payment of the phone and car expenses were paid by Adam's business and there is evidence that suggests he agreed to pay them as part of the agreement reached in March 2008 about the transfer of the Poche Engineering business from the deceased to Adam.
6. In final submissions, it was accepted that Wayne and Adam each paid equal shares of the deceased's rental sum (T221:1-2, T245:7-8).
7. As to the $10,807.64 for "various things", the documents in evidence describe that payment as the deceased's "wages" (CB1962).
8. I accept that the payment of the capital gains liability represents a contribution to the deceased's estate, although presumably it was made as part of the overall arrangement struck in March 2008 that Adam would assume the deceased's liabilities relating to the business when he took it over.

Any provision made by the deceased for Adam during the deceased's lifetime or made from the deceased's estate: s 60(2)(i)

1. I have already referred to the provision made for Adam under the deceased's will.
2. As for provision during the deceased's lifetime, Adam was given the Bay Pde property in 2000, at which time it was valued at $580,000. I accept that Adam received it in return for giving up his equity in the Engadine property which was valued at $150,000. Prior to the transfer, Adam was provided with residence in the Bay Pde property on a rent free basis between 1995 and 2000.
3. During the deceased's lifetime, Adam was also provided with the Poche Engineering business and associated assets, such as the Botany and Ingleburn properties, and the Mariner boat.
4. Adam asserts he paid fair value for the assets and the Poche Engineering business, and that the business itself had little net value, with the liabilities and debts outweighing the value of assets received.
5. In contrast, in her will, the deceased asserts that the Poche Engineering business was profitable and that the value of all of the assets transferred to Adam which included the Botany and Ingleburn properties and the Mariner boat, outweighed the debts that Adam took on in 2008.
6. The debate at the hearing related to the extent and value of the provision to Adam, particularly the value of the Poche Engineering business.
7. When pressed for his view on the value of the Poche Engineering business, Adam's Senior Counsel accepted that there was value but it was "a difficult question to answer" because of the extent of the liabilities (T218:49). He submitted that one could gain some answers to the question of the value of the Poche Engineering business by looking at what it sold for in 2017 and by looking at what liabilities existed in 2008. On a rough calculation, he came to $650,000 but said that it was likely significantly less and even on a conservative basis, it would only be worth several hundred thousand dollars in value (T220:26-36).
8. In written submissions, Adam points to the 2008 financial statements of the companies, which identify a joint net asset position of $258,930. I note, however, that the financial statements value the Botany and Ingleburn properties "at cost", rather than the actual value at the time of transfer to Adam. The evidence is that the Botany property was valued at $650,000 to $750,000 and the Ingleburn property at $1.8 million, whereas the financial statements value the "buildings" owned by PE and the Poche Family Trust at $270,387 and $1,377,187 respectively.
9. In closing submissions, Wayne's Senior Counsel relied on Adam's evidence during cross-examination, in support of a submission that the net value of the eight classes of assets provided by the deceased to Adam over her lifetime, and as referred to in paragraph 5 of her will, was around $1.5 to $2 million after deducting liabilities.
10. In reply, Adam's Senior Counsel took issue with that characterisation, submitting that Adam did not concede he was getting $1.5 to $2 million of net assets at the time of the transfer in 2008 but, even if he did, it was just a mistake as it simply was not the case (T247:14-16; T247:32).
11. During cross-examination, Adam accepted that the gross value of the assets referred to paragraphs 5(a) to (h) of the deceased's will, which included the "engineering business operating from the Ingleburn factory", well exceeded $5 million and was arguably close to $6 million (T36:49-T37:6). While there was some debate about liabilities, Adam gave evidence that they added up to approximately $3.2 million (T37:8-39). Adam did not accept the proposition that he received at least $2 million from the deal, although his rejection appears to have been based on his view that other family assets that were given away in 2008 (presumably the 50% of the Dacre St property) should be taken into account and, as a result, one of the assets listed should not be included (T38:4-18). That said, he accepted he had been asked about all the liabilities and that they had been identified (T38:23-24).
12. I am not persuaded that the Court should accept that the value of the net assets provided by the deceased to Adam was $1.5 to $2 million based on Adam's evidence in cross-examination. That evidence seems to me to be more equivocal than suggested by Wayne's Senior Counsel and there is force to the submission that it does not reflect what Adam accepted or the evidence.
13. However, I am also not persuaded by Adam's submission that the business and associated assets had little net value and that it was more of a burden than a benefit to him such that it did not amount to valuable provision.
14. Based on all the evidence, I have concluded that substantial provision was made to Adam during the deceased's lifetime by reason of the gift of the Bay Pde property and the transfer of the Poche Engineering business and other assets to him in 2008 and the Mariner boat in 2011. While it is not possible to put a precise value on the overall provision, I am satisfied that the value at the time of the business transfer exceeded the debts Adam took on in 2008, the business and other assets continued to have value and that, as at the date of the hearing, Adam retained value from the provision made to him by the deceased. My reasons for this conclusion are as follows.
15. First, the evidence indicates that, in or around 2008, the value of the Botany and Ingleburn properties ($2.45 to $2.55 million) and PES's total equity and net assets ($297,686) amounted to $2.747 to $2.847 million. At that time, Adam had, in effect, paid for the business by taking on considerable debt by way of the Westpac loans of $2.395 million. But, together with the gift of the Bay Pde property ($430,000, taking into account the equity given in the Engadine property) and the value of the Mariner boat ($130,000), the value of assets Adam received was more than the amount of the Westpac loans by about $912,000 to $1.012 million.
16. Second, in addition to the assets, part of the provision included an established business that had traded for decades and provided income which had supported the deceased and Fred, Adam and Wayne and their families for many years.
17. Although the 2008 financial year statements indicate that the PE business trading profit after tax was only $73,968, it had sales of $4.2 million and value as an ongoing concern. I also consider it open to infer that Adam recognised the ongoing value of the family business given he agreed that the business would pay Wayne $1,500 per week and provide him with the use of a company car for at least a year, and would continue to pay for expenses for the deceased, as it had in the past.
18. Third, I also consider it open to find that the business transferred to Adam continued to have value. It operated for a further nine years as a going concern, generating income that enabled Adam to support his family, make investments outside the business, such as the Shilkin investment, and lifestyle choices that involved ongoing discretionary expenditures. The continued value of the business is evident from its sale in 2017 for $1.4 million along with the Ingleburn property which had appreciated in value and sold for $2.45 million.
19. Fourth, Adam's provision included an income generating asset, the Botany property, which he has retained and which continues to have ongoing value, generating net income of $4,588 per month and, as an asset, has appreciated to be valued at $1.5 million.
20. Finally, the Bay Pde property has been retained and has also appreciated in value, to $1.9 million.
21. Wayne similarly received substantial provision from the deceased (and Fred) via the family businesses over the deceased's lifetime.
22. He received financial support in relation to property of at least $270,000 prior to late 2008, namely the "gift" via the property swap of $150,000 equity in the Engadine property, $91,233 towards the purchase of the Banksia property and at least $28,800 towards the Lucas Ave property mortgage. He also received a 50% interest in the Dacre St property, which at the time was valued at around $550,000 (in return for paying between $450,000 and $500,000 in renovations) and is now valued at $1.675 million, and the will provides for him to receive the other 50% interest.
23. Relevantly, and in comparison to Adam, the provision the deceased made to Wayne did not include any income producing assets.

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

1. The deceased's testamentary intentions are made clear from her last will and the reasons set out in paragraphs 5 and 6, which I set out below.
2. Prior to her last will made in 2015, the deceased made three earlier wills on 8 February 1982, 5 May 2009 and 9 August 2010. She had also given instructions to her solicitor, Philip Monardo, to amend her wills on 21 August 2006, 9 September 2008 and 28 January 2011. Those instructions were not finalised and the deceased did not sign wills incorporating the amendments she discussed on those occasions.
3. Other than her 1982 will, in which the deceased devised her estate to Fred and, if Fred predeceased her, equally to Adam and Wayne, the deceased's other wills provide for Wayne and Kim to have the Dacre St property, although in the 2006 instructions, it was only to be a life interest.
4. In September 2008, after the agreement reached with Adam and Wayne for Adam to take over the Poche Engineering business, the deceased's instructions regarding the Dacre St property changed and provided for her share in the property to be left to Wayne, or if he predeceased her, to Kim. This was included in her 2009 will, and remained the position in her 2010 and 2015 wills.
5. The material difference between the deceased's 2009 and 2010 wills and her last will in 2015 is the manner in which she dealt with that part of her estate that did not comprise her share in the Dacre St property.
6. In her 2009 will, other than the $20,000 bequest to her cousin, the deceased left any cash, shares and other financial deposits to Adam, Wayne and her grandchildren equally, and left the Mariner boat and the residue of her estate to Wayne and Adam in equal shares. The deceased's stated reasons for not bequeathing Adam more was because she had given him the Bay Pde property, the Botany property and all shares in PE and PES.
7. The deceased's 2010 will is not significantly different to her 2009 will. Other than a change of substitute executor, the deceased removed the bequest to her cousin Judith and the reference to the Bay Pde property as a reason for not bequeathing any further of the deceased's estate to Adam.
8. By January 2011, around the time she was in dispute with Adam about the Mariner boat, the deceased informed Mr Monardo that she wanted to change her 2010 will and did not want Adam to receive any share of her estate as she had given him enough already and that the Mariner boat and the balance of her estate are to go to Wayne only (Affidavit, Philip Monardo, 25 July 18 at [118]).
9. In April 2014, the deceased met with Mr Monardo to discuss preparation of a new will, which became her last will and the subject of contest in this case. She informed Mr Monardo that she wanted Judith to get $20,000 from her cash, shares and deposits with the balance to be split 85% for Wayne and 15% for Adam. The reasons for this were included in a typed note which the deceased gave to Mr Monardo and became the basis of paragraphs 5 and 6 of her will (Affidavit, Philip Monardo, 25 July 18 at [158], [159]).
10. The evidence demonstrates that Wayne was copied in on correspondence between Mr Monardo and the deceased about her 2015 will prior to its execution. During cross-examination, Wayne was asked whether he drafted or assisted the deceased in preparing any of the provisions in paragraphs 5 and 6 of the will. He said he did not (T198:38-40). No submission was made that Wayne pressured the deceased to change her will. Nor was a submission made that the deceased was not coherent when she did so.
11. The deceased's will makes clear that she gave consideration to Adam as someone who had a claim on her estate and might seek a larger claim than that which he had been provided. The issue is what weight should be given to the deceased's reasons, particularly the assertions regarding the profitability of the Poche Engineering business, the overall value of the assets given to Adam and the matters regarding his character and conduct.
12. The reasons in paragraphs 5 and 6 of the deceased's last are in the following terms: 5. The reason I have not bequeathed any further of my estate to my son ADAM POCHE is because in my lifetime I gave him or procured the transfer to him of: (a) House at 39 Bay Parade, Malabar valued approximately $600,000 - $700,000 swapped for Adam's house at Engadine approximately valued at $300,000 with a $150,000 debt for which I and my late husband took over. (b) Factory at 14 St Joseph Banks Street, Botany, and NSW 2019 then valued approximately $800,000. (c) All shares in Poche Engineering Pty Limited. (d) All shares in Poche Engineering Services Pty Limited. (e) My boat (Mariner 38ft) in good and sound running order. (f) All interests in the Poche Family Trust which owned the property at 54 Broadhurst Street, Ingleburn then valued approximately $1,200,000.00 and share portfolio then valued at approximately $300,000. (g) A profitable engineering business operating from the Ingleburn factory. (h) All the plant and equipment in the factory at 54 Broadbent Street, Ingleburn then valued approximately $400,000.00 6. (a) I have given my son Adam a very extensive amount of assets over the years, as stated above. (b) I also given Adam, under duress, my late husband's 40 foot Mariner boat in good and sound running order. (c) If Adam states that he is entitled to any more of my estate I reject that entirely. Adam was given all of these assets at his own request along with an associated $2.4m loan. I never wanted to give Adam the factory in Botany but he insisted that he must have it for equity against the loan. I could have kept this factory as it was to help me in my retirement. The rent each week at the time of the transfer to Adam was around $1100 pw. I could have still kept this property and continued as guarantor for the loan. This was a very large amount of income that I did miss out on retirement that I had worked for all my working life. All of the assets I transferred to Adam far outweighed the associated loan that Adam insisted that he take over. Adam might also state that he looked after me in retirement with a car and phone but this part of the agreement that upon transfer of the assets to him that he would continue to provide me with a car and phone. Adam may be confused and has stated how I could favour one son so much over the other. (d) Since my husband passed away Adam has been very horrible to me. He has used tactics of intimidation and threatening approaches towards me on too many occasions to mention. I have always been very frustrated with Adam when he says that I favour Wayne over him (Adam) as I have given him virtually everything compared to Wayne. The bequest that I leave Adam includes the $5,000 that he gave to me for a holiday and some more incidentals. Wayne has looked after me in retirement, helping me with all legal, medical and financial matters at a considerable expense to him. (e) The considerable amount of assets that Adam has been given to him over the years (all at his request) far outweighs the amount that Wayne has been given and Wayne has never asked for anything, this is why I am leaving Wayne the majority of my estate.
13. Adam submits that little weight should be given to the deceased's statements in paragraphs 5 and 6 as they involved mistakes or misapprehensions about the extent of provision she had made for Adam during her lifetime, relying on the comments of Brereton JA in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [94] to [97] and Parker J in Drivas v Jakopovic [2018] NSWSC 1803 at [206]. In oral submissions, his Senior Counsel described them as "outright false or misleading" and that the deceased was "seriously mistaken" (T3:18; T3:21).
14. I accept there are inaccuracies in paragraphs 5 and 6 of the deceased's will. Paragraph 5(a) over-estimates the value of the Bay Pde property and it is incorrect that she and Fred took over the debt.
15. As to paragraph 5(f), Adam's evidence is that there were no shares in the Poche Family Trust valued at $300,000 at the time of transfer to Adam, although the reference in the 2004 to 2008 financial statements to "shares in other companies" at a value of $251,331 suggests that shares existed at some time. It also seems likely to have been the basis on which the deceased made that assertion.
16. The reference to a profitable business in paragraph 5(g) was accurate in 2008, although PES's trading profit was not significant at the time. The evidence also indicates that the plant and equipment had a net value of around $112,244 (taking into account depreciation), not $400,000.
17. The deceased's reference to a 38ft and a 40ft Mariner boat is incorrect if it was intended to suggest that there were two boats, although I am inclined to the view that it is simply a mistaken reference.
18. The key complaint made by Adam relates to the assertions at paragraph 6(c) that the assets transferred "far outweighed the associated loan" and that she could have kept the Botany factory for income for herself and the statement regarding Adam's conduct in paragraph 6(d).
19. I have already dealt with the issue of the value of the provision made by the deceased and concluded that the assets were valued at an amount greater than the Westpac loans that Adam took on and there was value in receiving the business as an ongoing concern. Whether that "far outweighed" the loans is a matter of opinion and one which was open for the deceased to take, although I have the view that it is an exaggeration.
20. I agree that it seems unrealistic for the deceased to have expected to retain the Botany property when Adam paid out the NAB liabilities and took on debt of $2.395 million. But, that statement is not, in my view, material in terms of the deceased's overall reasoning which is, in essence, that she considered that Adam had been provided with assets and an ongoing business of some value irrespective of the debts he assumed. In my view, the evidence indicates that the deceased was not seriously mistaken about that at the time she made her will.
21. As to the statements in paragraph 6(d) regarding Adam's conduct, there is evidence that Adam had made legal demands in relation to the Mariner boat and some of the correspondence refers to aggressive behaviour on his part. I make no finding about that, and simply note that the correspondence indicates that the deceased found Adam's conduct distressing and disappointing. There was no dispute that Wayne provided the deceased with assistance in her retirement.
22. For the reasons set out earlier in relation to the provision made to Adam and Wayne, I am satisfied that there was a reasonable basis for the deceased to take the view that what Adam had been provided outweighed the provision made to Wayne at the time she made her 2015 will, as referred to in paragraph 6(e).

Whether Adam was being maintained, either wholly or partly, by the deceased before her death: s 60(2)(k)

1. There is no suggestion that Adam was being maintained by the deceased.

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

1. Other than Melissa, there is no one else liable to support Adam.

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

1. I have already dealt with issues regarding Adam's character and conduct.

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

1. I have already referred to the support and assistance that Wayne gave to the deceased.

Costs of the proceedings - any other matter considered relevant: s 60(2)(p)

1. Adam's legal costs in these proceedings are estimated to be between $613,949 to $643,421 on an ordinary basis, and $760,819.80 on an indemnity basis, of which he has paid $641,400.80.
2. Wayne's legal costs are estimated to be $298,405.60 on an indemnity basis, of which he has paid $59,710.24.
3. Relevantly, Adam's legal costs (on both an ordinary and indemnity basis) exceed what he claims by way of provision, being a lump sum payment of $600,000, plus some costs.
4. Together, Adam's legal costs (on an ordinary basis) and Wayne's legal costs (on an indemnity basis) far exceed the value of the net cash assets available for distribution and equates to 40% of the value of the total distributable estate (including the Dacre St property).
5. That outcome is inconsistent with the "object of resolving the issues between the parties in such a way that the cost [to them] is proportionate to the importance and complexity of the subject-matter in dispute": Civil Procedure Act 2005 (NSW), s 60: Squire v Squire [2019] NSWCA 90 at [8].
6. On any view, and notwithstanding the other claims which have been advanced by Adam and Wayne in these proceedings (to which I refer at [313]-[322]), the costs incurred by both parties, but particularly by Adam, are excessive for a case of this nature. Adopting the words of Adam's Senior Counsel, the costs are "almost tragic", objectively "disproportionate" and "not all costs should be recoverable… whatever the outcome is" (T26:50; T236:39-40; T211:41-48).
7. It is inevitable that costs will have a significant impact on the outcome of the proceedings and the parties personally.
8. Any provision and order for costs in favour of Adam is at Wayne's expense, who as executor, defended the claims challenging the will and is the beneficiary in respect of the residue of her estate. Similarly, if no order for provision is made, Wayne will bear the burden of costs that are not recovered from Adam. If both parties' legal costs are taken into account in assessing the value of the estate, there is not enough cash assets to go around and the Dacre St property would have to be sold.
9. Wayne's Senior Counsel submits that the Court should take into account Wayne's indemnity costs in considering the amount of cash assets available with Wayne's half share to fund any provision in favour of Adam, together with any costs order. If I were to adopt that approach, an amount of $398,521.44 of cash assets would be available with the deceased's half share of the Dacre St property to fund any provision, noting that Adam already has an existing entitlement of 15%.
10. Adam's Senior Counsel's approach was not to deduct legal costs when considering the amount of residual cash available for distribution and that the portion of costs paid by Wayne to date should be added back in.
11. To my mind, the appropriate approach is to consider Adam's claim for provision based on the available net cash assets of $696,927.04 but taking into account the quantum of Wayne's costs and Adam's costs in respect of the family provision claim (based on a capping order of $125,000) as relevant factors.

Consideration and determination of claim for provision

1. At the outset, it seems appropriate to record that it appears that Adam's approach to this case may have been motivated by a sense of entitlement to half of the deceased's estate and a feeling that he has been treated unfairly compared to Wayne. I have earlier referred to correspondence in which Adam refers to his belief, based on legal advice, that he had an entitlement to 50% of the deceased's estate (CB2723).
2. Adam's sense of entitlement continued at the hearing. While Adam expected Wayne to receive the deceased's share in the Dacre St property (T32:42-45; T65:16-18), during cross-examination, Adam also asserted that he thought he was entitled to half of the deceased's remaining estate, which appeared to mean the other half of the Dacre St property, as well as half of her cash assets (T31:33-36; T32:34-40).
3. At this point, I simply note that the role of the Court is not to achieve "an overall fair" disposition of the deceased's estate or seek to rewrite the will and redistribute the estate based on notions of "equality". Nor is its role to correct a sense of wrong or hurt feelings to the extent that Adam believes that he has been treated unfairly. The Court's role goes no further than determining whether "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in Adam's life has been made by the deceased's will and if not, the making of provision taking into account all the circumstances of the case: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [94]- [97]; Meres v Meres [2017] NSWSC 285 at [114]; Gorton v Parks (1989) 17 NSWLR 1 at 6.
4. Notwithstanding Adam's views, the case that was put by Adam's Senior Counsel at the hearing accepted (appropriately in my view) that Wayne has expectations to the Dacre St property. Adam's Senior Counsel submits that the order for provision sought by Adam, by way of a lump sum payment of $600,000 plus an appropriate order for costs, is one which could be met without the necessity for a sale of that property.
5. He submits that adequate provision for Adam's proper maintenance or advancement has not been made under the deceased's will, in circumstances where he was left with very modest provision of 15% of the cash assets. He submits that Wayne and Adam should be seen as having similar and comparable financial needs which relate to financial security for the future for their retirement, and ability to lead a life at an appropriate level of comfort, particularly given the tradition of family support from generation to generation. He also argues that provision should not be limited or concerned solely with need in the sense of necessity, relying on Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [116]-[132] (Brereton JA) and the statements in Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 at [8]ff.
6. He also submits that the evidence demonstrates that the deceased did not make provision for Adam during her lifetime, such that it was appropriate for the deceased to provide him with such small provision, as the business and assets did not have significant value over and above the debts he took on. He accepts that Adam was assisted by the provision of the Bay Pde property, but contends that greater assistance has been extended to Wayne. I am not persuaded by that submission.
7. As I stated earlier, I am satisfied that substantial provision was provided to Adam over the deceased's lifetime, over and above the value of the debts he took on, and that the business assets he received continued to have value, as demonstrated when the business and Ingleburn property were sold for a significant sum in 2017.
8. Leaving to one side the dispositions made under the deceased's will, I am also not satisfied that Adam has demonstrated that greater assistance had been extended to Wayne over the deceased's lifetime.
9. At the time of making her will in 2015, Adam was continuing to run the business that had been transferred to him, had regular income and substantial assets available, even accepting that he faced challenges with the business and had debt.
10. In so far as each of Adam and Wayne had been provided with property assets to live in, Adam had received the benefit of the Bay Pde property, currently valued at around $1.9 million, paid the stamp duty on the transfer and contributed his equity in the Engadine property worth $150.000. Wayne had received 50% of the Dacre St property, currently valued at $1.675 million, but to which he and his wife contributed $400,000 to $500,000, accepting that some of those funds were derived from property which had been paid for, in part, by the deceased and Fred.
11. That said, the past provision is not determinative of whether adequate provision for Adam's proper maintenance and advancement in life were made by the deceased's will, although a relevant factor to take into account.
12. As Adam's Senior Counsel submits, what is relevant is the position Adam was in at the hearing, which is different to that in 2008 and when the deceased made her will. As both Senior Counsel accepted, the Court should be interested in the current circumstances, although past dealings can be taken into account.
13. Taking into account all the relevant circumstances assessed at the date of the hearing, I have concluded that the provision made for Adam under the deceased's will of 15% of the cash assets is not adequate for his proper maintenance or advancement in life.
14. The evidence at the hearing demonstrates that Adam's financial position has deteriorated since the deceased made her will in 2015. He had to sell the business in 2017 due to a challenging business environment and liabilities, which has led to a significant reduction in his income and an inability to service current debts and meet regular expenses, even though he retains assets that have ongoing value.
15. Since the making of her will and her death, Adam has also had heart surgery, has not worked since mid-2017 and is currently unemployed.
16. Given Adam's age, health and employment history, it seems reasonable to infer that he may face difficulty in obtaining a regular income stream other than by way of involvement in some form of business, for which he is likely to require some amount of capital.
17. While Adam's relationship with the deceased was very poor at times in the years between 2008 and 2015, the deceased recognised her moral duty to him in her will. There is also evidence that Adam maintained some contact with her until her death and made some financial contributions to the deceased's benefit, mostly through his business, for some years.
18. The deceased's estate is not small in value, even leaving to one side that part of the deceased's estate that comprised her 50% interest in the Dacre St property to which Wayne had legitimate expectations.
19. In my view, the cash assets in the deceased's estate are of sufficient quantum to provide more to Adam even taking into account the choices the deceased faced and her moral obligation to provide for Wayne, in respect of whom there is no dispute that he has had serious health issues, provided care and support to the deceased in the later years of her life and faces risks with his future employment.
20. There is no doubt that the deceased considered the claims of Wayne and Adam on her estate when she made her 2015 will. Wayne's Senior Counsel emphasised the references in the authorities to giving due consideration and weight to the deceased's wishes and acknowledgment of her superior position as a testator who was capable of assessing the competing claims to her estate: Sgro v Thompson [2017] NSWCA 326 at [6] and [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127].
21. As noted at [90], Adam does not accept that the reasoning behind the deceased's will represents carefully considered decisions such that they should be given weight. In my view, the deceased's assessment of the provision made for Adam and his claim to her estate, while subject to some criticism because of errors relating to the values of the Bay Pde property, plant and equipment and shares and exaggeration, was not so wholly unsound that no consideration should be given to her wishes as part of the overall circumstances of this case.
22. In this case, by her 2015 will, the deceased changed the scheme which had been in place for some years which accepted that Adam (and his children) should have the benefit of a larger proportion of her estate, having provided Adam, by her 2009 and 2010 wills, with around 15% of her cash assets and Adam and Wayne equal shares of the Mariner boat. Between making her will in 2010 and her last will in 2015, the deceased had transferred the Mariner boat to Adam, which is valued at roughly $130,000, and for which he took on liability in 2008.
23. Based on the circumstances of this case, it seems to me that the change to the deceased's will in 2015 which provided Adam with only 15% of the cash assets, reflected the disharmony between the deceased and Adam following the dispute about the Mariner boat, rather than the deceased having carefully considered the value of the assets referred to in the reasons or that she had provided additional assets of value, as the reasons in her will seems to suggest.
24. The more difficult question is what provision ought be made for Adam's proper maintenance or advancement in life given Wayne's competing claim, the other facts known to the Court, including legal costs, and the acceptance that Wayne should not have to sell the Dacre St property to meet any order for provision.
25. Balancing all the factors in s 60(2) of the Succession Act and making an evaluative judgment that has regard to all of the circumstances, not merely financial, I have concluded that provision should be made for Adam by way of a lump sum payment in the amount of $350,000 in lieu of his existing entitlement to 15% of the cash assets, of $104,539.06.
26. In my view, taking into account all the circumstances of this case, a wise and just testator would make further provision for Adam but not in an amount which would result in disadvantage to Wayne such that he would have to take on more than minimal debt.
27. When considering how a wise and just testator in the position of the deceased would make a decision about their estate, I take into account that she was faced with a moral obligation to provide for one adult son who has, over many years, taken steps to minimise his debts to ensure the security of the future of his family and has a strong claim to the deceased's estate arising from their close relationship, his contributions to the deceased's welfare and wellbeing over the years, his past serious health issues and the ongoing risk with his employment status. This has to be balanced against any continuing moral obligation to provide for another adult son who has, rather than reducing his debts, chosen to make discretionary investments, pay significant legal costs and enjoy a lifestyle beyond his means, but is also in a position of financial need due, in part, to taking on the family business and having to sell it in 2017, has been unemployed since that time and has made some financial contributions to the deceased's welfare.
28. That the deceased would want to ensure that the provision to Adam did not interfere with Wayne's overall financial provision in any significant deleterious manner in those circumstances is something to which regard should be had in assessing the quantum of provision and the impact of making such an order: Bates v Cooke [2015] NSWCA 278 at [3], [68]; Sgro v Thompson [2017] NSWCA 326
29. The Court's discretion is also influenced by aspects of Adam's evidence, including the incomplete production of documents, which gave rise to doubts about the precise causes of Adam's current financial position and employment prospects, and the nature of the relationship between Adam and the deceased. Both of these factors, to my mind, militate against higher provision for Adam.
30. The provision should also reflect that both sons have been provided for by the deceased in the past and there is an acceptance that Wayne has a legitimate expectation of receiving the other 50% of the Dacre St property on the death of the deceased.
31. The amount of $350,000 represents just over 50% of the cash assets available in the estate. It should enable Adam to pay for the structural repairs to the Bay Pde property, use as capital towards a business or pay off some debt as a result of the legal costs he has incurred in these proceedings. It also means it will be unlikely that Wayne will be left with residual cash as most, if not all, will need to be used to pay his and some of Adam's legal costs associated with these proceedings, a topic I discuss below.
32. I accept that there may be a range of views on what community standards and moral obligations would require in this case, particularly given what might be seen as the similarity of Adam and Wayne's current financial position and the resulting disparity from the dispositions under the will even with the further provision to be made in favour of Adam. In my view, that factor, while relevant, is not dispositive and does not justify a conclusion that provision of $600,000 should be made for Adam.
33. Providing Adam with provision of $600,000 and a proportion of his legal costs would leave Wayne with significant debt in respect of his own costs. That is not what that I consider to be an appropriate outcome having regard to all the circumstances of the case.
34. As Adam's Senior Counsel submits, any costs order will strongly interact with the nature of the Court's order for provision and the size of the estate. Similarly, in my view, it is appropriate for the order for further provision to recognise that this dispute has, in essence, been about a claim to the cash assets available for distribution, rather than the Dacre St property interest in the estate and, by making further provision for Adam, the available cash assets to meet Wayne's competing needs will be depleted having regard to the legal costs incurred to date.
35. Finally, I recognise that the provision ordered for Adam, together with a costs order capped at $125,000, will not cover his legal costs paid to date. But that outcome does not, in my opinion, justify coming to a different conclusion on provision.

Costs

1. At the hearing, the parties agreed that the Court should seek to address costs in these reasons although, other than of a general nature, neither party advanced detailed submissions on that issue or made any application for a special cost order. There was also a suggestion that further submissions could be made after the outcome of the case was known.
2. In my view, it would be preferable to make costs orders now in relation to all the claims in the proceedings in the hope that it will be unnecessary for the parties to incur the additional expense of making submissions on that issue in the future. I do so based on the facts known to me and the submissions made at the hearing.
3. As I propose to make a special type of order in respect of Adam's costs of the provision claim and have approached the issue of costs in a broad brush way in some respects, I will give leave to the parties to make an application to vary the costs orders in the event they wish to contend for some different order to be made.

Other claims

1. As noted above, in addition to Adam's provision claim, Adam and Wayne have each advanced claims which have now been abandoned.
2. Adam's other claims included a challenge to the validity of the deceased's 2015 will and her earlier 2009 and 2010 wills due to lack of testamentary capacity and an order that probate be granted in respect of the deceased's 1982 will (probate claims). Adam's probate claims were included in Adam's statement of claim filed on 1 June 2017 and amended statement of claim filed on 26 October 2017.
3. Adam abandoned his probate claims on 21 August 2018 following receipt of a joint report of an expert geriatrician, Associate Professor Gideon Caplan, dated 31 May 2018.
4. In his statement of claim filed 1 June 2017, Adam also advanced a claim for payment by the estate of amounts equal to the financial contributions he asserts he made for the deceased's benefit during her lifetime in respect of rent, tax liabilities, telephone accounts, motor vehicle expenses, repayment of money secured by a mortgage and holiday costs (contribution claim).
5. Adam abandoned the contribution claim during oral closing submissions on the last day of the hearing.
6. Wayne (as defendant and cross-claimant) sought certain formal probate relief together with an order that Adam (as cross-defendant and plaintiff) pay to Wayne the sum of $1,500 per week from 1 August 2009 until Wayne's death together with interest (cross-claim).
7. Wayne also abandoned his cross-claim during oral closing submissions on the last day of the hearing.
8. Estimates were provided by the parties that sought to identify the costs attributable to the different claims. As with the quantum of costs, there was a significant disparity in approach to outcomes.
9. Of the $641,400.80 of legal costs that Adam has paid, his solicitor estimates that $76,235.07 (12%) is attributable to the probate claims, $39,561.16 (6%) to the cross-claim and the balance, which equates to $525,604.57 (82%), to the provision claim. This breakdown does not deal with the costs attributable to Adam's contributions claim or the costs that he had not been paid as at the date of the hearing, of $119,419. I assume that similar proportions apply to the unpaid costs, and have allocated 85% to the provision claim and 15% to the cross-claim and the contribution claim. Accordingly, I calculate Adam's costs in relation to the family provision claims to be around $627,110.72.
10. As to Wayne's legal costs of $298,405.60, the breakdown provided by his solicitor attributes $102,687.09 (34%) to the probate claims and $82,341.26 (28%) to the provision claim. This breakdown does not deal with the costs attributable to the contribution claim or cross-claim, the disbursements of $85,000 (including Senior Counsel's fees), or the balance of the solicitor fees of $28,377.25. I have calculated Wayne's costs of the family provision claim to be around $145,000, based on the solicitor's costs of $82,314.26, a proportion of $55,000 of the disbursements and a proportion of just over $7,500 in respect of the balance of the solicitor's fees.

Legal principles

1. Ordinarily, costs follow the event unless it appears to the Court that some other order should be made: Uniform Civil Procedure Rules 2005 (NSW), r 42.1 (UCPR). Where a party discontinues or abandons a claim the usual rule is that the party must pay the other party's costs in respect of those costs: UCPR, r 42.19(2).
2. While these rules apply to family provision proceedings, the award of costs is a matter in the exercise of the Court's discretion, which is unfettered other than to exercise it judicially: Civil Procedure Act 2005 (NSW), s 98(1).
3. The Court recognises that it may be appropriate to make costs orders in family provision proceedings which deviate from the usual approach in accordance with the rules particularly as a feature of family provision cases is that they are concerned with the distribution of a fixed pool of assets and parties are often more concerned to vindicate their position than to resolve the dispute in an efficient and cost effective manner such that the Court is willing to consider the overall justice of the case in making a costs order: Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35 at 521-522; Baychek v Baychek [2010] NSWSC 987 at [21]-[25] (Baychek).
4. The Court has the power to make an order capping costs in family provision proceedings retrospectively at the end of a hearing and in cases where the value of the estate is greater than $500,000: UCPR, r 42.4; Civil Procedure Act 2005 (NSW), ss 60 and 98; Nudd v Mannix [2009] NSWCA 327 at [26], [27]; Baychek at [17]; Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362 at [33]-[39] (Wilson); Askew v Askew [2015] NSWSC 192 at [126].
5. Factors relevant to determining whether to make a capping order and the amount of a cap include whether the costs are excessive having regard to the nature of the case, the size of the estate and the amount claimed. The Court may also have regard to the costs incurred by another party in determining the amount that could reasonably be expected to be recovered where the work required to be done by the plaintiff and the defendant are approximately equal: Baychek at [25], [31]; Brown v Grosfeld [2011] NSWSC 1429 at [23].
6. The general rules applicable to the award of costs also apply to probate proceedings, as they do to other contested litigation. This means that the Court has a broad discretion to award costs and, ordinarily, orders for costs should "follow the event", with the consequence that the unsuccessful party is ordered to pay the successful party's costs: Civil Procedure Act 2005 (NSW), s 98; UCPR, r 42.1; Walker v Harwood [2017] NSWCA 228 at [52].
7. Two exceptions to the general rule that costs follow the event have been recognised to apply in probate litigation, being: 1. where the testator has, or those interested in the residue have, been the cause of litigation, the costs of the party who unsuccessfully challenged the will may be paid out of the estate; and 2. if the circumstances reasonably called for an investigation of the will, the costs may be left to be borne by those who incurred them. See: Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709; Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 at [13]-[14]; Shorten v Shorten (No 2) [2003] NSWCA 60 at [14]-[15].

Family provision claim

1. In relation to the family provision claim, Adam's Senior Counsel submits that, if provision was ordered, an appropriate order or "reasonable allowance" should be made for Adam's costs, noting that he would only be entitled to a party-party order in the usual event and accepting that the Court has the power to limit any order to be made.
2. Wayne's Senior Counsel did not advance any submission on the costs of the family provision claim in the event Adam obtained provision, other than to say that Wayne was not in a position to service a mortgage of $700,000 if that was the impact of any provision and cost orders made in favour of Adam together with Wayne's costs.
3. As Adam has had some success, I consider it to be appropriate to make an order that Wayne pay Adam's costs of the family provision claim but capped at the amount of $125,000. I have come to that view for the following reasons.
4. First, I am satisfied that the costs incurred by Adam in relation to the family provision claim are disproportionate to the success he has had. His costs are around $627,000, significantly more than the provision of $350,000. His costs are also in an amount that is relatively close to the value of the available cash assets in the estate, from which he accepted an order for provision should be made.
5. Second, Adam's costs attributable to the family provision claim are significantly, more than four times, greater than the family provision claim costs incurred by Wayne of $145,000 (on an indemnity basis).
6. The significant disparity between the costs incurred on behalf of Adam compared to Wayne is inexplicable, even allowing for the scope of the notices to produce issued to Adam. While that notice was extensive, many of the paragraphs sought the same documents just for different years and companies. Costs were also incurred by Adam on affidavits that had to be updated on more than one occasion and contained evidence that was, in parts, objectionable and unread, and of marginal relevance having regard to the nature and size of the provision claim.
7. Third, I have also had regard to the estimates referred to by Slattery J in Wilson at [43]. His Honour referred to a standard family provision case conducted over two days with a handful of witnesses on each side costing around $70,000 to $80,000 and a complex four day case incurring costs of $120,000 to $140,000. This case completed in two and a half days with only four witnesses. Even allowing for some inflation cost since October 2017, the recovery of costs capped at $125,000 does not seem unreasonable.
8. I accept that this involves a broad brush approach and that it involves some heavy cost capping but, in the circumstances of this case, I consider it appropriate.

Probate claims

1. In relation to the probate claims, Adam's Senior Counsel submits that there should be no order as to costs as it was reasonable for Adam to investigate the deceased's will in circumstances where both sides of the family had serious concerns about the deceased's memory and the conclusions in Associate Professor Caplan's report, notwithstanding he was ultimately unable to confirm the deceased had capacity at the time she made her wills. Adam also submits that it was reasonable to commence proceedings because it was quicker, cheaper and reasonable to utilise the Court's processes in circumstances where Adam had already made a claim for provision.
2. Wayne's Senior Counsel submits that the usual rule that costs follow the event should apply. That is, as Adam abandoned the probate claims, an order should be made for Adam to pay Wayne's costs. He submits that this case does not fall with the recognised probate exception because the deceased was not the cause of the litigation. He also argues that it is difficult for Adam to contend that the deceased lacked the capacity to make wills from 2009 to 2015 when she had had the capacity to transfer to Adam the Poche Engineering business in 2008.
3. I am not persuaded by Adam's submission and consider it is appropriate in this case for an order to be made that Adam pay Wayne's costs of the probate claim.
4. While Associate Professor Caplan's report indicates that Wayne and Kim had concerns about the deceased's memory and that she undertook tests in 2011, the concerns raised by Kim, which are recorded in the report, relate to the deceased's forgetfulness, such as forgetting what people said on occasion, as well as well as depression, rather than concerns about the deceased's lack of capacity to consider and make decisions relating to her assets or claims on her estate. The report notes that, in 2011, the deceased was independent in her daily activities, and while she had trouble "remembering recent events", managed her own investments, dispensed her own medication without problem and scored on average to high on a range of tests relating to cognitive function.
5. Associate Professor Caplan's report refers to the deceased being diagnosed with Mild Cognitive Impairment or mild cognitive problems in 2011 but relevantly notes that Mild Cognitive Impairment is defined as a condition with evidence of "modest cognitive decline which does not interfere with capacity for independence in activities of daily living, even complex ones …". The report also notes that the deceased's cognitive deficits in 2011 were not severe and could be consistent with depression and anxiety. It also refers to evidence in medical reports in 2016 which indicate an absence of evidence of cognitive decline and absence of irrational thinking and delusions, the existence of which might be suggestive of some lack of testamentary capacity.
6. In those circumstances, and in the absence of other evidence, I am not satisfied that the information contained in Associate Professor Caplan's report is sufficient to conclude that the deceased's conduct, habits or mode of life in 2011 or later gave real ground for Adam to question her testamentary capacity at the time she made her wills, particularly the ones she made in 2009 and 2010: Shorten v Shorten (No 2) [2003] NSWCA 60 at [19]-[20]; Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 at [14].
7. I am also not persuaded that Wayne should have to bear the burden of the costs relating to the probate claims because Adam considered it quicker, cheaper and reasonable to utilise the Court's processes, to commence them at the time he did. Wayne's costs in relation to the probate claims are not insignificant and have been wasted as a result of Adam's claims, which have now been abandoned. As this is, in effect, inter partes litigation between beneficiaries, I consider it appropriate that Wayne recovers costs, rather than having to personally bear the impost on his testamentary bounty.
8. Accordingly, I will make an order for Adam to pay Wayne's costs in relation to the probate claims on an ordinary basis.

Contribution claim and cross-claim

1. As Adam and Wayne abandoned their respective contribution claim and cross-claim on the last day of the hearing, the usual approach would be to order Adam and Wayne to pay the other party's costs. At the hearing, their Senior Counsel did not advance any submission that the usual approach should not apply to these claims.
2. The contribution claim and cross-claim appear to have been very much secondary to the other claims advanced by Adam in the proceedings. Adam and Wayne's Senior Counsel did not refer to their respective claims in opening submissions and there was little evidence adduced on the issues raised.
3. Based on the limited information available to me, I consider it open to infer that the costs incurred by Adam and Wayne in advancing and responding to each of these claims were minimal compared to the costs they incurred in relation to the family provision and probate claims. I also consider it open to infer that Wayne and Adam have incurred costs of a similar amount in defending the claim advanced by the other, given the less than $40,000 attributed to the cross-claim by Adam's lawyer, and because the factual disputes raised by each claim were limited in nature
4. In those circumstances, I consider that it seems to me that it would be more consistent with case management principles and the overall justice of this case to make no order as to costs in relation to these claims, with the intent that each party is to bear their own costs.

Other matters

1. I note that no submission was made that costs that have been paid by Wayne at the date of the hearing should be paid by him personally and not by the estate, despite orders being made by Hallen J on 7 May 2019 that reserved Adam's right to make such a submission.
2. In any event, Wayne is the only other beneficiary of the deceased's estate, as well as the executor, and the provision order is by way of a lump sum payment. Wayne is entitled to any residue cash after payment of Adam's provision and costs and other expenses from the estate. In those circumstances, I do not consider it necessary to make an order that Wayne is entitled to indemnity out of the estate for his costs of the proceedings.
3. Finally, if either party considers that some other costs order should be made, they are to confer with the other party and, within 14 days, notify my Associate that a variation to the costs order is sought. They should also provide an agreed timetable for the exchange of short written submissions and advise whether they are content for the issue of costs to be determined on the papers.

Orders

1. For these reasons, I make the following orders: 1. In lieu of the provision made for the plaintiff by the deceased's will made on 10 March 2015, the plaintiff is to receive provision of a lump sum payment in the amount of $350,000 out of the deceased's estate. 2. Order that no interest is to be paid on the lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. 3. The plaintiff's costs of the claim in these proceedings for an order for provision pursuant to s 59 of the Succession Act 2006 (NSW) be paid out of the deceased's estate on an ordinary basis and capped in the sum of $125,000. 4. The defendant's costs of the claims made in paragraphs 1, 2, 3, 6 and 7 of the further amended statement of claim filed on 29 July 2019 be paid by the plaintiff on an ordinary basis. 5. Make no order as to costs in relation to the plaintiff's claim for contribution, as contained in paragraph 9 of the further amended statement of claim filed on 29 July 2019, and the defendant's amended cross-claim filed on 1 July 2017, with the intent that each party is to pay their own costs of those claims. 6. Direct that any application to vary the costs orders in 3 to 5 above be made by no later than 14 July 2020 by arrangement with my Associate.

Endnotes

1. Updated figure provided at hearing by Senior Counsel for Wayne at T19.30.
2. The gross investments amount is calculated as the gross distributable estate less the value of the Dacre St property interest and the anticipated expenses.
3. Calculated on the basis the first email from Monardo to Lim was in December 2010 (see CB2704) and according to Wayne, the deceased told Wayne in August 2011 and that she had given Adam the boat (CB 369, Affidavit, Wayne Poche, 5 September 18).
4. Adam sought leave to tender Wayne's 2019 notice of income tax assessment after the hearing. As no objection was taken, I grant leave to its tender and have marked it as Exhibit C.

Amendments 01 July 2020 - [340] Amend "Wayne" to "Adam". [341] Amend "deceased" to "deceased's". 02 July 2020 - Catchwords - In the tenth sentence, "50%" amended to "50% interest". 63 In the third sentence, "Poche Property Trust" amended to "Poche Family Trust". 63 In the first sentence, "in the name deceased's name" amended to "in the deceased's name". [84] Extra space and extra full stop after the second sentence deleted. [140] In the fifth sentence, the cross-reference from "paragraph [136]" amended to "paragraph [134]". [154] In the second sentence, "Mr Week's" amended to "Mr Weeks's". [186] In the second sentence, "major depressive order" amended to "major depressive disorder" 209 The full stop after "and" deleted. [253] In the first sentence, "PES" amended to "PES's". [327] In the first sentence, "capping under" amended to "capping order and …" . [341] In the second sentence, "mediation" amended to "medication". [347] In the second sentence, "or" amended to "and …". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2020