Re Estate Bohar; Bockos v Bohar

Supreme Court of NSW|2021-09-09|Before: Lindsay J

Solicitors: Plaintiff: Szabo & Associates First Defendant: Matthews Dooley & Gibson Second Defendant: Geikie Legal Third Defendant: CMM Quay Legal Group File Number(s): 2020/00164803

INTRODUCTION

For determination in this judgment is an application (under Chapter 3 of the Succession Act 2006 NSW) by an adult granddaughter for a family provision order in respect of the estate or notional estate of her deceased maternal grandmother.
The plaintiff's application was made within the time limited by section 58(2) of the Succession Act 2006.
Because the deceased's estate has been distributed to the three beneficiaries entitled under her will (the three defendants), the plaintiff seeks an order (made by reference to sections 63(3), 63(5), 79, 87-88 and 93-94 of the Succession Act) for designation of the distributed funds as notional estate of the deceased.
The jurisdiction of the Court to make such an order is acknowledged by the defendants who nevertheless draw to the Court's attention the provisions of section 87 which require the Court to refrain from making "a notional estate order" unless it has considered the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits involved in making or refusing to make the order, as well as other matters it may consider relevant.

The Eligibility of a Grandchild depends upon a relationship of dependency: Succession Act, sections 57(1)(e) and 59(1)(a)

Some, but not all, grandchildren of a deceased person are eligible to apply (under Chapter 3 of the Succession Act) for a family provision order in respect of the estate, or notional estate, of the deceased. The standing of a grandchild to apply for a family provision order is governed by section 57(1)(e) of the Act, which is in the following terms: "57 Eligible persons (1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person - … (e) a person - (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, …"
There is no age limit placed upon a grandchild making an application for a family provision order.
The standing of a grandchild depends upon proof that he or she was, at a particular time, "wholly or partly dependent on the deceased person". The fact of "dependency" might be informed by whether or not the grandchild was, at some time, "a member of the household" of the deceased, but proof of membership of the deceased's household was not enough. What is required is proof of a relationship of dependency.
In Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [52] Hallen AsJ made the following observations, which I adopt: "[52] The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support."
In Ball v Newey (1988) 13 NSWLR 489 at 491B Samuels JA (with whom Hope JA agreed) wrote: "'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro [1928] 98 LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here [in the case at hand] we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant [an applicant for relief under the Family Provision Act 1982 NSW] and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."
In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346B, Hope AJA (with whom Clarke and Sheller JJA agreed) wrote: "The word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute [the Family Provision Act 1982] or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McLelland J said in Re Fulop (Dec'd) or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. …"
In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223, Palmer J wrote: "[42] Dependence for the purposes of s.6(1)(d) [of the Family Provision Act 1982], so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance."
In Skinner v Frappell [2008] NSWCA 296 at [85] Young CJ in Eq (with whom Campbell JA agreed) wrote: "[85] The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material or physical help or succour, emotional dependency is not enough."
The expression "partly dependent" in the definition of "eligible person" is a word of some elasticity; in its context, it does not necessarily mean "substantially"; rather it suggests the meaning of "more than minimally" or, perhaps, "significantly": McKenzie v Baddeley [1991] NSWCA 197 at page 4 (lines 7-12) per Priestley JA, with whom Hope AJA agreed.
In the same case, Meagher JA (at page 6, lines 15-20) put the proposition thus: "Common sense requires that certain trivial activities should be disregarded, even if they literally come" within a statement of principles about what constitutes dependency.
In his statement of general principle, Meagher JA (at pages 5-6) drew support from a judgment of Gibbs J in Aafjes v Kearney (1976) 180 CLR 199 at 208: "In Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 188-189, I accepted that one person is dependent on another for support if the former in fact depends on the latter for support even though he does not need to do so and could have provided some or all of his necessities from another source. I adhere to that view but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependent on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; 'past events and future probabilities' have to be considered [Lee v George Munro (1928) 21 BWCC 401 at 408]. The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father [cf. the cases cited in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 188]. But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependent of her benefactor and therefore as now wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father."

"Factors Warranting": Succession Act, section 59(1)(b)

In addition to a requirement that there has been a relationship of dependency, a separate but perhaps overlapping requirement for a grandchild who applies for a family provision order is that he or she must prove that "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of [the plaintiff's] application for a family provision order: Succession Act, section 59(b).
Conventionally, "factors warranting" are taken to be factors which, when added to facts which render the plaintiff an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased: Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241.

(In)adequacy of Provision: Succession Act, section 59(1)(c)

If a plaintiff grandchild satisfies the Court that there are "factors warranting" his or her application for a family provision order, he or she must then satisfy the Court that "at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of [the plaintiff] has not been made by the will of the deceased person [in a case in which the deceased has died leaving a will]": Succession Act, section 59(1)(c).
The concepts of "adequate" and "proper" embedded in section 59(1)(c) must be understood as relative to the facts of the particular case: Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19. As generally understood, "adequate" is a word concerned with quantum whereas "proper" is a word directed to a standard of maintenance, education and advancement in life. Both words focus attention on the circumstances of the particular case viewed from the perspective of the deceased and contemporary community standards.

Discretionary Provision: Succession Act, section 59(2)

If the Court is satisfied that there are "factors warranting" (section 59(1)(b)) and that the plaintiff grandchild has been left "without adequate provision" (section 59(1)(c)), section 59(2) provides that the Court may make "such order for provision out of the estate [or, by virtue of section 63(5) of the Succession Act] the notional estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life" of the plaintiff, having regard to the facts known to the Court at the time the order is made.
Upon a consideration of section 59(1)(c) and upon an exercise of the power for which section 59(2) provides, the Court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating him or her as wise and just rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 479-479; Scales Case (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1918) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and generally consulting specific statutory criteria referred to in section 60(2) of the Succession Act so far as they may be material.

"Guideline" Principles inform assessment of a claim by an adult grandchild

At each stage of the decision making process (when considering the existence of "factors warranting", the "adequacy" of provision made and a grant of discretionary relief) the Court is required to have regard to prevailing community standards of what is right and appropriate at the time of the Court's order: Andrew v Andrew (2012) 81 NSWLR 656 at [16]; Chapple v Wilcox (2014) 87 NSWLR 646 at [20]-[22] and [150].
In Chapple v Wilcox (2014) 87 NSWLR 646 at [17]-[23], [65]-[67] and [150] the Court of Appeal approved Hallen AsJ's summary of guidelines, as indicative of current community standards, for the assessment of family provision claims made by grandchildren in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113]: "[113] In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered: (a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition. (b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. (c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. (d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. (e)The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. (f)It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents."
As Hallen AsJ and the Court of Appeal emphasised, these "guideline" principles cannot properly be treated as rules of law. The Court's jurisdiction is governed by legislation, unconstrained by principles drawn from decisions on similar facts in other cases. They merely provide useful assistance in considering the legislative provisions which the Court is bound to apply, recognising that family provision cases are inherently fact-sensitive.
In approving Hallen AsJ's "guidelines" relating to family provision claims by grandchildren, the Court of Appeal (at Chapple v Wilcox (2014) 87 NSWLR 646 at [21] and [150]) also observed that guideline principles summarised by his Honour in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], as set out hereunder, "inform the correct approach to a claim by an adult grandchild": "[111] In relation to a claim by an adult child, the following principles, in my view, 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 moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set 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. 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) 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) [1981] 2 NSWLR 532; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (e) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 149. (f) Although some may hold the view that equality between children does not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the Court's determination of an applicant's case."
In Chapple v Wilcox (2014) 87 NSWLR 646 at [14] Basten JA (with whom Gleeson JA agreed) made the following observations which may also have particular resonance in the current proceedings: "[14] There may be circumstances in which widely held community standards might expect a grandfather [or grandmother] to make some provision for his [or her] grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults. …"

The Deceased

Margaret Bohar ("the deceased") died on 27 September 2019, aged 97 years, leaving a will dated 3 December 2014 and a codicil dated 21 October 2015, probate of which was on 12 December 2019 granted to her daughter Erika (the first defendant), the executrix named in the will.

The Deceased's Estate

At the time of her death the deceased was the registered proprietor of her residence in Castle Street, Castle Hill ("the Castle Hill Property"). She held that property on trust for the first defendant (as to a 10% interest) and herself (as to a 90% interest) pursuant to a deed dated 22 October 2015 made between herself and the first defendant.
The deceased's 90% interest in the Castle Hill Property was, at the time of her death, her only substantial asset, apart from a nominal credit in a bank account. She died without liabilities.
The provenance of the deed is as stated in the preamble to the deed: "A. Margaret [the deceased] is the registered proprietor of the [Castle Hill Property]. B. Erika [the first defendant] is the daughter of Margaret. C. Margaret has requested that Erika move into the Property to live with Margaret and be on hand to provide immediate care for Margaret in her advancing years. D. Erika desires to pay to Margaret the sum of one hundred and four thousand five hundred dollars ($104,500) to be applied by Margaret to improvements on the Property to make it more accommodating for them both to live comfortably therein. E. Annexed hereto is a copy of a Valuation Report … which evidences the value of the Property as one million and forty five thousand dollars ($1,045,000). F. Erika has requested that Margaret holds a 10% share of the Property on trust for Erika."
No challenge has been made to the validity of the deed. The deceased's estate has been administered to date in a manner consistent with the terms of the deed.
Evidence of the first defendant is that the sum of $104,500 referred to in the deed was selected simply to represent one tenth of the value of the Property at the time the deed was made. She says that her actual contribution to renovation of the Property was well in excess of that amount. She says she has retained receipts for $115,878 spent on the renovations, in consultation with the deceased, but, she says, she spent another $50,000 or so for which she does not presently hold receipts.
The arrangement for the first defendant to assume the role of companion and carer for the deceased coincided, more or less, with the first defendant's retirement from paid employment and sale of her own residence at St Helen's Park.
Following the death of the deceased, the Castle Hill Property was sold. 10% of the net proceeds of sale were paid to the first defendant in her personal capacity. The remaining 90% was retained as the estate's principal asset. The sale was settled on 13 May 2020. The sale price was $2,183,000. After adjustments on sale, and a payment to the first defendant of her 10%, the estate received from the sale $1,935,196.72.

The Deceased's Will

In substance, the deceased's will dated 3 December 2014 provided for her estate to be divided between: 1. the first defendant, as to a one half share; 2. the deceased's other daughter (the second defendant) Eve, as to a one quarter share; and 3. the deceased's grandson Steven (the third defendant, a child of the second defendant) as to a one quarter share.
The will provided that: (a) should the first defendant predecease the deceased, her share would pass to her daughters, Simone and Michelle; and (b) should the second defendant predecease her, the second defendant's share would pass to her children, the third defendant, Eva and the plaintiff.
The parties invite the Court to disregard the terms of the codicil. It provided, inter alia, for the first defendant to be paid 10% of the estate's share of the net proceeds of sale of the Castle Hill Property before division of the deceased's residuary estate between the three defendants. Having received her share of the net proceeds of sale independently of the deceased's will, the first defendant disclaimed the gift to her made in the codicil. The terms of the codicil can be disregarded.

DISTRIBUTION OF THE DECEASED'S ESTATE

On 20 December 2019 the first defendant, in her capacity as executrix of the deceased, published a formal "notice of intent of distribution of estate", calling for any claims on the estate to be made within 30 days from publication of the notice.
In May or June 2020, after payment of testamentary expenses, the solicitor for the first defendant, by way of a "final distribution" of estate funds (totalling $1,918,083.69) then held, paid to: 1. the first defendant, the sum of $959,041.85; 2. the second defendant, the sum of $479,520.92; and 3. the third defendant, the sum of $479,520.92.
The first and third defendants received their distributions on or about 15 May 2020, before the plaintiff's solicitors on 28 May 2020 advised the solicitors for the first defendant of their client's intention to make a family provision application.
There was an administrative delay in payment of the second defendant's distribution. By a letter dated 2 June 2020, the plaintiff's solicitors consented to the second defendant receiving her distribution, without prejudice to the plaintiff's family provision claim.
The plaintiff made her application for a family provision order by a summons filed on 2 June 2020 (since amended to accommodate joinder of the second and third defendants), more than three months before the time limited by section 58 of the Succession Act for any such application to be made.

The Deceased, her husband and children

The deceased was married once only, to Lajos (Louis) Bohar. They were married in Hungary in 1941. He died in 1981.
By her marriage to Louis, the deceased had two children: 1. Eva (Eve), the second defendant, born in May 1942 and now aged 79 years; and 2. Erika, the first defendant, born in March 1948 and now aged 73 years.
Shortly after the first defendant's birth, in 1949 the Bohar family migrated from Hungary to Australia.

The First Defendant's family

The first defendant married Paul in 1968. They separated in mid-1985, reconciled in January 1987 and finally separated in 1991. Two children were born of their marriage: 1. Michelle, born in 1970; and 2. Simone, born in 1973.

The Second Defendant's family

The second defendant married Ernest in 1964. They separated in 1980. There are three children of their marriage: 1. Erika, the plaintiff, born in 1966, and now aged about 55 years; 2. Eva, born in 1967 and now aged about 54 years; and 3. Steven, the third defendant, born in 1973 and now aged about 48 years.

The Plaintiff's family

The plaintiff was married to John Bockos between 1996-2018 or thereabouts, but she and John separated in about 2005 or 2006. Two children were born of their marriage: Franchesca and Louis.
After she separated from John, the plaintiff had a relationship with Mike between 2011-2014.
She has been in a relationship with Richard Austin since November 2017. He has a son (Kristoff) and two grandchildren living in Melbourne.

The Third Defendant's family

The third defendant met his wife Angeline in May 2001. They married in September 2007. They have one child, Isabel, born in October 2015.

INTERPERSONAL RELATIONSHIPS

Since a time well before the death of the deceased, there has been a rift within the Bohar family. The plaintiff long ago fell out with her brother, the third defendant. Their mother, the second defendant, took the plaintiff's side. Within the family, there has been a perception that the plaintiff and the second defendant (on the one hand) vie with the third defendant (on the other hand). The first defendant has sided with the third defendant, as it seems did the deceased.
Family relationships appear to have deteriorated, after the death of the deceased's husband in 1981, when the first defendant assumed an increasingly more active role in helping her mother maintain the Castle Hill Property and when, as her retirement approached in 2015, she and the deceased planned her move, with renovations, to the Castle Hill Property. Rightly or wrongly, the plaintiff and the second defendant resented the first defendant's role as the deceased's companion and carer, regarding her as an unsympathetic gatekeeper limiting their access to the deceased.
According to the first defendant, in late 2014 (at about the time the deceased executed her last will) she had a conversation with the deceased in terms to the following effect: The deceased said: "I want to leave everything to you in my will". The first defendant said: "I don't want that Mum. I only want half." Later, the deceased said: "I will leave a quarter to [the second defendant] and a quarter to [the third defendant]." The deceased also said: "I'm going to look after [the third defendant] now because I don't think he'll get anything from his parents."
The deceased had had a good relationship with the third defendant for many years, including a period of about 2 years when he resided with her.
That the relationship between the deceased and the second defendant had struck a rough patch appears from a handwritten letter she addressed to the second defendant, in her native Hungarian, on 25 April 2015. The English translation reads as follows: "EVA When you read this letter I will not be in this world anymore. I wanted this letter to be attached to the will as explanation why I didn't leave behind in equal half half shares the house, which you believe is rightly yours. Wrong. You offended me so many times and were deceiving me over the years, so I decided that I will exclude you even from my will. You were lucky, because your sibling [the first defendant], with whom you haven't talked for years talked me out of doing that. I was already on the pension, you were working, and yet many times you asked me for money on loan, and when I asked you to give me some back, because I needed money, what did you say to your friends? That I never gave you any money, that I lost my mind, that I was a story teller. I couldn't prove it, because I never asked you to sign a paper. As a mother, I trusted you. The letter [not identified in the evidence] is here. It is enough proof that you are a liar. You lived on that throughout your life, on lies. Do you know what you are? Not my child, but my worst enemy. My advice is: sit down and with this letter in your hand look into yourself and come to your senses. You are already 73 years old. Try to behave in such a way that you would get respect from people. Shall I send this letter to your daughters and friends? No, Eva! I will not be as vile and gross as you. I am not airing the family laundry in the window. I have nothing else to say. Margaret Bohar"
The second defendant says that she was shocked to read this letter, so out of character with her experience of her mother. She has faintly suggested, in these proceedings, that the deceased was slipping mentally at the time this letter was written. However, in the absence of any challenge to the validity of the deceased's will, and in circumstances in which the scheme of the will is rational and the second defendant received a one quarter share of the deceased's estate, the main significance of the letter is that it evidences a low ebb in personal relationships between mother and daughter. It is not necessary to interrogate the veracity, or otherwise, of the deceased's complaints against her daughter.
As it happens, at about the same time as the relationship between the deceased and the second defendant fell to the depths of this letter, an incident occurred which marked a low point in the relationship between the deceased and the plaintiff. After some years of little contact, during the course of renovations to the Castle Hill Property the plaintiff entered the Property, at a time of absence of the deceased and the first defendant, and took photographs. A neighbour alerted the first defendant to the fact that somebody had gained entrance to the deceased's house. Both the deceased and the first defendant took offence, and spoke sharply to the plaintiff about her unauthorised entry.
The family tensions evident at about this time were not always in view. Perhaps the best evidence of that is the fact that the plaintiff was named after the first defendant.
Nevertheless, by the time the deceased and the first defendant planned upon renovations of the Castle Hill Property and a joint life for the two of them at the Property, there was but a rocky relationship between the deceased, the first defendant and the third defendant (on the one hand) and the plaintiff and the second defendant (on the other hand).

IS THE PLAINTIFF AN "ELIGIBLE PERSON"? DID SHE HAVE A RELATIONSHIP OF (PARTIAL) DEPENDENCE ON THE DECEASED?

In essence, the plaintiff contends that she satisfies the requirement of section 57(1)(e)(i) of the Succession Act, that she had a relationship of dependence (or, more particularly, partial dependence) on the deceased, because: 1. during 3 separate periods between April 1987 and January 1992 (or thereabouts) she lived at the Castle Hill Property with the deceased, or "house sat" the Property while the deceased was on a trip to Hungary, so that she can be said to have been a member of the same household as the deceased; 2. during those separate periods (when she was in her twenties) she lived at the Castle Hill Property with the consent of the deceased: 1. the first period was for about 7 months between April-November 1987, when the plaintiff was aged about 21 years; 2. the second period was for about 6 months between April-October 1988, when the plaintiff was aged about 22 years; and 3. the third period was for about 8 months between May 1991 and January 1992, when the plaintiff was aged about 27 years; and 1. during those periods the plaintiff enjoyed the companionship and constancy of the deceased in a domestic setting in which the deceased bought her clothes, shoes and fabric and would sew clothes for her as the deceased loved to sew; and when they had lunch together the deceased would insist on paying for lunch.
That the plaintiff spent time living at the Castle Hill Property, and lived there in the company of the deceased, can be accepted. However, in giving her evidence the plaintiff manifested uncertainty about the timing, and duration, of her residency at the Castle Hill Property, and about the reasons for her living at the Property. I do not exclude the possibility that her evidence about life with the deceased involved a degree of embellishment borne of a hazy memory and the passage of time.
As she now remembers, her first period of residence at the Castle Hill Property occurred because she could not live at the second defendant's house, because it was impractical to live there and the garage was not ready to move into.
As the plaintiff now remembers her second period of residence at the Castle Hill Property, she lived there because the second defendant's house was cold, winter was approaching and she needed a rest and a career change. She commenced a legal secretarial course at Parramatta, which she now remembers was paid for by the deceased. During this period, in June 1988, the deceased, the first defendant and the second defendant went to Hungary for a holiday, leaving the plaintiff to "house sit" the Castle Hill Property.
As the plaintiff now remembers the third period, she stayed at the Caste Hill Property because an ex-boyfriend was stalking her and she sought to get away from him. During this period, she says, she saved $5,300 to travel overseas.
The "something more" than a grandchild relied upon by the plaintiff in support of her contention that she had a relationship of partial dependency on the deceased is essentially her membership of the deceased's household for the three specified periods. The deceased's generosity in providing accommodation, food, clothing and education expenses was a function of the relationship of grandparent and grandchild. The deceased was generous in her dealings with all her grandchildren.
The context in which the plaintiff's relationship with the deceased is to be assessed includes the following facts: 1. at the time the plaintiff lived with the deceased at her Property she was an adult, not a minor; 2. the relationship between the plaintiff and the deceased was not one in which the deceased occupied the position of a parent vis-à-vis the plaintiff; 3. the plaintiff lived with the deceased in circumstances in which the deceased was under no obligation to provide for the plaintiff and the plaintiff was under no obligation to stay with her; 4. the plaintiff lived with the deceased as and when it was convenient for her to do so; 5. the relationship between the plaintiff and the deceased was more one of convenience than of necessity; and 6. viewed in the perspective of what preceded and followed the times when the plaintiff lived with the deceased, those times were transient. The plaintiff did not live with the deceased as a child. Nor did she live with the deceased or maintain a close relationship in after years. She got on with her life, independently of the deceased.
In characterising the underlying facts of the relationship between the plaintiff and the deceased, I am conscious of the breadth and flexibility of the statutory formula, "at any particular time, wholly or partly dependent on the deceased". I am conscious also of a need to examine the substance of the relationship, not merely its form.
In my assessment, the plaintiff's relationship with the deceased did not extend beyond that of a grandchild. The plaintiff was not at any time, even partly, "dependent on" the deceased.
A consequence of that finding is that the plaintiff cannot bring herself within the definition of an "eligible person" as defined by section 57(1)(e) of the Succession Act, and she cannot meet the precondition set out section 59(1)(a) for the making of a family provision order. On that basis alone, her summons must be dismissed.

ARE THERE "FACTORS WARRANTING" THE MAKING OF THE PLAINTIFF'S APPLICATION?: SUCCESSION ACT, SECTION 59(1)(b)

In case I am wrong in denying to the plaintiff the character of an "eligible person", I turn attention to whether (upon an assumption that she is an eligible person) there are "factors which warrant" the making of her application for a family provision order as required by the Succession Act, section 59(1)(b).
The plaintiff's contention that there are "factors warranting" the making of her application for a family provision order is based upon an analysis of various wills of the deceased: 1. In each of the five wills of the deceased in evidence (respectively dated 12 February 2004, 8 June 2006, 13 February 2009, 30 March 2011 and 3 February 2014) the deceased appears to have been conscious of her grandchildren, if only in her identification of them, either generically or in some cases by name, as substitute beneficiaries in case of the death of a parent; 2. In the deceased's will dated 12 February 2014 her grandchildren (described generically) were given the proceeds of her investment account with a bank. 3. In the deceased's will dated 8 June 2006 the plaintiff was not one of the two grandchildren named as beneficiaries; 4. In the deceased's will dated 13 February 2009 the plaintiff does not appear to be one of the three grandchildren named as beneficiaries but, I note, counsel for the plaintiff and counsel for the third defendant both assume that a reference in the will to "Eva" is a reference to the plaintiff rather than to her sister of that name; 5. In the deceased's will dated 30 March 2011 all her grandchildren (including the plaintiff) are named as residuary beneficiaries ranking after the first defendant (consistently the deceased's major beneficiary) and the second defendant (the recipient of a legacy); 6. In the deceased's last will, dated 3 December 2014, the plaintiff is named, but only as a substitute beneficiary (along with her siblings) in the event of the death of her mother, the second defendant; and 7. The plaintiff is not mentioned in the deceased's codicil dated 21 October 2015.
If there is any pattern in these testamentary instruments, it is that the first defendant was consistently favoured as a beneficiary (with a one half share of the proceeds of sale of the Castle Hill Property), the second defendant was the next ranking beneficiary (initially with a one half share of the Castle Hill Property but later, until the last will, with a legacy, initially of $50,000, then $150,000), and fluctuating recognition was given to grandchildren. The third defendant appears to have been a favoured grandchild.
The deceased's pattern of naming grandchildren as beneficiaries may have reflected the vicissitudes of the first and second defendants' experience of marriage, and perceptions of particular needs of particular grandchildren. However, the evidence does not readily lend itself to a settled conclusion about that.
What is clearer is that, when she came to preparation of her last will (dated 3 December 2014) the deceased viewed her two daughters (the first and second defendants) as the most natural objects of her testamentary recognition. Had there not been a rift within the family from which she sought to protect the third defendant, a fair inference is that her estate would have been, in essence, divided equally between her daughters, the first and second defendants. Consistently with that assessment, the first defendant was named to receive a one half share of the net proceeds of sale of the Castle Hill Property. The second defendant was given only a one quarter share because, as the deceased told the first defendant, she doubted that the third defendant would be provided for by his parents. Implicit in this reasoning is an assessment that the plaintiff can look to her mother for assistance, whereas the third defendant cannot.
In her support of the plaintiff's case, the second defendant says that she has made provision for the third defendant in her will (the terms of which are not in evidence) because he is her son. I place no weight on this because it does not address the character of the plaintiff's application for a family provision order and, in any event, there is no suggestion that the second defendant's will is anything other than revocable.
The plaintiff may have had a sense of entitlement to participation in the deceased's estate, but she appears to have expected that to happen through testamentary provision made for her mother, the second defendant. In evidence is a text message sent by her to the first defendant on 21 March 2020 (which I infer may have been the date upon which the Castle Hill Property was sold by auction). It was in the following terms: "You've probably all been celebrating today. Spare a thought for your sister [the second defendant] who should have got 50%. It's a very very sad situation. Mama and Papa would have looked after us all and me a long time ago. I was their first grandchild and I get nothing. Seems so unfair. As Mama would say, God doesn't punish with a stick."
An underlying assumption of this text is that the deceased "should have" divided her estate between her two daughters (the first and second defendants), leaving them to look after their own children. Given the rift within the Bohar family, the text might also reflect a degree of resentment on the part of the plaintiff that her brother, the third defendant, was named as a beneficiary without provision for her.
The deceased's deliberate division of one half of her estate between the second and third defendants is consistent with the idea that her estate should be divided between her daughters' respective sides of the family, making special provision for the third defendant from the second defendant's notional half share because of a doubt that the second defendant would in fact confer any benefits on him.
Upon a consideration of any "factors warranting" the plaintiff's application, the fact of the family rift cannot be overlooked. The plaintiff's relationship with the deceased experienced a low point at the time of their confrontation about the plaintiff's presumption, in or about 2015, that she could enter the deceased's home and take photographs in the absence of the deceased. It appears not to have recovered from that point.
The plaintiff attributes to the first defendant blame for her not having a close relationship with the deceased after 2015. In common with the second defendant, she views the first defendant as having isolated her from the deceased's company.
I do not exclude the possibility that the first defendant's co-residence with the deceased was a disincentive to any ongoing involvement with the deceased on the part of the plaintiff and the second defendant. However, the fact remains that, by the time of the deceased's death, there was an apparently unbridgeable gulf between the plaintiff and the deceased.
In my opinion, the fact that some provision had been made for the plaintiff in some of the deceased's earlier wills provides no firm foundation for a conclusion that there were "factors warranting" for the plaintiff's making of an application for a family provision order. The fact that the plaintiff was a grandchild (even the deceased's first grandchild) does not, of itself, bestow upon her the status of a natural object of the deceased's testamentary recognition. The relationship between the plaintiff and the deceased was real enough but there was not the "something more" to warrant a family provision application.
This finding (that, having regard to all the circumstances of the case, whether past or present, there are no factors which warrant the making of the plaintiff's application) provides an independent ground upon which the plaintiff's summons must be dismissed. The plaintiff has not satisfied the Court of the requirement for which section 59(1)(b) of the Succession Act provides.

HYPOTHETICALLY, WAS THE PLAINTIFF LEFT WITHOUT "ADEQUATE PROVISION" FOR HER "PROPER" MAINTENANCE, EDUCATION OR ADVANCEMENT IN LIFE?: SUCCESSION ACT, SECTION 59(1)(c)

Upon assumptions that: (a) contrary to my finding, the plaintiff is an "eligible person"; (b) contrary to my finding, there are "factors warranting" the making of her application for a family provision order; and (c) the whole of the distributed estate ($1,918,083.69) is available for designation as notional estate of the deceased, attention turns to section 59(1)(c) of the Succession Act.
The plaintiff bears the onus of satisfying the Court that, at the time when the Court is considering her application for a family provision order, "adequate provision" for her "proper maintenance, education or advancement in life" has not been made by the deceased's will.
For several reasons, it is not necessary to dwell at length on competing responses to this question.
First, as a practical matter, findings (contrary to mine) that the plaintiff is an eligible person and that there are factors warranting the making of her application for family provision relief would implicitly involve an acceptance that the deceased was under an obligation to make testamentary provision for the plaintiff.
Secondly, the plaintiff and her current partner are patently in straitened financial circumstances, as each of the defendants acknowledges.
Thirdly, upon an assumption that the whole of the distributed estate is available for designation as notional estate, there are assets amenable to a family provision order.
Fourthly, there are reasonable grounds for a finding that the plaintiff has been left without "adequate provision" for her "proper" maintenance etc insofar as she has no secure accommodation, no secure income, poor prospects of future employment or, during the COVID-19 pandemic, the operation of a business, and no capital reserve for contingencies beyond modest superannuation; she and her partner are both unemployed pensioners living in rented accommodation, on pensions. Their combined superannuation entitlements have no greater value than about $30,000. Their basic living expenses exceed their pension entitlements. Fifthly, no provision of any kind was made for the plaintiff in the will of the deceased.
If required to make a finding by reference to section 59(1)(c) of the Succession Act, upon the assumptions I have identified, my finding would be that the plaintiff has been left without "adequate provision for [her] proper maintenance, education or advancement in life", with the consequence that it would be necessary for the Court to engage with section 59(2) of the Act and the provisions governing a designation of property as notional estate of the deceased.

HYPOTHETICALLY, WHAT (IF ANY) PROVISION "OUGHT" TO BE MADE FOR THE PLAINTIFF?: SUCCESSION ACT, SECTION 59(2)

This question cannot be answered independently of a consideration of the provisions governing a designation of notional estate.
Upon an assumption that the deceased had an obligation to make testamentary provision for the plaintiff, and that the distributed estate is available for designation as notional estate, the large questions are: (a) what, if any, provision should be ordered in favour of the plaintiff? (b) to what extent, if at all, do the defendants' reasonable expectations and the substantial justice and merits involved in the making, or refusing to make, a family provision order militate against a designation of property as notional estate? (c) what (if any) special circumstances warrant a designation of notional estate? (d) if an order for provision were to be made in favour of the plaintiff, what quantum of relief should be ordered, and which of the defendants should bear the burden of it?
Bearing in mind each of these questions (which allude particularly to sections 87 and 88 of the Succession Act), attention returns to section 59(2) of the Succession Act: what, if any, provision "ought" to be made for the plaintiff?
If called upon to make a finding responsive to this question then, in my assessment and upon the assumptions I have identified, provision "ought" to be made for the plaintiff in the form of a legacy of $60,000. That is because: 1. the stringent financial circumstances, and poor financial prospects, of the plaintiff warrant a modest award of provision notwithstanding the deceased's determination to make no testamentary provision for her personally; 2. respect for the deceased's testamentary scheme (which anticipated that the plaintiff could, and would, look to her mother, the second defendant, for assistance) militates against an order for provision that substantially diminishes the entitlements of the defendants (Sgro v Thompson [2017] NSWCA 326 at [83]-[86] and [95]); and 3. although a legacy of $60,000 falls short of the provision sought by the plaintiff (a legacy of $110,000), it would provide a contribution to her present and future living expenses.
In setting out this line of reasoning, I am conscious that each of the defendants presents a case against the imposition on themselves of any burden of any family provision order made in favour of the plaintiff.
The first defendant points to her long-standing expectation, based upon the deceased's pattern of will making, that she would be left one half of the deceased's estate. That said, she is reasonably well off and, notwithstanding her retirement, she has made substantial gifts (in part funded by the deceased's estate) in favour of her children. She has, in effect, acted in accordance with the deceased's expectation that each of her daughters would look after each of their own children.
The second defendant is not so well off materially and she has substantial health concerns. Whereas the first defendant says, simply, I should not bear the burden of a family provision order made in favour of the second defendant's daughter, the second defendant contends affirmatively that an order for provision should be made in favour of the plaintiff at the expense of the third defendant.
Although the third defendant has substantial financial concerns arising from uncertain business prospects connected with the ongoing COVID-19 pandemic, his personal circumstances are more affluent than either the plaintiff or the second defendant. He contends, however, that it would be unjust to place upon him, or him alone, the burden of any provision ordered in favour of the plaintiff because, relying upon the deceased's testamentary provision for him, he committed himself to a building contract for renovations designed to enable his ill mother-in-law to reside with him, his wife and their young child.
Had I decided that the plaintiff was entitled to a grant of relief, I would have ordered that she be granted a legacy of $60,000 charged equally against the three defendants ($20,000 a piece) with an order for designation of property (limited to those amounts) made in recognition of the special circumstances that: (a) the plaintiff's application for a family provision order was made within the time limited by section 58(2) of the Succession Act; (b) to the extent that the defendants may have taken advantage of the earlier distribution of estate funds to them, they did so without waiting for expiry of the time limited for the making of a family provision application; and (c) the plaintiff and her partner then lived, and continue to live, in straightened circumstances because of the COVID-19 pandemic.
In my assessment, a charge of $20,000 upon each beneficiary's inheritance to satisfy an order for provision in favour of the plaintiff would not impact unreasonably upon their expectations, but would (upon the assumptions I have made in favour of the plaintiff, contrary to my findings) produce a just outcome.
I would decline to impose on the first defendant the greater burden involved in an apportionment of liabilities proportionate to the beneficiaries' property interests (that is, a liability of $30,000 for the first defendant and $15,000 for each of the second and third defendants) because such an apportionment would fail to recognise the primary source of conflict within the family: the rift between the plaintiff, the second defendant and the third defendant.

CONCLUSION

I make the following orders and notation: 1. ORDER that the plaintiff's summons be dismissed. 2. ORDER that the proceedings be listed before Lindsay J on 29 September 2021 at 9:00am for submissions as to costs. 3. RESERVE to the parties liberty to apply, in the meantime, in the event that they are agreed upon such, if any, orders as are to be made as to costs.

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: 16 September 2021

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