• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

File Number(s): 2024/00289230

JUDGMENT

INTRODUCTION

1. By a summons filed on 7 August 2024 the three adult children of Susan (Jane), “Sue” Mitchell (the deceased) each apply to the Court for a family provision order under Chapter 3 of the Succession Act 2006 NSW.

2. The deceased was born in December 1953 and died on 10 August 2023, aged 69 years, leaving a will dated 1 March 2002 which was admitted to probate on 8 April 2024 by way of a grant of letters of administration with the will annexed issued to the defendant (as the sole beneficiary named in the will), a niece to the deceased (on her side of the family) and first cousin to the plaintiffs. The “executor” named in the will, predeceased the deceased.

3. By the time of her death, the deceased’s estate had been substantially realised. Her principal asset (her house in George Street, North Strathfield, a former family home) was sold on 14 May 2023 for $2.5 million. The gross distributable estate of the deceased (excluding the costs of these proceedings) was at the hearing estimated to be approximately $2.5 million, with a superannuation death benefit of approximately $131,000 awaiting a determination by the superannuation trustee about the identity of the person to be paid that benefit.

4. Upon an assumption that the plaintiffs’ costs of the proceedings are allowed out of the deceased’s estate on the ordinary basis, and the defendant’s costs are allowed out of the estate on the indemnity basis, the parties’ agreed estimate of the value of the net distributable estate is $2,370,000.

FAMILY RELATIONSHIPS

5. The deceased was married once only, to John Patrick Gould, in June 1979. She left the matrimonial home (in Wyatt Avenue, Burwood) in January 2001. She and John were divorced in August 2002. They agreed to a property settlement on 25 June 2003, an incident of which was that the wife retained two properties, one the George Street property, the other a residential property in Ettalong (which she rented out after her divorce and eventually sold, perhaps to fund living expenses after her retirement but there is no clear evidence of her disposition of the proceeds for sale).

6. There were three children of the marriage:

(a) a son, named as “John Campbell” but commonly called “Campbell” (the third plaintiff) born in December 1976 and presently aged 49 years. (b) a daughter, Ella (the second plaintiff) born in April 1981 and now aged 45 years. (c) a daughter, Julia, “Julie” (the first plaintiff), born in January 1984 and now aged 42 years.

7. The deceased had two sisters, with whom she was very close: Jill (who affirmed an affidavit on behalf of the defendant in these proceedings) and Pamela, Pam (who predeceased the deceased).

8. The deceased was also very close to Pamela’s two daughters, Penelope (Penny) and Sophia (Sophie), particularly Penelope, the defendant in these proceedings. After the deceased’s separation from her family both girls became as surrogates daughters to her.

9. Pamela first showed symptoms of Huntington’s Disease in or about 1998/1999 and suffered ill health until her death in June 2012.

10. Penelope was born in October 1984 (nine months after Julia) and is presently aged 41 years. She was one year behind Julia at school. Her sister Sophie is about 2-3 years younger than her.

11. Penelope commenced living with the deceased in mid-2000 or thereabouts, ostensibly on account of Pamela’s incapacity (by reason of ill health) to manage two young daughters. Penelope transitioned from a home life of marital discord between her parents and a home life with the deceased attended by unhappiness in the marriage between the deceased and her husband.

12. When the deceased separated from her husband and moved into rental accommodation in Croydon Park (first at one location, then another) Penelope moved with her.

13. Close in age, the cousins Julia and Penelope were friends at an early age; but, when the deceased left the family home and took Penelope with her, Julia (not unnaturally) declined to go with them. The deceased’s estrangement from her children, her exclusion of the children from her testamentary bounty, and the acrimony associated with these proceedings have done nothing to restore an early friendship.

14. Campbell is presently married and has three children: an 18 year old daughter by an earlier relationship and two young boys (respectively aged four and two years) by a subsequent relationship.

15. Ella has never married, is not in a relationship and has no children.

16. Julia is married and has two children, daughters aged 12 and nine years respectively.

17. All three children were traumatised by their parents’ separation and traces of trauma remain, reflected in their perceived need for ongoing therapy. The circumstances in which the deceased left the family home, and at that time rejected them in word and deed, left each of them confused and anxious, with a legacy of ongoing anxiety.

18. With the passing of time, and maturity, they cast no blame on either of their parents for the breakdown of the parents’ marriage, though they continue to suffer emotional pain as collateral damage in their parents’ war.

19. The plaintiffs’ father was not called as a witness. A faint suggestion that these proceedings were commenced at his instigation was not pursued and, on the evidence, has no foundation. His absence from the witness box was not the subject of adverse comment.

20. The evidence is devoid of any suggestion that the father maintained the bitterness that marred the deceased’s enjoyment of life after her marriage was consigned to history.

FAMILY DYSFUNCTION AND DISHARMONY (2000-2023)

21. By all reports, the marriage between the deceased and John was unhappy and turbulent.

22. Her children remember their mother as erratic and prone to violence.

23. Penelope remembers her as, to her, a loving and supportive parent who encouraged her to attend university and supported her financially and emotionally. She speaks of the deceased as a mother figure to her and as a person who enjoyed mutual respect and affection in her community of friends and students she taught.

24. Penelope fairly concedes that the deceased had a hard side, as well is a soft side, to her personality and that she did not give to her children the same love, care and affection that she gave Penelope as her surrogate daughter.

25. Until she retired in 2015, the deceased pursued her profession as a high school teacher at a local State School.

26. Between the year 2000 and 2014 (or thereabouts), she was, it seems, in a romantic (“on again, off again”) relationship with a former student, sometimes described as a “boyfriend” and sometimes as a “partner”. His name was anglicised to “Michael (Mischa) Stamford”. His relationship with the deceased appears to have crystallised at about the time she decided to leave the matrimonial home, but intimate correspondence between the two suggests that a friendship (at least) commenced as early as 24 May 1994, the date upon which Michael wrote a love letter to the deceased which referred to their “16 year association”. It may be that their association commenced at about the time that Michael left school in 1978.

27. The precise nature of the relationship was not explored in any depth in these proceedings and is not of great significance to a determination of the proceedings. The larger fact is that Michael was mentioned in dispatches as a factor in the breakdown of a marriage. He was not called as a witness and no adverse comment was made about his absence.

28. The plaintiffs first became aware (as they believed) that the deceased had had a long running affair with Michael only when she left the family home (with Penelope who was then, living there and a female student who was a boarder) and Michael took up residence with her shortly thereafter.

29. A powerful contemporaneous record of the dysfunction that reigned in the family home (from a perspective shared by the plaintiffs) is a submission made by Julia to her school for “special consideration” for her “Higher School Certificate” assessment at the end of 2001.

30. Leaving aside detail of the deceased’s disengagement from her family, the following extracts speak to the chronology of what occurred:

“Family Separation

My mother left our family and home several times during my high school years in 1994, 1997, 1998, 2000 and 2001, at different times and for various lengths of time from 2 months to 6 months. Levels of communication with my mother during her absences seemed to be less with each continuing separation.

In 1994, the year of my brother's HSC, she left intermittently causing stress of extra responsibilities on my older sister and brother and the relationships we had with each other and with my father. It was a difficult time for me and my sister, I was closest to our mother then, being the youngest and my sister was in year 9, undergoing important physical, social and mental developments. My mother's absence caused a longing in both of us for our mother and her attention. However, her limited efforts in communication with us, sparked insecurity and rejection. She returned five months later, unexplained.

In 1997, my mother left again, in the middle of the year when I was in year 8. My sister was in year 11 and my brother was in his third year at University. There was a great deal of frustration and resentment in our family as a result of my mother leaving, particularly between my sister and I. …

It had become obvious that my mother's sister was showing signs of the heredity disease, Huntingtons Chorea. This disease attacks the brain and nervous system, making the person unable to function normally and is terminal. My maternal grandfather had died of the disease as did his two brothers and father. The family history of the disease was not promising. My father speculated that my mother was finding it hard to deal with the knowledge that her younger sister was going to die gradually, deteriorating slowly. We all harboured the fear that my mother had noticed symptoms in herself and was distancing herself from us, dealing with the sadness on her own.

In 1998, she left for another lengthy period of time during the winter holidays. She had removed the STD calls from our home phone before she left, making us unable to call her from our home phone, since she had moved an hour and a half away. This move also made it difficult to see her regularly. My mother disconnected the phone line in her house and therefore made it impossible to contact her. The ability to communicate was solely with my mother. And for this reason, the isolation she imparted on herself and us created many bitter and unresolved feelings.

She returned to our family home after the summer holiday period, creating a feeling of hesitation and uncertainty.

But, again in 1999, my mother left. There had been several arguments about my mother's secrecy and uncompromising attitude. She moved to my Aunt's house, we were led to believe by my mother, to help my Aunt and her young daughters (15 and 13 years old). A fight erupted between my mother and Aunt and consequently my mother moved to a female colleague's house, further away from us. There was reduced communication and interest between us. …. I was unsure of the reasons and circumstances of her actions.

My mother moved back home a couple of days before New Years Eve in 1999 without explanation.

… I found it difficult to cope with my mother's erratic mood swings. Her personality seemed to change from hour to hour also. She seemed to rapidly change from childish to mature, loud and then silent. I became unsettled with my mother's behaviour and feared she showed signs of Huntington's.

In January, 2001, her sudden, unexplained departure once more took a slightly nastier spiral. It became apparent that the move had been planned and orchestrated for a lengthy period of a year or more. … In amongst the heightened emotions, my younger cousin whom I had been close to, left our home also, in which she lived for the 8 months prior to my mother's move.

Three days after my mother left, a letter from her attorney asking for half of everything made the situation more upsetting. Like the rest of my family, I was worried that we would lose the family home. I had asked myself whether it was my fault that this had happened.

…

After two- three months of almost nil communication between my mother and I, it was discovered that my mother had been having a long-standing affair. It now became apparent that other concerns which occupied our thoughts, such as Huntington's disease were replaced with anger. …”

31. In cross examination, Penelope agreed that for most of 1999 the deceased was not living with her children. She was living, first, with her sister Pamela and Pamela’s daughters and, later, with a work colleague.

32. The proceedings in the Family Court of Australia, which culminated in dissolution of the deceased’s marriage and a property settlement between 2001-2003, were a traumatic experience for everybody, including the children, each of whom, forced by circumstance to watch a bitter contest from the sideline unfold, felt ostracised by their mother whose deep resentment of her husband informed her children’s profound perception that they had been rejected by her.

33. An estrangement between the plaintiffs (and their father) and the deceased (and Penelope) lasted from the time of the parents’ separation in 2001 until the deceased’s death in 2023. That it continued beyond the grave is illustrated by Penelope’s failure to inform the plaintiffs of the deceased’s declining health, her death or arrangements for her funeral on 21 August 2023 (organised by Penelope and Sophie to the exclusion of the plaintiffs, who learned of their mother’s death and funeral from others). In cross examination Penelope conceded that the plaintiffs had done nothing to her that would have ended her relationship with them. Her estrangement with her cousins was a function of their mother’s estrangement from them which, in turn, was a function of the mother’s enmity with her ex-husband. There was no known personal contact between the deceased and the plaintiffs’ father following their divorce.

34. At no time through the long years of estrangement did the plaintiffs send birthday or Christmas cards to their mother. There was no contact of any note between the children and the deceased until in or about 2014-2016 Campbell made an effort to restore a relationship with his mother. For whatever reason, it was not sustained. As Penelope observed it was not until about the time that Campbell contacted his mother in or about 2014-2016 that the deceased became nostalgic about her children and, via occasional cards and token gifts, she attempted, at a distance, according to her lights, to engage the children.

35. As viewed from the perspective of her children the deceased turned away from them in a decisive and emphatic manner, never allowing them space from her bitterness towards their father and turning her attention to her ailing sister Pamela and her daughters, Penelope and Sophie, particularly Penelope.

36. Penelope characterises her relationship with the deceased as akin to “a mother/daughter or older sister/younger sister relationship”, which subsisted until the deceased’s death.

37. That relationship was maintained even at a distance, between January 2005 and January 2007 or thereabouts, when Penelope lived in the United Kingdom, returning when the deceased told her that her mother was likely to be in need of full time care. Pamela was moved into residential care in about early 2008.

38. The mutual affection enjoyed by the daughters of Pamela and the deceased, as well as the deceased’s declining health, is illustrated by the fact that in or about late 2015 (after two years of living in the United Kingdom) Sophie moved in with the deceased, assisting her (in lieu of rent) with domestic and physical tasks she could no longer confidently undertake.

39. The deceased’s anxiety about Pamela’s health was fuelled in part by a fear of the hereditary character of Huntington’s Disease (from which Pamela suffered) and, independently of that, her own health. She was diagnosed with breast cancer in or about June 2002 and had surgery to remove a lump. She was generally in good health and continued working full time until 2014. In about September 2014 or slightly earlier, she disclosed to Penelope that she had been diagnosed with a heart condition that needed surgery and she was fearful it could result in her death or disability. That was a beginning of an anxious life of deteriorating health, physical and mental, with several low points (for example, diagnosed with Stage 4 Lymphoma in 2019 and a near death experience in 2021) until her death.

40. It was in that context that the deceased executed in favour of Penelope an enduring power of attorney and an enduring guardianship appointment on 18 September 2014, in company with Penelope, and Penelope accepted her appointments as attorney and guardian at the same time.

41. By that time Michael (who had lived with the deceased in an unstable relationship from time to time since her separation) had moved out of her home. When exactly their relationship came to an end, and in what circumstances, is not clear on the evidence.

42. The deceased executed her will (on 1 March 2002) at a time when she was embroiled in bitter family law proceedings against her husband, in which her children were collateral damage. In later years she recorded her memory of the estrangement between her and her children in a series of handwritten notes including one headed “Contested Will” and dated 17 November 2014 (written in anticipation of heart surgery); another, dated October 2021; a third is dated “2021”; and a fourth is headed “My Will 2022”.

43. Although these documents (other than that dated 17 November 2014) were not shared with Penelope at the time of their creation, on Penelope’s evidence they all appear to have been written by the deceased at times when she was experiencing a health crisis and (from about the end of 2018) a decline in both her mental and physical health.

44. It was early 2019 that she told Penelope that she had been diagnosed with Stage 4 Lymphoma. Penelope and Sophie both stepped up to assist her to cope with everyday life in difficult circumstances. Penelope noticed that, as she became increasingly unwell, she became emotionally withdrawn.

45. The deceased’s handwritten notes attest to a deep sense of resentment about (as she remembered events) a failure on the part of her children to support her at the time she separated from, and divorced their father. The same documents can also be read as justifying a decision to leave the children nothing in her will because, she reasoned, they were doing very well in material terms and could look to their father for material support. Despite appearances, she appears never to have been wholly unconcerned about their welfare.

46. A tragedy that appears to have affected the whole family is that mother and children appear never to have fully availed themselves of an opportunity to share their innermost thoughts or to debrief. In the words of the poet Robbie Burns (taken from Tam O*’Shanter*) they each “[nursed their] wrath to keep it warm”.

47. From the children’s perspective, the few times that they had contact with their mother after she left the family home she actively disparaged their father in no uncertain terms and criticised them by association, refusing or discouraging further contact. This undermined their confidence that they could have a normal relationship with her and fuelled their anxieties, demons from which they have yet to escape.

48. The deceased’s document dated 17 November 2014 is in the following terms:

“Contested Will

Regarding my children Campbell Gould, Ella Gould, Julia Gould.

I have not left them anything in my will out of spite or resentment.

My children had a comfortable upbringing. My ex-husband and I both worked full time to provide them with a good education at private schools, opportunities to pursue their interests in sports and the arts. They were well loved, well provided for and well parented. They spent their school holidays on the Central Coast bringing friends with them. They had many friends and a large extended family on their father's side. They received a great deal of support and love from their many aunts and uncles and enjoyed a close friendship with many cousins.

All my children did well in the HSC and all gained university entrance. During this time they were not expected to be self supporting or contribute past keeping their rooms tidy and helping out with chores when they had the time.

For a number of years we lived in a small 2 bedroom house at North Strathfield in which I now reside since the divorce. In the late eighties my ex bought the old family home [in Wyatt Avenue, Burwood] from his brothers and sisters and we moved there In the early nineties. It is a substantial property and heritage listed.

In January 2001, after many years of marital discord, I left. At that time I invited both my daughters to come with and for a short period Ella and her boyfriend lived with me. Campbell had left home at this time and Julia decided to stay with her father. Within a couple of months (Jan-April) Ella told me that her father had given her an ultimatum either she stop seeing me or she would not be welcome at his house, nor would he support her during her university studies. She apologised but said she couldn't afford to lose her father's financial support then or in the future. Given the following situation I surmised the same ultimatum had been given to my other children. The divorce was long and unpleasant, my ex refused any attempt to mediate a settlement and it wasn't until 2003 that l was awarded the first family home. During that time and for the next 10 years I attempt to let my children know that I understood, didn't blame them and would always hope to see them again.

My son became engaged, then married. I sent a card and gift. Julia got engaged and married. I sent card and gift. Cam had a daughter. I send card and gift. This was after 10 years of birthday cards, Christmas cards, emails to work numbers that I sourced from the internet and Facebook none of which was acknowledged. Eventually one of my ex-husband's family, a niece got in contact with me and by doing so has causes a rift between her and her father and siblings. She has little contact with them she was able to confirm that my ex was very bitter and angry about the divorce and had told the children they had to choose and they chose him.

My son is a self employed accountant he works out of his father's city office. Julia's husband is a self employed builder he works out of his (sic) my ex's office. Ella is a solicitor who works as an associate for a legal practice in Sth Aust.

On the (sic) 9 August 2014, Cam arrived at my house. He apologised but said it was only now that his father had relented and said he could see me, he's 38. He did tell me that neither Ella nor Julia wanted to see me. At that time he told me about his daughter and that he would like me to meet her. In Sept he emailed me asking me to meet him on Nov 1 which I did. He didn't bring his daughter. I sent him an email soon after but got no reply and haven't seen him since. When I found out Ella was in SA I googled it and got her work email. I wrote to her restating all previous info; no reply.

Compared to my husband, I have very little to leave and of my birth family I only have 1 sister and 2 nieces. A younger sister the mother of my 2 nieces died In 2012 aged 55. When my sister was too ill, my eldest niece came to live with me her younger sister preferred to stay with her mother. My niece was 15 when she came to live with me. She came with me when I left my husband and lived with [me] until her mid twenties, she calls me "Mum" and we have been very close all her life. She has been a daughter to me since she was 15. l have left my estate to her, she has so little compared to my children. My ex will leave everything to his 3 children and as long as he is alive, he will financially support them to grow their business and acquire property. They have access to massive professional expertise in an extended family that contains almost every top profession, my niece has one aunt who is an accountant, one sister who is a social worker and me a retired school teacher. My nieces also have the disadvantage of possible diagnosis with the same disease that killed my great grandfather, my grandfather, my father, 2 uncles, 2 cousins and their mother. Today there is still no cure but a long and painful deterioration. Symptoms start In the mid to later thirties, hospitalisation occurs in the forties, high level care in a nursing home occurs in the 50s and death follows soon after. Many sufferers commit suicide rather than endure their fate. Both by nieces live every day with the dread that they may be next. My children have no such burden.

[Signed]

It is a great sadness that I have 3 grandchildren who will never know they had a loving grandmother.

49. When the deceased attended Concord Hospital for surgery on 26 November 2014 she was driven to the hospital by Penelope and, after the surgery, she spent a few days at Penelope’s home recuperating. In her patient registration form submitted to the hospital she named Penelope as her “next of kin” and her “Person for Contact”.

50. In her affidavit affirmed 26 September 2024, paragraph [59] Penelope deposed to the following:

“After [the deceased’s] surgery, we spoke about her handwritten note dated 17 November 2014. On that occasion and on countless occasions since that date, [the deceased] said to me ‘I do not want the family to get anything. Please fight for me.’ I reassured her I will always look after her and promised I would defend her wishes.”

51. Sometime between 2014 and 2016 or thereabouts (the evidence is not entirely clear, but the deceased’s document dated 17 November 2024 suggests August 2014) Campbell visited his mother for the first time since their estrangement in 2001 and, for a time at least, the deceased (as she confided in Penelope) both held a hope of commencing a relationship with Campbell and his daughter and nursed disappointment that Campbell’s early overtures came to nothing. From Campbell’s perspective he was reluctant to expose his daughter to his mother’s persistent denunciation of his father in circumstances in which his daughter had developed a close and loving relationship with her grandfather.

52. After that time (not before), according to Penelope, the deceased told her that she had sent cards and gifts to her children and grandchildren with the hope of reconciling with them, but had received no responses. From the children’s perspective, the cards their mother sent them were brief, formulaic greetings devoid of explanations of the past, expressions of regret or invitations for further contact. If anything, they were counter-productive.

53. There was a glimmer of a hope, on one side or the other or both sides of the family divide, but it came to nothing.

54. In paragraph [92] is of her affidavit Penelope deposed that “[since] at least 2014, [the deceased] often spoke emotionally about her children and about not knowing her grandchildren and cried many times in my presence. [She] told me she was increasingly distressed about the eventuality of succumbing to cancer and her ex-husband taking her estate”.

55. The document dated “October 2021” is in the following terms:

“Last Will & Testament of Susan Mitchell

I nominate my sister Jill Mitchell as my legal nominee to see the wishes of my will are carried out.

I leave nothing to my 3 children as they at the bequest of their father, totally they had no contact with me for 20 years despite my attempts to see them, years of sending cards and presents they ignored me. The reason was that when I left my husband and divorced him after 21 years of phyiscaly emotional & mental abuse, he gave our children an ultimatum, they could see me they had a choice him or me, if they chose me he would disinherit them, they chose him, they sold their mother, my daughter told me she was sorry but l had nothing & she wanted the lifestyle he could give her and her siblings. I didnt see them after that. A few years ago my son visited & was obviously sent by his father, I had been very ill having a series of serious illnesses including breast cancer & lymphoma which I attribute to the sorrow & grief of losing my children, missing their weddings

The usual events Easter, Christmas, birthdays, anniversaries and the birth of my grandchildren all for money.

I have seen my husbands will and he has left everything to his 3 children equally. He's very wealthy and they will be very wealthy when he dies. I hope they think it was worth knowing they are well provided for. I leave whatever assets I have to various friends & relatives. My current family consists of 1 sister & two nieces.

Charities - HD Association, RSPCA, IFAW

Jill, Penny, Sophie - 70 George St, sell it or if you or Pen or Sophie want it (the land value is very good so if you can rent it it would be a good investment weekly. Unfortunately the RSPCA Cat Societies dont take cats anymore. 24 hours then euthanasia.

The cats - depending on how many are left that [illegible words]

[signature] Oct 2021”

56. The document dated “2021” is in the following terms:

“The girls stepmother [the stepmother of Penelope and Sophie] is a lot younger than her husband.

Meaning the girls wouldn't get anything!

(next page)

2021

Campbell - has a son - Lachlan and Ella Rose (different mothers). Give each child $2,000 ea

Julia has 2 daughters which I've never been allowed to see. Ella has no children. She's a solicitor earns good money.

My 2 nieces have a very wealthy father and he is married to his third wife, his 2 other died, one was my sister.

Only his youngest daughter talks to him his eldest daughter like my children doesn't talk to a parent. My niece is still very angry about his treatment of her and her mother. He was very unkind to his eldest daughter who was left to look after her young sister but also very sick mother suffering a terminal illness. She had no childhood and is quite rightly appalled at his behaviour and desertion of her mother and her and her sister.

(on the left-hand margin)

Will their father leave them anything or will it go to his wife if he dies before he […] If so I doubt she would leave it to the girls.”

57. The document headed “My Will 2022” is in the following terms:

“My Will 2022

Depending on what I have: & who’s still living!

RSPCA $15,000, IFAW $5,000

Depending on who’s still standing.

Therese Forman $5000 and $1000 to each girl

Penelope Mitchell - If you dont own a property you can stay

Sophia Bachell - If Sophie wants to stay / you talk it over [incomplete word]

If you take on No 70 you have the rates etc hopefully no cats by then, next door have enough 4 everyone.

I leave no money to my children Campbell, Julia & Ella Gould. They sold me for $6 million, $2m each.

After 20 years of domestic unpleasantness, threats sometimes violent when Julia was 17 I left my husband, Julia was 17 & going into Year 12. I wanted her to come with me but she refused, her brother & sister no longer lived in the family home.

My husband took my leaving him very badly. He told his children that he would give them $2 million each if they promised never to see me or talk to me ever again, they agreed. They haven't got the money yet.

After many years my son visited me. He had a daughter sole custody of Ella Rose. Her aunty is Ella Simone, unmarried, in her late 30's, my second child. Julia my third child has 2 daughters. I don't see them. In her early 30s Julia tried politics, not very successful, either was her father.

Ella Simone was not allowed to marry the man she loved, her father couldn't let her go it was a sad situation she & the man were planning the wedding but her father either threatened her, bribed her, & he probably bought & threatened the man, she's still not married, her father considers her his companion its a sickness on his side.

A lie detector test would be interesting.”

58. As disclosed by Penelope in an affidavit affirmed by her on 1 November 2024, consideration was given to the possibility that these documents might embody a statement of testamentary intentions qualifying for admission to probate as an “informal will” under the Succession Act, section 8. The view was taken, reasonably, that they did not rise that high. They appear, more likely than not, to be a series of “thought bubbles” in which the deceased contemplated her death, ruminated on the course of her family life and identified a range of potential beneficiaries or charitable causes she might support.

59. Although the documents may evidence the deceased’s state of mind at the times of their creation, they cannot be taken uncritically as factually correct in light of the evidence adduced in these proceedings, particularly the evidence of the plaintiffs.

60. The forensic importance of the documents is that they speak with the voice of the deceased, albeit at times of an emotional low and long after the marriage breakup that gave rise to an estrangement that everybody recognised but, more than likely, deep down, nobody wanted.

61. A striking feature of the competing narratives (of the children in one camp and the deceased and Penelope in the other camp) about “estrangement” is the absence, on both sides, of insight into the perspective of the other side. There appears to have been a lack of empathy all round; no understanding of the emotional turmoil of the other side; no “without admissions” apologies; no forgiveness for real or imagined transgressions; and no reset of adult relationships.

62. The deceased made no secret of her disdain for her former husband and his extended family in her inner circle of her sister, Jill and Pam’s daughters Penelope and Sophie.

63. On 28 November 2019 Jill and the deceased exchanged emails under the subject heading “Planning”.

64. Jill wrote to the deceased at 5:46 pm in the following terms:

“Hi Sue,

Penny said you were worried about having your will updated. If the thought of going to a lawyer is a little daunting at the moment you can fill in the attached will kit, appointing whoever you wish to be your Executor and Beneficiary/ies. I am happy to be the Executor if you wish and not offended if you don't.

The will needs to be witnessed by two people who should not be any of the beneficiaries. When you are over all the appointments and treatments etc you could have ratified by a lawyer perhaps.

How did today go?

Warm regards

Jill …”

65. The deceased responded at 9:25 pm in the following terms:

“Hello

Today went ok.

No I'm not worried about my will I thought Eileen was still Executor. I'm in no hurry at the moment the will is not a big priority, Penny found the documents. There's another reason for wanting a change and I don't want to write it down.

It will be a really nasty job being the Executor as the Goulds will contest it, even the solicitor I had told me it will happen, Ella's speciality is wills and probate. The estate pays for all legal costs if the will is contested, it can last for years and until it's settled beneficiaries get nothing. They can't lose if they contest it they pay no legal fees but my estate pays legal fees to someone to fight them. John just wants to make sure that no one on my side gets anything, it's revenge for John.”

66. The evidence does not disclose the “reason for wanting a change” that the deceased did not “want to write … down”.

67. Be that as it may, her deep resentment of her former husband, bordering on paranoia is on display.

68. When sometime in December 2019 Jill became aware that the deceased’s nominated executor and friend (Eileen) had died she rang the deceased to offer her condolences and, arising out of that discussion, she shortly thereafter had a further phone call with the deceased in which she said to her words to the effect of “you will need to appoint another executor”. The deceased’s response was that either Penelope would be executor or Jill would be if Penelope found the idea to be daunting. However, it seems, the deceased was in no rush to change her will. She never provided a copy of her will to Jill and Jill did not see a copy of it until after the deceased’s death.

69. The deceased was admitted to Concord Hospital in November 2022. In January 2023 she was discharged from hospital into a nursing home at Ashfield with a temporary placement. She moved into “Chiswick Manor” in or about February 2023 pending a sale of her home (the George Street property), by auction on 13 May 2023, to fund her stay there. Penelope remembers that when death came calling in August 2023 one of the last things her “Dearest Aunty Sue” said was her name.

70. There is no point in these proceedings for a descent into a “chapter and verse” analysis of factual disputes about controversies of long ago. A joinder of issue on a few points may, however, cast light on the very different perspectives of mother and children.

71. First, the children deny that their father ever forced them to choose between their parents. I accept that as factually correct, but I do not exclude the possibility that, as young people, they may have allowed their mother to think that (as may have been her tendency of mind in any event) rather than to confront awkward moments with either parent.

72. Secondly, the deceased failed to acknowledge either that her departure from the family home was attended by a series of what, in retrospect, may have been trial separations, or her affair (whenever it may have commenced) that came to light for the children only at the time of her final separation.

73. Thirdly, the deceased failed to recognise the trauma or psychological damage suffered by her children, imagining them living in an idyllic environment after her departure, with golden prospects.

74. Fourthly, she mischaracterised simply as a “$2 million gift” an arrangement put into effect in or about 2021 in which her former husband assisted the children (who incurred substantial debts in the process) to buy a property, effectively owned by their father, the former family home in Wyatt Avenue, Burwood, to develop it (through a collective effort) into units, with independent living space for each child and the father. She was quite unfair to her children, and to herself, in thinking that the children had betrayed her by accepting a “family arrangement” with their father to advance their interests.

75. Fifthly, contrary to Ella’s emphatic evidence, she asserted that her former husband had interfered with Ella’s romantic life.

76. On the whole, the deceased appears to have experienced a deeply unhappy marriage, from which she engineered a separation and divorce, not recognising the collateral damage to her children, living with the bitterness of her enmity of her former husband and her regrets (never letting go), blaming her descent into ill health on the breakdown of her marriage. For all that, she evidently felt a need to rationalise and justify her estrangement from her children.

77. There is in her meandering hand written notes an element of projection: an attempt to relieve her conscience by projecting onto her former husband and her children guilt, or at least responsibility, for the family’s chronic dysfunction and division.

78. That said, these proceedings provide no occasion to apportion blame for the breakdown of the deceased’s marriage or for attribution of exclusive blame for the estrangement between mother and children which followed. Bad things can happen to good people.

79. A larger reality is that, for whatever reason, the children were not there when their mother (mostly, as the deceased expressly wished, unbeknown to them) was in need of assistance, particularly during her years of physical and mental decline (2014-2023) and Penelope, Sophie and Jill (her side of the “the family”) were. It is not enough simply to say, as can justly be said, that the deceased was not there when they too were in need of assistance. As adults, both sides eschewed an adult relationship.

80. Although everybody might, and perhaps should, have behaved more generously towards each other, it was not wholly unreasonable for the deceased to favour Penelope over her children in circumstances in which, in an everyday sense, Penelope was a close relative, friend and carer and, for whatever reason, the children were absent.

81. That view of these proceedings is reinforced by a recognition that the children, when fully grown and living independent lives, never actively endeavoured to make peace with their mother in any serious way. The one real exception to that occurred when Campbell reached out to his mother in 2014 or thereabouts but his bona fides was called into question when he made a serious attempt to buy her residence (in April 2023), initially without the intervention of a solicitor and at a time when she was suffering from dementia, for a price substantially below market value but nevertheless the asking price in a real estate agent’s advertisement. He went so far as to have her sign a single page, hand written document dated 22 April 2023, upon the basis of which he lodged a caveat (No AT33241) against the title to the property, subsequently withdrawn so as not to impede an on-market sale effected a month or so later. This was an error of judgement (untainted by a malicious purpose), matched by an error of judgement by Penelope in failing to inform her cousins personally of their mother’s death and funeral arrangements.

82. Any failure on the part of the children to take active steps towards reconciliation with their mother was matched by an equal and opposite failure on her part. A few formal cards, occasional emails and token gifts were hardly sufficient in the circumstances of this dysfunctional family to effect a reconciliation.

CONSIDERATION

83. Rising above particular family tensions, the questions for determination in these proceedings focus attention on the statutory tests embodied in section 59(1)(c) and section 59(2) of the Succession Act and the list of material factors for which section 60(2) provides, viewed from today’s perspective.

84. Although shorthand expressions like “estrangement”, “moral duty” and “need” are commonly encountered in proceedings upon an exercise of family provision jurisdiction, they cannot serve as a gloss on the statute. The Court is obliged to notice, but not be diverted by, summary descriptions of a relationship as being one of “estrangement”, or a deceased person having a “moral duty” to make provision for a family provision applicant (or not) or an applicant having to identify a “need” for a grant of provision.

85. The concepts of “adequate” and “proper” embedded in section 59 of the Act must be understood as relative to the facts of the particular case*: Pontifical Society for the Propagation of the Faith v Scales* (1962) 107 CLR 9 at 19.

86. 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 through the perspective of the deceased and contemporary community standards.

87. In the exercise of its statutory powers in the determination of an application for a family provision order (in particular, subsection 59(1)(c) and subsection 59(2) of the Act), the Court generally endeavours 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 the deceased as wise and just rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Company Limited Trustee Co Ltd [1938] AC 463 at 478-479; Scales Case (1962) 107 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting the specific statutory criteria referred to in subsection 60(2) of the Act so far as they may be material: cf, Bassett v Bassett [2021] NSWCA 320 at [171].

88. That a plaintiff was left out of the deceased’s will does not, of itself, establish that he or she was left without “adequate provision” for his or her “proper maintenance et cet”.

89. The testamentary intentions of a deceased person are generally to be respected, bearing in mind that Chapter 3 of the Act does not authorise the Court to “rewrite” a will or to re-order a deceased’s estate in the interests of “fairness”: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thomson [2017] NSWCA 326 at [1]-[2] and [83]-[87].

90. The testamentary freedom of a deceased person is not to be interfered with except to the extent that an applicant for a family provision order (such as the plaintiffs) persuades the Court, on evidence, that an order can, and should, be made in accordance with the statutory criteria for which the Succession Act provides. An applicant for a family provision order bears the burden of proof and persuasion. A beneficiary named in a will does not have to justify his or her testamentary gift.

91. The Court’s evaluative judgements under section 59 fall to be considered on the evidence adduced in proceedings for a family provision order, and at the time an order is under consideration.

92. To that extent, the Court is in a position that differs from that of the deceased person whose estate is the subject of family provision proceedings.

93. The present personal circumstances of the plaintiffs are well summarised in their counsel’s closing written submissions dated 13 November 2025: paragraphs [74]-[84] relating to Julia; paragraphs [87]-[96] relating to Ella; and paragraphs [99]-[106] relating to Campbell.

94. Courtesy of their property development of the Wyatt Avenue property at Burwood (assisted by their father), none of them are without a home that they own or, it must be acknowledged, a sizeable mortgage debt referable to that home.

95. Until recently all three children owned an investment property. Julia and her husband recently sold their investment property (a home unit at Campsie), allowing them to reduce (but not eliminate) their mortgage debt secured over their Wyatt Avenue unit. Ella retains an investment property of modest value in Norwood, South Australia, a legacy of her time working in South Australia. Campbell owns an investment property at Beecroft (his wife owned one at North Parramatta which, at the time of the hearing of these proceedings, had been listed for sale), subject to mortgage debts.

96. Each of the plaintiffs has substantial tertiary qualifications and respectable employment: Campbell as an accountant; Ella as a solicitor; and Julia in government service. I do not, however, exclude the possibility that their future employment may be affected by their ongoing anxieties acquired as a result of the breakdown in their parents’ marriage. That is a real prospect for Ella, but she is not alone in apprehension about future employment.

97. Each of the plaintiffs has superannuation entitlements, as do the respective partners of Campbell and Julia. The amounts vary.

98. So too, they have savings (which, in the case of Campbell and Julia, include savings of their partners).

99. Campbell and Julia both favour a private school education for their children. That was their childhood experience of education, although their mother taught at a State school.

100. In non-financial terms each of the children appears to have been affected by the trauma of their mother’s treatment of them before the separation of their parents, the trauma of the separation itself, and its aftermath, in ways which may have adversely affected the course of their lives and their future prospects in ways not readily quantifiable in monetary terms.

101. Julia attributes to her mother’s treatment of her the cause of an Obsessive Compulsory Disorder for which she received professional care in 2016-2017. She was particularly traumatised by the experience of being called upon to act as an intermediary between her parents during the hot war they fought against each other between the time of separation and the time of their property settlement.

102. Ella suffers stress and anxiety which has been diagnosed as ADHD, which manifested itself in anxious panic attacks during the course of her parents’ Family Court proceedings. That anxiety, fuelled by a fear of encountering her mother’s wrath, operated as a barrier to active engagement.

103. All things considered, each of the children has endeavoured to make the best of the opportunities they have been given and to overcome the deep and at times overwhelming trauma of their parents’ unhappy marriage and, perhaps even unhappier, separation from their mother.

104. The fact that the deceased left them nothing in her will does not of itself establish that they, jointly or severally, were left without “adequate provision” for “proper maintenance etc”.

105. However, the failure of their mother to make any testamentary or other provision for them, reinforced by a rejection of them that persisted beyond the grave, has adversely affected each of them from realising a full potential that, without the impediment of family-induced trauma, they could have attained.

106. In circumstances in which the deceased provided no financial assistance to her children after her separation from their father, kept them at bay after the time of separation and maintained her rage against their father beyond the grave (depriving them of the benefits of a parental relationship which they could otherwise have reasonably expected), affecting their health and ongoing prospects, I am satisfied that each of the plaintiffs has discharged the onus for which section 59(1)(c) of the Succession Act provides. They have each been left without adequate provision for their proper maintenance, education and advancement in life.

107. A larger question is what, if any, provision “ought” to be made for them severally upon an exercise of the jurisdiction conferred on the Court by section 59(2) of the Succession Act.

108. Had the deceased not replaced the plaintiffs with the defendant in her affections, they might well have expected a large share, if not all, of their mother’s deceased estate. The defendant’s entitlement to enjoy the testamentary provision made for her by the deceased (her surrogate mother) sets a limit to any provision that can be ordered in favour of the plaintiffs when viewed through the prism of a wise and just testator taking community standards and the matters listed in section 60(2) of the Succession Act into account.

109. The defendant, like her cousins, has endeavoured to make the best of the opportunities and hardships that have come her way.

110. Penelope is married without children but with a strong familial obligation to take care of her sister, Sophie, who has experienced mental health problems since she was aged about 18 years.

111. Penelope and her husband live in rental accommodation. They have aspirations (encouraged by the deceased) to acquire a residence of their own.

112. The principal assets of Penelope and her husband are ownership of a business (via a family trust) experiencing a downturn in revenue in difficult economic times, and substantial superannuation entitlements not readily accessible. Unlike the plaintiffs, they have no mortgage debt*.*

113. They established their business in 2013. It has been their prime source of income since that time. The value of the business was the subject of a controversy in these proceedings which does not bear greatly on the outcome of the proceedings. The critical facts are that the business has suffered in hard economic times, requiring both Penelope and her husband to moderate their drawings from the business, and future prospects remain inherently uncertain.

114. That uncertainty is accompanied by a pattern of ill health suffered by Penelope in recent years.

115. In terms of financial well-being, Penelope enjoys less material wealth than her cousins, the plaintiffs. There was, at the hearing, a very faint suggestion that Penelope might have an expectation of an inheritance from her estranged father (who has other family commitments), but nothing has been made of this by the plaintiffs.

116. In my opinion, although the plaintiffs have been left without adequate provision for their proper maintenance, education and advancement in life by the deceased, the provision that ought to be made for them must be constrained by Penelope’s claim on the bounty of the deceased as a surrogate daughter with many years of a close, loving and supportive relationship.

117. As between themselves, Campbell and Julia recognise that Ella has greater need of assistance than they do by reason of the state of her health and the possibility that it might affect her ability to remain in employment as a solicitor. I accept that assessment. Her health is poor. She is fragile. She lives without the support of a partner, unlike her siblings and Penelope.

118. However the plaintiffs might in the future order their affairs, the most visible need each of them has is a need to reduce their respective mortgage debts arising from the property development which, with assistance from their father, gave them a place of residence.

119. In my assessment, the provision which “ought” to be made for the plaintiffs respectively is a legacy of $200,000 for each of Campbell and Julia and a legacy of $350,000 for Ella, leaving for Penelope a residuary estate of approximately $1,620,000 as a substantial contribution to the acquisition of a residence.

PROPOSED ORDERS

120. Subject to allowing the parties an opportunity to make submissions about costs, I propose to make orders to the following effect:

121. ORDER that the first plaintiff (Julia Elizabeth Gould) receive a legacy of $200,000 out of the estate of the late Susan Mitchell (the deceased).

122. ORDER that the second plaintiff (Ella Simone Gould) receive a legacy of $350,000 out of the estate of the deceased.

123. ORDER that the third plaintiff (John Campbell Gould) receive a legacy of $200,000 out of the estate of the deceased.

124. ORDER that those legacies accrue no interest if paid within 28 days of these orders but, if not so paid, accrue interest at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides thereafter.

125. ORDER that the plaintiffs’ costs of the proceedings be paid out of the estate of the deceased on the ordinary basis.

126. ORDER that the defendant’s costs of the proceedings be paid out of the estate of the deceased on the indemnity basis.

127. ORDER that the burden of the legacies payable to the plaintiffs and the costs ordered to be paid out of the estate of the deceased be borne by the defendant as the residuary beneficiary of the deceased.

**********

ADDENDUM (15 May 2026)

121. A scheduled publication of this judgment on 29 April 2026 was postponed because the defendant, on 28 April 2026, foreshadowed an application to re-open her evidence. The proceedings were adjourned until 15 May 2026 to enable her to file a notice of motion, should she decide to proceed with such an application.

122. On 12 May 2026 the defendant advised the Court, on notice to the plaintiffs, that, with the benefit of legal advice, she had decided not to make an application to re-open her case. The judgment was accordingly reviewed and, as reviewed, speaks as at 15 May 2026.