Rathswohl v Court - [2021] NSWSC 356 - NSWSC 2020 case summary — Zoe

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Rathswohl v Court

[2021] NSWSC 356

Supreme Court of NSW|2020-10-22|Before: Rees J, Young J, White JA

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-10-22

Before

Rees J, Young J, White JA

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

Solicitors: Barwick Boitano Lawyers (Plaintiff) City Lawyers (Defendant) File Number(s): 2019/353844

[2]

Judgment

HER HONOUR: This is a claim for family provision by an adult child. Josef Rathswohl died on 27 February 2019, aged 82, his wife Margot having pre-deceased him in January 2017. He was survived by three adult children, the plaintiff Robert Rathswohl (aged 62), Lisa Davies, and Yvette Court (aged 56), who is also the executor of Josef's estate. Robert seeks an order under section 59 of the Succession Act 2006 (NSW) for provision to be made out of his father's estate for his maintenance and advancement in life.
As a son of the deceased, the plaintiff is an eligible person to make a claim for provision: section 57(c), Succession Act. The summons was filed within the 12 months' limitation period. The only issue is whether the Court ought to make an order for provision or, as the defendant contends, whether Josef's intentions as they appear in the Will should be left undisturbed by the Court: Sgro v Thompson [2017] NSWCA 326 per White JA at [86]-[87] (McColl and Payne JJA agreeing).
For the reasons which follow, I have concluded that provision should be made for Robert to enable him to secure permanent accommodation together with a capital sum sufficient to enable him to attend to significant health issues and the payment of debts which Robert will otherwise be unable to pay and which may imperil the stability which this provision is intended to secure.

[3]

WITNESSES

The plaintiff relied on his own affidavits as well as those of Lisa and his solicitor, Frank Boitano. Robert and Lisa were cross-examined.
Robert was cross examined for two days. He made reasonable concessions, was intelligent and forthcoming. Robert did volunteer some evidence and make some self-serving statements but overall appeared straightforward and genuine and had good recall of details. As the cross-examination progressed, Robert became slightly unresponsive to questions and volunteered damaging remarks concerning Yvette, which was explicable by reason of the offensive and protracted nature of the cross-examination. Overall, I concluded that Robert was an honest historian.
Lisa gave evidence is a clear, intelligent and precise manner. Lisa had no financial interest in the outcome of this case. Although Lisa volunteered some damaging remarks about her sister, overall I concluded that Lisa was an honest witness.
The defendant relied on her affidavits together with those of her solicitor, Lana Ventsov, and friends, neighbours and work colleagues, Lark Steele, Julie Khan, Giovanna Viscardi, Felicity Rafferty and Carole Stiff. Yvette, Ms Steele, Ms Khan and Ms Viscardi were cross-examined.
Yvette was a most unsatisfactory witness. She was emotional, argumentative, illogical and prone to making speeches. Her evidence was often given in exaggerated terms (see, for example, at [96]) and, on occasion, was unbelievable or non-sensical. Yvette was volatile and lost her temper. On occasion, she adopted a snide and insolent tone and gave answers which were disingenuous, for example at [63], [66], [70] and [93]. Yvette appeared to lack insight. It became apparent that Yvette would say whatever she thought would advance her case: see, for example, at [18]-[19], [23], [73]. I place no weight on Yvette's evidence unless it is otherwise established by contemporaneous documents, the evidence of another reliable witness, or was against her own interest. I simply did not believe her.
Ms Steele and Ms Khan were longstanding friends of Yvette and their evidence had a partisan quality. Ms Khan volunteered helpful comments where possible. Ms Viscardi worked with Yvette at Myer for several months; no issues of credibility arose in respect of her evidence.

[7]

An assault?

On being released from prison, Robert went to his parents' Concord home with his girlfriend to ask to stay the night. On arrival, Josef made it clear that they were not welcome. Josef moved quickly towards Robert, who instinctively reached out to block his father's advance, striking his father once and then leaving. Robert attributes his instinctive reaction to memories of his father's treatment of him as a child. In cross-examination, Robert frankly acknowledged that he hit Josef in the face once but described it, in the circumstances, as self-defence.
It was suggested to Robert that he had beaten his father. In evidence is a photograph of Josef, showing a black eye and bruising down one side of his face and neck. Yvette said that Margot gave her the photograph after the assault in about 1987. Robert said he first saw this photograph three years ago and Yvette has since sent it to him 30 times. Robert said that Josef looks much older in the photograph than when the incident took place, being when Josef was 51. Robert said his father had surgery in 2000, when a vein from his lower leg was used to replace a vein in his neck.
There are two reasons why I do not accept Yvette's version of events in respect of Robert's assault on his father. First, given the apparent age of Josef in the photograph, I think it unlikely that it was taken in 1987. I agree that Josef appears much older than 51 in the photograph and more like 64, when the surgery is said to have take place, or even older. It is more likely that the photograph was taken many years after 1987.
The second problem with Yvette's version of events is that, in her description of this encounter, Josef was holding Lisa's son, Michael, when Robert "punched dad's head in". However, Michael was not born until 1991. I find that the photograph does not record injuries suffered by Josef as a consequence of his son striking him. I do not accept Yvette's evidence to the contrary.
Robert said that, at about this time, he finally acknowledged that he needed help and started attending drug rehabilitation centres and participating in a methadone program. In 1991, Robert received a badge from Narcotics Anonymous indicating that he had been clean for two years. Robert was criticised, in cross-examination, for not having produced any records in respect of the various clinics he said he attended. Given these attendances were some 33 years ago, I do not think this is particularly surprising. In any event, any lack of documentary production would not preclude the Court making an order for provision: Blendell v Blendell [2020] NSWCA 154.
In 1988, Robert also arranged to visit his parents and apologised to his father for hitting him. According to Robert, his father also apologised and they embraced. Robert believed that, after this, they enjoyed a different relationship of mutual respect. This is corroborated by a psychologist who treated Robert in 2014, that is, long before these proceedings commenced, who noted: In the course of our sessions Mr Rathwohl [sic] described a difficult childhood, and reported his father being very critical and at times giving him terrible beatings. He left home as a teen, and went several years without contact with his family. He described though being able to mend the relationship with his father later in life and came to the understanding that his father was just a product of his own conditioning, and from that point of view was able to forgive him.

[11]

Robert falls apart

In 2009, Robert and his partner separated. Important ATC Telecom contracts came to an end. Following the global financial crisis, some customers did not pay. Robert's licences did not allow him to work on the NBN and his business suffered when the NBN rollout began. A medical record from 2014 recorded that Robert's telecommunications business had not been doing well since the global financial crisis; Robert was funding the business using credit cards and had accumulated a substantial debt. Robert sought assistance from the Salvation Army to help with debts. No tax returns have been lodged for ATC Telecom since 2013. In October 2015, ATC Telecoms was deregistered. Robert last used his business card for business purposes sometime in 2016. Robert believes that his father was well aware of Robert's financial problems.
Robert said that, between 2012 and 2016, he carried out various work at his parents' home and did not ask for any payment. Robert offered to pay for materials, however Josef refused and insisted on paying for materials himself. To address this, Robert developed a system of underquoting for various materials and parts used. Whatever Robert's system was, his sisters both said that Robert frequently asked his parents for money: see also [37]. Given that Robert was experiencing financial distress, I expect that Robert asked his parents for money more frequently than he accepted in his evidence. This is corroborated by Ms Nolan's file note at [61].
By 2014, Robert was suffering from depression. A Mental Health Care Plan prepared at the time noted that Robert was using cannabis but neglecting self-care; Robert was in communication with his sisters and on speaking terms with his father. The doctor diagnosed Robert with chronic situational depression. In July 2014, Robert began to see a psychologist. Robert had 18 sessions "due to life stressors and difficulties in maintaining abstinence of his use of methamphetamine during these periods". Robert said that told his psychologist of his substance abuse as he was disappointed that he had "busted" on methamphetamines; he had started using methamphetamines on the weekends and wanted to get clean again.
The psychologist later described Robert as always polite and appreciative of the help he received, noting that Robert's mood improved considerably during the course of treatment, … but life stressors seemed to continue to exacerbate symptoms of depression, and trigger relapses into substance abuse. He reported considerable financial difficulties in the last few years, and described that due to changes in the industry, his way of making a living as a cabler for internet providers was no longer a tenable way to earn a living, and as a result he was forced to sell his house.

[12]

Looking after Margot

In 2016, Margot had a series of falls and was admitted to hospital. Yvette said that she became more involved in looking after her parents, calling her parents nearly every day and visiting them frequently. Once her mother became ill, Yvette said she cared for Margot in the house and the nursing home every day during the entire period she was gravely ill. Yvette said she called on her siblings to assist her, but they were unwilling to do so. On 7 November 2016, Yvette said that Robert failed to show up for a meeting with Margot's treating health care professionals. Robert denied that he forgot to attend the meeting: his car broke down and he called the NRMA and Yvette to tell her of his situation; Robert asked for another meeting to be arranged as it was not possible for him to arrive on time.
By contrast, Robert denied that Yvette was caring for Margot. Rather, his parents lived autonomously until his mother took a fall and it was determined that Josef was not capable of looking after her anymore. His mother was admitted to hospital, where Robert visited her four times (three times with his daughter). Margot was then moved to a nursing home. "There was no care from Yvette. It didn't happen". Robert said that he continued to use his weekend visits with his daughter to visit his parents, including his mother in hospital.
Lisa said that, in the beginning, she used to take Margot to her medical appointments and also arranged home care for her parents, which Yvette then cancelled. Lisa said she visited her mother in the nursing home when Yvette was not there. Lisa later wrote to Yvette: As much as you like to make out I never visited mum at home or in the nursing home - you are mistaken. I visited her many times with [my husband and son]. … When she was at Concord I visited her every day, as it was easy for me because I work there full time.
In evidence are a series of text messages between Yvette and her siblings, concerning the care of their parents. These text messages reflect particularly poorly on Yvette. It is apparent from these text messages that Lisa was concerned for her parents' welfare and wished to arrange someone to cook and clean for them. Lisa was also concerned that Robert would spend their parents' savings and was regularly visiting his parents and asking for money. Yvette was highly critical of the extent to which Lisa was involved in their parents' care. Lisa responded, And for your information I do help, I do care and I do go to mum and dad's whenever I can - but I don't expect money (and I never take any money from them) each time I go and I don't make a big song and dance about it like you do.
In November 2016, according to Yvette, Josef asked Yvette to give up her job and move in with her parents to take care of them. Yvette was then working in Waitara for Myer at the Estee Lauder cosmetics counter and renting accommodation in Mount Colah. Against this, Lisa said that she asked Josef why he was helping Yvette with her rent and Josef replied, "It's better than have her move in here".

[13]

2016 Will

In about November 2016, solicitor Tash Nolan met with Josef and Yvette at the Concord home to take instructions to prepare a Will. According to Ms Nolan's handwritten file note, a power of attorney appointing Robert was to be revoked. Yvette was to be appointed executor or, alternatively, Lisa. Josef's assets were then the Concord property, valued at $1.4 million, a car and $43,000 in a bank account.
As to the children's situations, the solicitor's file note recorded that Robert had an ice addiction, was still using marijuana, and owned his own telecommunications business. (Of course, by now, the telecommunications business had ceased and thus Robert's belief that his father was aware of Robert's financial problems (see [30]) may have been misplaced). Josef had last spoken to Robert three weeks earlier, when he and his daughter went to the hospital to see Margot. Lisa was noted as "independently wealthy" whilst Yvette was said to have "no assets" and paying rent of $550 a week. Yvette had three children, of which only the youngest, aged 17, lived with her and then less than half the time. The file note recorded that Josef wished to leave the Concord house and its contents to Yvette, with the only remaining asset of note, being cash at bank and any superannuation, to Robert and Lisa in equal shares.
It is noteworthy that Ms Nolan did not record an instruction from Josef that Yvette had agreed to move in and look after him and, by reference to this anticipated care, he was leaving her the Concord property. Rather, the file note suggests that the reason Josef wished to leave the Concord house to Yvette was because his other two children were financially secure whilst his youngest daughter was struggling and he wanted to make sure she would be okay. Josef was essentially seeking to correct a disparity in the asset and income position of his three children by the provisions in his Will.
On 8 November 2016, Ms Nolan emailed a draft Will for Josef to Yvette to be executed the next day. Further: Is there any way of finding out the location of your father's power of attorney that appoints your brother? The reason is that, as discussed during our meeting, this has to be revoked. In order to be revoked we need the date of the power of attorney that is being revoked and if possible a copy of the document.
Later that evening, Yvette replied, advising she would be attending the solicitor's office the next day. Further: I have no idea whether the other will is, or even if there is one for sure. This may be a reference to the 2007 Will but more likely, to Margot's Will. (Ms Nolan's file notes records, "Can't locate earlier will of wife"). Margot was not then thought to have testamentary capacity to make a new Will.
On 9 November 2016, Ms Nolan met with Josef and Yvette again at the Concord home. Josef executed a Will, Enduring Power of Attorney and Appointment of Enduring Guardian, appointing Yvette as executor, attorney and guardian respectively. By his Will, Josef gave the Concord property and contents to Yvette, together with any motor vehicles. After payment of any debts, Josef gave the balance held in a St George Bank account (Josef's transaction account) to be divided equally between Robert and Lisa. The account number for Josef's transaction account was added in handwriting, and initialled, on the Will. Josef's transaction account then had some $63,000 in funds. The residue of the Estate was given equally to Robert, Lisa and Yvette. A copy of the documents was sent to Josef and also to Yvette in Mount Colah. Josef's name was incorrectly spelt on the documents.
On 6 December 2016, Yvette contacted Ms Nolan again, advising that the staff at the nursing home considered that Margot was of sound mind, "Could we organise to get my mum to sign a new will? I have Wednesday off?". Nothing appears to have come of this suggestion.
Before passing from this Will, a considerable amount of time was spent at the hearing as to whether Yvette had found and destroyed the 2007 Will, which she denied. When Ms Nolan came to the house to take instructions, Yvette said her father asked her to fetch a blue box from her father's bedside "nachtkasten" (or bedside table), which she did. … I didn't know what was in the blue box at the time but apparently that's where the Will was. So I got the blue box and then dad couldn't remember the code to undo it but they were in there but I was only instructed to go and get a blue box, I wasn't instructed oh that's going to be the Will that you're getting so it came about that they were in that box but I had no knowledge of that.
By reference to the evidence collated at [27]-[29], it is likely that there was a 2007 Will. If the blue box, or the "nachtkasten", was where Josef kept such documents, then likely his 2007 Will was there. However, there was no particular reason for Yvette to destroy the 2007 Will as, based on Robert's description, it was in the same terms as the 1981 Will, which it appears that Ms Nolan did have. Further, Yvette appears to have understood that Robert had been appointed as Josef's attorney but does not appear to have been able to locate the power of attorney. As wills and powers of attorney are often executed at the same time, the fact that the power of attorney could not be found may indicate that any 2007 Will was not to hand either. It does not much matter. However, the fact that a 2007 Will could not later be found explains some of Robert and Lisa's subsequent concerns and actions.

[14]

January 2017 Will

On 25 January 2017, Robert was contacted by the nursing home and told that Margot was gravely ill and only had days to live. Robert travelled to Sydney, where he collected his daughter, then Josef and met Lisa and her husband at the nursing home. On entering his mother's room, Robert saw that Margot was unresponsive and being tended to by Yvette. A terrible scene ensued. A security guard became involved. By Yvette's own admission, she was "a little drunk", having sat with her mother for a prolonged period when "the only sedative for my aching heart was the champagne". Lisa later wrote, "I still have vivid memories of your performance in the nursing home bed and can never forgive you for that. Dad has thankfully forgotten that you denied him the right to say goodbye to his wife".
Eventually, Robert, Josef and Lisa left Yvette in the room with their mother and returned to the Concord home. Robert and Lisa stayed with their father for a while to make sure he was okay. According to Robert, events at the nursing home, "led us to be very sceptical of what was going on". The conversation turned to Josef's Will, which Josef said should be in the "nachtkasten". Robert looked but could not find it; he was expecting to find the 2007 Will. Robert said to his father, "Dad, your Will is missing. We think that Yvette took it". According to Lisa, her father was shocked that there was nothing there and appeared bewildered. Josef did not mention having made a Will on 9 November 2016. Indeed, if Josef had told his children of his recent Will, some of the confusion which followed may have been averted. Whilst Robert did not suggest that his father lacked testamentary capacity, the fact that his father may not have recalled having recently made a Will is of concern.
Robert suggested that his father make a Will in the same terms as the 2007 Will. Lisa gave evidence of Josef's instructions as to how his children should be treated under the Will: A. Whenever he spoke to me about the will he always said it would be equally distributed, one third each. There was even a time when I said to him, I even said to him "you know, Yvette's going to move in here, and she's going to take the whole lot." And he said "No, no, it's got to be equally distributed. One third each." … Q. And on that occasion, was it - did your father say anything to you about how he wanted the estate distributed under a will at that time? A. Yes, he said a third each, all equal. According to Robert, "It was always accepted that any proceeds from an estate would be divided equally among the three children. Everybody knew that".
Robert drove home and prepared a Will based on a document downloaded from the internet. The Will left Josef's estate to his children equally. Robert agreed that the Will he prepared did not pay regard to the care that Yvette had been giving to her parents, but denied that she had in fact been giving such care. Rather, Yvette was living in Mount Colah and working for Myer and, although she claimed she was looking after Margot, Margot was then in hospital.
Robert brought the Will back to Concord the next day. Lisa was present: the Will was read over to her father before he signed and Robert said, "It's just like you said, dad, one third each, all equal". Josef's signature was witnessed by two neighbours. His handwriting appears frail. By his Will, Josef appointed Robert as executor or, alternatively, Lisa. Josef left his estate to Margot or, if his wife pre-deceased him, to his children equally. Josef also appointed Robert as his enduring guardian and enduring power of attorney.

[16]

March 2017 Will

On 9 March 2017, Yvette sent an email to Ms Nolan advising that she had gone to the bank to complete "power-of-attorney papers" but had encountered problems as her father's name was spelt incorrectly on the power of attorney. Ms Nolan replied: I am sure I recall his name was Joseph on the old Will I have. I have put the file into archives though so I will need to retrieve it in order to confirm. Whether the "old Will" was a reference to the 2007 Will or the 1981 Will is not known, although I note that Josef's name is correctly spelt on the 1981 Will, making it more likely that the reference was to a 2007 Will. As already mentioned, it does not much matter for the purposes of this case.
Ms Nolan offered to prepare amended documents at no charge and to visit Josef to sign the documents. It is evident from emails between Yvette and Ms Nolan that Yvette was not living with her father at the time. On 15 March 2017, Ms Nolan attended on Josef at his home to re-execute his Will, Enduring Power of Attorney and Appointment of Enduring Guardian. According to Ms Nolan's file note, Yvette was there too. Some furniture was being removed from a back room in the house. Yvette said she was in the process of moving in to take care of her father.
Ms Nolan explained the provisions of the Will to Josef, who agreed that it reflected his intentions. (Josef does not appear to have told Ms Nolan that he had recently made a Will leaving his Estate to his children equally.) Ms Nolan explained that, as Josef was leaving almost all of his estate to one child, his other children may be eligible to make a claim on his estate. Ms Nolan enquired whether Josef had discussed his intentions with Robert and Yvette and whether they knew about his intentions. According to Ms Nolan's note: He said "It's none of their business" … I asked Joe why he was dividing his estate this way. He said "My daughter (Lisa) and my son (Rob) they already have houses. Yvette does not. She needs it".
Again, Ms Nolan's file note on this occasion does not record that Josef wanted to leave everything to Yvette because she had agreed to look after him until he died. Rather, the factor which appeared to be influencing Josef's mind was the perceived disparity of assets between his three children. Josef perceived that Yvette did not have a roof over her head whilst the other children did. Lisa was also described in Ms Nolan's note as independently wealthy and Robert was said to have his own telecommunications business. If that information was wrong, or out of date, then Josef's efforts to ensure that all his children were properly provided for was based on a false premise.
Ms Nolan also recorded in her typed file note of 15 March 2017 what Josef had told her on 9 November 2016 in respect of the circumstances of his three children. In respect of Robert, Ms Nolan's note recorded: Rob has an ice addiction and smokes marijuana. He owns his own telecommunications business and is a "functioning drug addict". He lives at Lake Munmora in the Central Coast area. Rob has a daughter, … who is 16 years old. Rob owns his own house.
I note that the typed file note - prepared four months after Ms Nolan's handwritten file note of November 2016 - may have incorporated further instructions obtained in March 2017. I also note that "functioning drug addict" is likely Yvette's turn of phrase, as she sent a text message to Robert on 5 October 2018 referring to him as a "functioning ice addict". Robert said that he never discussed an ice addiction with his father and his father did not know what ice was, "except from the fridge". Robert also said that "functioning addict" was not part of his father's vocabulary.
Ms Nolan's file note continued: I asked Joe during this meeting how his son was going. He said "He is alright. He doesn't come near me and that usually means he is good". I asked what he meant by this and Yvette, who had returned to the same room by this stage said that her brother comes by when he needs money. On the last occasion he asked his father for $1,500 and that her father cannot continue to give him money like this - especially now that her mother has passed away and her father only receives the single pension. Ms Nolan then fielded various questions from Yvette about potential claims on Josef's estate.
Although Josef's name was corrected on each of the documents, the Will no longer contained a handwritten alteration providing the details of Josef's transaction account. Thus, by this Will, Josef left "the balance held in my St George Bank account" equally to Lisa and Robert. Yvette understood, however, that the Will referred to Josef's transaction account. Otherwise, the Will was no different to that executed on 9 November 2016.
On 16 March 2017, Ms Nolan sent a copy of the re-executed documents to Josef at Concord and Yvette at Mount Colah. When asked whether Yvette knew what was in her father's Will as prepared by Ms Nolan, Yvette said "I hadn't sighted them but I had an idea, yes". This answer was disingenuous as her father's Will had been posted to her in November 2016 and March 2017 and was clearly something of great interest to Yvette.
On 18 March 2017, Robert and his daughter visited Josef. Yvette was there. An argument ensued. No mention was made of the newly made Will.

[18]

Operation of bank accounts

In addition to Josef's transaction account, he held two term deposits in the sums of $60,000 and $90,000. Soon after being appointed her father's attorney, Yvette attended upon the St George Bank with her father - presumably with Ms Nolan's recent advice ringing in her ears - when Josef is said to have requested that the term deposits be transferred into Yvette's name. Yvette said that her father requested that she put the term deposits into her name as her father gave her the money. However, in cross-examination, Yvette agreed: Q. At your request, the St George Bank transferred the joint deposit of $60,000 in your parent's name into your name. Correct? A. Yes. Q. And at your request, the St George Bank also transferred the joint deposit in your parent's name of $90,000 into your name. A. Yes.
Based on Yvette's understanding of "my St George bank account" in Josef's Will, the term deposits formed part of the residue of Josef's estate, to be shared equally between the three children. Yvette insisted that Josef gave two term deposits to her and these assets did not form part of the residue of the estate, "A gift is a gift. If I give you a gift, I can't use that gift to - to give it to somebody else. That's an Indian giver". Yvette also said, "Out of my goodwill I would have halved it between my brother and my sister. It was never intended to me to keep all monies. That's not in my nature to do that and I have got text messages to Robert and Lisa explaining this." Yvette added in cross-examination, "All I wanted after my disturbed life of two abusive marriages was a home that my father gave me."
I do not accept Yvette's evidence in respect of the term deposits. It is unlikely that Josef - who had just made a Will leaving the money in his bank accounts to Robert and Lisa, either by a specific gift or as the residue of his Estate to be shared with Yvette - would immediately give the term deposits to the child to whom he had just given the house. Rather, Yvette transferred Josef's term deposits to her name using the power of attorney, notwithstanding Ms Nolan's recent advice in respect of transferring the Concord house to Yvette which would have made it tolerably clear that such a course was inconsistent with her obligations as attorney.
Yvette agreed that her father did not do electronic banking and she operated his accounts. On 25 March 2017, $200 was transferred from Josef's transaction account to Yvette's bank account. This was the first of a series of regular transfers to her bank account. In addition, the activity on Josef's transaction account increased markedly - from, essentially, nil activity - to a wide range of daily purchases including groceries, homewares, hardware, liquor, takeaway food, cafes, restaurants, clothing, pharmacy, utilities, insurance, tolls, fines, pet supplies, cosmetics, beauty supplies, hairdressing and cosmetic injections.
In May 2017, a payment of $4,134 was made from Josef's transaction account to Dun & Bradstreet. On 30 August 2017, $1,155 was paid from Josef's transaction account to CCBC Rates Debtors, with regular smaller payments made to this payee in ensuing months. Yvette denied that she had used Josef's transaction account to pay an outstanding debt to a debt collection agency, but it is likely, based on the bank statements, that she did pay her debts with Josef's money, there being no evidence that Josef had such debts himself. Yvette transferred money from Josef's transaction account to fellow employee, Ms Viscardi, who needed money for petrol and to pay a medical specialist. Whilst Yvette was being generous, it was with Josef's money.
In the nearly two years which passed between Yvette beginning to use Josef's transaction account until Josef passed away in February 2019, the balance of the account was reduced from $71,870 to $550. Josef's pension was also deposited into this account. Taking into account the pension, monthly purchases were some $5,000. It is evident from the bank statements that at least some of these monies were expended on Josef, however, the bulk of these purchases do not appear referable to his needs. For at least some of this period, Yvette also enjoyed her own income from Myer. Yvette said her father told her, "What is mine is yours. Whatever money we have, we just use it as it is". Yvette denied that the money from Josef's transaction account was mostly spent on her but, having reviewed the bank statements, that does appear to have been the case.
By Josef's death, Yvette had spent the contents of a bank account which - to her understanding at least - was the only asset in Josef's estate which had been specifically left to Robert and Lisa. By contrast, the two term deposits - apart from being put into Yvette's name - were largely preserved. One might be forgiven for thinking that Yvette's operation of her father's bank accounts was directed to ensuring that Robert and Lisa would receive nothing from their father's estate.

[19]

The sound recording

Yvette said that from about March 2017, she moved into her father's home over a period of two weeks and, by sometime in April 2017, was living full time with her father in Concord and had ceased to live in Mount Colah. In April 2017, Robert visited his father and noticed that some of his father's furniture was missing and, in its place was a room full of Yvette's possessions stored in the spare room. According to Robert, Josef said that Yvette had sold the furniture and wanted to move in, "but I don't want her to move in".
On the evening of 29 April 2017, Lisa recorded a conversation with Josef using her mobile phone, being the subject of my earlier judgment Rathswohl v Court [2020] NSWSC 1490. It is apparent from the conversation that Josef and Lisa had a caring and affectionate relationship. It is also apparent that Yvette had not moved in to live with her father but visited once a week. Yvette was buying groceries for her father, as was Lisa. Lisa also appears to have been doing laundry for her father.
Yvette had had a car accident, and Josef and Lisa discussed this: Lisa: She should stop drinking while she's driving. Josef: Yes, I think so too.
Conversation turned to Yvette's outstanding rent, said to be $1,100, and Josef's financial assistance: Josef: Yeah but I can't afford to pay her bills, all of them. Lisa's husband: No. Lisa: You've paid enough of them haven't you? Josef: I have, I have. Lisa: You've paid heaps of her bills. Josef: Heaps, yeah.
Yvette denied that her father paid her rent at Mount Colah. A review of Yvette's bank account statements indicates that her daughter made a periodic payment to Yvette of $150 for "Rent" whilst Jennifer Godley made a periodic payment of $200 with the narration "Jen x". Ms Godley was one of Yvette's friends, who was going to give evidence in this case but was not ultimately called. By reference to the bank statements, it appears that Yvette was sharing the rent with her daughter and perhaps Ms Godley, who together contributed $350 a week towards total rent of $550 a week. Yvette said that the periodic payments from Ms Godley were gifts from the kindness of Ms Godley's heart. Either way, the periodic payments from Yvette's daughter and Ms Godley ceased in March 2017, following which a series of payments from Josef's transaction account in similar amounts ensued. It would thus appear - based on the bank statements at least - that Josef was helping his daughter pay her rent.
The sound recording also records that Robert had visited his father a few days before. Josef: … the grass is cut, Rob cut it last time … That was a few days ago. Robert had also re-programmed his father's phone, with mixed results. When speaking of Robert, Josef did so calmly and without animosity or tension.

[20]

Yvette moves in

Lisa said that Yvette moved in to her father's home shortly after the recording was made. After Yvette moved into her father's house, she texted Robert and Lisa saying that Josef had left her the house, "Lisa and I both thought that was outrageous because we knew there was a will but Yvette didn't know there was a will previous to that", being the Will made in January 2017.
Once Yvette moved in, Lisa said it was very difficult to visit her father, "Things changed and it became impossible to visit, without Yvette making a scene and causing dad distress". Lisa said her father told her, "It's better you don't come visit because it upsets Yvette too much". This was very distressing for Lisa, who was only able to visit her father when he was in hospital.
Robert said: … Yvette made it extremely difficult for anyone to visit dad at home … … She changed the phone number. She threatened me with police action and AVOs. Lisa said Yvette has a history of attempting to take out AVOs on many people including her two ex-husbands.
In May 2017, Robert was in financial difficulty and his account was overdrawn. From memory I went there, and I think I may have cut the lawn. I told him that my hot water system had broken down. I asked him if he could lend me $5000 and I said, "Look, I don't need it now, dad. I'll come back in a week and get it off you next week."
Robert returned in a week's time. Josef told Yvette to transfer $5,000 to Robert, and Yvette transferred the money online. The bank statement for Josef's transaction account is hard to follow. There are two internet withdrawals of $5,000, one being a transfer to the bank account for ATC Telecoms and the other being a transfer to a similar, but incorrect, bank account number. There is then a cash withdrawal of $5,000 and a deposit to Josef's transaction account of $5,000 with the narration, "Yvette M Court ATC Telecoms". Also in evidence is a photograph taken of a bundle of $50 notes with an envelope bearing the handwritten inscription, "Rob to collect $5,000 cash from Dad's Retirement fund 24.5.2017".
Yvette later described events in a letter to Lisa. Robert came to the house asking for $5,000 from his father to have his hot water system fixed. "I was against dad giving this money to him but dad insisted I do … dad requested I transfer funds to Rob, which I did". Robert accused Yvette of spending all of dad's money and wanted to take Josef to the bank to check his bank statement. On the money being transferred into the wrong account, Robert "demanded I go to the bank and withdraw the cash of the $5,000, the bank tried to cancel the internet transaction to cut a long story short Robert ended up with $10,000 I have asked him for the money to be put back into dad's account but he has not". Yvette reported the matter to the police.
Robert denied receiving the additional $5,000 cash. In one of Robert's various emails to Yvette, he said, "Do you remember offering me a $5,000 bribe?". This may be a reference to Yvette offering him the envelope with cash. Robert was emphatic that he did not take the cash. As to whether Robert received $5,000 or $10,000 from his father on this occasion, I generally prefer Robert's evidence to that of Lisa, but it does not matter much; the point is that Josef was prepared to provide financial assistance to his son at a time of need.
In June 2017, Robert visited his father. Yvette answered the door and, initially, would not let Robert in. A scene ensued. Yvette threatened to call the police. Robert offered to leave when he saw that Josef was becoming distressed. Yvette said to her father, "So tell him not to come". Josef said, "Rob, it would be better if you didn't come". Robert asked, "What about Lisa?" and Josef said, "Her too".
In August 2017, Yvette wrote to Lisa, noting that they did not seem to see eye to eye and no longer had contact and so was writing to inform Lisa of Josef's wishes. Yvette detailed her extensive care of Margot and now Josef and her father's wish that she move into his house to look after him. "Moving into dad's home has also been a blessing to me, as the rent in the property became unachievable … $550 was my whole wage per week". Yvette advised that "Dad's wishes are for me to inherit this house, anything left in his account will be divided evenly between you and Rob …" (By the time this letter was sent, the balance of Josef's transaction account had fallen from $71,870 to $24,400). Yvette noted that she had been accused of "sucking dad dry of all his money" and explained how Josef had recently given her money to buy a decent car as it was needed to take him to medical appointments and in the event of an emergency. Yvette described Robert's recent visit to the house to collect money for his hot water service noting: I have made a report of this incident with police and the banks and have explained to Rob there will be no more harassment for money, I have informed him that if he attempts this again I will call the police.
On 1 August 2017, Lisa responded with force, noting that she and Yvette did not see eye to eye "because you are delusional". Lisa wrote that she had ended contact with her sister due to "your constant foul mouthed, demanding texts and accusing phone messages". In respect of Josef's wishes regarding the Concord property, Lisa suggested, "If there comes a time that dad needs constant nursing / hospitalised care or treatment, then maybe the house should be sold and the money used for his care rather than assuming that it belongs to you?". Lisa expressed appreciation for Yvette moving in with Josef, as he had deteriorated mentally and physically, but noted that living rent-free was a lot easier for Yvette, and also noting that Yvette had purchased a new car with her father's money. I am certain you and Rob will make sure that nothing is left in his account. … As for Rob's criminal record - yours is not much better with the drunk driving and assaulting a police officer. So I wouldn't go threatening anyone with the law, because they have all your files too. … The real reason dad "helped" you out financially during your life … was to stop you from moving in earlier. … Now you have dad under your control with a constant supply of alcohol. As confused as he is - this is sad - he so worried about upsetting you and getting on your wrong side, that he actually said to me in the last phone I had with him, that he can no longer have me come to the house.
Lisa noted the irony of Yvette's suggestion that they share the load so that Josef could see all three children, How ironic since you said you would call the police if Rob showed up there again? … I would love to come visit Dad, but do not want to cause him any stress with a confrontation with you. If you would stop alienating everyone, you wouldn't be by yourself.
There are several references in the contemporaneous documents to concerns that Yvette was drinking too much and was providing Josef with alcohol so that he drank too much too. Certainly, liquor purchases formed a regular item of shopping. The bank statements suggest that liquor was purchased once or twice every week, with an average spend of $50 a week. There is no consistent pattern beyond there being no alcohol purchases for several weeks, followed by weeks with multiple purchases each week. In cross-examination, Yvette agreed that the bank statements showed "very regular purchases of alcohol" but did not accept that she had a problem with alcohol. Q. Did you consume at times too much? A. There were a couple of occasions I did, yes. Q. But you were a regular purchaser of alcohol, weren't you, during that time? A. Yes, I was but not only for myself. I would buy it for friends and gifts. Q. Well, you're short of money. What are you buying alcohol for friends for? A. Because they helped me out, so I went without things in order to, with my gratitude, to say thank you. Q. So you went without things so you could spend money on giving them alcohol? A. At times, yes. Q. Well, why didn't you just spend the money on yourself so that you didn't go without things? A. Because I'm not a selfish person. Yvette agreed that, soon after her father bought her a car, she was convicted of her second drink driving offence and lost her licence.
On 27 October 2017, Yvette received her final wage from Myer. Ms Viscardi was a co-worker with Yvette at Myer. Yvette and Ms Viscardi had similar eight hour shifts and worked late on Thursday nights. Yvette said she had to leave work because working those hours and caring for her father was getting too much. Yvette just stopped working, she didn't run down her hours but just said she was leaving and that was it. This is consistent with Yvette's bank statements: Myer wages were paid fortnightly, with an average payment of $966. Yvette's wage from Myer did not show any particular trend downward before she ceased work. Yvette began to receive the carer's pension on 25 September 2017.
On 7 November 2017, an occupational therapist attended on Josef and Yvette to review the home for necessary equipment and home modifications. The therapist's report noted that Josef lived with his daughter "who has become his main carer. Yvette has had to cease employment and her siblings offer no assistance. … Yvette is currently overwhelmed and unable to manage Mr Rathswohl's functional needs, as he is full assistance for all aspects". There is no doubt that Yvette readily informed neighbours, friends, work colleagues and health professionals of the extent of care she was providing to her parents and the lack of assistance received from her siblings.
Yvette likely exaggerated the extent of her efforts around the house, although I do not doubt that caring for Josef during the last year of his life would have been onerous; Yvette made frequent reference to her father's faecal and urinary incontinence and her efforts to deal with these incidents, including attaching photographic evidence. Yvette suggested that she mowed the lawns for her father and cleaned out gutters. I note that payments for grass cutting were made from Josef's transaction account after Yvette moved in, which is consistent with paying someone to do it. It seems unlikely that Yvette cleaned the gutters, noting that Robert said there were no overhanging trees at the house to provide leaf litter, nor room to place the foot of a ladder on either side of the property. The only access to the roof is from the rear of the property; the tiled roof has a very steep pitch so that it would be dangerous for an inexperienced person to walk on it. Robert had climbed on the roof to install a TV antenna, so was likely in a position to comment.
Robert said that he visited his father just before Christmas 2017 and went to sit beside his father's bed to speak to him. "Things started again with Yvette threatening to call the police so I left".

[21]

The video

Josef's health was deteriorating. In May 2018, Josef was diagnosed with lung cancer. He suffered a mild stroke. Robert found out from Lisa: "Lisa worked in the cytology department of Concord Hospital. She had received a bronchial sample and was shocked to see Dad's name on it". On 6 June 2018, Josef's lung cancer was diagnosed as terminal.
Likely at about this time, Yvette made a video recording on her mobile phone, which she said that her father asked her to make. I say it is likely that the video was made at this time because Josef appears breathless and stops to catch his breath during the course of the recording. This may be consistent with his recent diagnosis of lung cancer. Josef can be seen leaning on the kitchen bench. Yvette: Now! Josef: I am Josef Rathswohl and my wish is that my daughter stays in this house till I die. And after that it's her house. Yvette: And what about Rob and Lisa? Josef: They got their own house. Yvette: OK… Josef: Rob and Lisa got their own house and it's no good bludging on me. Yvette: Yeah I know.
Lisa has viewed the video and said her father looks nervous and his speech does not sound natural or spontaneous. Lisa said her father's comment - "it's no good bludging on me" - makes no sense in relation to her, as she has never borrowed money from her father. Lisa said her father's speech does not sound usual but unnatural and rehearsed. I agree the recording is somewhat rehearsed.
As I noted in Rathswohl v Court at [48], it is a sad video. Josef bows his head. His body language disavows his words. Although I had then yet to absorb all of the evidence in this case, my initial impression on viewing the video was that it recorded an act of appeasement more than an announcement. Having read and reviewed all of the evidence, the disavowal by his body language appears to me to be specifically directed to the phrase, "and it's no good bludging on me". His earlier words, "They got their own house" are expressed with a kind voice. Overall, Josef confirmed that, given that Robert and Lisa had their own homes, he wanted Yvette to have the Concord property but he nonetheless thought of Robert and Lisa with fondness.

[22]

Counselling

In July 2018, Centrelink arranged counselling for Robert for mental health issues and an inability to obtain work. The counselling sessions explored the extent of Robert's psychological and personal barriers to employment. On 17 July 2018, the counsellor's notes record that Robert reported feeling depressed and overwhelmed dealing with family relationships and financial strain. Robert reported that he had overcome substance addiction. A week later, on 24 July 2018, Robert reported that he had "addressed the breakdown of his relationship with his youngest sister by planning to organise mediation to gain access to visit his father who was suffering from a terminal illness". A week later, on 31 July 2018, Robert reported that he was "seeing a financial counsellor, attempting to quit smoking, and restart his business".
On 29 August 2018, Robert reported to the counsellor that he was "still experiencing further setbacks in … regenerating his business". On 12 September 2018, Robert cancelled an appointment with the counsellor, advising "he had received a request for a quote in his new business". In cross-examination, Robert said that he began to build a free website on Facebook, but did not finish it. … I was thinking about it, because I - Centrelink were indicating to me that I had to get a job, so I was thinking about, rather than work for somebody else, I was thinking about starting up my business again, but it did not eventuate. The final counselling session focused on procrastination, with no mention of a new business, which tends to suggest that little progress had been made. Robert agreed that he had not made any applications for work since 1 January 2017.
Robert also attended to other health problems, getting a hearing test done on 7 August 2018. Robert advised the clinician that he was having difficulty understanding speech in numerous listening situations. A referral to an Ear Nose and Throat surgeon was recommended, with hearing aids to be considered.
On 3 September 2018, Josef was admitted to palliative care at Concord Hospital for a respite stay. Josef was discharged on 10 September 2018. Robert took advantage of the opportunity to visit his father. Lisa said, "I witnessed that they had many long pleasant visits".
In September 2018, Robert contacted a Community Justice Centre to assist him to resolve his problems with Yvette. On 18 September 2018, the Community Justice Centre wrote to Yvette advising that Robert would like to arrange mediation. There was no reply.
On 20 September 2018, Robert wrote to Concord Hospital, asking to be notified of events regarding his father. Robert advised that Yvette was "unstable" and was not informing Robert or Lisa of any events involving their father's health or hospital admissions. When I visited my father a few weeks ago in the Palliative Care Unit I realised that Yvette had told them a number of lies … I was contacted by the Doctor and given a report over the telephone regarding his health however I have not since been contacted by staff and have become aware through Facebook that he was again admitted to Concord Hospital recently. Robert provided the hospital with a copy of Josef's will - presumably the January 2017 Will - and pointed out that Josef had not bestowed any responsibility on Yvette in his Will. On 27 September 2018, Robert sent a further email to Concord Hospital in a similar vein, noting that Lisa and Robert had been "alienated" from visiting Josef and have not been informed of any turn in his condition, "My father could die and I would not know about it".
On 5 October 2018, an unseemly stream of text messages ensued from Yvette to Robert, including Yvette calling him a "blowfly". Robert responded, "Now I am coming for you maggot", apparently a reference to the fact that, if Robert was a blow fly, then his younger sister was in an earlier stage of the lifecycle of said insect. Further offensive text messages ensued between them. Yvette agreed that she and her siblings communicated in sometimes offensive terms, "I've given it and I've received it". In a similar vein, after these proceedings were commenced, Robert sent Yvette 28 emails essentially asserting that Yvette's actions in persuading Josef to sign his last Will were fraudulent in nature, whilst Robert had 453 messages from Yvette on his computer.
According to a note made by Yvette, on 1 December 2018, Robert came to the house with a copy of the January 2017 Will and told Josef that Yvette was a liar who was messing with Josef's head. According to Yvette's note, Josef asked Robert to leave as this was Yvette's house and, after he passed away, it belonged to Yvette. Robert suggested to Yvette that she was going to gaol and "you have burnt the will" - presumably a reference to the 2007 Will.
Robert agreed that he went to the house, but said he was "holding an olive branch" as he had been in receipt of various text messages from Yvette saying that Josef had left her the house. Robert thought he should put an end to it and took the 2007 Will "so that we can stop this masquerade". Robert pressed the buzzer on the door and waited for two to three minutes, then called out "Dad" and Josef said "Open the door Yvette". Yvette opened the door. Robert gave her a copy of the 2007 Will and a scene ensued. According to Robert: She just started having an argument, basically completely on her own. I'd said a few words to dad, because there was a chair next to his bed. I sat there and I said, "Dad, don't worry because I don't blame you for it. I'm going to go. I can see it's not working out" and - and I left. And on the way out - I was going out the flyscreen and Yvette was that animated and that uncontrollable that she tried to push me out the flyscreen door. I still had hold of it and at that point, I was strong enough to hold it but there was a hell of a lot of force on that door for me to hold it and stop it from slamming into my face. And then I jumped in the car and left.
On 27 February 2019, Josef passed away. Robert was informed via a text message. There was no funeral. Neither Robert or Lisa were consulted by Yvette in this regard.

[23]

The evidence of others

Josef's neighbour, Ms Rafferty, observed Yvette to be at her parents' home more frequently when Margot became ill. After Yvette moved in, she saw Yvette once or twice a week. Ms Rafferty said Yvette deteriorated over a period of time; Ms Rafferty was concerned and obtained information about respite care and mental health support, which she passed on to Yvette. I accept Ms Rafferty's evidence.
Ms Stiff is a support worker who passed Josef's house morning and evening on the way to and from public transport, and sometimes stopped to talk. She observed Yvette doing tasks around the house and recalls on one occasion, at the end of 2017 or the beginning of 2018, Josef said to her that he wanted to die in his own home and "This house is all hers" referring to Yvette. I accept her evidence.
Ms Khan has been a friend of Yvette's for 15 years. Before Margot passed away, Yvette told Ms Khan, "I had to quit my job that I absolutely loved to care for mum and now dad" (I note that this was some nine months before Yvette in fact quit her job). When Yvette was living with Josef, Ms Khan visited about once a month, during the day, "And I also witnessed what [Yvette] needs to do through the day, and it's a lot. It was a lot." When Ms Khan visited, she never heard Josef having any outbursts. "He was always very calm and happy when I was around". Josef was very grateful for what Yvette was doing for him. I accept this evidence.
Ms Khan said she also observed Yvette to be in fear on receiving calls or text messages from Robert, but Yvette said she had tried to get an AVO against Robert but could not as it was verbal abuse. I accept Yvette said this. Ms Khan said she was visiting about six months before Josef died when Josef was a bit upset, "because there'd been phone calls or messages demanding money, and he was upset about that". Josef said in Ms Khan's presence "Yvette is the only child who cares for me, the other two children have houses, but Yvette has no house. This house is yours, Yvette, you are the only one who cares". I accept that Josef may well have said something like this; he seemed to say different things to different children, presumably in the interests of maintaining a harmonious relationship with each of them.
However, I am less inclined to accept the balance of Ms Khan's evidence. Ms Khan said, if there was ever a knock at the door, she saw Josef become anxious and say, "I am scared, hide money, it is Robert wanting more money from me". Ms Khan was also present during discussion with Josef and Yvette where Josef said that Robert had punched him previously, was a drug addict and was aggressive towards himself and Yvette, saying "I'm so scared of Robert; I am scared he could kill me". I find this evidence at odds with Josef's own voice on the sound recording and video. Having regard to the partisan quality of Ms Khan's evidence, I do not accept this portion of her evidence.
Ms Steele is Yvette's long-term friend. Ms Steele visited Yvette and Josef at the Concord house about once a fortnight and observed Yvette's care of her father. According to Ms Steele, Josef would say "I have only one child, Yvette, she cares for me". On one occasion, Ms Steele said that Josef stood at his kitchen bench with his palms on the bench (a stance like that recorded in the video) and said, "Fuck them, Robert and Lisa have their own houses, Yvette has this one". Yvette interjected and said "No, dad" and Josef apparently became agitated and "defiantly reiterated", "I said, fuck them, you are the only one looking after me, I love you and I want you to have this house, they have their own houses, you hear me!". Yvette is said to have started to cry and said, "Yeah, I hear you dad".
I accept that Josef may have said some of, or a variant of, these words. But there is no suggestion - on anyone's account - that Yvette was reluctant to be given the house nor wanted her father to refrain from giving it to her. Given the partisan quality of Ms Steele's evidence, I do not accept that Josef said precisely the words attributed to him. The common theme, however, is that Josef wished to give the Concord property to Yvette as Robert and Lisa had their own homes whilst she did not.

[28]

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

The defendant submitted that this was a case of estrangement affecting the whole of the relationship between Josef and Robert, such that Josef feared his son. In the latter part of his life, Robert is said to have engaged in financial abuse of his father such that the community would not expect a testator in Josef's position to make provision for his son had Josef known of Robert's current needs: Burke v Burke (No 2) [2015] NSWCA 195; (2015) 13 ASTLR 313 at [105], [107] per Ward JA with whom Meagher and Emmett JJA agreed; Ford v Simes [2009] NSWCA 351 at [70]-[72] per Bergin CJ in Eq with whom Tobias JA and Handley AJA agreed; Wheatley v Wheatley [2006] NSWCA 262 at [22] per Bryson JA with whom Santow and McColl JJA agreed. Further, it was said that their relationship was "extremely turbulent and volatile and was characterised by abuse, threats and intimidation", warranting dismissal of the application: Barbanera v Barbanera [2017] NSWSC 357 at [29] per Slattery J; Hastings v Hastings [2008] NSWSC 1310 at [38], [43] per White J; DNF v NTS [2017] NSWSC 482 at [45]-[50] per Lindsay J.
As Hallen J observed in Underwood v Gaudron [2014] NSWSC 1055 at [231], estrangement is a condition that results from the attitudes or conduct of one or both of the parties to a relationship, and in certain circumstances, the testator is entitled to make no provision for a child who treats their parents callously by withholding support and love in their declining years without proper justification, and particularly where that callousness is compounded by hostility. However, estrangement or even hostility does not necessarily terminate the obligation of the testator to provide for their children: Foley v Ellis [2008] NSWCA 288 at [101]; Ford v Simes at [58]; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 540.
But there was no estrangement here. Josef had relationships with each of his children and spoke of them fondly. When Josef spoke of Robert on the sound recording, he did so calmly and without animosity or tension. Based on this recording - made shortly before Yvette moved in - Josef's relationship with his son was amicable. Based on the video - likely taken some months later - Josef appeared to still think of Robert (and Lisa) with fondness.
As noted at [12], when Josef made a Will in 1981 - having kicked his son out of home - whatever the difficulties in Josef's relationship with Robert at the time, Josef clearly still considered it appropriate to appoint his son as executor of his estate in the event that Margot pre-deceased him, and to leave an equal one-third share of his estate to his son. As noted at [13], Josef amended his Will in 1985 when his son was standing trial for drug offences. Josef's concerns about his son were such that he no longer considered Robert fit to be executor. Josef did not, however, amend his Will to change the gifts given to his son.
The 2007 Will, which likely existed, left Josef's Estate in equal shares to his three children and appointed Robert as executor. So too did the Will made in January 2017. By his Will made on 9 November 2016 and re-executed on 15 March 2017, Josef did not seek to exclude Robert but left him a benefit equal to that of Lisa, who appears to have been a dutiful daughter. This is consistent with Josef and Robert enjoying a relationship notwithstanding Robert's drug and alcohol problems, including to the extent that Robert continued to use marijuana or struggled to maintain abstinence from methamphetamines.
Whilst Robert's visits to his father became infrequent after Yvette moved in, this did not amount to estrangement. There was no hostility between Josef and Robert. Rather, Yvette essentially told her brother to stay away and, for practical purposes, he did so. Josef also told Robert and Lisa to stay away, but this appears to have been at Yvette's urging and in order to avoid family conflict.

[30]

(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,

The defendant submitted that Josef's estate was not large enough to accommodate an order that provision be made for Robert as it would be at the expense of Yvette's reasonable expectations and in disregard of Josef's deliberate estate planning: Ameisen v Ameisen [2020] NSWSC 528 at [68(h)] per Lindsay J.
Josef's transaction accounts having been exhausted and the term deposits having been transferred into Yvette's name, the Estate essentially comprises the Concord property, which I note was estimated to be worth $1.4 million in Ms Nolan's file note of November 2016: see [39]. Various estimates of value have since been obtained, ranging from $1.175 million to $1.8 million.
More precisely, on 6 March 2019, Robert obtained a valuation estimate for the Concord property from an online website, indicating that the value of the house was $1.6 million. On 4 March 2020, Robert obtained a real estate appraisal, estimating a sale price of $1.7 million to $1.8 million. On 16 March 2020, Yvette obtained a market appraisal, estimating current market value to be $1.3 million. On 28 August 2020, a further market appraisal was obtained by Robert, repeating the opinion that the Concord property would achieve a sale of between $1.7 million and $1.8 million. More recently, Robert obtained a further market appraisal from Raine & Horne, opining that the property would fetch between $1.39 million and $1.49 million.
On 15 September 2020, a valuer was retained to prepare a joint valuation of the Concord property. On 24 September 2020, the property was valued, for litigation purposes, at $1.175 million. The valuer noted that he had not viewed the certificate of title for the property but was aware of a stormwater easement located on the site. The report noted that the property was in a below average state of repair for its age and construction type and required cosmetic maintenance both internally and externally including underpinning the foundations, waterproofing to remove damp and mild wood rot to windowsills. As the house was close to the railway lines, the property was subject to above average noise pollution. The valuer placed weight on the fact that market uncertainty had arisen following the Covid-19 outbreak. As a separate method of valuation, the valuer assessed the unimproved land value and separately assessed the value of improvements. Whilst the valuer valued the property as a two bedroom house, Yvette agreed that it was a three bedroom house.
In respect of the stormwater easement referred to by the valuer, the plaintiff submitted that, whatever was in the backyard of the property, it was not an easement, was not on title and was not on the deposited plan; the valuation was inexplicably low given the comparable dwellings in Concord ranged from $1.4 million to $1.7 million. The joint valuation was, obviously, much lower than market appraisals obtained by either Robert or Yvette. Overall, the difference in value may simply be ascribed to the fact that the joint valuation was prepared on the basis that the valuation would be used in litigation whilst the various real estate appraisals were obtained from local real estate agents. The former is likely to be prepared on a more conservative basis. Certainly, some of the market comparables used by the valuer indicate a higher value. The valuer also assumed a two bedroom house, rather than three bedroom.
Having regard to the range of estimated values obtained by both Robert and Yvette, that some months have ensued since the hearing, and that the real estate market in Sydney appears to have weathered the Covid-19 pandemic far better than feared, I consider that the Concord property, if sold, would fetch between $1.45 million and $1.65 million. I will use the mid-point of $1.55 million. Thus, at the time of hearing, the value of the shares was some $17,600. The defendant's costs are $203,827.09 on the ordinary basis and $228,178.60 on the indemnity basis. Josef's Estate net of Yvette's legal costs is therefore some $1.36 million.

[32]

Robert's current situation

At the time of the hearing, Robert was living in a caravan park, which was going to be shut down. Robert is unemployed. He is 62. Robert suffers from depression. Robert's chances of gaining employment are slight. He does not have any superannuation. Whilst Robert received unemployment benefits from about 2017 on, those benefits stopped once he sold his home until the proceeds of sale were exhausted. Robert owns an old car which requires constant maintenance.
Robert gave evidence using a hearing loop and it was apparent, over the two days of cross examination, that he needed it. On 15 September 2020, an ENT surgeon saw Robert, who had a 25 year history of decreased hearing. At the time of the hearing, Robert had an appointment with another ENT for a second opinion at St Vincent's Hospital but understood that surgery may not be an option but a hearing aid or bionic ear may be more advantageous. He would like to have his hearing problems remedied: the cost of surgery is estimated to be some $5,000.
Robert obviously has quite a few missing teeth. He would like to have his teeth fixed. On 9 September 2020, Robert obtained a quotation for dental work totally $21,408. He requires multi-focal prescription glasses and needs new glasses every one or two years; his last glasses cost $1,100. He does not have private health insurance but, due to his existing health problems, would like to take up such insurance.
At trial, Robert had $11,850 in the bank. His solicitor held $37,397.50 on account of costs and disbursements. His principal liabilities were child support of approximately $7,800 and credit card debt of some $13,400. There is also a liability to the Australian Tax Office not assessed. His expenditure is approximately $3,300 per month. He was receiving Centrelink Jobseeker benefits of approximately $1,150 per fortnight which included a Coronavirus supplement of $550. The Coronavirus supplement was reduced on 25 September 2020 to $250 per fortnight. This may not have continued in 2021. Consequently, he currently receives $306 plus $125 per week. His expenditure is $760 per week. He is drawing on his limited capital. Robert's legal costs on the ordinary basis are $153,210 and on the indemnity basis are $176,960 of which $14,602.50 has been paid.

[33]

Yvette's current situation

In October 2019, Yvette began work in a new job. Yvette is employed as a merchandiser on a permanent part time basis. Yvette builds and checks displays, stock levels and overall product reporting for a variety of stores such as Woolworths, Kmart, Target, Coles and Priceline. She is also in receipt of partial Centrelink payments. Yvette is 54. She is in good health by comparison to her older brother, and enjoys significantly better employment prospects. She appears to have a total income of approximately $1,300 per fortnight with fortnightly expenditure of $1,204. Her debts total approximately $17,300, being largely monies owed to Ms Steele. Yvette has superannuation of $20,000.
Yvette agreed that, apart from when she lived at Concord as a child, she has only lived in Concord for the last three and a half years or so. It was suggested to Yvette that a one bedroom apartment was sufficient for her needs. Yvette replied: My mental health doesn't really do well in confined areas. I've lived in units before and I've found them to be very depressing. I get solace when I work in the garden or work in the garden and dad saw how much I enjoyed that. That's why it was - the whole scenario was a perfect one and I was so grateful.
On 1 April 2020, Yvette obtained a quote to repair the house. The quote is not particularly legible but appears to total some $92,000. Yvette believes the repairs are required to bring the house into a reasonable condition and the plumbing of the house is said to need urgent repair. It was suggested in cross-examination that Yvette had no means of funding the renovations and that the Concord house would need to be sold - if for no other reason - to pay her legal costs in these proceedings. Yvette replied: Nothing's impossible. Things can come from anywhere and change. I don't know if you're a man in believing but I believe in another power and I believe that what will be will be. And I have seen things happen and come out of nowhere so I'm not sure how it's going to happen but I'm prepared whatever happens.
Yvette has some $30,000 in her bank account and over $70,000 in a term deposit, which sums she agreed came from Josef. The use of funds in Josef's transaction account and term deposits was a benefit which Yvette received during her lifetime. What remains of Josef's money is a financial resource which Yvette can use. Yvette has a reasonably new car which Josef paid for. Yvette has also enjoyed rent-free living for some four years. Yvette would like to find time or money for a holiday but, at the hearing, did not press this claim. "It would be nice but I'm happy to just have peace in my life to be honest with you".

[41]

(n) the conduct of any other person before and after the date of the death of the deceased person,

Yvette asserted that her moral claim on Josef's estate outweighs any adjustment to his testamentary wishes. She gave up any chance of a normal life when she commenced to look after her parents from about mid 2016 until her mother passed away on 29 January 2017 and then went into the home to live with her father from about March 2017 as his carer which eventually required her full time devotion to his care.
I do not doubt that Yvette visited her parents from time to time after Margot became frail in mid-2016, and that Yvette helped her parents where she could. So did Lisa. So did Robert, albeit likely less frequently as he lived further away. But I am not satisfied that Yvette changed her usual way of life in any material way to care for her parents at this time. Yvette's earnings at Myer did not drop. Her spending patterns were dominated by the suburbs between Mount Colah and Waitara. Yvette did not surrender the rental property for almost another year after Margot first took a fall, in circumstances where Yvette was struggling to pay the rent and thus was unlikely to continue to rent the property if she was not also living there. There are no contemporaneous documents which support Yvette's more extensive description of caring for her parents during this time. I am not prepared to rely on Yvette's evidence alone and thus find that Yvette's care of her parents in 2016 was roughly the same as that provided by Lisa and probably more than that provided by Robert.
There is no doubt that Yvette looked after her father after moving in - probably in May 2017 rather than March 2017 - unassisted by her brother and sister. But it appears that this was largely due to Yvette's conduct in ensuring that they stayed away.
Further, Yvette submitted that her father fostered a reasonable expectation in the defendant that Yvette's future needs would be met because she had "earned" the house through her efforts for her parents; she would not need to be concerned about her future as she would have the house to secure her needs. However, as mentioned at [1] and [58], Ms Nolan's file notes did not record any instructions from Josef to support the suggested reasonable expectation. Rather, Josef was exercised by Yvette's lack of a house when compared to her siblings. Her father reasoned that, as her siblings each had their own houses (Robert having been obtained with (very modest) financial assistance from the father), then Yvette should have the house.
Also relevant, as noted at [71] and [74], Yvette has rather 'helped herself' to those assets which her father left to her siblings, exhausting Josef's transaction account completely and putting both term deposits in her name.
Having regard to these matters, I find that adequate provision has not been made for Robert by Josef's last will.

[42]

WHAT PROVISION SHOULD BE MADE?

Yvette submitted that no provision should be made for Robert, essentially for the reasons outlined at [127]. Robert's medical needs should be met by Medicare.
The plaintiff submitted that Josef's estate was large enough that, when liquidated, Yvette would be able to pay the estate's legal costs and would have enough money to buy an appropriate home for herself. Yvette did not have dependent children nor any pets (the documents suggests she has a cat). A one-bedroom apartment would suffice. There would be sufficient money left over to make provision for Robert. The plaintiff acknowledged there was no right for an adult child to an unencumbered freehold residence: Smith v Johnson [2015] NSWCA 297; (2015) 14 ASTLR 175, particularly where the estate is not large enough to do this: cf McGrath v Eves [2005] NSWSC 1006. To this end, the plaintiff tendered real estate advertisements for a permanent home in a retirement village, ranging from $240,000 to $290,000.
In addition, the plaintiff submitted that a modest capital sum may also be thought appropriate. A fund of between $25,000 and $50,000 was suggested as a suitable fund for exigencies to make his life slightly easier: Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep) BC8802429. The plaintiff submitted that the Court would be concerned that Josef wanted to put a roof over Yvette's head and did this through his Will, and that a roof over Yvette's head should be better than the roof that might be obtained over Robert's head.
Any provision I make for Robert will obviously reduce what Yvette receives. However, it was readily apparent that the Concord home will have to be sold in any event as Yvette does not otherwise have the means to pay the substantial legal costs incurred by the Estate in these proceedings, let alone any renovations. Yvette's occupation of the Concord home has not been for such a long time that she can expect to retain it as her permanent accommodation.
Yvette is entitled to more of her father's estate than any provision made in favour of Robert as, first, that reflects Josef's intentions recorded in his Will and, second, Yvette cared for her father for the last 18 months of his life. Robert and Lisa did not assist in their father's care - not because they were not prepared to or did not want to - but because Yvette made it practically impossible for them to visit the family home. The remainder of the estate after provision for Robert, however, is more than adequate to buy suitable accommodation for Yvette.
Whilst Robert would like to have his own house, he agreed that permanent accommodation in a retirement village would be a lot nicer than where he was at the moment, noting "I've moved three times in the last 12 months". However, it is fair to say that Robert was not particularly enamoured by his learned senior counsel's submissions as to suitable accommodation, obviously preferring to have sufficient funds to buy a house. With great respect to the plaintiff's senior counsel, I have grave doubts whether the accommodation proffered to the Court is suitable to meet Robert's needs going forward. The suggested dwellings were modest indeed, and doubtful would have met Josef's criteria when making his last Will: "They got their own house." Assuming that Robert lives in such a dwelling for the next 20 years or so, it seems unlikely that such a dwelling, which appeared little more than a holiday cabin, would remain habitable over that period.
I note of course that the community does not expect a parent, in ordinary circumstances, to provide an unencumbered house to their children by their Will, although an adult child's lack of reserves to meet the demands of advancing years, coupled with an inability to earn an income, may give rise to an increased call on their parents' estate: Camernik v Reholc [2012] NSWSC 1537 at [7], followed in Smith v Johnson at [62]. As Gzell J noted in McGrath v Eves at [71]: There is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal [in Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189]. Indeed, at [32], Bryson JA observed that it was open to [the trial judge] and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the Court ought to order.
In that case, as the applicant earned a steady income and was in a position to service a mortgage, Gzell J did not consider that the estate was so large that the applicant should be provided with the entire cost of a house. In this case, I do not consider that Robert can necessarily be described as able-bodied, and his prospects of employment are slim.
As Sackville AJA observed in the Smith v Johnson at [85]: [A]n assessment of needs, particularly where it is directed to such an important matter as the nature and cost of accommodation required by an applicant, must have a sound evidentiary foundation. Thus, in that case, the Court of Appeal considered that the applicant had need of a one-bedroom unit rather than a two-bedroom unit as determined by the trial judge. The applicant had not adduced evidence of the cost of a one bedroom unit, but only the cost of two bedroom units where, "The price of two bedroom units does not provide a reliable guide to the cost of one bedroom units": at [88]. Nonetheless, the Court of Appeal was able to fix an appropriate provision to permit the purchase of a smaller unit.
I note that Robert's house was sold in July 2019 for $450,000. Presumably, that house was larger than Robert's present needs, as it appears to have been a family home. Robert's current need for accommodation is less as he no longer has a partner and his daughter does not live with him. However, having regard to the fact that the house was sold almost two years ago, the cost of a smaller dwelling is now likely to be in the same order.
Bearing in mind that the net value of the Estate after payment of the executor's legal costs is some $1.36 million, I consider that provision ought be made out of the Estate for Robert in an amount of $500,000 plus costs. This will permit Robert to buy suitable accommodation and have a capital sum sufficient to make this purchase secure by paying long overdue credit card and child support debts. In addition, the capital sum will permit him to attend to significant hearing and dental problems and fund spectacles. There may be enough to buy a car. This will leave Yvette with some $700,000 to purchase a one-bedroom apartment in the Sydney area, which is ample on the evidence before the Court bearing in mind that she has a further $100,000 of funds obtained from Josef to supplement the purchase if needed.
This is essentially the last chance to set Robert up in secure accommodation with basic health needs met. I am concerned that the opportunity should not be wasted. Noting that Robert has had drug problems in the past, and without any disrespect to him, I would prefer to see these funds managed by a trustee to ensure that it is properly spent in the manner described before any surplus - if there is one - goes to Robert. Lisa or a local accountant - or both - would be sensible choices, although I would understand if Lisa does not wish to perform this role. I direct the parties to bring in short minutes of order to reflect these reasons, within 14 days. Any errors or omissions should also be notified at this time.

Rathswohl v Court

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (20)

Cited By (2)