By a summons filed on 14 April 2022 and amended on 26 September 2022 the plaintiff applies to the Court for a family provision order under Chapter 3 of the Succession Act 2006 NSW in respect of the estate of his late mother.
Shirley Blanch Zamojski ("the deceased") died on 18 April 2021, aged 88 years, leaving a will dated 4 May 2020, probate of which was granted to the defendant (the other of her two sons, her only children) on 16 August 2021.
For practical purposes, the estate of the deceased available to meet any claim the plaintiff may have (and costs orders) is a residential property in Allerton Avenue, Culburra Beach, on the south coast of NSW. It was the last home of the deceased. It has an agreed value of $1.8 million.
In the events that have happened, the effect of the deceased's will is that, subject to any orders made by the Court in these proceedings, the plaintiff receives 30% and the defendant receives 70% of the Culburra Beach property or the net proceeds of its sale. The parties are named in the will as the deceased's residuary beneficiaries but, unless the estate has an entitlement to recover funds from the plaintiff, they are agreed that there is no residuary estate.
The deceased was married to Victor Zamojski, whose death on 26 July 2006 left her a widow.
There were two children of the marriage:
1. the plaintiff (Alex), born on 9 February 1962 and now aged 61 years; and
2. the defendant (Leon), born on 5 January 1964 and now aged 59 years.
The plaintiff has no spouse or partner and no children. He presently lives alone in rented accommodation at North Nowra, albeit with regular contact with health care professionals who attend to his needs as a disabled person.
The defendant is a divorcee with two children from whom he is estranged. He presently lives alone at the deceased's Culburra Beach property.
The plaintiff sues by a tutor. At the time the proceedings were commenced, his tutor was a social worker retained by iCare NSW to assist him consequentially upon injuries suffered by him in a motor cycle accident on 18 November 2020. His summons was amended on 26 September 2022 to substitute the NSW Trustee for the original tutor.
That amendment reflects the fact that on 21 July 2022 the NSW Civil and Administrative Tribunal, NCAT (sitting in its Guardianship Division) made orders protective of the defendant as a person found to be incapable of managing his affairs, both his person and his estate. The NSW Trustee was appointed as his financial manager. The Public Guardian was appointed as his guardian.
The plaintiff suffers from a bipolar affective disorder which can fairly be taken to have been known to the deceased at the time she made her will and throughout the several years before her death that he lived with her at the Culburra Beach property and served as her carer.
What cannot be taken to have been known by her at that time, but what I take to have been known by her at the time of her death (albeit perhaps without fully realising all its implications) was that the plaintiff sustained a debilitating brain injury in the motor cycle accident of 18 November 2020.
The deceased made her will on 4 May 2020 in circumstances in which the defendant had drawn to her attention that, at a time when he was acting as her carer, the plaintiff (to use a neutral expression) had appropriated to himself approximately $60,000 of her funds.
The terms of the will, including the deceased's treatment of the Culburra Beach property, objectively reflect two things:
1. First, the relationship between the plaintiff and the deceased remained strong enough for the deceased to regard the plaintiff as a natural object of her bounty despite any misgivings she may have had about his conduct or character.
2. Secondly, the deceased made a considered decision to favour the defendant over the plaintiff in division of her estate.
That the deceased made a considered decision about her testamentary arrangements is evidenced by a written statement, bearing the same date as the will, of a type contemplated by section 100 of the Succession Act 2006.
That statement, prepared with the benefit of advice from the solicitor who drafted the deceased's will, is perhaps remarkable because, although it evidences a deliberate testamentary intention to limit the amount of provision made for the plaintiff, it is silent as to the reasons underlying that decision. It records no allegation of misconduct or a want of character against the plaintiff.
The disproportionate testamentary provision made for the defendant vis-à-vis the plaintiff is perhaps greater than appears on the face of the will, because, during the lifetime of the deceased, the defendant was permitted to purchase the family home in Georges Hall (from which the deceased moved to the Culburra Beach property) on favourable terms.
It is not necessary, or appropriate, to explore the circumstances surrounding the deceased's will in detail since it has been admitted to probate without any collateral challenge to its validity in these proceedings.
The questions for determination in these proceedings are directed to the operation of sections 59(1)(c) and 59(2) of the Succession Act.
There is no dispute that, as a child of the deceased, the plaintiff is an "eligible person" within the meaning of sections 57(1)(c) and 59(1)(a) of the Succession Act with standing to make an application for a family provision order affecting the estate of the deceased.
The plaintiff's summons was filed within the time limited by section 58(2) of the Succession Act for the making of a family provision application: 12 months from the date of death of the deceased.
The terms of sections 59(1)(c) and 59(2) of the Succession Act both require the Court to view the circumstances of the case at the time of the hearing of the plaintiff's application, a consideration that implicitly allows, and requires, the Court to take into account material facts that may not have been known or fully appreciated by the deceased or may have occurred after she made her will.
The plaintiff bears the onus of proving the elements of his claim. It is not enough for that purpose that he point to the disparity between the provision made for him vis-à-vis that made for the defendant. The defendant has nothing to prove in defence of his testamentary entitlements.
By reference to section 59(1)(c) of the Succession Act the plaintiff must establish, in order to enliven the Court's jurisdiction under section 59(2) of the Act, that inadequate provision has been made for his maintenance, education or advancement in life by the will of the deceased.
If the plaintiff overcomes that jurisdictional hurdle, the discretion conferred on the Court by section 59(2) is enlivened, empowering the Court to consider whether any (and, if so, what) provision ought to be ordered to be made for the plaintiff's maintenance, education or advancement in life out of the deceased's estate.
Section 60(2) of the Succession Act provides a checklist of factors to be taken into account by the Court upon a consideration of both section 59(1)(c) and section 59(2).
An assessment of the plaintiff's case, in the context of both section 59(1)(c) and section 59(2), is complicated by the facts that:
1. the plaintiff is in receipt of funding under the National Disability Insurance Scheme by reason of his disabilities;
2. he receives assistance from iCare NSW as a consequence of his motorcycle accident; and
3. he has an unresolved compensation claim arising out of his motorcycle accident with the benefit of an admission of liability by an insurer but not as yet a ruling, or agreement, as to the amount of compensation he might receive.
In theory, he might receive compensation for non-economic loss up to a limit of $605,000 fixed by the Motor Accident Injuries (Indexation) Amendment Order (No 2) 2022 under the Motor Accident Injuries Act 2017 NSW. Because he has been on a pension for many years past, and is likely to remain on a pension for the rest of his life, any claim he might otherwise have for economic loss has been (without criticism by the defendant) abandoned by his financial manager.
The Court has before it no evidence that permits an estimate to be made of the amount of compensation likely to be recovered on behalf of the plaintiff, although the admission of liability and the nature of the plaintiff's injuries (albeit accompanied by a pre-existing medical condition) suggest that a presently unquantifiable amount of compensation will in due course be recovered.
Neither party to these proceedings took up a suggestion made by the Court that the hearing of the proceedings might be adjourned pending a resolution of the compensation proceedings.
I approach the question posed by section 59(1)(c) of the Succession Act recognising that, although there appears to have been a lengthy period of estrangement between the plaintiff and the deceased, they appear to have become reconciled, the deceased allowing the plaintiff to live with her at the Culburra Beach property and to serve as her carer. In a part of her will no longer operative she made provision for him to occupy the property for a short time after her death, recognising that he had a need for assistance in accommodation.
The words "adequate" and "proper", central to the operation of section 59(1)(c), are not defined by the Succession Act but are recognised as depending upon the circumstances of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20.
Although the plaintiff has, or potentially has, some means of support in the form of a disability pension, and funding from the NDIS and iCare NSW, as well as the prospect of compensation, that support is not a substitute for the obligations of a parent to make provision for a child or a basis upon which an estate can deflect an otherwise meritorious claim for family provision relief. That is not to say that the availability of other means of support may not be relevant to an assessment of the current and future needs of an applicant for a family provision order.
In the present case, the uncertainty attaching to the resources likely to be available to the plaintiff beyond his inheritance from the estate of the deceased is a factor to be taken into account but not, as the defendant would have it, treated as a factor determinative against the plaintiff's application.
In my assessment, the plaintiff is, and is likely to remain, a person in need of a high level of personal care in accommodation adapted to his disabilities.
The deceased's will noticed the plaintiff's need for accommodation (at the Culburra Beach property) for at least a period following her death pending a sale or other deployment of the property. A concern about his ongoing accommodation is central to the application for a family provision order advanced by the NSW Trustee in its capacity as manager of his protected estate. If his inheritance is not supplemented by a family provision order appropriate accommodation for him might soon be unaffordable.
In my opinion, the plaintiff has been left without adequate provision for his maintenance, education or advancement in life within the meaning of section 59(1)(c).
The inadequacy of the provision made for the plaintiff in the will of the deceased points in the direction of some form of order being made in favour of him upon an exercise of the jurisdiction for which section 59(2) of the Succession Act provides. The larger question is: What form of order should be made?
In this context, in my opinion substantial regard must be had to the testamentary intentions of the deceased as manifested in her will and her section 100 statement. The plaintiff's claim on the bounty of the deceased finds its limit in the respect due to the deceased's testamentary intentions.
I am mindful that, during the lifetime of the deceased, the defendant was substantially assisted by the deceased in his purchase of the family's Georges Hall property on favourable terms, and that the defendant accordingly has a reasonable capital sum (arising from his sale of the Georges Hall property) at his disposal. An order for provision of the nature and quantum I propose to make should not unduly operate to his disadvantage.
During the hearing of the proceedings I invited the parties to give consideration to the possibility that, in the absence of any will of the defendant (or any prospective application for a statutory will under the Succession Act), the defendant would stand (under the intestacy rules embodied in the Act) to benefit from the plaintiff's estate should the plaintiff predecease him. The parties were unable to reach any agreement on this topic and, accordingly, I leave it aside from my consideration of the plaintiff's family provision application.
I am mindful, also, of an apprehension on the part of the plaintiff that, subject to any orders the Court might make in these proceedings, the defendant (as executor of the estate of the deceased) might institute other proceedings to recover on behalf of the estate the $60,000 said to have been misapplied by the plaintiff during the lifetime of the deceased. I take into account that, should such action be taken and be successful, its practical effect would be that the plaintiff and the defendant (under the will of the deceased) would each, as residuary beneficiaries, have a one-half share of any recovered funds. Without objection on the part of the defendant, I indicated in closing submissions that, if I were to make a family provision order in favour of the plaintiff, I would incorporate in the Court's order a provision granting the plaintiff a release from liability to reimburse any misapplied funds.
Viewing all the circumstances of the case, I cannot justify the making of a family provision order which, at the expense of the defendant and contrary to the testamentary scheme of the deceased, would fund the purchase of a residential property for the plaintiff of the type sought by the NSW Trustee on his behalf. Nor can I justify an award of provision designed to fund his purchase of a car should he recover the (now lost) ability to drive.
In my opinion, placing oneself in the position of the deceased, and considering what she ought to have done in all the circumstances of the case, in light of facts now known, treating her as wise and just rather than fond and foolish, making due allowance for current social conditions and standards and, generally, consulting the criteria set out in section 60 of the Succession Act, the appropriate form of relief is a grant to the plaintiff of a legacy of $170,000 in addition to the provision made for him in the will of the deceased, together with a release of any liability otherwise owed by him to the estate of the deceased.
I will allow the parties an opportunity to be heard as to the form of the orders proposed to be made and costs.
Subject to any submissions that might be made about costs, I am presently minded to make the usual orders for costs: namely, an order that the costs of the plaintiff be paid out of the estate of the deceased on the ordinary basis and that the costs of the defendant be paid out of the estate on the indemnity basis.
[3]
EDITORIAL NOTE
After allowing the parties an opportunity to be heard as to the form of the Court's orders and costs, Lindsay J made the following orders in disposition of the proceedings:
1. ORDER that, in addition to the provision made for him in the will of the deceased, the plaintiff receive a legacy of $170,000.00 from the estate of the deceased and a release from any liability he might otherwise have to the estate for any dealings with the deceased or her estate during her lifetime.
2. ORDER that no interest be payable on the legacy of $170,000.00 if paid within 28 days of the date of these orders, with interest to accrue thereafter (at the rate prescribed by section 84A of the Probate and Administration Act 1898 NSW) on any part of the legacy not paid.
3. ORDER that the plaintiff's costs of the proceedings be paid out of the estate of the deceased on the ordinary basis.
4. ORDER that the defendant's costs of the proceedings be paid out of the estate of the deceased on the indemnity basis.
5. ORDER that these orders be entered forthwith.
[4]
Amendments
15 June 2023 - At [47] amend order 2 to read "section 84A of the Probate and Administration Act 1898 NSW".
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Decision last updated: 15 June 2023
Parties
Applicant/Plaintiff:
Pontifical Society for the Propagation of the Faith