Portis v Green

Supreme Court of NSW|2017-06-21|Before: Kunc J, Mr J

Summary

The plaintiff is Paul Portis, the only surviving child of Ronald Portis ("Mr Portis"). Mr Portis died on 1 February 2016 at the age of 80. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names.
Mr Portis made his last will on 26 August 2013 (the "Will").
The only eligible beneficiary in the estate other than Paul is Mr Portis' former wife, Gwendoline. Mr Portis and Gwendoline separated in 1979 and were divorced some time in 2011. Gwendoline has played no part in the proceedings.
Mr Portis' estate (the "Estate") has been converted into cash and, after allowing for the costs of these proceedings, has a distributable value of $476,688.
By summons filed on 10 October 2016, Paul applies for provision out of the Estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr J E F Brown of Counsel appeared for Paul. Mr J E Armfield of Counsel appeared for the defendants.
The defendants are, respectively, the Grand Secretary and Deputy Grand Secretary for the United Grand Lodge of New South Wales and the Australian Capital Territory (the "Grand Lodge"), popularly known as the Masons. The defendants are the appointed executors of the Will.
Mr Portis had a close connection to the Masons, of which he had been a member since 1986. Most importantly for these proceedings, for five or six years before his death, Mr Portis had worked as the voluntary curator of the Museum of Freemasonry (the "Museum"), operated by the Museum of Masonry Foundation.
Under an earlier will, Mr Portis had left the entire Estate to Paul. However, after the settlement of family provision litigation involving the estate of Paul's late brother, contact between Paul and Mr Portis ceased. Mr Portis then made the Will, by which he left the entire Estate to the Museum. Mr Portis left a detailed statement (the "Statement") with the Will to record his reasons for the change in his testamentary intentions.

The Act

Part 3.2 of the Act deals with family provision orders. Division 1 of that Part identifies, in s 57, who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person". Section 58(2) requires an application for a family provision order to "be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown".
Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. For the purposes of these proceedings, the relevant provisions are: "59 (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. … 60 (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person ─ the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, … (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
In West v Mann [2013] NSWSC 1852 at [9]-[11] I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.
By reference to the language of the Act, the questions and issues which the Court must take into account are: 1. Is the person who has applied to the Court for a "family provision order" (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1)(a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation. 2. If the answer to question (1) is "yes", has the application been filed in the Court's Registry not later than 12 months after the deceased's death (ss 58(2) and (3))? 3. If the answer to question (2) is "no", has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court's Registry (ss 58(2) and (3))? 4. If the answer to question (2) is "yes" or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the "applicant") is an eligible person (s 59(1)(a))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that "the person in whose favour the order is to be made" is not the person who has brought the application (in which case, the latter must also be an eligible person). 5. If the answer to question (4) is "yes", what provision has been made for the proper maintenance, education or advancement in life of the applicant by the deceased's will or by the operation of the intestacy laws (the "Provision")? 6. Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant? 7. If the answer to question (6) is "yes" (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court's discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the "Discretion") is enlivened. 8. Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the "Proposed Provision")? This is an evaluative judgment which arises from the word "ought" and requires examination of the applicant's needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) ("the nature of any such order": s 60(1)(b)). 9. Having answered question (8), should the Court exercise the Discretion to make an order for the "Proposed Provision"? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) ("whether to make a family provision order": s 60(1)(b)). 10. Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. 11. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". The Discretion is otherwise unconfined, which means that in answering question (8) the Court is otherwise constrained only by the need to act judicially, that is to say "not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [22] per Gaudron and Gummow JJ. The Court must act rationally and exercise the Discretion for the purpose for which it was conferred.

The facts

Other than in relation to the issue of "estrangement" (see paragraphs [54] to [65] below), the essential facts were not in dispute and the Court finds them to be as follows.
Mr Portis was born on 9 October 1935.
Mr Portis married Gwendoline in the United Kingdom and they had two sons.
Paul was born on 25 May 1962.
Paul had a younger brother, Ronnie. In about 1968 the family of four migrated to Australia.
Mr Portis and Gwendoline separated in 1979 and were divorced some time in 2011. Paul was 17 when his parents separated. While he lived with his mother, he remained in contact with Mr Portis.
In or around 1989, Paul met his future wife, Terrie. They have three children: Sheree (born 1991), Shanae (born 1992) and Teanne (born 1995).
In 1997, Mr Portis retired on medical grounds from a position he had held for many years at Liverpool District Hospital as fleet manager. He bought a house in Hazelbrook. Around the same time, Paul and Terrie were married. Mr Portis attended their wedding.
In March 1998, Ronnie had a catastrophic motorcycle accident. He suffered a traumatic brain injury and was left severely disabled.
In 1999, Paul, Terrie and their three daughters moved to a home they had purchased in Warragamba (the "Matrimonial Home"). The Matrimonial Home was registered in Terrie's name only, although both Paul and Terrie are liable for the mortgage secured over it.
In mid-1999 Ronnie was discharged from hospital. Ronnie's partner did not want to have anything further to do with him and it was left to Gwendoline to care for Ronnie. Ronnie eventually required 24-hour care.
In 2005, Ronnie and Gwendoline moved into a home in Hoxton Park that had been built to accommodate Ronnie's special needs.
On 1 April 2005, Mr Portis made a will appointing Paul as his executor, trustee and sole beneficiary. At the same time Mr Portis executed a general power of attorney in favour of Paul, an appointment which, for no apparent reason, Paul never accepted.
In around 2007, Mr Portis underwent heart surgery at Prince of Wales Hospital. When he was discharged, he spent a few days recuperating at the Matrimonial Home before returning to his home in Hazelbrook.
Ronnie died on 20 December 2010. Gwendoline and Paul were the executors of Ronnie's will. Proceedings were commenced by both Ronnie's daughter and Gwendoline for greater provision from Ronnie's estate. The proceedings were resolved at a mediation in 2012. The resolution allowed Gwendoline to continue to live in the property in which she had cared for Ronnie, and Ronnie's daughter received a significant legacy. The residue of Ronnie's estate was divided between the remaining beneficiaries including Paul, Mr Portis, Paul's children and some of Ronnie's friends based on various percentages specified in Ronnie's will. Mr Portis was on notice of the claims. Mr Portis did not attend the mediation. There is a dispute which the Court does not need to resolve about whether or not Mr Portis knew of the mediation.
After the mediation, Paul had two conversations with Mr Portis in which Mr Portis made it clear that he (Mr Portis) was not happy with the outcome and felt that Paul and Gwendoline had worked together against him in the mediation. This was the last time Paul ever spoke with Mr Portis. He did telephone Mr Portis in December 2013 when Sheree gave birth to Mr Portis' first great-grandchild. He could only leave a message and Mr Portis never returned the call.
Mr Portis made the Will on 26 August 2013. The Will appointed the defendants as his executors and trustees. After payment of all his debts, the Will gave the whole Estate to "The United Grand Lodges of New South Wales and Australian Capital Territory for the purposes of the Museum of Freemasonry Foundation Trust".
The Will was accompanied by the Statement. Because of its importance to these proceedings, it is necessary to set out the Statement in full: "MY REASONS FOR WRITING THIS IS TO MAKE VERY CLEAR MY INTENTIONS FOR THE DISPOSAL OF MY PROPERTY AFTER MY DEATH Apart from my wife, who I divorced in 2011, (I separated from my wife in November 1979 but did not seek a divorce until after my younger son passed away on the 20 December 2010) I now have only one son and four granddaughters. I do not want them to benefit from my estate for the following reasons. I have never formed any bond with my son's wife Terri. I believe her to be a very selfish woman. My granddaughters, who are now grown up and working, would not know where I live or my phone number. They have never contacted me to enquire about my health despite knowing of the heart problems I have had and continue to have. My remaining son knows where I live and has my phone number but apart from five visits has never phoned to enquire about my health or to offer me any assistance (Such as "Is there any thing I can do to help you?") The first visit was to see the new house I had bought after I had retired from work. The second visit was to give me a puppy which I didn't want. The third was to collect a welder I couldn't use due to having a pacemaker fitted. The fourth to collect a quantity of timber I offered to him to help in building his pool fence. The fifth to show off his new motor bike. My son and his wife did let me stay with them from the Friday to Monday after I came out of the Prince of Wales hospital after heart surgery. I needed this because the hospital was reluctant to allow me home on my own. Apart from picking me up from hospital my son visited me once, (he needed a run to show off his new Harley Davidson he had collected that day). Apart from his devotion and obedience to the motor cycle gang (the Gypsy Jokers) he seems to give little thought to his immediate family. He very seldom visited his brother who had severe brain damage and was bedridden. Both his mother and I spoke with him about it but unfortunately it had little effect. My will was originally made out leaving everything to Paul but the final straw was when my younger son Ronnie died. Paul and his mother were the executors of the will and after Ronnie's daughter, who we very seldom saw, put a caveat on the will they entered into mediation without notifying or inviting any of the other beneficiaries to attend. In my opinion they sorted out the best deal for themselves. The daughter collected approximately $1.1M and my ex-wife the property, approximately $650,000. Their legal costs, of approximately $120,000. was paid out of the residue. The legal objections were instigated by the daughter and my ex-wife yet their legal costs were paid by the remaining beneficiaries. Unfortunately my legal cost, $35,000, was not. Because I sought legal advice they accused me of being a trouble maker and have not contacted me nor invited me, which they used to do, for family occasions. It seems terrible to me to have to put into print this liturgy of family shame because that's what it is. I am not blameless in not having the emotional attachment I suppose I should have with my family but I can only put that down to my early life. When the family use legal means to change my son's will to the advantage of a few, one an executor, has made me change my mind on leaving anything to an individual; that is why I want to leave my property to the United Grand Lodge of NSW & ACT Museum. Masonry has given me much more than my family have ever given me so I think I should give something back. Ron Portis"
At the time of making the Will, Mr Portis was given clear advice by his solicitor of the very real risk that the Will would be challenged by Paul. Mr Portis nevertheless persisted in leaving the Estate to the Museum. Events have proven that advice to be completely correct.
Mr Portis died on 1 February 2016 at the age of 80.
Paul and Terrie separated between July 2015 and June 2016. They then reconciled. Their marriage broke down again. Paul moved out of the Matrimonial Home on 17 April 2017 (approximately two months before the hearing of these proceedings). He is currently living in a caravan.
Paul and Terrie intend to divorce. However, at the time of the hearing neither of them had taken any steps (such as, for example, instructing solicitors) to bring that about.

The Estate

Mr Portis' estate has been converted into cash. After deducting the costs of these proceedings it has a distributable value of $476,688.

Paul's circumstances

Paul is in good health. At the time of the hearing he was 55 years old and employed as a plant operator at a quarry. Paul completed schooling up to year 10 and has been employed in the earth moving industry for the past 30 years. His net monthly income is just over $4,000 and he deposed that he and Terrie were together able to save approximately $400 per month after payment of their regular expenses.
In his primary affidavit, Paul said: "58. In the future I will need additional superannuation to support my current lifestyle in retirement, along with a fund to protect against the vicissitudes of life. I estimate that I will need approximately $850,000.00. 59. In the future I will need to reduce loans I have which are approximately $45,000.00. 60. My wife and I have mortgages on our homes. We are jointly liable for the mortgage repayments. The combined mortgage balance is approximately $640,000.00. I will need to reduce this in the future."
Paul is a motorcycle enthusiast. He is a member of the Gypsy Jokers Motorcycle Club. He attends club meetings every Tuesday night. While he rides by himself every week, Paul's evidence was that he rode with the Club only every two to three months. He holds no official position within the club.
In relation to his own assets, Paul's evidence was that he had assets of $206,000 and liabilities of $82,400. His largest asset is superannuation of $93,000. His largest liability is what he referred to as a "business loan" for $78,000 secured against the Matrimonial Home. The business, which involves hiring out a mini digger, has not brought him any significant income yet.
In relation to assets and liabilities which he holds jointly with Terrie, Paul's evidence was that they had assets of $1,525,000 and liabilities of $640,700. The assets were said to include the Matrimonial Home (valued at $500,000 and securing both the business loan and a home loan), notwithstanding that a certificate of title was tendered which demonstrated that the Matrimonial Home was in Terrie's name alone. Their joint assets included two other homes in Warragamba (valued at $550,000 and $470,000), both of which generated rental income that according to Paul did no more than offset mortgage repayments.
Terrie gave evidence that, in her own name, she had assets of $107,500 and no liabilities. Ignoring that the Matrimonial Home is registered in her name, her largest asset was superannuation of $85,000.
Paul and Terrie's separation and impending divorce introduce a potential complication in understanding Paul's financial position. Contrary to a suggestion faintly put in cross-examination by Mr Armfield, the Court is not satisfied that the separation and intention to divorce have been concocted for the purposes of these proceedings. Paul and Terrie's evidence was that Terrie wished to remain in the Matrimonial Home and that otherwise they were hoping to divide their jointly held assets "on an amicable basis and without needing to resort to dealing with lawyers".
In final submissions, neither party was prepared to venture a submission as to what Paul's financial position might look like after any division of assets consequent on divorce. Section 59 of the Act enjoins the Court to consider the adequacy of provision "at the time when the Court is considering the application" (s 59(1)(c)) and to make any order for provision "having regard to the facts known to the Court at the time the order is made" (s 59(2)). Being satisfied that their marriage has come to an end and that they intend to divide their property, the Court in these proceedings must do the best it can to take those matters into account.
On the evidence at the time of hearing, and treating the Matrimonial Home as Terrie's but subject to a mortgage for which both of them were liable (a position proven by the Certificate of Title and the home loan summary that were tendered in evidence), Paul has net assets in his own name of $123,600 and joint net assets of $384,300. Neither Paul nor Terrie gave evidence, in terms, that the division of their jointly held assets would be equal. For the purposes of the present exercise I will assume an equal division of those assets and equal responsibility for the mortgages, including that over the Matrimonial Home. I will also assume that it is likely that Terrie will receive the Matrimonial Home in accordance with her expressed wish. On those assumptions, Paul will receive half of the joint net assets of $384,300 (i.e. $192,000). When this is added to his own assets, this will leave him with net assets of $315,600 (including his superannuation of $93,000). Both of them recognise that their two other properties will probably need to be sold to discharge their liabilities as part of achieving a settlement, so there is every likelihood that Paul will be left without somewhere to live.

Mr Portis and the Museum

Freemasonry traces its origins to at least the seventeenth century. It is thought to have arrived in Australia either with or shortly after the arrival of the First Fleet. The Grand Lodge was established in 1888.
Mr Portis was initiated into freemasonry in July 1986. He was a member of a number of masonic lodges, was a secretary and master of lodges and was elected to and had conferred upon him various honours within freemasonry.
Some five or six years before his death, Mr Portis successfully applied for the position of voluntary curator of the Museum. The rank of Past Assistant Grand Master was conferred upon him by the Grand Lodge on 10 June 2015 for his service to the Museum. Over the time that he occupied the position of voluntary curator he was in charge of the Museum's activities and attended his office in the Grand Lodge's building two or three days a week. His duties included responding to inquiries and liaising generally with the public, accessioning items received by the Museum, acting as a tour guide and attending to the acknowledgement of donations.
The Museum is a registered charity and a deductible gift recipient. It is administered by the Museum of Freemasonry Foundation, which was established by a trust deed made on 1 July 2004. The objects of that Foundation are described in the trust deed: "OBJECTS OF THE MUSEUM OF FREEMASONRY FOUNDATION Noting that the Museum of Freemasonry includes, in addition to a museum: i. the Library of the Museum of Freemasonry; and ii. the Archives of the Museum of Freemasonry; the objects of The Museum of Freemasonry Foundation are as follows: a. Conduct public appeals and receive moneys and other assets which can be applied to the Museum of Freemasonry. b. Assist the Museum of Freemasonry to make the assets and contents of its museum available to the general public, researchers, historians and educational institutions as a valuable public education resource. c. Assist the Museum of Freemasonry to make the assets and contents of the Library of the Museum of Freemasonry available to the general public, researchers, historians and educational institutions as a valuable public education resource. d. Assist the Museum of Freemasonry to make the assets and contents of the Archives of the Museum of Freemasonry available to the general public, researchers, historians and educational institutions for genealogical research and as a valuable public education resource. e. Assist the Museum of Freemasonry to conduct and promote exhibitions (including by the development of travelling exhibitions) of its collections of artefacts, books and documents and to form relationships with educational institutions (including universities and schools), other museums and with all levels of Government in order that the general public may view the memorabilia of Freemasonry and its influence on the social history of Australia."
The Museum occupies level 3 of the Sydney Masonic Memorial Centre. A large and impressive colour catalogue of the Museum's collection was tendered as evidence in the proceedings. The Museum comprises the Museum itself, the Library and the Archives. The Museum and the Library are open to the public Monday to Friday from 8.30am to 4.30pm. The Archives may be consulted by members of the public upon application to the archivist. The Archives are frequently consulted by people researching their family history. The Museum's principal collection comprises several thousand items. The Library contains over 4,000 volumes in the lending and research sections and the archives comprise some 2,000 cartons of records (amounting to some 4 million pages). The annual financial report for the Museum of Freemasonry Foundation for the year ended 30 June 2016 discloses a small operating surplus of about $15,000, current assets of about $81,000 and non-current assets (comprising almost completely the contents of the Museum) valued at just over $1 million. The accounts show cash assets of approximately $25,000.
The defendants' evidence was that Mr Portis' bequest would be applied to further the objects of the Museum in relation to one or more of the following projects: 1. Preservation, including if appropriate mounting and framing, of items in the Museum's collection. 2. Setting up an area for the continued digitisation of records and documents. 3. Provision of computers for members of the public to search records for family history and research. 4. Provision of additional display and working space for the Museum's collection. 5. Funding of travelling exhibitions. 6. Production of information pamphlets, books and audio-visual items for both members and for the general public.

Uncontroversial matters

Because Paul is Mr Portis' son, he is an eligible person under s 57 of the Act. The summons was filed less than 12 months after Mr Portis' death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [13] above are all answered "yes".
The Provision referred to in the question posed in sub-paragraph [13(5)] above is nil.

Was there an "estrangement"?

Because the impact (if any) of the estrangement between Mr Portis and Paul was debated in relation to both whether or not adequate provision had been made and what might be adequate provision, it is convenient to resolve that issue before considering those questions.
The law in relation to estrangement in family provision claims was comprehensively considered by Hallen J in Underwood v Gaudron [2014] NSWSC 1055. I gratefully adopt his Honour's summary: "230 On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]: "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge." 231 Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88]-[94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: "... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act." (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to "ample" provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one "who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility": Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): "If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will." (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102]. 232 In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows: "As explained by the primary judge, the term 'estrangement', which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the 'natural' process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience." 233 His Honour added: "The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. ... Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of 'love and support' from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. ... Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant." 234 Since the Court of Appeal judgment, there appears to have developed, in cases under the Act, a view within the profession that the decision of the majority in Andrew v Andrew effectively changes the law in relation to the court's approach to determining cases in circumstances where there has been an estrangement. I note, for example, in Burke v Burke [2014] NSWSC 1015, that Rein J identified, at [35], a submission made on behalf of the Plaintiff to the effect that: "it would be only the most egregious conduct of a child of the deceased (such as murder) that would deprive even an adult child of a right to have his or her needs taken into account by a Court and to have an appropriate provision made in his or her favour where it is established that he or she is impecunious or of very limited financial means". 235 As Rein J did in that case, I reject such a view if it exists. There are simply too many cases of high authority (to some of which I have previously referred) that identify the importance of freedom of testation and the entitlement of a testator or testatrix, in certain circumstances, to make no provision for his, or her, child. Furthermore, as previously stated, the court is "given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all": Pontifical Society for the Propagation of the Faith v Scales, at 19. 236 I note, also in this regard, what Pembroke J wrote in Madden-Smith v Madden at [30]-[34]. 237 I do not consider that Allsop P, in Andrew v Andrew, is to be taken as rejecting the notion that a testator is free to make no provision for an adult child. His Honour acknowledged, at [17], that such a notion existed: "Of course, as Dixon CJ said in Pontifical Society v Scales, at 19, and as Bergin CJ in Eq said in Ford v Simes, at [71], there may well be cases where a testator is entirely justified in making no provision for an adult child." 238 At [19], the learned President added: "That is not to say that in conducting the assessments in ss 59(1) and (2) estrangement, the reasons therefor, an absence of love, hostility, resentment, and carelessness of the hopes and wishes of another are not all apposite matters for consideration. That enquiry should not, however, be structured or approached by reference to justification in order to displace a testamentary 'entitlement' or right in respect of an adult child." 239 Similarly, Barrett JA, at [95], pointed to Evans v Levy [2011] NSWCA 125, in which Young AJA wrote (with the concurrence of Campbell JA and Sackville AJA): "It was open to the primary judge to form a judgment that the nature of the continuing relationship was not such that it created a moral duty on the deceased to provide for the appellant or that the community would have expected him to do so." 240 At [147]-[148], Barrett JA added: "The primary judge made a careful assessment of the competing claims on Mrs Andrew's testamentary bounty. He recognised Lynne's subjective need. He had before him and took into account ample evidence about Mrs Andrew's relationship with her respective children and the situations in life and financial circumstances of those children. He also made detailed findings about the circumstances in which Lynne and Mrs Andrew had virtually no contact with one another for some 35 years before Mrs Andrew's death. It was accepted that there was no particular episode of disagreement or hostility that caused one party to reject the other and that the very long period of lack of contact was not marked by apparent anger or recrimination. The central finding was that Lynne, for reasons she did not express or explain (and about which one can only speculate), separated herself from her parents and, as the judge put it, thereby withheld love and support by an almost complete rejection of her mother. I am of the opinion that the decision of the primary judge on the first-stage question was not affected by error of the kind that would justify intervention of this Court according to the principles discussed at [99] and [100] above. That is sufficient to dispose of the appeal. The question whether an order for provision should have been made in exercise of the second-stage discretion does not arise." 241 Basten JA expressed doubt, at [52], whether the Plaintiff's conduct had been "so reprehensible" as to substantially disentitle her by reducing her share to a nominal sum, notwithstanding her financial needs. 242 Of course, the Act does not refer to "reprehensible" conduct. It refers to "the character and conduct of the applicant before and after the date of the death of the deceased person". Furthermore, to conclude that justice would be better served by rejecting the judgment of a competent testator or testatrix as "unjustified", where that testator's, or testatrix's knowledge of the virtues and failings of the members of his, or her, family, equips him, or her, for the responsibility of disposing of his, or her, estate in far better measure than can be afforded to a court by affidavits sworn after his, or her, death and which frequently provide an incomplete and superficial reflection of family relations and characteristics, should only be reached when the court is satisfied that the requirements of the Act are established. 243 I make clear that in stating what is written above, I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind. 244 In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
Relying on the principles to which I have just referred, Mr Brown submitted for Paul that it was evident from the Statement that the main reason why Mr Portis made no provision for Paul was Paul's choice of a wife. He submitted that the Court has consistently held that this reason carries no weight, relying on the observations of Holland J in Kleinig v Neil (No 2) [1981] 2 NSWLR 532 at 540: "A wise parent will recognize that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the parent, it may refuse the child's claim."
Mr Brown then submitted that, insofar as Mr Portis was moved by the settlement of the dispute over Ronnie's estate, Paul cannot be blamed for that.
The final contention was that, on a proper reading of the Statement, the lack of a relationship between Paul and Mr Portis was the fault of Mr Portis.
Mr Armfield submitted for the defendants that throughout Mr Portis' life his relationship with Paul was distant. Contact between them was sporadic and lacking in quality. Even if Mr Portis had caused the estrangement, then Paul was to be criticised for having made no real effort to attempt reconciliation.
For the following five reasons, the Court is satisfied that the estrangement - to the extent it can properly be called that - is not a matter which should be taken into account against Paul and his claim for provision.
First, all of the evidence points to the conclusion that, at the best of times, Mr Portis was by nature unsociable or distant. He admitted as much in the penultimate paragraph of the Statement, where he wrote "I am not blameless in not having the emotional attachment I suppose I should have with my family but I can only put that down to my early life". Paul's evidence was that Mr Portis "just wanted to keep himself to himself" and Terrie said that "Ron wanted to see you when Ron wanted to".
Second, I do not accept that the five visits referred to in the Statement represent the totality of the contact between Mr Portis and Paul over many years. Those visits are listed in the context of a complaint about an alleged failure to take positive steps: to phone to inquire about his health or to offer him any assistance. Whatever may have been the position about positive steps to contact Mr Portis, I accept Paul and Terrie's evidence that, prior to the rift caused by the settlement of the litigation in relation to Ronnie's estate in 2012, there was contact in the form of Mr Portis attending family events such as Easter and Christmas and other meals such as barbeques at Paul and Terrie's home. Insofar as such visits may not have been numerous or regular, the Court is satisfied that was due to Mr Portis' own nature rather than anything adverse to be attributed to Paul (or Terrie).
Third, given that Mr Portis had made a will in 2005 leaving everything to Paul, in my view a fair reading of the Statement is that while Mr Portis may not have liked Terrie much or approved of Paul's motorcycling activities, none of those matters was sufficient for him to exclude Paul completely from his testamentary intentions. That decision was caused by what the Statement refers to as "the final straw", being the settlement of the litigation concerning Ronnie's estate.
Fourth, it is not necessary for (and the evidence does not permit) the Court to reach a conclusion as to whether Mr Portis' concerns about the settlement were right or wrong, reasonable or unreasonable. However, I accept Mr Brown's submission that, whatever it was that upset Mr Portis about the settlement, it cannot be attributed to any conduct of Paul. Paul, as much as everybody else in the family, was caught up through no fault of their own in the consequences of the tragedy that had befallen Ronnie. Those consequences included the litigation about Ronnie's will.
Fifth, while Paul candidly admitted that between the conversations referred to in paragraph [29] above in late 2012 or early 2013 and Mr Portis' death in 2016 they never spoke again, I do not think Paul can be criticised for not having made assiduous efforts to maintain contact. Contact had obviously been difficult at the best of times and Paul had a lifetime experience of his father to reach the not unreasonable conclusion that there was little he could do if his father wanted to be left alone. In my view, Paul was entitled to leave the question of contact up to Mr Portis. So understood, the fact that Paul's one attempt at contact after 2013 was to tell Mr Portis that he was now a great-grandfather seems to me to be entirely natural and reasonable.

Has adequate provision not been made for Paul?

It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [13(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for Paul is not adequate for his proper maintenance, education or advancement in life. If that question is answered "yes", then the Court's discretion to make a family provision order in favour of Paul is enlivened.
In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry: "39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty."
In addition to the preceding passage from Verzar, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to applications for family provision and judicial observations concerning claims by adult children. "154. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 156. As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 157. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 158 The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 159. In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. 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 obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) 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 (28 August 2003) at [181], [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, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149."
Applying the principles just set out, the Court is satisfied that the Provision is not adequate for Paul's proper maintenance, education or advancement in life. The question posed in sub-paragraph [13(6)] above is answered "Yes". The reasons for this conclusion are set out in the following paragraphs. I have already resolved (see paragraphs [54] - [65] above) the parties' contentions insofar as each relied on the quality of the relationship between Paul and Mr Portis and the rift after the settlement of the litigation about Ronnie's will.
Mr Brown submitted that Paul has limited future earning capacity, debts he will never be able to repay and grossly inadequate superannuation. Any appearance of financial security created by the two investment properties was illusory when these mortgages were taken into account. Paul's position would only be more tenuous after any financial settlement with Terrie, especially if she retained the Matrimonial Home. In those circumstances, the absence of any provision for Paul in the Will was clearly not adequate.
Mr Armfield submitted that Paul had steady employment and probably another ten years of work ahead to secure his financial position. He and Terrie had a substantial net asset position which exceeded the total value of the Estate. Paul also had his nascent plant and equipment business. Mr Portis had a strong connection to the Masons and the Museum and was entitled to feel, as he had said in the Statement, that "Masonry has given me much more than my family have ever given me".
Insofar as the impending divorce and financial settlement were concerned, Mr Armfield accepted that it was difficult to come to any conclusion about Paul's future financial position. However, he submitted a useful way of testing the matter was to create a notional matrimonial asset pool comprising Paul's net assets ($123,600), Terrie's net assets excluding the Matrimonial Home ($107,500) and their joint net assets including the Matrimonial Home but after the sale of the two investment properties ($849,000 - this figure came from an updating affidavit filed by Paul). This created a pool which if divided equally between Paul and Terrie meant each would receive $540,050. Receipt of that amount coupled with his future income earning potential meant that it was not inadequate for there to be no provision for Paul in the Will.
But for the impending divorce and property settlement there may have been some force in a submission that the jurisdictional threshold had not been met. However, in my view, whether the outcome posited in either paragraphs [45] or [72] above is considered, it is clear that the Will does not make adequate provision for Paul. Either outcome leaves him with no home and limited superannuation, whether or not Terrie retains the Matrimonial Home. He is left with little to cope with the possibility of ill health and the vicissitudes of life.

What provision ought to be made for Paul?

It is trite to observe that it is not the task of the Court to rewrite the Will in a way that it thinks is fair. The proper application of the Act does not permit a process of reasoning along the lines that Mr Portis' reasons for disinheriting Paul in favour of the Museum were unfair or misconceived and, therefore, the Will should be ignored and the effect of the previous will reinstated. In fairness to both parties, neither of their Counsel suggested that the task was to be approached in the way I have just described.
As is often the case, the parties repeated their submissions on the jurisdictional question and their respective submissions on how the relationship (or lack thereof) between Paul and Mr Portis was to be characterised.
Mr Brown submitted that a provision of anything from half to the whole of the Estate would be "within the range" by reference to those cases where family members have been completely disinherited in favour of a charity. He properly acknowledged that this was a case where the testator had a real and significant connection with the charity to which he had bequeathed the Estate. It was to be contrasted with cases where the charity appears to have been selected at random or where there was only minimal connection between the testator and the charity. An example of the latter category is Sanders v Valtas [1999] NSWSC 1216, where the testatrix left her estate to the First Church of Christ Scientist. Macready M (as his Honour then was) said (at [35]) that while the deceased was obviously committed to her religion, "There is no evidence of contact with a particular church nor evidence led by the defendant of the deceased's association or importantly assistance from the church during her lifetime".
Mr Armfield submitted this was a case where either no provision should be made or only a small provision should be allowed in favour of Paul. He pointed to the size of the estate, Paul's future capacity to earn income and the strength of the connection between Mr Portis and the Museum.
The outcome in this case is dictated by balancing these factors in the context of what is a small estate: 1. Although an adult with his own life, career and family, Paul was nevertheless Mr Portis' only surviving child, as well as the only person now having any moral claim on Mr Portis. 2. Paul has only $93,000 in superannuation and, as a result of the divorce and property settlement which the Court is satisfied is likely to occur, will have only a few hundred thousand dollars in assets and no home of his own (see the analyses in either paragraphs [45] and [72] above). 3. Paul does have some capacity to earn income for the next ten years or so. Based on his average annual income of $48,000 and assuming a 9% superannuation deduction, this would increase his superannuation by $43,200 to $136,200. 4. Even allowing for the previous sub-paragraph, Paul would not be left with an adequate fund for retirement. 5. Mr Portis had a close connection to the Masons, especially the Museum, which had obviously been of considerable importance to him during his life and gave him purpose and activity in retirement. 6. The strength of Mr Portis' determination to benefit the Museum is demonstrated not only by the terms of the Will and the Statement, but also by the fact that even in the face of clear legal advice he persisted in making no provision whatsoever for Paul.
Having regard to the matters referred to in sub-paragraphs 78, (2) and (4) above, contemporary accepted community standards would require some provision being made for Paul. However, the matters referred to in sub-paragraphs 78, (5) and (6) above and those same community standards support the conclusion that Mr Portis' wishes should be maintained by some part of the Estate going to the Museum.
Returning to Mr Brown's submission that a provision of somewhere between half and the whole Estate going to Paul would be "within the range", for the reasons given in the preceding paragraph I do not accept this is a case where the Museum should receive nothing.
Nor, for the same reasons do I think it would be proper provision for the purposes of s 59(2) of the Act for Paul to receive only half the Estate. In my view, balancing the factors set out above, proper provision is 60% of the distributable Estate. This is an amount of approximately $286,000.
I am satisfied that this is a proper provision because taking the slightly less favourable (for Paul) outcome of the divorce set out in paragraph [45] above, provision of at least $286,000 will leave Paul with a net sum (i.e. debt free) of $508,600 and $93,000 in superannuation. Based on the evidence of the value of the three properties in this case, a home can be bought in the Warragamba area for around $500,000. If he wishes, Paul could purchase a home and, over the balance of his working life, increase his superannuation and otherwise make financial provision for his retirement. In retirement he would have the security of owning his home and having some superannuation and savings.
It follows that the Proposed Provision for the purposes of the question in paragraph [13(8)] above is 60% of the Estate. There is no discretionary reason why an order should not be made (see the question in paragraph [13(9)] above). For consistency with the Court's reasons in the preceding paragraph, and recognising that the costs estimates which have been provided are estimates, the order for provision should be for that amount which represents the greater of $286,000 or 60% of the Estate.

Conclusion

The Court will give the parties an opportunity to bring in short minutes to give effect to these reasons and to make submissions as to costs.

Amendments 02 November 2017 - Para 83 - first sentence - "one third of the Estate" is changed to "60% of the Estate" 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 November 2017

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