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MOSSOP J: Introduction

1. These proceedings involved a claim for an order under s 8 of the Family Provision Act 1969 (ACT) (FP Act). The claim relates to the estate of the late Brenda Lillian Richardson (the deceased). The plaintiff is Stephen Leslie Richardson who is a son of the deceased. He was entitled under the will to a gift of $500. The first defendant is Kevin William Richardson in his capacity as executor of Brenda Richardson’s estate. The second defendant is Kevin William Richardson in his personal capacity. He is another son of the deceased and, after some modest specific gifts, is entitled to take 60 percent of the residue of her estate. The third defendant is John James Richardson, a grandson of the deceased. He is entitled to take 40 percent of the residue of the estate. The third defendant resided outside the jurisdiction. Orders were made permitting substituted service. He was served but never appeared.

2. Because all of the parties have the same surname, I will generally refer to them by their first names.

3. Stephen has applied, by application in proceeding filed 25 August 2022, for the following orders: 1. A declaration that a binding settlement was reached on 28 April 2022 between the plaintiff and the first and second defendants. 2. An order that further provision of $100,000 plus the plaintiff’s costs as agreed or assessed be made from the estate of the late Brenda Lillian Richardson in accordance with the binding settlement made between the plaintiff and the first and second defendants. 3. The costs of this application be paid by the first and second defendants on an indemnity basis.

4. The grounds for that application were stated to be as follows: 1. Proceedings were commenced by the plaintiff for further provision from the estate of Brenda Lillian Richardson. 2. The matter was listed for hearing on 21 October 2021. 3. On 28 April 2022 the parties reached an agreement in full settlement of the claim for provision. 4. By letter dated 19 July 2022 the defendants have now resiled from the agreement. 5. The application is made to enforce the agreement and seek approval by the court for further provision.

5. The application is supported by an affidavit of a solicitor employed by the solicitor on the record for the plaintiff. That discloses the following facts.

6. The deceased died on 2 May 2019.

7. Most of the estate was distributed prior to notice being given to Stephen. Stephen alleged in his Originating Application that he had put the executor on notice in October 2019 of his intention to seek further provision. Notwithstanding that, Stephen alleged that the executor had distributed the estate in February 2020 and therefore sought that provision be made from the funds distributed to Kevin and John or either of them.

8. On 21 October 2021 the Senior Deputy Registrar of the court listed the matter for final hearing on 2 May 2022 in the central civil list with an estimate of 2-3 days. On 31 March 2022 the solicitors acting for Stephen sent an offer of compromise to the solicitors acting for the estate. It offered to settle the matter on the basis that pursuant to s 8 of the FP Act, Stephen receive further provision by way of a lump sum of $120,000 and that the provision made for the plaintiff be provided “out of the residuary estate of the deceased”. This was noted to be a resolution of all claims by Stephen against the estate and the other defendants (namely Kevin and John). By letter dated 27 April 2022 the solicitors then acting for the estate rejected that offer but made a Calderbank offer in response. The settlement terms proposed were as follows: Notwithstanding the above, we are instructed to put the following offer to settle the proceeding on a full and final basis: a) Provision be made to the Plaintiff in the amount of $100,000 in lieu of his existing legacy in the Will (“Settlement Amount”); b) The Defendants will pay the Plaintiff’s costs as agreed or assessed.

9. The offer was stated to be made in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333 and was open for acceptance until 5pm on 28 April 2022 at which time it would lapse.

10. At 3:28pm on 28 April the solicitor for Stephen responded to this letter by email saying: We refer to your correspondence dated 27 April 2022 enclosing an offer of $100,000 with the Defendants to pay the Plaintiff’s costs as agreed or assessed open until 28 April 2022 until 5 pm. We confirm that the Plaintiff has provided instructions to accept the offer made by the defendants.

11. At 4:43pm the same day a further letter was sent by the solicitor for Stephen which commenced: “We note the agreement that our client receives $100,000 by way of provision from the estate, plus his party/party costs of the proceedings as agreed or assessed.” It then referred to the solicitor’s understanding that the estate wished to have time to pay. The letter proposed that “your client” execute a mortgage in registrable form in favour of Stephen in the sum of $100,000 plus the costs as agreed or assessed. The reference to “your client” appears to be a reference to Kevin in his personal capacity. The letter suggested that it would be appropriate that there be a court order providing for further provision plus costs and a separate deed of settlement that set out these terms. The letter also invited consideration of the possibility that the question of costs be determined by a named cost assessor in order to finalise the matter quickly and provide certainty for any financing arrangements.

12. The solicitor for the estate responded at 6:05pm on 28 April 2022 indicating that “our client” would grant a right to Stephen to lodge a caveat over the property until the $100,000 was paid. It confirmed previous advice that terms of settlement were being drafted and would be forwarded to Stephen’s solicitor. In relation to costs, the solicitor required provision of first and second defendants’ costs in taxable form in order to seek instructions.

13. On 2 May 2022 counsel for the plaintiff mentioned the matter before Kennett J on behalf of the first and second defendants. He indicated that the matter had settled and as a consequence, the hearing was vacated. No substantive orders were made. The matter was put into the settlements list on 12 May 2022. On that date it was further adjourned until June 2022 with the notation that the matter had settled. On 9 June it was adjourned again until 11 August 2022.

14. On 19 July 2022 the solicitor for the estate wrote to the solicitor for Stephen as follows: We refer to recent correspondence in respect of the above matter and Samuel’s email below. We confirm we have sought instructions from our client with respect to the Terms of Settlement and are instructed as follows: 1. Our client does not accept that there has been agreement reached with respect to the settlement of the dispute between the parties 2. Whilst the offer contained in our without prejudice letter of 27 April 2022 was apparently accepted, there has not been agreement reached between the parties as to the timing of the payment of the sum offered, nor has there been any agreement that your client is entitled to security over the property, and therefore there has been no settlement between the parties We are instructed that our client seeks to have the matter relisted for hearing to determine your clients claim. Please seek your client’s instructions and advise accordingly.

15. The matter was listed in the settlements list on 11 August 2022. On 10 August 2022 the listing was vacated and it was contemplated that an application would be made to enforce the settlement.

16. The court file indicates that on 21 September 2022 the solicitors acting for the estate and Kevin ceased to act in the proceedings. This followed the service of a notice of intention to withdraw by the solicitors on 30 August 2022.

Was there an agreement?

17. The correspondence on 27 April 2022 and 28 April 2022 indicated a sufficiently clear offer and acceptance of that offer to constitute a binding contract. Nothing in the email of 27 April made any offer contingent upon agreement or execution of more detailed terms of settlement. The offer was able to be accepted and implemented by the making of orders by the court. Any subsequent discussion of security for payment of the amount did not turn a concluded agreement into one which was contingent upon some further agreement.

18. Kevin gave evidence that he had not agreed to the terms of the settlement reflected in the offer email. He said that a paralegal had visited his house, woken him up and spoken to him about settlement. He said: “The only time that I thought about making an offer was at a very weak, weak moment, in my home with a paralegal, because I was miserable and it was crushing me.” His evidence was that he had agreed and provided instructions to his solicitors to make an offer of $100,000 inclusive of costs and that what was communicated to the other side was not what he had spoken with the paralegal about. I do not accept the evidence that he only provided instructions for an offer of $100,000 inclusive of costs. I consider that although it is possible that the offer email did not reflect the instructions that he had given to his solicitors, it is more likely than not that he did give instructions to make the offer that was made. The reasons for that conclusion are as follows: (a) No evidence was called from any solicitor or paralegal involved in the taking of instructions or the making of the offer. (b) No document was tendered which would indicate that the instructions given were for a settlement of $100,000 inclusive of costs as opposed to the offer made in the offer email. (c) The offer was made at a time when the estate was represented by solicitors and counsel and the hearing was imminent. (d) The making of the offer was a significant event likely to have been the subject of particular care so far as the estate’s solicitors were concerned, particularly in circumstances where Kevin was only very reluctantly making an offer under the pressure of the imminent hearing. (e) There is no suggestion in the correspondence from the estate’s solicitors between 28 April and 19 July 2022 that there was any error in relation to the offer that had been made. On 19 July 2022 the assertion was that an enforceable contract had not been finalised rather than that the offer had been made without instructions or on any erroneous basis.

19. In those circumstances, the probabilities are that with the benefit of advice from solicitors and counsel, Kevin gave instructions, very reluctantly and at a “weak moment”, to make the offer in the terms that he did but subsequently regretted the making of that offer because of one or other or a combination of the following matters became clear to him: (a) the necessity to make concrete arrangements for the payment of the amount from his own assets, having regard to the distribution of the estate and the unlikelihood of contribution from the third defendant, John; and (b) the significant magnitude of the costs that would be recoverable as a consequence of the agreement to pay the party and party costs of the plaintiff.

20. Subsequent regret of the making of the offer is likely to have been reinforced by what Kevin clearly perceived to be a manifest injustice arising from what he perceived to be the lack of merit in Stephen’s claim and the role of the plaintiff’s lawyers in generating a large costs liability compared to the net amount recovered by Stephen.

21. There was no evidence of any complaint having been made either to the solicitors or to the Law Society of the Australian Capital Territory arising out of what, if it had occurred, would have been a very significant and costly breach of duty on the part of Kevin’s solicitors.

22. In any event, it is clear that the solicitors acting for the estate had ostensible authority to make the offer that was made in the offer letter. That ostensible authority arose as a consequence of the estate and Kevin putting the solicitors in a position where they were held out as solicitors for Kevin and the estate and hence with authority to make offers of settlement of the proceedings on his behalf. To the extent to which the estate and Kevin denied their authority to make the offer that was made, they would be estopped from doing so and the contract would be enforceable against them: Thomson Reuters, The Laws of Australia, [8.1.580]. If that was the case then, notwithstanding the ostensible authority to make the offer, a separate issue would have arisen in relation to whether the court would make orders to give effect to the agreement which resulted from it: see [32]-[33] below.

Can the agreement be enforced within these proceedings?

23. The settlement agreement is sought to be enforced by an application in the underlying family provision proceedings. That course is available where the agreement is within the scope of the proceedings as originally constituted: Phillips v Walsh (1990) 20 NSWLR 206 at 210; Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159 at [54]. In some cases, it is necessary to bring separate proceedings in order to enforce a settlement. That will be the case where the settlement involves matters outside the scope of the existing proceedings, for example, Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 16; 311 ALR 21.

24. In this case, the settlement agreement was a straightforward one which could be enforced by the making of orders within those proceedings. It did not involve extraneous matters that were not the subject of proceedings. In those circumstances, there is no difficulty with the plaintiff proceeding to seek enforcement of the agreement in the way that he did.

What is the role of the court?

25. Sections 7-8 of the FP Act provide: 7 Eligibility (1) Subject to this section, each of the following persons is entitled to make application to the Supreme Court for provision out of the estate of a deceased person: … (c) a child of the deceased person; … 8 Family provision orders (1) On application by a person entitled, under section 7, to apply for provision out of the estate of a deceased person, the Supreme Court may order that the provision as that court thinks fit be made for the applicant out of the estate. (2) The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available— (a) under the will of the deceased; or (b) if the deceased died intestate—under the law applicable to that intestacy; or (c) under that will and that law combined. (3) The criteria for the Supreme Court’s decision under subsection (2) in relation to the deceased and the applicant are as follows: (a) the character and conduct of the applicant; (b) the nature and duration of the relationship between the applicant and the deceased; (c) any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons; (d) any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person; (e) the income, property and financial resources of the applicant and the deceased; (f) the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment; (g) the financial needs and obligations of the applicant and the deceased (during the life of the deceased); (h) the responsibilities of either the applicant or the deceased (during his or her life) to support any other person; (i) the terms of any order made under the Domestic Relationships Act 1994, section 15 with respect to the property of the applicant or the deceased; (j) any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person; (k) any other matter the court considers relevant. (4) The Supreme Court may regard an application for provision out of the estate of a deceased person by a single person as an application made on behalf of all the persons entitled to make applications for provision out of the estate of the deceased person.

26. In determining whether to make orders to implement a settlement agreement under the FP Act, the court remains bound by the terms of the statute. The extent to which the court is required to examine the merits of a claim before making orders to give effect to a settlement agreement was, in the present case, contentious. In most cases, where the parties to the proceedings wish to give effect to a settlement agreement, the issue will not be one of difficulty. However where, as here, one party seeks to resile from an agreement to settle the proceedings, then there is the potential for a contest over whether or not the court should make orders pursuant to the statute giving effect to the agreement. There are two separate matters to which consideration must be given, the jurisdiction to make any order and the appropriateness of making the order agreed to.

27. Section 7 of the FP Act identifies who is eligible to make a claim for provision under s 8. Plainly enough, identification that the plaintiff is an eligible person is a matter fundamental to the jurisdiction to make an order under s 8. Satisfying this jurisdictional requirement can be as simple as identifying that the relationship between the plaintiff and the deceased person falls into one of the categories in s 7(1). However, some of those categories require the establishment of additional factual matters as set out in the remaining subsections of s 7. In the present case, the plaintiff was a child of the deceased person and hence it is clear that the jurisdictional requirement in s 7(1) was satisfied. Daley v Donaldson [2022] NSWCA 96 is an example of a case in which an equivalent jurisdictional requirement was not satisfied. In that case, by the time the matter was in the Court of Appeal, it had been established that the plaintiff had been adopted by another person and was therefore no longer recognised by the law as a child of the deceased person. As a consequence, he was not eligible to make a claim and the settlement agreement could not be given effect to.

28. Once the jurisdictional requirements of s 7 are shown to have been satisfied, then the power of the court under s 8 is enlivened. The power of the Supreme Court is to “order that the provision as that court thinks fit be made for the applicant out of the estate”. That power is conditioned by the terms of s 8(2) and the criteria in s 8(3). In the circumstances of the present case, s 8(2) required that the court be “satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available” under the will of the deceased.

29. It is in relation to the potential to make an order under s 8(2), in order to implement the settlement agreement, that there was a disagreement between the parties in the present case about the extent to which the merits of the underlying claim should be examined. This is an issue considered in New South Wales in Bartlett v Coomber [2008] NSWCA 100. The regime for family provision claims under the Succession Act 2006 (NSW) is sufficiently similar to make the discussion applicable to claims under the FP Act. The approach adopted in Bartlett was recently confirmed Daley.

30. The decision in Bartlett involved a settlement of a claim made by a minor against the estate of her biological father. Because she was a minor, the court was required to approve any settlement. Four sources of power to examine the merits of the settlement before making orders in accordance with its terms were identified. First was the requirement to accord procedural fairness to other parties in the proceedings who were not parties to the settlement. Second was the requirement for approval of the settlement because it involved a minor. Third was the exceptional power of the court to decline to enforce a compromise agreement where to do so would allow the court’s processes to become an instrument of injustice or abuse. Fourth was that which arose because the agreement required translation into an order made by the court under the legislation.

31. Since in this case there are no other relevant parties (who had appeared in the proceedings) who may be affected by the settlement and the plaintiff was not a minor, the first two reasons do not need to be examined further. However, some further explanation of the third and fourth reasons is necessary.

32. The third reason – the exceptional power of the court to decline to enforce a compromise where to do so would allow the courts processes to become an instrument of injustice or abuse – is a power explained in Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 and Mohamed v Farah [2004] NSWSC 482. Both cases involved mistakes made on behalf of solicitors when making offers of settlement which were accepted. In Lewis, it involved the solicitor accidentally writing down an offer that was $100,000 less than the solicitor was instructed to make and had conveyed orally. In Mohamed, it involved the making of an erroneously low offer on a mistaken understanding of the amount of money that had been claimed. In neither case was it established that the first party’s unilateral mistake was one of which the other party was aware and had failed to disclose. As a result, neither case came within the scope of the decision of the High Court in Taylor v Johnson (1983) 151 CLR 422 at 432-433, where Mason ACJ, Murphy and Deane JJ held that in such an instance, equity may allow the contract to be set aside. Instead, the court in each case refused to enter orders consistent with the settlement agreement on the basis that the overriding interests of justice and the court’s concern over its own procedures may mean that the court should not enforce the contract. The principle was explained in Lewis (at 538) as follows: What I perceive to be the relevant principle in the category of cases into which this matter falls is that in an appropriate case, especially before judgment is made, the overriding interests of justice and the court's concern over its own procedure may mean that the court will not enforce a contract. Of course, contracts made during the court's process to settle, if they are bona fide and not affected by any error, will normally be enforced. But I repeat my previous observation that whenever parties agree to a compromise of litigation they do so subject to the procedures of the court which include the possibility that the court may consider it unjust to enforce the terms of settlement or that it is in the interests of justice that the matter proceed to trial.

33. Had Kevin established that the solicitors that then acted on behalf of the estate mistakenly conveyed to the solicitors for Stephen, an offer which did not reflect his instructions because the offer conveyed was plus costs rather than inclusive of costs, then that would have provided a sound foundation for the exercise of the power described in Lewis. That would be the case notwithstanding that, as a result of the existence of ostensible authority, there was a contract which was otherwise binding upon Kevin and the estate. However, having regard to the findings that I have made above, no such mistake has been proven.

34. The fourth reason to examine the merits of the settlement – that the agreement required translation into an order made by the court under legislation – was the subject of discussion in Bartlett. In that case, the reasons of the three judges made similar but not identical points. Mason P’s reasons included the following points: (a) The court’s role involved more than “placing a rubber stamp on the transaction”: [19]. (b) “[T]he court’s power to reject a compromise reached in proceedings under the Act is available both where the sum to be provided is too low or too high. Either extreme might indicate, for example, that the proceedings were being conducted through to completion for a purpose foreign to that of the Act and/or that some fundamental mistake vitiated the settlement process”: [56]. (c) The court must bear in mind that: (i) litigation under the Act takes place in an adversarial context where the active parties are usually expected to be the best judges of what is in their own interests: [57]; (ii) Australian law encourages the settlement of disputes: [57]; (iii) that a compromise will supersede the antecedent rights of the parties and frees litigants and witnesses of the “risks, costs and toils of further disputation” remains relevant to proceedings under the Act [58]; and (iv) The risks avoided by a compromise include that a contested case could fall for determination by a range of different judicial officers: [64]. (d) It is also relevant to take into account the fact that the relevant party entered the compromise agreement with the benefit of the advice of solicitor and counsel: [59]. (e) In determining whether or not to translate a binding agreement into an order the court will proceed “in the full knowledge that it lacks full knowledge about the rights and wrongs of the yet to be litigated dispute”: [60]. (f) There will be situations where a court can be sufficiently satisfied that a proposed compromise agreement lies outside the range of possible outcomes and to such a degree that the proposed order should be regarded as giving effect to some purpose extraneous to those within the Act. However, much more is required than that one party to the compromise has repented of it: [65].

35. Hodgson JA’s reasons included the following points: (a) Agreements to compromise are to be encouraged and such an agreement made by the parties to proceedings will generally be given effect by the court. The court will need to be satisfied of the eligibility of the claimant and the statutory threshold for the making of an order is met but “[b]ecause of the agreement, the court will generally be satisfied of these things without the need for any significant investigation of the evidence”: [72]. (b) Even where one party to that agreement seeks to withdraw from it, it is still generally appropriate for the court to give effect to the agreement and make the agreed orders without investigation into the facts that would have occurred at a trial. Depending on the reasons advanced by the party seeking to withdraw from the agreement, it may be reasonable for the court to consider the underlying facts to a greater extent than would have been the case if both sides had maintained their support for the agreement in order “to determine whether there would be any injustice in giving effect to the agreement”: [73].

36. Bryson AJA’s reasons included the following points: (a) The court is obliged to consider the exercise of its statutory power because an order for provision always adversely affects property rights in estate assets and an alteration of property rights is authorised only if the court makes a decision under the statutory provision: [85]-[86]. (b) The circumstances to which the court may have regard are wide but an agreement which an executor has made with an understanding of the assets of the estate and the interests of the person is otherwise entitled to them and with legal advice “will ordinarily have an extremely strong claim for attention among the relevant circumstances”: [91] It is not simply a case of giving effect to the agreement because such agreements are made subject to the necessity of obtaining the court’s approval. “Nonetheless the importance of such agreements is high.”

37. In Daley, Leeming JA (with whom White and Mitchelmore JJA agreed), having referred to the reasons of Bryson AJA and Mason P said (at [69]): True it is that a court will, in the exercise of its discretion, give a measure of deference to a compromise reached between parties to litigation, especially if the parties are represented and may be taken to be conscious of the constraints upon the making of a family provision order. This reflects the more general proposition that a court must be satisfied that there is jurisdiction, but that where the parties are agreed, the court may quite readily be satisfied: see for example Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 428 where it was said that “very slight enquiry may be adequate”.

38. The last-cited proposition relates to the satisfaction as to the existence of jurisdiction and I do not take it as reflecting a general proposition relating to settlements under the FP Act.

39. From the statements in these two cases, I discern the correct approach under the FP Act to be as follows: (a) The statute requires certain thresholds to be met before an order can be made adjusting property interests. (b) Those thresholds must be met even where there is agreement compromising a claim. (c) The fact of an agreement is a very significant matter for the court in determining whether to make orders in accordance with that agreement, even where one party to the agreement opposes giving effect to it. (d) That is particularly so where the parties to the agreement were represented by a solicitor and counsel at the time that the agreement was entered into. (e) The significance of the agreement arises because: (i) settlements of such proceedings are to be encouraged as a matter of policy; and (ii) the parties, rather than the court, will have the best knowledge of the facts of the case and the interests of the parties. (f) The orders proposed by an agreement must be assessed in light of the fact that: (i) it has been reached without a trial in circumstances that relieve the parties from the risks and costs of proceeding further with their dispute; and (ii) a range of outcomes are possible having regard to the evaluative nature of the judgment required by the FP Act and the range of judicial officers who may hear the case. (g) The circumstances in which agreements to compromise a claim will not be implemented by orders of the court are not closed. However, if the proposed orders lie outside the range of possible outcomes, that may indicate that the compromise is for a purpose extraneous to those of the Act and should not be implemented. (h) Where one party opposes the making of orders in accordance with a previously made compromise agreement, that will require the court to consider the underlying facts to a greater extent, in order to ascertain whether there would be some injustice in giving effect to the agreement. But mere opposition from a party that previously entered such an agreement is insufficient to require trial of the action or indicate that it is unjust to give effect to the agreement.

40. Even these statements of general approach to the entry of orders implementing a compromise agreement where one of the parties the agreement now opposes those orders do not provide a clear resolution in any particular case. It is ultimately a matter of judgment as to the appropriateness of the orders sought in light of the court’s understanding of the circumstances in which such agreements are reached and its assessment of whether, within the framework of such proceedings, there would be an injustice arising from the entry of the orders.

41. The approach identified above based on Bartlett is not consistent with the decision of Elkaim J in Italiano v McPherson [2021] ACTSC 214 at [13]. In that case his Honour rejected a submission that a settlement of a claim under the FP Act would require court approval, noting that the Act “has no provision for approval of a settlement by the court”. It does not appear that his Honour was referred to, or considered, the decision in Bartlett.

The circumstances disclosed by the affidavit material

42. By her will, the deceased left $500 to the plaintiff, $5000 to a named friend and $2000 to two other named friends jointly. The rest of her estate was to be given 60 percent to her son Kevin and 40 percent to John (Kevin’s son). In relation to Stephen, clause 8 of the will provided: 8. I direct my executors and trustees that I have not seen my son Stephen Leslie Richardson many years and have had no contact with him over the years and it is for this reason I have only made a small gift to him.

43. The relevant affidavits, in the order in which they were filed were as follows: (a) Stephen Richardson, 28 May 2020; (b) Kevin Richardson, 23 October 2020; (c) Brendan Richardson, 23 October 2020 (d) Stephen Richardson, 13 November 2020; (e) Anne-Marie Slattery, 23 March 2021; (f) Lynn Richardson, 24 March 2021; (g) Stephen Richardson, 24 March 2021; (h) Lachlan Richardson, 24 March 2021; and (i) Kevin Richardson, 6 July 2021

44. Each of these, except the affidavit of Kevin Richardson dated 23 October 2020, was identified by counsel for Stephen as being relevant to the cases that would be put by the parties at a final hearing. The failure to refer to the affidavit of Kevin Richardson dated 23 October 2020 appears to have been an oversight. Each affidavit will be admitted into evidence as an exhibit for the purposes of the application. It is appropriate to adopt this course without ruling on the admissibility of any part of these affidavits, in order to permit assessment of the facts underlying the settlement agreement in accordance with the principles set out earlier.

Stephen Richardson, 28 May 2020

45. The affidavit of Stephen Richardson dated 28 May 2020 indicated that he was the youngest son of the deceased who died on 2 May 2019, aged 84. Probate was granted on 31 October 2019 to Kevin. It indicated he had written to Kevin on a number of occasions and received no response to his request for information about the estate. He received a copy of the probate document on 30 April 2020 from the Supreme Court. He estimated the value of the deceased’s property in O’Connor, Canberra as being between $875,000 and $950,000.

46. He is one of his mother’s two children. He lived at the O’Connor property until 1978. He described his childhood as “not pleasant” and that his brother “taunted me every day and assaulted my friends”. He says that his mother did nothing about this and it seemed to him that she supported his brother’s actions. He described being “dragged around with my mother” during school holidays while his brother was sent to school holiday programs. He said he rarely got new clothes and generally got only his brother’s “hand-me-downs”. He described his parents as failing to play a supporting role in his life while they were “always busy making a fuss about my brother”.

47. He moved out of the home in 1978. He lived in Aranda until 1980. He then lived in Duffy until 1996. While living in Aranda he continued to have contact with his mother who would make his lunch and assist him in doing his washing. When living in Duffy, up until 1988 he would see his mother fortnightly and talk on the phone.

48. In 1986 he married Anne-Marie Slattery and had twins in 1988. His mother visited Anne-Marie and the children in hospital but “after that time there was very little effort on her part to come and see us”. He recalls a conversation in which his mother said it was too far to drive to come and see them. After that point he would see his mother every two to three weeks and spend one to two hours at her house.

49. In 1990 his wife gave birth to a second set of twins. The deceased did not visit the hospital and Stephen says he was deeply hurt by this. He describes another conversation in which his mother said it was too far for her to drive to see them. He said that despite this, he would visit the deceased on his own every three weeks to monthly.

50. In 1995 Stephen and his wife separated and eventually divorced. He saw his mother weekly. In 1998 he moved to a different property in Duffy and rented various houses in the same area. He described his mother as not participating in his family affairs. He said that in 2003 he had convinced his mother to come to his house for Christmas but instead she went to Kevin’s. He said he continued to visit his mother monthly until 2010 or 2012. He described an incident when he was trying to collect some wedding photos from his old room in the O’Connor house when his mother did not cooperate with him. He described another incident when his sons were not allowed to use the toilet in the deceased’s house, yet Kevin’s son was. He described the event involving the collection of family photos as “the last straw” for which he thought she should apologise. But she never did. He said: Throughout my life I was constantly saddened by the fact that my mother failed to participate in my life the way I wanted her too [sic]. Apart from the last eight years, I have always made myself available to assist mum in all aspects of her life. I have involved her in my, and my family’s life, however she has showed little to no interest, often secluding herself and attempting to remove me from involvement in her life.

51. He described his circumstances as follows: (a) he was aged 59 and unemployed as a result of “ongoing lumbar problems”; (b) he was at that time on Jobseeker payments; (c) he was a carpenter and joiner by trade earning approximately $500 per week; (d) he was renting in Waramanga for $170 per week; (e) he was single; (f) he did not have any dependent children; (g) he had a superannuation balance of $1916; (h) his bank accounts showed net debts; and (i) he owned two vehicles with approximate values of $1500 and $10,000 and a boat with an approximate value of $12,000.

52. His affidavit asserted that “Should funds be made available I will require the following for my proper education, maintenance and advancement”. That included a house ($350,000-$500,000 plus stamp duty and ancillary costs of $50,000), $10,000 for household items, funds to meet current debts of $57,559, medical intervention in relation to his back of $20,000 and $100,000 for “contingencies of life”.

Kevin Richardson 23 October 2020

53. The affidavit of Kevin Richardson was dated 23 October 2020 and appears to have been prepared without legal assistance. Substantial parts would have been inadmissible. He deposed that probate of the will was granted on 31 October 2019. The affidavit then provides: “The Plaintiff’s affidavit is misleading and is a litany of untruths and straight out lies. I believe the Plaintiff’s has perjured himself to the Court in his Affidavit.”

54. He denied ever having been written to in the manner described in Stephen’s affidavit. He deposed to being told by his mother that, having received legal advice, she had left Stephen a sum of money in her will so that it would be clear that he was not left out or forgotten. He says that the assertions of unequal care by the deceased are false and that Stephen “caused endless trouble and worry for my mother in his youth, highlighted by alcohol, drugs and arrests”. He addressed statements in individual paragraphs of Stephen’s affidavit. He said that Stephen had not supported the deceased emotionally or physically in any way. He had no contact with her from 2003 until he visited her for one hour whilst she was in palliative care at the end of her life. He asserts that Stephen inaccurately recorded his superannuation balance, that Stephen had a capacity to service substantial expenses and had failed to disclose loans from the deceased and debts to the child support agency. The affidavit asserts inadequacies in the documentation concerning Stephen’s incapacity.

55. The affidavit points to Stephen’s actions in relation to his father, Bill’s, estate and asserts improper conduct in relation to the dealings with the assets of that estate. It asserts that Stephen perpetrated elder abuse against his father. While many portions of this affidavit contain material that is in inadmissible form, it is clear that the deponent wished to make a very direct challenge to the honesty and reliability of the evidence put forward by Stephen.

56. The affidavit then contains evidence relating to the conduct of Stephen. It refers to damage to Stephen's family home at Duffy caused by Stephen after the settlement relating to his divorce from Anne-Marie Slattery. It indicates that Stephen was subsequently arrested and was also pursued by the Australian Taxation Office for outstanding debts. The affidavit deposes to the deceased commenting to Kevin on many occasions that she was upset by Stephen’s lack of care for his children and former family. It deposes in general terms to a history of violence including assaults against his partners, children, family members and friends. It deposes to statements by the deceased that she was afraid of him. Kevin deposes to being responsible for the care of his mother when she fell seriously ill and began her decline. He also said that he took care of the maintenance and repairs on her home.

57. He said that during the 17 years of Stephen’s estrangement from his mother, he did not write or call her for her birthday, Christmas, Easter or Mother’s Day. The plaintiff’s partner and his daughter made visits to her in hospital, but the plaintiff did not. He described Stephen’s role in the funeral of his father and the exclusion of Kevin and his mother from what was said at the funeral. He described the response of his mother to that exclusion and his mother saying “I will never forgive him”.

Brendan Richardson 23 October 2020

58. The affidavit of Brendan Richardson was dated 23 October 2020. It appears to have been prepared without legal assistance. Brendan is the eldest son of Stephen and was 32 years old. He records that his grandmother (the deceased) and grandfather (Bill) referred to Stephen as being “entitled” and having “temper problems” that prevented him from getting along with anyone.

59. He said that in the years 2014 to 2019 his grandmother described Stephen’s behaviour in more detail.

60. In response to Stephen’s affidavit and the description in that affidavit that he felt neglected by the deceased, Brendan said: During this time, my father spent little to no time at all with his children and wife (my mother: Anne-Marie Elizabeth Slattery) and neglected us. He drank heavily and spent all his time outside of work doing so with his friends. His alcoholism and neglect was the cause of my parent’s divorce in approximately 1994.

61. He describes discreditable conduct on Stephen’s part in relation to the shared custody of the children of Stephen and Anne Marie Slattery: (a) bragging about his lifestyle to the children and criticising Ms Slattery; (b) failing to pay child support so that the children were left wanting; (c) demeaning Ms Slattery and encouraging the children to do so when returning the children after custody visits; and (d) describing Brendan as an “asshole” and saying that he was just like Kevin.

62. He refers to Stephen having said to his children that he would arrange a hitman to kill Ms Slattery and that this occurred more frequently up to and during the finalisation of the divorce settlement in 1997-1998. He contradicted the evidence of Stephen in relation to wanting to “keep the peace”, referring to the approaches that he took to the resolution of the divorce settlement with Ms Slattery. He refers to an incident in 1998 when Stephen received documents finalising his divorce from Ms Slattery, became intoxicated and smashed the windows of the house, furniture and appliances. He describes there being a siege with police for several hours before Stephen was arrested.

63. He said that his father had ample opportunity to own a house throughout his lifetime however his actions cost him continued ownership of the house in Duffy. This included “working for cash in hand, selling cheques from his clients to the now deceased owner of Duffy shops to avoid tax and child support and literally smashing his share of the divorce settlement”. He said that after the Duffy property was sold, Stephen drilled and poisoned all the trees and poured quick-set cement down all the external drainpipes. He gave evidence of conversations with his grandfather and the deceased about Stephen having borrowed money from each of them and not having paid it back. He said that the deceased said that in 2002-2003 this was more than $68,000.

64. Brendan deposed that in 1999 he was assaulted by his father who also destroyed some of his possessions and, after that, he went to live with his mother and had little contact with his father until 2002.

65. He returned to live with his father in 2002 and was treated differently to his twin brother who was also living at the address. During that time, Stephen assaulted his then partner which resulted in Brendan and his twin brother having to spend two months living with another family. He said that in this period his father was not working and the deceased lent him substantial amounts of money. He denies that there were any plans for the deceased to come to Christmas in 2002/2003.

66. He says that his father “coerced” his twin brother and himself to start a kitchen and bathroom business. He later understood that this was a scheme to avoid paying tax and child support and that he and his brother received no income from the business.

67. He described an incident where a female friend of his was indecently assaulted by Stephen.

68. He described an incident where his father made arrangements for him and his brother to assist a neighbour to move house, but then confiscated the income that each of them had earned from doing so.

69. Brendan also deposed that in late 2003 his father was continuing to borrow sums of money from the deceased. However, when she refused, he said that he would cut her off from his family. Although they visited subsequently and Stephen acted as though the previous visit had never happened, that was the last visit to the deceased’s house for more than a decade. He deposed that Stephen’s description of the final visit and being required to urinate behind the shed was “completely false and a disgusting perversion of what my final visit to my grandmother’s house was like in 2003”.

70. He gave evidence of having worked for his father between 2011 and 2012 but that Stephen often failed to pay him the agreed amount of $100 per day and some weeks he was not paid at all.

71. He described the circumstances after his grandfather, Bill’s, death. He describes his father telling him that he, his brother and his cousin were named in the will and that Bill’s home had been left to them. He described that the program for the funeral did not make reference to the deceased or Kevin or his children, although it did make reference to Stephen and his children. He referred to the terms of the eulogy and unpleasant and manipulative conduct on the part of Stephen on the evening of the funeral.

72. He referred to his search for any grant of probate in relation to Bill’s will and says that there was no record of such a grant. He stated his belief that Stephen “fraudulently transferred all of Pop’s estate to himself and has not executed pops will correctly under the law”. He referred to Stephen’s acquisition of a four-wheel drive vehicle and boat shortly after Bill’s death.

73. He referred to Stephen’s conduct in relation to child support and pressure brought on Brendan and his siblings in relation to the pursuit by the Child Support Agency of amounts Stephen owed.

74. Brendan refers to the support that he gave to the deceased between 2014 and 2019. It also refers to the fact that Kevin was the full-time carer for the deceased for seven years from 2012 until 2019.

Stephen Richardson, 13 November 2020

75. Stephen affirmed an affidavit dated 13 November 2020 in response to Brendan’s affidavit. In that affidavit he said that in the period when Brendan deposed to Stephen having spent little time with his children and wife, he was working six or seven days a week to support the family. He said that his financial situation was not such as to permit him to acquire a house and that he had declared bankruptcy prior to the year 2000. He said that the only loan that he had from his mother was $350 to pay an electricity bill. In relation to Bill’s funeral, he said that the program was in line with his father’s wishes. So far as Bill’s estate was concerned, he said that he was the sole beneficiary and that if he predeceased Bill then the estate would go to his daughter Kristy. He said he had sought legal advice and no probate was required.

Anne-Marie Slattery, 23 March 2021

76. An affidavit of Stephen’s former wife indicated that she had met him in 1981 when he was living in O’Connor. She was surprised to observe that Stephen and Kevin did not get along. She says that Stephen felt that his brother had bullied him since he was young. In 2018 the deceased had described the two brothers as never having got along. Ms Slattery observed that on some occasions, the brothers were treated differently. Kevin and his girlfriend were permitted to live at the O’Connor house for many years until they bought their own house. When they extended their own house, the deceased lent the money to do it. However, the deceased did not give Stephen and her any assistance when they bought their house. In 1983 when living with Stephen in Downer, they visited his parents in O’Connor every couple of weeks. When his parents separated, they would visit both at their separate residences regularly. In 1987 and 1988 they installed an irrigation system in the deceased’s front garden and Stephen assisted her with outdoor maintenance and by installing wardrobes in two bedrooms. Stephen acted as a go-between for his separated parents. Stephen’s father Bill only got a last-minute invitation to Kevin’s wedding. Stephen was not invited to the wedding. Neither attended the wedding.

77. Following the birth of two sets of twins in 1988 and 1991, Ms Slattery and Stephen regularly visited the deceased, usually monthly. While the deceased babysat Kevin’s children, the deceased did not babysit Stephen and her children or help her at her house. She gave evidence that there was tension around inviting both the deceased and Bill to events at their house.

78. She separated from Stephen in 1995. She described their divorce in 1998 and the split of the modest equity that they had in the Duffy house. She described an incident in about 1999 when, at the request of one of her children, she attempted to make contact with the deceased. When Ms Slattery said that she had not seen the deceased for a few years, the deceased replied “that’s good”. From this she gained a clear impression that the deceased did not want to see her grandchildren.

79. She described the failure by Stephen to pay any significant maintenance in relation to the children.

80. She described reconnecting with the deceased in 2016 and participating in a knitting group together. The deceased said that she did not see Stephen anymore because “we had a falling out and it is all too hard”. She said “I don’t wish him ill and hope he was alright. I still think about him”. At one point in 2018 she indicated an intention to change her will. She described conversations with the deceased about loans made to Kevin and to Jamie, his son. She describes Kevin’s role in caring for her after a hospital admission. She also described her role in looking for aged care accommodation for the deceased.

81. She also responded to some of the matters in Brendan Richardson’s affidavit. That included recording that the divorce between Stephen and her was acrimonious.

Lynn Richardson, 24 March 2021

82. An affidavit of Stephen’s former partner, Lynn Richardson, deposed to the following matters. Whenever she and Stephen went to visit the deceased, Stephen rang to check that Kevin was not there. They had a daughter, Kristy, born in 1997. They would go with Kristy and Stephen and other children to visit the deceased. If Kevin turned up, then the deceased would go from “chatty & friendly to quiet & withdrawn”. She described adverse interactions between Kevin and Kristy. She described visiting the deceased’s house between 2001 and 2005. She said that Stephen would mow the grass and look after the outdoor areas but that if Kevin turned up then they would leave shortly afterwards. She describes incident in 2005 and 2006 consistent with the deceased giving preference to assisting Kevin. She said that towards the end of 2008 Stephen asked the deceased questions about his childhood and the fact that he felt ignored as a child and that the deceased did not really answer the questions he was asking.

83. She and Stephen separated in February 2009. She would take Kristy to see the deceased every one or two months until about 2014 when Kristy would go by herself. However, they only went when Kevin would not be there. She was not aware of Stephen seeing the deceased after about January 2011. She described Stephen being hurt that she could not answer his questions about feeling ignored as a child. She said that shortly before Bill died in 2011, he had apologised to Stephen and said he felt bad about how Stephen had been treated. She said that the deceased described Kevin as a bully and that she often used to hear Kevin described as “the stand over man”. When she visited the deceased after she had separated from Stephen, the deceased would ask after Stephen. Lynn would encourage her to call him. At the hospital before she died, the deceased asked for Stephen who came to the hospital immediately. The deceased said “I’m sorry” and “Stevie I am glad you are here”.

84. She also gave detailed evidence in response to the affidavit of Brendan Richardson. That evidence corroborated Stephen’s about the failure to attend Christmas in 2003. She gave evidence about the content of Stephen’s father’s will and that it left his possessions to Stephen. She described acting in accordance with advice from a solicitor to discharge the liabilities of the estate.

Stephen Richardson, 24 March 2021

85. Stephen’s affidavit dated 24 March 2021 indicated that he lived in a caravan park in Leeton, New South Wales and had moved there two months previously. He had worked at a joinery business assembling kitchens earning $1800 net per week. In February 2021 he had suffered a workplace injury involving a left distal bicep tendon rupture which required surgery. As a result of his accident and his poor health, he had “significant doubts” as to whether he would be able to resume any form of employment. He had moved into Leeton as a temporary measure. He intended to return to Canberra to live. He hoped to live in a free-standing house 15 to 25km outside Canberra. He had a superannuation balance of $1433. He had a bank account balance of $56. He had not been able to locate the will of his father.

86. He deposed that the closing balance of his father’s bank account had been $60,323.35. After payment of debts, there was $50,000 remaining which he used to purchase a motor vehicle for $71,000 which he still owned. An attached value estimate indicated that it was worth between $15,000 and $22,000. An attached value estimate for his other vehicle showed that it was worth between $1800 and $4100. He had purchased the motorboat for $26,000 in September 2011 and an attached document indicated a value between $12,000 and $14,000. The annexures to the affidavit included a letter from the plaintiff’s general practitioner indicating that he suffered from: (a) chronic mood disorder; (b) chronic lumbar spinal injury and nerve entrapment despite decompression surgery; (c) narcolepsy; (d) likely seronegative arthritis causing chronic lower spinal and pelvic girdle pain; (e) recent repair work to left sided biceps muscle; (f) left shoulder tendinitis and chronic suprascapular tendon tear; and (g) chronic impetigo.

87. The doctor indicated that Stephen’s prognosis in relation to a return to work was “quite guarded”. Lachlan Richardson, 24 March 2021

88. The affidavit of Lachlan Richardson indicated that he is one of the sons of the plaintiff. His affidavit was made in response to the affidavit of Brendan Richardson. He describes the relationship with Bill who, at that stage, lived in a caravan park near Ulladulla. He records his perception that the deceased always treated Stephen and Kevin differently. Further, he describes Stephen and Kevin as not being on good terms.

Kevin Richardson, 6 July 2021

89. Kevin affirmed a further affidavit on 6 July 2021. This affidavit was prepared with the assistance of solicitors. It identifies that the gross value of the estate after paying testamentary expenses was $810,000 and that all of the gifts provided for in the will, except that of $500 to the plaintiff, had been made. In relation to the gift to Stephen, the affidavit says that Stephen “at all times refused to accept the gift”.

90. The affidavit describes Kevin’s financial circumstances. It indicates that in May 2013 he ceased work in order to become a full-time carer for the deceased who was suffering from a number of health conditions. As a result, since May 2013 he has been unemployed. He received a part carer’s pension from 2017 until 2019. It indicates he has been receiving anti-anxiety and anti-depressant medication and that he suffers from arthritis in his right hip and back. He said that he spent approximately 16 hours each day in bed. It describes that he has a loan balance of $98,000 owing on his property and is also liable for legal costs and expenses associated with the proceedings.

91. He described his assets as follows: (a) a property currently valued at $880,000; (b) two motor vehicles totalling approximately $16,400; and (c) approximately $5200 in the bank.

92. He said that he used the residue of the estate which he received to satisfy personal debts which he had incurred to a number of individuals during the period when he was a full-time carer for the deceased.

93. He describes an earlier will made by the deceased in 2007. That made specific reference to the position of Bill and Stephen and explained why no provision was made for them. It includes recording a statement from the deceased: “I don’t want Stephen to have a thing. He has hurt me so much.” The will, which is annexed, says in relation to Stephen: I have not provided for my other son, Stephen Leslie Richardson, as I have had almost no contact for 3 to 4 years prior to this Will and it was a strained relationship prior to that. Stephen has had severe long term problems with alcohol abuse. I have no relationship with his children.

94. It also explains why there is no provision for Bill or for Kevin’s daughter, Danielle.

95. The affidavit records that in 2017 the deceased made a new will with assistance from a firm of solicitors in O’Connor. Following that occurring, the deceased said to Kevin: “I’ve included Stephen in the will on the advice of my solicitor, so he is not forgotten. I do not want him coming after you for more money.”

96. The affidavit then responds to various matters in Stephen’s affidavit of 28 May 2020 and 24 March 2021. There are also some responses to matters in an affidavit of the plaintiff’s solicitor, Christopher Michael, affirmed 15 March 2021.

97. The affidavit provides as evidence of Stephen’s “abusive and deceptive behaviour”: (a) calling the deceased when under the influence of alcohol and yelling at her, which resulted in the deceased installing an answering machine so she could screen telephone calls; and (b) asking for loans from the deceased and failing to repay them, instead using the money to buy alcohol and drugs.

Should the police material be admitted?

98. The defendant had subpoenaed the records of the Australian Federal Police in relation to the plaintiff. That material was produced prior to the date for the substantive hearing but had not been accessed as at the date of settlement. Kevin sought to have the material admitted on the current application. The plaintiff opposed its admission, although his written submissions appeared to accept that it might be relevant because, in principle, evidence that goes to one of the factors required to be considered by the FP Act at a final hearing could be taken into account in the high-level assessment of the evidence available in the case.

99. In my view the material is admissible. While it does not relate directly to the deceased or Stephen’s relationship with the deceased, it does provide evidence of numerous examples of unedifying conduct on Stephen’s part which would be relevant to the consideration of his “character and conduct” pursuant to s 8(3)(a) of the FP Act. It tends to corroborate some of the allegations about Stephen’s conduct, in particular the damage to Stephen’s family home in Duffy caused by him and his conduct directed towards his partners. There is no doubt that it would have been relied upon at a final hearing for the purposes of cross-examining Stephen. However, the subject matter of the material was known, in general terms, to Kevin at the time of settlement and the content of the material is not such as to this significantly change the complexion of the case. I will order that MFI A becomes an exhibit.

Other evidence

100. There was also evidence of the costs incurred by Stephen in the proceedings: these are as follows:

Solicitor’s fees $135,428 Counsel’s fees $56,209.33 Solicitor’s disbursements (other than $27,635.60 counsel’s fees) Total $219,272.93

101. These fees seem to be disproportionate to the complexity of the case in the volume of evidence required to be prepared, even taking into account that the passage of the proceedings towards hearing was not entirely smooth and that there were some complications relating to attempts to serve the third defendant overseas.

Conclusion as to the making of orders

102. Considered at a high level of generality, the competing contentions of Stephen and Kevin as to the substantive claim for provision appear to be as follows: (a) Stephen is a man who is now in his early 60s. He has a variety of health problems. He has very few assets. It would clearly benefit from the bounty of the estate. His circumstances reflect, at least to some extent, the lack of support that his parents gave him over his life and his unfair treatment when compared with the treatment of his brother. (b) Kevin contends that Stephen is a man who, due to his own adverse behaviour, has failed to have a relationship with his mother and has been estranged from her for many years. The financial and health circumstances in which he finds himself are not the products of neglect by his parents but rather by reason of his choices and behaviour during his life.

103. The family is clearly a fractured one. Bill and the deceased were separated. There is clearly long-term animosity between the brothers. Brendan clearly has adverse views about his father.

104. In examining the evidentiary material at a relatively high level and taking into account the fact that neither side's evidence had been tested by cross-examination, it appears clear that there was a long-term estrangement between the deceased and Stephen which was clearly reflected in her 2007 and 2017 wills. Further, between 2012 and her death in 2017, the deceased was cared for by Kevin and had little or no contact with Stephen. Stephen benefited from the deceased estate of his father. He currently has minimal financial resources and significant health problems which affect his capacity to earn.

105. In light of these basic features of the case, the contentions arising from the detailed content of the affidavits and the settlement agreement, is the threshold requirement in s 8 of the FP Act established? In other words, should the court accept that “adequate provision for the proper maintenance, education and advancement in life of the applicant is not available” under the will? That is a question which must be answered having regard to a proper understanding of testamentary freedom and the limited scope of what is required for “adequate provision” in relation to adult children.

106. The principles are, in my view, as outlined in the judgment of McWilliam AsJ in Armouti v Nenes [2022] ACTCA 3; 17 ACTLR 237, in particular at [78]-[98]. Because of the significance of those principles for the result which I have reached, I will set out those passages from her Honour’s reasons in full: The importance of testamentary freedom 78. The authorities are replete with references to the principle that the Court will not interfere with the testator’s freedom to leave their estate to whomever they choose, unless there is some proper basis for doing so under the legislation: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 (Pontifical Society) at 19 (per Dixon CJ, McTiernan J agreeing); Blair v Blair [2004] VSCA 149; 10 VR 69 at [15] (per Chernov JA, Nettle JA and Hansen JA agreeing); Grey v Harrison [1997] 2 VR 359 (Grey) at 363 (per Callaway JA, Tadgell JA and Charles JA agreeing at 360 and 361 respectively); cited in Jones at [38]. 79. In Stott v Cook (1960) 33 ALJR 447, Taylor J said at 453-454 (emphasis added): There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged. 80. The above passage was cited in Sgro at [82], and in Starr at [601]. The emphasised words in the above extract highlight two significant matters that inform the process of evaluating what is “proper”. 81. In Starr, Hallen J helpfully collected (at [602]-[609]) a number of authorities concerning the importance of the freedom of testamentary disposition and the respect that the courts must give to that choice, not as a starting point from which to depart, but throughout the statutory evaluative process permitted by the Succession Act 2006 (NSW), being the same process employed in applying the Act under consideration here. With due appreciation, and with some additions and different emphasis so as to apply them to the facts of the present case, the extracts set out below draw largely from the authorities recently collated by Hallen J. 82. In Pontifical Society Dixon CJ said at 19 (emphasis added): The words “proper maintenance and support”, although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. 83. Returning to Vigolo in the context of testamentary freedom, Gleeson CJ referred to the relevant legislation there under consideration as not conferring new rights of succession, nor creating legal rights of inheritance. His Honour stated at [10]: … [the statute] preserved freedom of testamentary disposition, but subjected that freedom to a new qualification. 84. Gleeson CJ later stated at [25]: In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded… 85. Of relevance to both grounds of challenge, in the same case, Gummow and Hayne JJ at [74] referred to the joint judgment in Singer v Berghouse at 211, which cited the below stated in Goodman v Windeyer (1980) 144 CLR 490 at 502 (emphasis added): [T]he words “adequate” and “proper” are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards. 86. In Grey, Callaway JA wrote, at 366 (emphasis added): ... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else. In conferring a discretion in the wide terms found in s. 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. 87. In Ilott v The Blue Cross [2017] 2 WLR 979; 4 All ER 545, at [47], the UK Supreme Court wrote (emphasis added): It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator’s wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors. 88. In Ford v Simes [2009] NSWCA 351, Bergin CJ in Eq said at [71] (emphasis added): ... it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children… 89. The case of Sgro is an example where a testator had done precisely that – made no provision for an adult child. In this case, the NSW Court of Appeal found this to be “proper” in circumstances where that child had effectively received her share of an inheritance early. At [83], White JA (McColl JA agreeing) confirmed what his Honour had earlier stated when sitting as a single judge in Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; 85 NSWLR 253 (Slack v Rogan) at [127], which relevantly included the following (emphasis added): ...respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, … there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed: Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454, cited in Nowak v Beska [2013] NSWSC 166 at [136]. This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will. 90. White JA went on in Sgro to state at [86] (emphasis added): To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is “proper”. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate. 91. McColl J agreed with White JA. In a separate judgment, but in the course of agreeing with the reasoning of White JA, Payne JA said at [4]-[6] (emphasis added): [4] As White JA explains, whether a two-stage analysis is applicable to claims for family provision orders … has been the subject of significant debate in this Court, but the question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood. [5] The decision in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 makes clear the multi-faceted approach necessary to be adopted … [6] What is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. I agree with White JA that while the Court’s assessment of what is proper maintenance, education and advancement in life must be made at a time when the Court is considering the application, that does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate. 92. It is important to recognise that, where it is evident that a capable testator did give due consideration as to the adequacy of provision for a particular claimant, that will not of itself be determinative of any subsequent claim for family provision. The issue is how freedom of testamentary disposition is factored into the assessment: see Steinmetz v Shannon [2019] NSWCA 114; 99 NSWLR 687, per White JA at [50] – [51]. A testator’s moral duty and societal values 93. The Court is required to take into account community expectations and judgments of the fair and reasonable person in the community: Burke at [124]; Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 (Andrew) at [95]; Hertzberg v Hertzberg [2003] NSWCA 311 at [34], McCarthy v McCarthy [2010] NSWCA 103 at [20] and Evans v Levy [2011] NSWCA 125 at [51]. It is not always self-evident what the community expects, or what its standards or values are: Phillips at [113], per Basten JA. 94. In Andrew, Allsop P (when a member of that Court) cautioned at [18] that statements in authorities based on a particular factual assessment of circumstances by reference to human and societal values ought not be extrapolated to form principles or rules of general application. That being accepted, it is necessary to have some appreciation or understanding of the evaluative process that is involved in the statutory task. 95. A useful discussion in that regard is to be found in Henry v Hancock [2016] NSWSC 71 (Henry v Hancock) where Brereton J (as his Honour then was) stated at [68]- [70] (references omitted; emphasis added): [68] It is important also to bear in mind the principle articulated by Young J, as he then was, in Stewart v McDougall, in explaining that the court's role is limited to making adequate provision for an eligible person's proper maintenance and advancement: It is important to state what the Family Provision Act permits a Court to do and what it does not permit a Court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish with one exception. The exception is that a person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish. Thus, in these cases, one does not ask if the will is fair, one does not ask if the testatrix divided her property equal, one does not as a judge ask how would I have made a will had I been the testatrix. What must be asked is did the testatrix fail in her moral duty to those who have a claim on her. Even if the Court comes to the view that the question should be answered in the affirmative, the Court still does not remake the will, but only alters it to the extent adequate provision is made for the eligible person in respect of whom the testatrix failed in her moral duty. [69] Formerly, the yardstick which was applied was that of the wise and just testator. Nowadays, it is fashionable to couch it in terms of “community standards”, although I am not at all sure that this is any different from the moral obligation of a wise and just testator and, as has not infrequently been pointed out, there is no ascertainable external community standard to guide the decision, which involves a broad evaluative judgment unconstrained by preconceptions and predispositions, and affording due respect to the judgment of a capable testator who appears to have duly considered the claims on his or her testamentary bounty – subject to the qualification that the court’s determination is made having regard to the circumstances at the time of the hearing, rather than at the time of the testator’s will or death. [70] Fair and reasonable members of the community may well differ as to whether a parent owes a moral or natural obligation to an able-bodied adult child such as to fetter the parent’s testamentary freedom. In Taylor v Farrugia, in a passage which appears subsequently to have received general approval, I said of a claim by an adult child: These are claims by adult children. It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, 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, and 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 their 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]. Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime 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 parents 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. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent. Provision for adult children 96. In Watton v MacTaggart [2020] NSWSC 1233 at [40] Ward CJ in Eq stated: There have been a number of cases in which the question of what is proper provision for an adult child has been considered. Suffice it to make clear that there are no special rules or principles applicable to claims of adult children (nor any presumption for or against there being a moral obligation to make provision for an adult child), as Hallen J recognised in Towson v Francis [2017] NSWSC 1034 …(see at [78]-[80], there citing Burke v Burke [2015] NSWCA 195; Nicholas v Tubb [2016] TASSC 53; Toscano v Toscano [2017] NSWSC 419; and Underwood v Gaudron [2014] NSWSC 1055). Each case must be considered by reference to its particular facts and circumstances (though see the summary of principles in Camernik v Reholc [2012] NSWSC 1537 per Hallen J (at [159]). 97. Her Honour’s reference to Camernik v Reholc [2012] NSWSC 1537 (Camernik v Reholc) was to the same passage relied upon by the primary judge, which has been set out in the reasons of Elkaim ACJ and Rangiah J at [29] above. It is unnecessary to repeat it here. 98. Because of the submissions put by the appellants on appeal (discussed below) it is important to emphasise that although there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one (Mayfield v Lloyd-Williams [2004] NSWSC 419, at [110]), the community does not expect such a parent to provide an unencumbered house in ordinary circumstances (Kohari v Snow [2013] NSWSC 452 Hallen J, at [121]). Both decisions were subsequently cited in Salmon v Osmond [2015] NSWCA 42 at [109]-[110]. (Bold emphasis in original.)

107. The evaluative exercise required in determining the threshold question – whether adequate provision has been made – is one which must be made in light of the considerations in s 8(3) of the FP Act. However, it has a normative component which reflects the moral obligation or community expectations in relation to a parent making testamentary provision for an adult child.

108. Given that the court is ultimately being asked to exercise a statutory power to adjust property interests which may only be done where the statutory threshold is met, the court must be satisfied of that fact. Notwithstanding the agreement of the parties and applying what I considered to be the proper principles in relation to testamentary freedom and the determination of any testamentary obligation of a parent to an adult child, I am not satisfied on the material before me that the threshold has been met.

109. While the evidence does disclose that the plaintiff is in straitened financial circumstances and has significant health problems including problems which will affect his capacity to work in the future, for a man of his age that is not sufficient to establish that the threshold is met. It would only be so if moral obligations or community expectations were such that proper provision required money to be left to him. In circumstances of long-term estrangement from the deceased and in circumstances which do not disclose any moral wrong involved in that estrangement, it is difficult to see why the testamentary freedom of the deceased should be interfered with. I recognise that the threshold for provision was found to have been passed in Crawford v Munden; In the Estate of Angel [2020] NSWSC 1463 which involved comparable circumstances of long-term estrangement of an adult son. However, that case did not appear to involve consideration of the principles of testamentary freedom or recognition of the limits of testamentary obligations towards adult children as articulated in Armouti. I have considered that aspect of the material filed on behalf of Stephen which implied a long-term attitude of discrimination towards him. I have considered the possibility that such evidence may be accepted when considering whether effect should be given to the settlement agreement but reached the conclusion that, even having regard to the vagaries of litigation and the variety of judges before whom the claim may have been litigated, the prospect of establishing an undeserved discrimination by the deceased for which recompense was required to be made in her will, was low.

110. The conclusion I have reached is obviously, in one sense, an unattractive one in circumstances where the parties have reached a settlement agreement to the contrary. In particular, the considerations identified at [39](d), (e) and (f) above would support giving effect to the agreement. Doing so would be easier where the issue was one of quantum rather than entitlement. In such a case the parties’ decision is likely to be accepted, having regard to their ability to assess their interests and the interests of the estate, the potential for cases to be heard by different judges, the strong desirability of settlement of such cases in order to, amongst other things, maintain proportionality between legal costs and the value of the dispute. Where, as here, there is a significant issue as to whether any entitlement exists and the court is invited to make final orders under the statute, then inevitably a conclusion has to be reached by the court about the ultimate exercise of statutory power in circumstances where there are considerations pointing in both directions. The conclusion that I have reached involves placing greater weight on my lack of satisfaction that the statutory threshold has been met than upon the combination of considerations which would favour giving effect to the settlement agreement. It reflects my view that giving effect to the agreement would give rise to an injustice through the adjustment of property interests on a basis inconsistent with the application of the principles outlined in Armouti set out above.

111. The refusal to give effect to the settlement agreement means that the case must proceed further, and that the costs legitimately incurred by the plaintiff in attempting to enforce the settlement agreement have been to no avail. In my view, in order to expedite the resolution of the case and minimise the consequences of the court’s refusal to give effect to the settlement agreement, it is appropriate to make an order requiring the matter to be listed for hearing on an expedited basis and an order limiting the capacity of the parties to incur further costs in the preparation of updating affidavits. It is also appropriate to reserve the question of costs. That will allow the question of costs of this application and those thrown away as a result of the non-enforcement of the settlement agreement to be determined at a later date, most likely but not necessarily, when the outcome of the case is known.

112. Stephen’s application in proceeding sought a declaration as to the existence of a binding agreement. Having regard to the conclusion I have reached, which does not involve any orders giving effect to the agreement, the making of a declaration lacks utility and I decline to make it.

Orders

113. For the reasons given above, it is not appropriate to make orders in accordance with the settlement agreement. The orders of the Court are: 1. MFI A is admitted as an exhibit. 2. Each of the following affidavits are admitted as exhibits: a. Stephen Richardson, 28 May 2020; b. Kevin Richardson, 23 October 2020; c. Brendan Richardson, 23 October 2020 d. Stephen Richardson, 13 November 2020; e. Anne-Marie Slattery, 23 March 2021; f. Lynn Richardson, 24 March 2021; g. Stephen Richardson, 24 March 2021; h. Lachlan Richardson, 24 March 2021; and i. Kevin Richardson, 6 July 2021 3. The application in proceeding dated 25 August 2022 is dismissed. 4. The costs of the application and the plaintiff’s costs thrown away by reason of the settlement agreement reached on 28 April 2022 are reserved with liberty to apply on seven days’ notice. 5. The registrar is directed to list the proceedings for hearing with an estimate of three days on an expedited basis and list the matter for pre-trial directions before a judge or a registrar. 6. Direct that unless permitted by an order made by a judge or a registrar, any updating evidence by a deponent of an affidavit filed in the proceedings is to be given orally at the trial and that no updating affidavit from such a deponent may be filed without leave.

Costs in family provision cases

114. I have referred above at [100] to the evidence as to the costs incurred by the plaintiff in pursuing this claim. It must be noted that those costs reflect the costs unaffected by the decision on the present application which will inevitably mean that the costs of the proceedings will be increased. I have indicated above that, notwithstanding the complexities of the case up to the point where they were estimated, those costs were disproportionate to the requirements of the case. When regard is had to the significant solicitor and client component within the solicitor’s costs, the amount that would have been recovered by the plaintiff had the settlement agreement been approved would have been reduced to a very modest amount. If the legal expenses incurred by the estate are added in, the overall cost-effectiveness of the dispute resolution process (or lack of it) could be estimated.

115. The extent of legal costs incurred in family provision claims creates distorted incentives that encourage the making of claims and has the potential to significantly affect smaller estates where, as here, a single residential dwelling is the principal asset of the estate. In other areas of the law there are costs constraints designed to achieve particular public policy goals. Examples are r 1725 of the Court Procedures Rules and s 181 of the Civil Law (Wrongs) Act 2002 (ACT). Further, where there is the facility available under court rules, costs limitation orders are an available mechanism to impose some costs discipline in family provision claims in smaller estates: for example, Uniform Civil Procedure Rules 2005 (NSW) s 42.4, New South Wales Supreme Court Practice Note No SC EQ 7 at [24].

116. If the costs incurred in this case are reflective of the quantum of costs arising from the current regime for claims under the FP Act, then it is likely to be indicative of a discontinuity between community expectations of what might be appropriate outcomes in relation to such claims and what is occurring in practice. In my view, some consideration of these issues by the legislature and the rules committee would be appropriate.

I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 December 2022