HIS HONOUR: This is a case in which a father, the Plaintiff, is pitted against his two children, the Defendants, in respect of the estate of his wife, who was their mother. From shortly after the death of the deceased, the disputes between the parties have been extremely hard fought.
The case also demonstrates, once again, that contentious family provision proceedings reveal the drama of family rifts, which climax on public display, and which lay bare fault lines in the relationships. There can be little doubt that these proceedings have exacerbated, and will further exacerbate, family tensions and disharmony. Not for the first time, the Court has witnessed how a family can be irreparably divided on an issue such as inheritance or the lack thereof. Clearly, there are feelings of disappointment, antagonism, anger, and resentment, between the children on the one hand and their father on the other.
When one reads the facts of this unfortunate case, one also has the sense that, sometimes, parties to legal proceedings in which a claim for a family provision order is made, do not consider a practical solution to their dispute without involving the Court and without spending a large amount by way of legal costs, and that they have preferred to endure the stress and financial consequences which are often part of this type of litigation.
Distressingly, it is another case in which the Defendants have sought to highlight the relationship of the Plaintiff and the deceased, which relationship, as a result, has played a prominent role in their view of the way in which the proceedings should be determined. They have focused on the reasons why they believe the deceased decided to leave the estate entirely to them, rather than to make any provision at all for the Plaintiff, despite her marriage to him of 48 years (although separated under the one roof, from him, for the last 4 years of her life), the procreation of their children, and the building up of the estate assets together.
(There is some evidence, to which I shall refer, that establishes that whilst the deceased sought legal advice on the adjustment of property interests, neither she, nor the Plaintiff, commenced any proceedings for a divorce order, nor for orders altering their interests, as parties to the marriage, in the property owned by either, or both, of them.)
As was acknowledged by Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20; [1962] HCA 19:
"The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his."
Having identified the parties, I shall refer to them, as they share the same surname, by his, or her, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity.
At the hearing, Mr R D Wilson SC appeared for George. Mr J E Brown, with Mr M J Jones, of counsel, appeared for Maria-Lyn and Melissa. The hearing was listed for two days and was completed within that time.
[2]
The Proceedings
The proceedings involve a claim by George Sarant, the husband of Elizabeth Randie Sarant (the deceased), who seeks a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act) and his costs out of her estate.
The deceased died on 16 September 2018, leaving a Will dated 12 July 2000. This Court granted Probate of that Will, on 8 April 2019, to the two Defendants, Maria-Lyn Sarant and Melissa Randie Sarant, who are the executors appointed under that Will, and the only two children of the deceased and the Plaintiff.
By her Will, the deceased revoked all prior wills and testamentary dispositions (Clause 1); appointed Melissa and Maria-Lyn as the executors (Clause 2) and left the whole of her estate to them, as tenants in common in equal shares (Clause 3).
There was nothing in the deceased's Will to explain why the deceased made no provision at all for George.
[3]
Some formal matters not in dispute
The proceedings were commenced by Summons filed on 12 September 2019, within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. As a person who was the spouse of the deceased at the time of her death, George is an eligible person within s 57(1)(a) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as his, or her, relationship to the deceased.
As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
There was no property that was sought to be designated as notional estate of the deceased. This is unsurprising, as the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances. None of these criteria were said to be applicable in the present case. (Senior counsel did raise the possibility of costs being borne out of the property that could be designated as notional estate, but that was only in the event that the Plaintiff received the whole of the actual estate of the deceased: Tcpt, 20 October 2020, p 1(46) - p 2(05).)
Whilst there was no notice of eligible persons, including the name and, if known, the address of any person who is, or who may be, an eligible person, as is required by par 6(b) of Practice Note SC Eq 7, other than, by way of inclusion, at par 92 of George's primary affidavit, sworn on 13 September 2019, the parties agreed, at the commencement of the hearing, that they are the only eligible persons: Tcpt, 20 October 2020, p 2(07-19).
Only George has made a claim for a family provision order. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, his, or its, competing claim, respectively, as a chosen object of the deceased's testamentary bounty. Each of Maria-Lyn and Melissa has given evidence of her financial resources, needs, and her claim, respectively, on the bounty of the deceased.
As was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46] (Kelly J):
"There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to 'what the testator regarded as superior claims or preferable dispositions' as demonstrated by his will." (Citations omitted)
Maria-Lyn and Melissa, as the executors, filed a Cross-Claim, on
18 December 2019, in which they sought an order for the appointment of trustees for sale of the property located at Read Street, Bronte (the Bronte property) which the deceased and George owned as tenants in common, in equal shares, at the date of the deceased's death. The order for sale of the Bronte property was to be with vacant possession, which, naturally, would require George to leave the home in which he has lived for about 38 years (at the date of hearing).
David Scott McGill, described as "an accountant and tax adviser", and Gregory Ernest Mark Falk, a solicitor, each consented to being appointed as trustee for sale of the Bronte property. Neither estimated the time that was likely to be spent in performing his duty as trustee for sale, or any expenses likely to be incurred, but Mr McGill stated that the "hourly rate I charge for work I undertake as a trustee for the sale of land is $575 plus GST", whilst Mr Falk's statement of his hourly rate was "$400 plus GST".
(Without objection, during the course of the hearing, from the Bar table, counsel for Maria-Lyn and Melissa, supplied the information as to the proposed trustees' likely costs. I shall refer to the estimate of the costs of acting as trustees for sale later in these reasons.)
Section 66F(1) of the Conveyancing Act 1919 (NSW) provides:
Co-ownership means ownership whether at law or in equity in possession by two or more persons as joint tenants or as tenants in common; and co-owner has a corresponding meaning and includes an incumbrancer of the interest of a joint tenant or tenant in common.
Section 66G(1) of the Conveyancing Act provides:
Where any property (other than chattels) is held in co-ownership the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition.
George, as part of his Defence to the Cross-Claim, opposed the order sought under s 66G of the Conveyancing Act on discretionary grounds, which grounds were:
"16. …
To the extent that the Cross Claimants invoke the jurisdiction of the Court under S.66G of the Conveyancing Act 1919, the Court has a discretion whether or not to order a sale of the Bronte property;
The Bronte property was acquired by the Cross Defendant and the deceased Elizabeth Randie Sarant as joint tenants in 1982;
At that time the Bronte property had one residence constructed upon it namely the rear residence;
The Cross Defendant expended his time and labour in constructing the second residence on the Bronte property namely the front residence;
The Cross Defendant resides in the front residence constructed on the Bronte property as his home;
In the year 2000 the deceased and the Cross Defendant agreed to make new wills;
In the year 2000 the Cross Defendant and the deceased agreed that they would remain as residents of the Bronte property for the duration of their respective lives.
The Cross Defendant made a new will in 2000 in pursuance of the agreements.
In the year 2000, without the agreement or prior knowledge of the Cross-Defendant the deceased purported to determine the joint tenancy of the Bronte Property;
The deceased instructed a dealing to be registered upon the title of the Bronte property purportedly pursuant to S.97 of the Real Property Act 1900;
The Cross Defendant had no notice of the actions taken by the deceased in 2000 prior to registration of the dealing and did not consent to its registration or to the severance of the joint tenancy;
A unilateral severance of the joint tenancy between the deceased and the Cross Defendant by the deceased was unconscionable in light of the agreements reached between the Cross Defendant and the deceased during her lifetime.
The actions of the deceased in sub-paragraphs 16(g) and 15(h) above constituted a breach by the deceased of the agreement pleaded in paragraph 15(f) above.
As a consequence, the Cross Defendant remained until the date of death of the deceased a joint tenant in equity of the Bronte property with the deceased.
Upon the date of death of the deceased on 18 September 2018 her equitable interest in the Bronte property passed to the Cross Defendant;
The Cross Defendant is now the owner in equity of the Bronte property; and
It is unconscionable for the Cross Claimants to exercise and statutory claim for the Court to order sale of the Bronte property during the lifetime of the Cross Defendant or to claim possession of the Bronte property."
George asserted that the Court should deny the relief sought in the Cross-Claim and that any entitlement to an order was displaced by legal or equitable obligations, imposed upon the deceased.
Neither counsel referred to the proposition that such relief is available "almost as of right": see Ferella v Official Trustee in Bankruptcy (2015) 13 ABC(NS) 452 at 460-461 [36]-[42]; [2015] NSWCA 411 at [36]-[42] (Tobias AJA, with whom Bergin CJ in Eq and Emmett AJA agreed), in which the authorities are collected and the bases of the Court's discretion are discussed. See also, more recently, Foundas v Arambatzis [2020] NSWCA 47, at [62]-[63] (White JA, with whom Bell P and Basten JA agreed).
Neither counsel dealt with the contributions for expenses that George had paid since the death of the deceased, such as for rates that have been levied on the Bronte property or for insurance premiums.
[4]
The Position of the Parties at the hearing
Senior counsel for George submitted, in writing, that this was a case in which George should receive, by way of provision, a devise of the whole of the deceased's interest in the Bronte property absolutely, or, in the alternative, at least, what has been described as a "Crisp order" (referring to Harvey v Delaney [2003] NSWSC 589 at [44] (Macready M)) in that part of the Bronte property in which the deceased had an interest.
Senior counsel submitted that such an order would have the added advantage that it would do a minimum of violence to the deceased's Will, as the balance of the interest would be distributed back to Maria-Lyn and Melissa on George's death. In either result, it was submitted that the Cross-Claim should be dismissed.
A "Crisp order" is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), 18 December 1979, unrep), excerpt in part, in Les Handler, Richard Neal and Michael Handler, Mason and Handler Succession Law and Practice NSW (2020, LexisNexis) at [9433]. Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant's benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from his, or her, own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a Crisp order confers a "portable life interest": Court v Hunt (Supreme Court (NSW), Young J (as his Honour then was), 14 September 1987, unrep) at 3, cited with approval by Ipp JA (Macfarlan JA and Sackville AJA agreeing) in Milillo v Konnecke (2009) 2 ASTLR 235 at 243-244 [47]-[48]; [2009] NSWCA 109 at [47]-[48].
In Re Schlink; Keane v Corns [2020] VSC 180 at [79], McMillan J described it as:
"… a practical way of crafting relief which provides for the proper maintenance and support of an applicant in a flexible manner, while also preserving the estate for the remaining beneficiaries. The usual circumstance in which a Crisp order may be appropriate in family provision claims is where an applicant for further provision is a surviving spouse or partner of a deceased and the deceased failed to provide adequately for them."
At the commencement of the hearing, senior counsel for George suggested that there was another alternative, which was to dismiss George's claim and also to dismiss the Cross-Claim, with the consequence that the parties' interests would remain the same, but the Defendants would not be able to sell the Bronte property (Tcpt, 20 October 2020, p 3(45) - p 4(01)):
"WILSON: It's not the alternative I advance, but it would be on the table. If your Honour takes a view that no provision ought be made for the plaintiff, but if your Honour takes the view that the plaintiff relied upon a representation by the deceased in May or June 2000 that I make a will leaving me accommodation, then that's a complete defence to a s 66G, so the result of that would be both applications would be dismissed, the plaintiff would continue to live in the house. That's the third alternative."
Leading counsel for Maria-Lyn and Melissa submitted that the Plaintiff's case should simply be dismissed, with an order that George pay the costs of the proceedings. He submitted that when one considered George's financial resources and needs, the lack of provision made for him in the Will, could not result in a finding that he had been left without adequate provision for his proper maintenance and advancement in life. He also submitted that "orders for the sale of the Bronte property and ancillary orders" should be made.
Even at the conclusion of the oral submissions, leading counsel maintained that despite no provision having been made for him, George had received adequate and proper provision under the deceased's Will and that his claim should be dismissed with costs: Tcpt, 21 October 2020, p 154(33-50). He submitted that the primacy of a spouse is "not what it once was" citing Cowap v Cowap [2020] NSWCA 19 for that principle: Tcpt, 21 October 2020, p 155(02-46).
Of course, in that case, the widow of the deceased was not the applicant seeking a family provision order. In any event, the Court of Appeal (Macfarlan JA, with whom Bell P and White JA agreed), referred, at [59], to the "strong claims on the bounty of the deceased", of the elderly widow, to whom the whole estate had been left, stating that the trial Judge had:
"carefully weighed the competing claims of the appellant and respondent. He properly recognised the appellant's strong claims on the testator's bounty arising out of her long marriage and occupation of the former matrimonial home, to which the appellant had significant emotional attachment. On the other hand, his Honour also recognised the very significant needs of the respondent, which came into existence after the testator's death. As his counsel described it, the respondent has a 'severe and permanent disability, including cognitive impairment'. His Honour's resolution of these competing considerations has not been shown to be unreasonable and therefore outside the range of outcomes at which his Honour could properly have arrived."
Frankly, it was difficult to not reject, immediately, the principal submission made by counsel. As a surviving spouse of some 44 years, even before separation, where he had remained the deceased's husband even after their separation under the one roof only a few years before the death of the deceased; where the Bronte property had been the home in which he and the deceased had shared their lives for over 35 years and where he had lived since her death; where he had made significant financial, and non-financial, contributions to its acquisition, conservation and improvement; where, at the date of the hearing, he wished to continue to live there; and where there had not been a formal, or an informal, division of matrimonial assets, that George should not be entitled to any provision out of the deceased's estate, with his claim to be dismissed with costs, and that trustees for sale should be appointed to sell the Bronte property immediately, the submission smacked of little more than pandering to the instructions that counsel had been given by one, or both, of Maria-Lyn and Melissa. (This is not to say that George should receive, by way of provision, the whole of the deceased's interest in the Bronte property absolutely.)
If the submission was based only on the specific instructions of one, or both, of the Defendants, it is necessary to remind the legal profession that lawyers must be mindful not to act solely as a "hired gun" for a client, but rather must exercise independent judgment. In this regard, what was stated by Sir Igor Judge P, in R v Ulcay [2008] 1 WLR 1209 at 1217 [27]; [2007] EWCA Crim 2379 at [27] is useful to remember:
"The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client 'instructs' him to say."
Furthermore, rule 23 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) provides that:
A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice.
Independence, relevantly, under rule 42, means:
A barrister must not act as the mere mouthpiece of the client … and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's … wishes where practicable.
The Court expects more from legal representatives, particularly from counsel who appear regularly in these types of matters, including giving real consideration to the merits of the other party's case and providing reasoned submissions on what is, or what is not, "adequate and proper provision in all the circumstances of the case" when asked. The duty to the Court of a legal representative requires him, or her, where necessary, to restrain the unreasonable enthusiasms of the party represented, which, ultimately, is in the party's best interest and is more likely to ensure that a just result is reached sooner and with less expense: Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 at [19], [22] (Pembroke J).
Perhaps, the submissions made explain why so much, by way of costs, had been incurred, on the part of Maria-Lyn and Melissa, in a case which, but for determining the nature of the provision that ought to be made, appeared to be relatively straightforward.
[5]
The estate of the deceased
On 22 September 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:
1. the assets and liabilities of the estate at the date of death;
2. the assets and liabilities of the estate at the date of the schedule;
3. the estimated costs and expenses of any property that is to be sold;
4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and
5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
A document containing the information was provided prior to the hearing and was marked, without objection, as Ex JS1.
The deceased's estate, as at the date of death, was estimated to have an estimated, or known, value of $1,425,522. The estate was described as consisting of the deceased's one-half interest as tenant in common in the Bronte property ($1,400,000) and cash in bank ($25,552). (I have omitted, and shall continue to omit, any reference to cents in relation to all amounts. This will explain any apparent arithmetical miscalculation.)
The liabilities of the deceased, at the date of her death, were estimated to be $3,192. These liabilities have not been paid.
At the commencement of the hearing, the parties agreed that the deceased's estate consisted only of the deceased's one-half interest as tenant in common in the Bronte property ($1,850,000). They also agreed that the estimated costs and expenses of sale of the Bronte property were likely to be $83,940, comprising auctioneer's fees and marketing ($7,500), real estate agent's commission on sale ($75,240) and conveyancer's fees ($1,200): Tcpt, 20 October 2020, p 6(02-39).
Counsel for Maria-Lyn and Melissa submitted that only one half of this amount ($41,970) would be payable out of the deceased's estate, as the deceased was the holder of a one-half interest as tenant in common in the Bronte property. There is some support for this submission in Kardos v Sarbutt (No 2) [2006] NSWCA 206 at [28] (Brereton J (as his Honour then was) (with whom Basten JA and Hunt AJA agreed)), in which it was held that "… in proceedings under Conveyancing Act, s 66G, for the appointment of trustees of sale of jointly held land, the costs are usually paid out of the proceeds, the rationale being that the costs of such an application are an incident of joint ownership".
There are a number of liabilities payable out of the estate, other than costs of the proceedings, that remain unpaid, or that have been paid, personally, by one, or both, of the Defendants, which should be reimbursed to them. These include the liabilities referred to above ($3,192), costs of obtaining Probate ($6,486), costs of administration ($6,710), a bank facility fee ($250) and the balance of the costs of obtaining an interim grant ($16,697), making the total amount $33,335: Tcpt, 20 October 2020, p 61(27-49).
There will also be some additional expenses, for Mr McGill and Mr Falk, if they are appointed as trustees for sale of the Bronte property. The parties agreed that if they were appointed, their costs and expenses would be $12,100: Tcpt, 21 October 2020, p 107(04-38).
Thus, the gross value of the estate ($1,850,000), less one half of the costs of sale ($41,970), the additional liabilities ($33,335), and the costs and expenses of trustees for sale ($12,100), but without taking into account the costs of the proceedings, was said to be $1,762,595.
The deceased, at the date of her death, was a member of the Health Employees Superannuation Trust Australia (HESTA) Industry Super Plan, which appears to have included a life assurance policy on her life under which money became payable on her death to a person other than the legal representative of her estate. In July 2019, Maria-Lyn and Melissa, each received two amounts ($94,149 and $34,712) totalling $128,861, by way of death benefits.
George did not challenge the determination by the Trustee of the superannuation fund and he did not seek an order designating as notional estate of the deceased any part of the amounts each received. His counsel, however, submitted that each of Maria-Lyn and Melissa had received that amount as a result of the death of the deceased, which amount should be taken into account. (However, as stated earlier, these amounts were referred to by senior counsel as the source for a costs order in the event that it was necessary to make an order that George's costs be paid out of the notional estate of the deceased.)
Maria-Lyn and Melissa, as executors and the sole beneficiaries named in the Will of the deceased, are unlikely to seek any commission, or percentage, for their pains and trouble as is just and reasonable, out of the estate of the deceased, pursuant to s 86 of the Probate and Administration Act 1898 (NSW).
[6]
The Costs of the Proceedings
Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:
"In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:
"To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'."
I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].
In an affidavit sworn on 1 October 2020, Mr J Ferguson, a solicitor in the employ of the Plaintiff's solicitors, estimated that George's costs and disbursements of the proceedings, calculated on the ordinary basis, up to and including a two day hearing, and including GST, were $107,000. Those costs and disbursements, calculated on the indemnity basis, were estimated to be $137,500.
Mr Ferguson stated that his firm had only been instructed on 16 September 2020 and that George had paid $81,944 to the solicitors who had previously acted for him. It may be that if an order for his costs to be paid out of the estate, he will recover some, or all, of the amount that he has paid. (Alternatively, if no order were made, he would have only the balance of $55,556 to pay.)
In an affidavit sworn on 11 September 2020, Mr J R Baxter, the solicitor for Melissa and Maria-Lyn, estimated that their costs and disbursements of the proceedings, calculated on the indemnity basis, up to and including a two day hearing, and including GST, were $171,500. He also gave evidence that they had personally paid $89,459 of those costs and disbursements. That leaves an amount of $82,041 to be paid: Affidavit, John Raymond Baxter, 11 September 2020 at par 4. However, the amount that they have paid is said to be a loan to the estate which should be repaid: Tcpt, 21 October 2020, p 137(46) - p 139(07).
(The amount for costs was said to not include other legal costs incurred in proceedings brought for urgent relief seeking a grant of letters of administration ad colligenda bona defuncti, which had been brought by them prior to the commencement of these proceedings.)
Of course, in incurring the costs of upholding the terms of the deceased's Will, they were defending their own interests, as the sole beneficiaries named in the deceased's Will.
It was necessary to suppress a sharp intake of breath when the Court was informed that the total estimated costs of the proceedings, excluding the legal costs of the application referred to above, were estimated to be $278,500: Tcpt, 20 October 2020, p 8(39-50).
Counsel requested me to defer making any determination as to the burden of costs, as there are some matters that may be relevant to that determination that could not be disclosed at the hearing: Tcpt, 20 October 2020, p 9(07-13).
Despite that request, the Court suggested that, perhaps, the parties could agree on at least the lump sum costs for each party if an order for costs were made, in order to avoid further delay in the administration of the deceased's estate: Tcpt, 20 October 2020, p 9(15-21). Unfortunately, any suggestion of compromise, even on this issue, fell on deaf ears, and it will be necessary to consider how to deal with the costs of the proceedings following the publication of these reasons: Tcpt, 21 October 2020, p 107(49) - p 108(06). That is likely to result in further costs being incurred.
Using the above estimates as a guide, then, if the costs of the estate were ordered to be paid out of the estate, the distributable estate out of which an order for provision could be made is $1,484,095. It is a modestly large estate, although it consists of the proceeds of sale of only one asset. Without an order for provision in favour of George, each of Maria-Lyn and Melissa would receive about $742,000 pursuant to the terms of the deceased's Will.
[7]
Some background facts
It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.
The deceased was born in June 1948. At the date of her death, in September 2018, she was almost 70 years old.
George was born, in Greece, in June 1945 and is now 75 years of age.
George came to Australia in about 1954. Apart from several periods when the family returned to Greece, he has lived here since then.
The deceased and the Plaintiff met in about 1966. They were married in June 1970 and remained married at the date of the deceased's death in September 2018. There were two children of the marriage, being Melissa, who was born in June 1969 and who is now 51 years old, and Maria-Lyn, who was born in June 1971 and who is now 49 years old.
During their married life, the deceased was a nurse and George was a taxi driver/bus driver.
There is evidence that in about 1999, the relationship gained a quality of financial independence with the deceased and George maintaining separate bank accounts: Tcpt, 20 October 2020, p 36(10-16).
George's father, Theo Sarantopoulos, died in June 2011. He left a Will dated 24 November 2000, Probate of which was granted on 23 November 2011 by this Court to George.
By Theo's Will, his wife, Maria, was left a life interest in a property at Kingston Road, Camperdown (the Camperdown property), with the remainder left to George for his sole use and benefit absolutely. The rest and residue of Theo's estate, was left to George absolutely.
The Camperdown property, as disclosed in the Inventory of Property attached to the Probate of Theo's Will, had an estimated or known, value of $1,000,000. There was money in the bank ($5,526) and a watch ($2,000).
The Camperdown property was sold, in September 2016, for $2,100,000 less an amount for capital gains tax and sale expenses ($600,000): Tcpt, 21 October 2020, p 106(11-40); Affidavit, George Sarant, 13 September 2019 at par 77; Affidavit, George Sarant, 2 October 2020 at pars 10(c), (d); Ex D5.
George deposed (at par 78 of his affidavit, sworn on 13 September 2019) that the balance of the proceeds of sale were invested in a term deposit, so as to provide an income for his mother, and that "with her permission [he has] some access to the income as well". In cross-examination, George resiled from this assertion, accepting that once the Camperdown property was sold, the proceeds of sale passed to his control, that his mother, thereafter, exercised no control over the funds, and that she had asked him to do anything he liked with it.: Tcpt, 20 October 2020, p 29(47) - p 30(06); p 30(20-44). He also accepted that "whatever arrangement is between your mother and you, your mother now accepts that the money in the bank account is yours": Tcpt, 20 October 2020, p 31(19-22).
Until the term deposit matured, George lived on the interest received thereon. He has paid the income tax on the interest received. Following the term deposit reaching maturity, in November 2019, George transferred the balance, first, to his Pensioner Security Account and then, in the following distributions: $1,350,000 to a Netbank Saver account with CBA and $50,000 to an account with the National Australia Bank (NAB). The balance ($100,000) remained in his Pensioner Security Account.
It appears that on 15 November 2019, George transferred $50,000 to his mother's account, purportedly on account of the COVID-19 pandemic. George's basis for the transfer, having regard to the fact that it occurred well before the outbreak of the pandemic, cannot be accepted. However, I am not inclined to conclude that there was a deliberate attempt by him to hide his assets from the Court, as was put to him in cross-examination: Tcpt, 20 October 2020, p 48(10) - p 49(45).
In terms of how the funds have been spent, other than on daily living expenses, George states that a considerable amount has gone toward the costs of these proceedings. His evidence is supported by what has been written above as to the amount that has been paid on account of his costs.
In addition, Melissa asked George for money following the sale of the Camperdown property. George states that he gave her some thousands of dollars "to pay things, cars, rent, anything she wanted, holidays she went … but … I couldn't give her the money that she wanted, $300,000 each": Tcpt, 20 October 2020, p 47(30-35). Melissa accepted that she had received some monetary assistance from George, but plainly, neither as much, nor as quickly, as she would have wanted: Tcpt, 20 October 2020, p 68(20) -
p 69(38); see Affidavit, George Sarant, 13 September 2019 at Annexure G.
At par 12 of his affidavit, sworn on 2 October 2020, George set out the present balances of each of the accounts into which the funds inherited from Theo were deposited. There are three accounts, one in which there is
$1.3 million, and two in which there is $50,000.
[8]
The testamentary intentions of the deceased
The only documentary evidence of the testamentary intentions of the deceased was her last Will, to the contents of which reference has already been made.
At the outset of the hearing, I asked whether any enquiries had been made going to whether the deceased had made any prior wills, and whether, for example, the files of Mr Murphy, the solicitor who had prepared the deceased's, and George's, last Will, respectively, had been the subject of any subpoena to produce documents. Counsel for Maria-Lyn and Melissa indicated that he was not aware of any subpoena having been issued: Tcpt, 20 October 2020, p 10(34-44).
In any event, there was no documentary, or other, evidence, from Mr Murphy relied upon, by either party, in the proceedings: Tcpt, 20 October 2020, p 14(07-46). (This could be seen as somewhat surprising bearing in mind his involvement in the preparation of each Will and in the preparation of documents on behalf of the deceased unilaterally severing the joint tenancy of the Bronte property.)
Thus, there was no evidence that careful thought, or detailed consideration, had been given by the deceased to what was appropriate provision for George if he survived her. That is manifest from the terms of the Will which demonstrate that the deceased's overriding consideration was to leave the entirety of her estate to their children, rather than considering what was proper provision for her husband of so many years.
(The Will was made at a time when both of George's parents were alive. There is no evidence of the deceased's knowledge of what he might inherit on their death.)
There was evidence recounted by one, or other, of the parties, of conversations said to have been had with the deceased. Before turning to the details of those conversations, it is important to note that the Court exercises caution in weighing any evidence of any alleged conversation with a deceased person: Plunkett v Bull (1915) 19 CLR 544 at 548-549 (Isaacs J); [1915] HCA 14.
As Wilcox J observed in Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246 at 253; [1992] FCA 503 at [29]:
"[I]t is trite to say that evidence of conversations between a living witness and a dead person should be scrutinised with particular care, especially where there was no occasion for the dead person to record his version of them before his death. Of course, that is not to say that such evidence cannot be true; it obviously may. But it does mean that any matter adversely affecting the credit of the witness has special importance; the witness cannot be refuted in the usual way."
In Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, McLelland CJ in Eq, referred to the proposition that:
"in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution …"
In Varma v Varma (2010) 6 ASTLR 152 at 244 [419]; [2010] NSWSC 786 at [419], Ward J (as her Honour then was) emphasised the need for "[c]areful scrutiny" in such cases. Her Honour, at [424], considered that the need for scrutiny was increased by a recognition of the underlying fallibility of human memory, citing the explanation given by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319:
"… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
Whilst there is no absolute legal requirement for it, I should also look for some corroboration: Re Hodgson; Beckett v Ramsdale (1886) 31 Ch D 177 at 183 (Sir J Hannen P); Day v Couch [2000] NSWSC 230 at [9] (Bryson J); Weeks v Hrubala [2008] NSWSC 162 at [20] (Young CJ in Eq).
Whelan J (as his Honour then was) in Webb v Ryan [2012] VSC 377 referred to the difficulties in assessing this type of evidence, writing, at [22]:
"An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined." (citations omitted)
I also remember s 140 of the Evidence Act 1995 (NSW), in respect of which Campbell JA (with whom Bergin CJ in Eq and Sackville AJA agreed) wrote in Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164 at 176 [51]; [2012] NSWCA 431 at [52]:
"To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence. As well, both under the common law and also under s 140 Evidence Act 1995, the evidence must be enough to enable the court to feel actual persuasion that a particular fact is so … I respectfully agree with the observation in Cross on Evidence, 8th Australian edition (2010) LexisNexis [9130] and footnote 184 that 'according to ALRC 26 [998], the provision does not require actual belief; but that is not what the language says'. What s 140(1) says is:
'In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.'
It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct." (citations omitted)
Bearing those cautions in mind, I turn to set out the evidence of conversations with deceased, both affidavit and oral. I shall come to issues raised as to credibility later in these reasons.
In his affidavit sworn on 13 September 2019, at pars 53-56, George wrote:
"Discussions in 2000 and the wills made in that year
In or about May or June 2000 I was working night shifts as a government bus driver. My wife said to me words to the effect: 'We should make wills. I'll go separately and you can go when you are able.' … We agreed that in view of our children's mental instability, we should provide that the property could not be sold until we both had died. We agreed to see Mr Murphy the same to [sic] solicitor to arrange the preparation of our wills.
In about mid July 2000 my wife said to me 'I have made my will as we have discussed'. She did not show me a copy of her will at that time. I did not see it until after my wife's death in 2018.
I assumed that as we had agreed my wife's will provided that I could stay in the house in circumstances where she predeceased me.
Based on our agreement and that understanding, I signed my will about two weeks after this at the offices [of] Mr Murphy, the solicitor who prepared it …"
In a later affidavit, sworn on 6 March 2020, at par 3, George wrote:
"[George]: 'We don't want the house sold before we both die but we want the girls to have the right to live there.
[The deceased]: 'I agree'.
[George]: 'Also, I am worried about the girls' mental state. We don't want them to be able to sell even after the last one of us dies. They can't handle money but we want them to have a house for them both to live in. It can't be sold until they both die.'
[The deceased]: 'Agree. I will contact Mr Murphy to prepare our wills'.
[George]: 'Okay'."
In his Will dated 3 August 2000 (a copy of which was annexed to his affidavit, sworn 13 September 2019), Clauses 3 and 4 provided:
"I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever kind and wheresoever situated to the said MELISSA RANDIE SARANT and MARIA-LYN SARANT as tenants in common in equal shares.
I GIVE the following directions to my Executrices concerning the property known as xxx Read Street Bronte which I refer to hereafter as 'the house':-
My wife ELIZABETH RANDIE SARANT may live in the house as long as she wishes provided that she pays the rates and taxes on the house the premiums on insurance taken out on the house.
Until my wife has ceased to live in the house then the house shall not be sold
Should my wife the said ELIZABETH RANDIE SARANT survive me my daughters shall be entitled during the lifetime of my wife to live in the house."
The terms of George's Will are consistent with his evidence of what he said was discussed.
Despite having taken the deceased to the appointment with Mr Murphy, at which instructions were given for the Will and the severance of the joint tenancy of the Bronte property in July 2000, Maria-Lyn denied having had any knowledge of, or conversation with the deceased about, her testamentary intentions at about the time. She stated that she thought she had found out about the Will in about 2003: Tcpt, 20 October 2020, p 96(24) - p 97(07). At par 99 of her affidavit, sworn on 10 January 2020, Maria-Lyn gave evidence of first having become aware of the deceased's Will in a conversation with the deceased in the mid-2000s, when the deceased said to her "I'm leaving everything to you and Missy". ("Missy" being a family nickname for Melissa.)
Upon clarification, in cross-examination, she could recall, at least, two occasions in which there were discussions about the deceased's intentions as to, and the contents of, her Will, the first of which she placed as having occurred in or around 2006 and the second, in June 2011, following Theo's death. It is in the latter conversation that Maria-Lyn stated she first became aware of her mother having effected the severance of the joint tenancy: Tcpt, 20 October 2020, p 97(09-16).
She denied, also, making any suggestions to the deceased as to how she should distribute her assets on death: Tcpt, 20 October 2020, p 97(18-21).
In her reply affidavit, sworn on 8 April 2020, Maria-Lyn stated at pars 58-61:
"… I say that my parents' wills and their ownership of the Bronte property were the subject of many discussions to which I was a party from as long ago as the late 2000s. During a number of these discussions, [George] said words to the effect:
'I don't want the girls to inherit my estate. I'm going to leave my share of the property to Riki.'
The deceased invariably responded with words to the effect:
'The house should go to the girls only. I don't want Andre … to benefit from my life's work, considering the abuse we all suffered from him, including Riki.'
I also recall [George] saying to the deceased words to the effect:
'We need to change our wills so that we are the only beneficiaries, and not the girls.'
The deceased responded in words to the effect:
'I have worked all my life for my daughters to have a better life, not you and Andre. I don't trust you to leave the house to the girls.'"
Melissa gave no evidence about having any conversations as to the testamentary intentions of the deceased.
I am satisfied that there were discussions about the topic which led to George being disappointed with the terms of the deceased's Will so far as it related to his continued occupation of the Bronte property.
Based upon the evidence, it seems that George has a disappointed expectation in respect of his ability to remain in occupation of the Bronte property after the deceased's death. Yet, overall, George has not shown that, based on what the deceased and he discussed, that any expectation made any difference to the manner in which he conducted himself. Put differently, George has not shown that he would have adopted a different course in making the Will that he did, had such an expectation not been induced in him. More likely than not, I am of the view that he would have made such a Will permitting the deceased to remain living in the Bronte property after his death in any event.
As was recently written in Re Stojanovska; Stojevski v Stojevski [2020] VSC 702 at [57] (Englefield JR):
"The impact of unfulfilled promises or disappointed expectations may sometimes be relevant when a family provision claim reaches the stage that the moral duty of the deceased is under consideration …" (citations omitted)
What was written by Englefield JR echoed the view expressed by Brereton J in Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [38]:
"Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant [Re Anderson (deceased) (1975) 11 SASR 276, 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 148]. This is particularly so where a claimant has relied to his or her detriment on any such promise or expectation."
See also Steinmetz v Shannon (2019) 99 NSWLR 687 at 712 [112]; [2019] NSWCA 114 at [112], in which Brereton JA wrote:
"… arrangements and understandings made between a testator and potential beneficiary are not irrelevant in determining what may be proper for the beneficiary's maintenance and advancement. Representations made by testators have always been regarded as relevant to the ascertainment of what is proper provision. Thus it seems to me that a well-established and long-standing understanding between a testator and potential beneficiary, properly informed, could well be relevant in assessing what is proper provision for that beneficiary." (citations omitted)
[9]
The Bronte property
George and the deceased purchased the Bronte property, as joint tenants, in June 1982 for $80,000. There was a mortgage registered on title, securing a debt of $68,000, which amount was used as part of the purchase price. George stated that he had received $8,000 from his father, Theo, which amount was used for the deposit, and that he and the deceased had paid the stamp duty, legal costs, and the balance of the purchase price "from our joint savings".
In about 1986, the deceased and George rebuilt the residence at the rear of the Bronte property with the costs of rebuilding the two storey residence coming from their joint savings.
Between 1997 and 1999, the deceased and George built a second residence on the Bronte property, which came to be known as "the Front House". The costs of building and the furnishing of the property, which was said to be about $230,000, were borrowed, and the debt was secured on the title. This home was built by professional builders. According to George, this was done as it was the deceased's, and his, intention that each of Maria-Lyn and Melissa would both, eventually, have a place to live when he and the deceased died.
The evidence relied upon by George, going to the nature and value of the Bronte property, included a "Property Valuation Certificate" dated 30 September 2020 (being annexure "F" to his affidavit, sworn 2 October 2020), which provides some information about the Bronte property. It is located within eight kilometres of the Sydney central business district and within an established residential neighbourhood. The land area is 444m2. It is described in the following way:
"7. MAIN BUILDING:
Description: Freestanding multi-level dwelling which has been split into a front and rear section
Street appeal: Conventional style with average appeal
Main walls: Brick
Roof: Tile
Flooring: Timber
Interior linings: Rendered and painted brick
Accommodation: Front Section:
• 2 bedrooms
• 2 bathrooms (1 ensuite)
• Family combined kitchen
• Upper level lounge area with low clearance storage
• 2 balconies
[10]
Rear Section:
• 1 study room/ 1 bedroom
• Large lounge/ open space room on the upper level which could be partitioned into 2 - 3 bedrooms
• Lounge and dining room
• Kitchen
[11]
OBSERVATIONS:
Features: Front section has split system air conditioning unit, skylight, built in robes (older style), storage areas, upper level lounge area, balcony x2, courtyard patio, lower level rumpus room.
Internal Layout: Unconventional
Internal Condition: Average
External Condition: Average
Defects Observed: See comments
[12]
CAR: Attached double lock up garage.
[13]
ANCILLARY: Concrete driveway, turf and landscaping and fencing.
[14]
AREAS: The following areas are approximations only and if more accurate figures are required, an architect should be engaged.
Internal Area: 105 m2 front section including rumpus + 90 m2 rear section approximately
Vehicle Area: 72 m2 front section + 43 m2 rear section approximately
[15]
The subject property is well serviced by local schools, shops, sporting and recreational facilities. I have not been able to internally inspect the rear residence and have been advised of the accommodation and condition by the occupant of the front residence. The property has a lot of potential due to its size, construction and rear lane access.
The property is on 2 lots and duplex development is more desirable considering its 2-lot nature, current condition, finishes and its separate nature. In its current state it would be a niche type of purchase considering its current age and layout. Highly comparable properties are not going to be common.
COMMENTS ON THE PROPERTY: Current Market Value based on assumptions and disclaimers is considered to range between $3,500,000 - $3,800,000. I consider a Current Market Value of say $3,650,000 on a balanced approach.
Say $3,650,000
I do note that in this location water views appear to alter the value of a property upwards of $1,000,000. Without water views dwellings appear to struggle to achieve more than $4,000,000. With water views it appears that minimum it is $4,000,000+.
The property has been valued in the spirit of the Family Law Rules where my duty is to the court."
[16]
George's evidence was that there were two separate residences at the Bronte property and that, from 1999, he and the deceased lived separately in one residence; the deceased occupying the downstairs and him occupying the upstairs portion thereof.
I should mention that Maria-Lyn did give evidence that she had made some contributions to the maintenance and improvement of the Bronte property. She wrote, at par 12 of her affidavit, sworn on 10 January 2020, that in 1981 she, and Melissa, helped their parents by working on, and cleaning up, the Bronte property to make it habitable. She stated that she assisted in pulling up layers of flooring so as to expose the floorboards underneath and removed ivy covering the exterior of the Bronte property.
She went on to give evidence, at Tcpt, 20 October 2020, p 101(01-06):
"... I furnished the place. I did a lot of the painting of the cedar wood for the outside or the cedar wood for the, for the property, I put blinds in, I re-sanded the floor after probably about ten years of living there. There were enormous sort of costs. My parents took the brunt, having the mortgage, but I definitely made a financial contribution to the house and I lived there - no, I lived there for in excess of a dozen years."
At par 59 of her affidavit, sworn on 10 February 2020, she stated that she paid $3,500 to have the upstairs floorboards sanded and polished.
At the time she made her Will, the Bronte property was owned by the deceased and George as joint tenants. However, on the same date as she made her Will, Mr Murphy lodged with the Registrar General, a Unilateral Severance of Joint Tenancy, pursuant to s 97 of the Real Property Act 1900 (NSW). The deceased made a Statutory Declaration, in the presence of Mr Mr Murphy, in support of a dealing to unilaterally sever the joint tenancy. (As stated, he had also prepared the deceased's Will and was one of the attesting witnesses to the deceased's signature on that Will.) This is evidenced by the copy of the Statutory Declaration in evidence which bears his name: Affidavit, George Sarant, 13 September 2019 at Annexure D.
The solicitor who prepared George's Will was also Mr Murphy.
It appears that, in accordance with s 97(5) of the Real Property Act, the Registrar-General sent notice of the lodgement of the dealing for registration that may sever a joint tenancy to George, as the joint tenant who had not executed the dealing, at the mailing address of the Bronte property. The Notice was addressed to George and appears to have been dated 21 July 2000: Affidavit, George Sarant, 13 September 2019 at Annexure D.
Thus, at the time of making her Will, the deceased would have known that the joint tenancy in the Bronte property was likely to be severed in the not too distant future and that not to confer a right of residency in her interest as tenant in common upon George, by her Will, if he survived, would be in breach of any agreement, or understanding, that they may have had in May or June 2000.
George says it was only in about August 2017, that he learned, "for the first time", of the documents whereby the deceased severed the joint tenancy. He says that it came to his attention "when my solicitor carried out a title search": Affidavit, George Sarant, 13 September 2019 at par 64.
Unless the deceased had instructed Mr Murphy to not tell George that the severance of the joint tenancy was to be effected, it is highly unlikely a solicitor would permit a testator to make a Will, at least so far as the real estate was concerned, that would be of no effect, and which contained directions which were completely unnecessary, in circumstances where that real estate would pass, by survivorship, to that testator, if he, or she, survived the co-owner.
George was briefly cross-examined on his evidence: Tcpt, 20 October 2020, p 51(10) - p 52(02). I am not satisfied, that I should accept George's evidence on the topic as I consider it to be mistaken (though I found him to be a witness who was endeavouring to tell the truth and to assist the Court). In this regard, I do not think that he was intentionally being untruthful.
There is a part of Maria-Lyn's cross-examination that is relevant on the topic of George's Will and the Bronte property. It commences at Tcpt, 20 October 2020, p 97(26) - p 98(12).
"… I'm taking you to your affidavit of 8 April 2020, paragraph 58.
…
Q. 58 you say:
'I say that my parents' wills and their ownership of the Bronte property were the subject of many discussions, to which I was a party from as long ago as the late 2000s. During a number of these discussions the plaintiff said words to the effect "I don't want the girls to inherit my estate. I'm going to leave my share of the property to Ricky".'
A. Yes.
Q. It must have been a surprise to you when you saw your father's will.
A. I haven't seen my father's will.
Q. You haven't read your father's affidavits in these proceedings?
A. No, not that, sorry, I'm talking about in the past, sorry.
Q. No, you've read your father's affidavit?
A. Yes.
Q. You saw that he made a will in August 2000 in which he left his estate to you and your sister subject to certain directions in relation to occupation. That must have been a surprise to you when you read that was it?
A. No. That wasn't a surprise. That was in 2000"
The cross-examination proceeded and it became necessary for me to remind the witness of the question that she had been asked, which senior counsel then continued, at Tcpt, 20 October 2020, p 99(05-31):
"HIS HONOUR
Q. I think the question was put that in relation to the Bronte property your father for most of his life has been toiling in relation to the property. Do you agree or disagree?
A. Yes.
WILSON
Q. Been his life's work?
A. Yes.
Q. He's made it quite clear to you that he's doing it not for himself but for the benefit of his daughters.
A. I disagree.
Q. He's made it quite clear that you can live there for as long as you like.
A. Under his rules.
Q. Is that comment 'under his rules' applicable at the present time?
A. To a certain extent.
Q. To what extent does 'under his rules' applies today, in the last year or so?
A. Well, it's subject to emotional pressure. It's a matter that I have to live there when I don't want to live there. So I suppose the outcome of all this means that we've been subjected two years after mum passed away, what I believe, because of what he's brought forward. So it's still under his rules."
At Tcpt, 20 October 2020, p 102(25-41), she added:
"Q. You agreed that for most of your father's life … that looking after the house and being in the house was his life, is that what you said? You agreed with Mr Wilson saying that.
A. I do agree that my father perceives it in that way.
Q. That isn't what you said earlier is it?
A. No, no, I do, I do agree that it's important to my father.
Q. You made a point of saying that you were subject to emotional pressure, you don't want to live there, is that right?
A. That is correct.
Q. You appreciate that your father to the contrary does want to continue to live there.
A. Yes he does but he can't make a comment--
Q. Just answer my question if you'd be so good.
A. Well that's a yes."
[17]
Family Law Discussions
George accepted that at different times during their marriage he and the deceased were sleeping in different parts of one of the residences. There is also evidence that there were discussions between the Plaintiff and the deceased regarding "family law issues".
The only contemporaneous written evidence on this topic is a letter dated 15 February 2017 from Abrams Turner Whelan, Solicitors, (a copy of which was annexure "C" to the affidavit of George Sarant, sworn 13 September 2019) which firm represented the deceased, addressed to George. Relevantly, this letter provided:
"We have been instructed to act on behalf of your wife, Elizabeth, who has sought our advice in relation to family law issues arising as a result of your separation.
At the outset, Elizabeth has instructed us to advise that she wishes to reach an amicable settlement with you without the cost, both financial and emotional, of Court litigation. It is in this spirit that this letter is being written.
By way of background, we understand that you and Elizabeth were married on 24 June 1970 and separated under the one roof in or about October 2014. Since October 2014, you and Elizabeth have continued living at Bronte, but in separate parts of the home.
In order for us to advise Elizabeth as to her entitlements under the Family Law Act, we require you to provide us with full disclosure as to your current income, assets, liabilities and financial resources. We enclose, for your information, brochures prepared by the Family Court in relation to disclosure requirements under the Family Law Rules.
…"
The letter then identified various categories of documents and information going to his financial resources and that once disclosure of documents had been given and the solicitors had an understanding of "the property pool", the deceased "would very much like to then proceed with negotiations towards a final property settlement". The letter ended with the recommendation that George should seek the advice of an Accredited Family Law Specialist and arrange for them to contact the solicitors in response to this letter.
It is important to note that there is no suggestion, in the letter, of any adverse conduct by George towards the deceased. The tone of the letter is to the contrary and the deceased's instructions included the solicitors advising George "that [the deceased] wishes to reach an amicable settlement with you without the cost, both financial and emotional, of Court litigation. It is in this spirit that this letter is being written".
There is no evidence of any response to this letter, or of what occurred, on George's part, after the letter was sent. There is no evidence that any property settlement was ever reached, although there was evidence that mediation occurred in March 2018. Naturally, the details of the discussions at the mediation were not addressed in the evidence other than George stating that the deceased expressed an intention, during the mediation, for the Bronte property not to be sold: Tcpt, 20 October 2020, p 33(38-45).
In any event, there is no suggestion that the deceased and George reached any agreement at the mediation.
[18]
Contract between family members
As stated above, one of the bases of George's claims in the proceedings is that there was an agreement or understanding between him and the deceased in relation to the Bronte property.
There is a rebuttable presumption that agreements made in a domestic, or family, context are not intended to be legally binding contracts: Balfour v Balfour [1919] 2 KB 571 at 578-580; [1918-19] All ER 860 at 864-865 (Atkin LJ); Cohen v Cohen (1929) 42 CLR 91 at 96 (Dixon J); [1929] HCA 15; Jones v Padavatton [1969] 1 WLR 328 at 332-333 (Salmon LJ); [1968] EWCA Civ 4.
In Jones v Padavatton, Salmon LJ (as his Lordship then was) wrote at 332-333:
"[A]s a rule when arrangements are made between close relations, for example, between husband and wife, parent and child or uncle and nephew in relation to an allowance, there is a presumption against an intention of creating any legal relationship. This is not a presumption of law, but of fact. It derives from experience of life and human nature which shows that in such circumstances men and woman usually do not intend to create legal rights and obligations, but intend to rely solely on family ties of mutual trust and affection. This has all been explained by Atkin LJ in his celebrated judgment in Balfour v Balfour [1919] 2 KB 571, 578-580. There may, however, be circumstances in which this presumption, like all other presumptions of fact, can be rebutted. Mr Dillon has drawn our attention to two cases in which it was, Shadwell v Shadwell (1860) 9 CBNS 159) and Parker v Clark [1960] WLR 286. The former was a curious case. It was decided by Erle CJ and Keating J (Byles J dissenting) on a pleading point, and depended largely upon the true construction of a letter written by an uncle to his nephew. I confess that I should have decided it without hesitation in accordance with the views of Byles J; but this is of no consequence. Shadwell v Shadwell laid down no principle of law relevant to what we have to decide; it merely illustrated what could never, I think, be seriously doubted, namely, that there may be circumstances in which arrangements between close relatives are intended to have the force of law."
In Darmanin v Cowan [2010] NSWSC 1118, Ward J (as her Honour then was), at [206]-[214], [221]-[222], dealt with the topic. It is not necessary to repeat what her Honour wrote.
The Court must consider "the status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances, may put the matter outside the realm of contract law": South Australia v Commonwealth (1962) 108 CLR 130 at 154 (Windeyer J); [1962] HCA 10.
As stated, George contended that there existed an agreement or understanding between the deceased and him, and, although it was expressed in relatively simple terms, the subject matter, being in relation to how the estate of each was to devolve, it was a serious matter to both of them. He submitted that a binding legal contract may be entered into notwithstanding informality and close familial relationships.
In the present case there is an absence of any express statement that the agreement made by the deceased and George was, or was not, intended to be legally binding. However, the parties to the asserted agreement are identifiable, its terms are certain, and there was some consideration for the agreement, being the mutual promises to leave the Bronte property in a particular way. However, it was not suggested that either had agreed not to alter her, or his, Will.
I am not satisfied that there was any legally binding agreement between them. However, I am satisfied that the deceased and George had discussed the issue of the survivor being permitted to continue to reside in the Bronte property, and that those discussions have relevance on George's claim for a family provision order and also his defence of the claim for relief under s 66G of the Conveyancing Act. As I have written, George's Will is consistent with there having been discussions about the topic of what was to occur on the death of the first of them. That the two children were to inherit the deceased's interest in the Bronte property was not, necessarily inconsistent with the discussions that the deceased was said to have had with Maria-Lyn.
In this regard, it is not to be forgotten that whilst the deceased sought legal advice, it was not expressly suggested in the letter from her solicitors to George that any step was to be taken to have the Bronte property sold.
Finally, on this topic, bearing in mind the evidence to which I have referred, regarding the Bronte property being George's life's work, it is implausible to believe that the deceased would have been unaware of his expectation to be able to continue to reside in the family home after her death. There can be little doubt that his evidence regarding a desire to remain living in the Bronte property was convincing and consistent. It was also, bearing in mind the above matters, soundly based.
[19]
Credibility of the witnesses
Before proceeding further, it is convenient to state my impressions about the credibility and reliability of each of the parties, who were the only witnesses who were cross-examined, as a result of reading his, and her, evidence respectively, and of seeing, and hearing, each of them.
In this regard, I have not forgotten that a family member does not always act towards, and speak to, other family members consistently. Often much will depend upon the person who is being spoken to.
I refer to what I wrote in Papas v Co [2018] NSWSC 1404 at [53], [58]-[60].
Overall, I was impressed with George's performance during cross-examination. Whilst, at times, he seemed to be a little confused about the cross-examiner's question, I do not think that I should disbelieve the general thrust of his evidence, other than on the question of when he found out about the severance of the joint tenancy. On balance, I found him to be a reliable witness. Furthermore, overall, I prefer his evidence to that of Maria-Lyn. The probabilities, supported by the objective contemporaneous circumstances, favour George's version of the events.
I accept the evidence given by him at par 69 of his primary affidavit that:
"Shortly before my wife died, I believe that we had reconciled somewhat. We conversed secretly and walked together, although we still resided in our separate residences. I recall my wife was fearful of Maria and whenever Maria was visiting she would say: 'Please go, I am frightened of Maria and don't want her to know we are talking.' I would take her to hospital for walks. We would sit in the sun together. She was very ill but I did not know she was suicidal."
It is important to note that George did not seek to exaggerate the extent of any reconciliation. The use of the word "somewhat" is important in this regard. Whilst his evidence does not demonstrate complete reconciliation between husband and wife, it does suggest that not all of the bonds of matrimony had been completely severed.
Lengthy affidavits of Maria-Lyn and Melissa were read, much of the contents of which seemed to serve no purpose other than to paint George in an unfavourable light by detailing events, and dissonance, in George's relationship with the deceased. Worse still, were the irrelevant minutiae, examples including whether it was George or the deceased who had picked up Maria-Lyn and Melissa from ballet; whether it was the deceased or George's mother who had prepared Maria and Melissa's meals as children; who had walked, provided for, and fed, Maria-Lyn's dog, Samson; the nature of Maria-Lyn's relationship with her paternal grandparents; and the settlement of the deceased's worker's compensation claim in 2009. Such detail was wholly immaterial to anything to be decided in this proceeding.
Perhaps as Young AJA observed in Estate of Joan Esme Little and the Succession Act 2006 [2015] NSWSC 1913 at [35], although it may well have been cathartic for each of Maria-Lyn or Melissa to get out of her system all the details, nevertheless:
"It is to be hoped that solicitors … will employ their professional skills when these affidavits are prepared, not just to put in affidavit form the client statement but only to put forward such details as are really relevant to the decision that has to be made."
In any event, though conduct and family relationships, in some cases, may well have relevance, the Court, from the early days of the family protection jurisdiction, has disapproved attempts by litigants to blacken each other's character: see, for example, Hoffmann v Hoffmann (1909) 29 NZLR 425 at 428 (Sim J). Allegations and counter-allegations about petty incidents which occurred years before the date of death, are, generally, unlikely to advance anyone's case and when it is sought to support them by affidavits, they may merely deepen rifts in the family and dishonour the memory of the deceased. Counsel and solicitors bear a responsibility to the party they represent, as well as the court, in this respect: The Auckland City Mission v Brown [2002] 2 NZLR 650 at 654-655 [15]; [2002] NZCA 33 at [15] (Richardson P, for the Court), quoting Re Meier (deceased) [1976] 1 NZLR 257 at 258 (Wild CJ).
As Campbell JA said in Hampson v Hampson (2010) 5 ASTLR 116 at 133 [79]; [2010] NSWCA 359 at [80] (Giles JA and Handley AJA agreeing):
"The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge." (emphasis in original)
Overall, I have no confidence in the reliability of Maria-Lyn's evidence. It was obvious that she was determined to maintain her position and the justness of her cause. She had a strong self-interest in defeating George's claim and her dislike, and distrust, of her father was palpable. I do not accept her evidence where it conflicts with other evidence that I have accepted in the case.
By way of example, I refer to some matters involving correspondence written by the deceased to her and, on two occasions, to her and her then husband, Andre. Clearly, this evidence went to her relationship with the deceased, and also to the deceased's relationship with George, at the time the letters were written. She endeavoured to sugar-coat what had been written by the deceased. In this regard, I found her evidence unconvincing and evasive.
To demonstrate, it is necessary to set out the details of that correspondence, a copy of the transcript of which was marked Ex P1 in the proceedings. In the first letter to Maria-Lyn, the deceased wrote:
"Snooky (Maria)
I find your current situation intolerable and I am not prepared to put up with your rules and expectations any longer. You have made it clear you do not care about the house and consider your father and probably me to belong in an unhealthy relationship unsuitable role models for Riki.
I will not be subjected to this emotional turmoil.
I want you and [Andre] to find your own place, where you will have no interactions, associate with those in self-esteem and those you trust with your son.
I will expect the same rights as Andre's Parents.
I write this with regret and hope you find a more suitable, happier environment.
Love mum"
Maria-Lyn's evidence, as to that letter, in cross-examination commenced at Tcpt, 20 October 2020, p 79(37) - p 82(18). The evidence reveals that she was not prepared to grapple with the questions asked of her, particularly when faced with a difficult answer:
"Q. Let me just ask you this about the letter. Going to the first paragraph, 'I find the current situation intolerable and am not prepared to put up with your rules and expectations any longer.' Do you know what your mother is talking about when she refers to 'your rules and expectations'?
A. I believe my mother wrote this because Ricky's father was extremely demanding and he was extremely rude and abusive. It put me in a difficult position as the first - like I just had my son, so I think a lot of this direction was more Andre than me.
Q. It wasn't written to Andre, it was written to you.
A. No, no, I know that, but I was her family and she couldn't hand it to Andre because the relationship just was not okay, so she's written to me.
Q. I'll take you to the next letter and that's certainly written to you and Andre but this one is only addressed to you.
A. Yes.
Q. The second sentence, 'You've made it clear you do not care about the house."
…
Q. Is your mother there referring to the fact that she had made it clear to you that she and your father had developed the house for the benefit and in the interests of their daughters. Is that what you understood her to be referring to there?
A. I would take it differently, but anyway.
Q. I'm asking you to comment. What's your interpretation?
A. Well when she says 'I don't care about the house' I, I think that she's more or less referring that I'm ruining my life by sticking up for my husband and not them. I lived in that house as a single woman, I went to work and she felt that I was giving up my, my home for this man. That is my way of looking at that.
HIS HONOUR
Q. I'm sorry, I'm having difficulty understanding that. The specific reference is--
A. Yeah.
Q. -'You do not care about the house'. Mr Wilson has put to you a proposition that that means that you weren't interested in the house that you lived in and that your parents lived in. Do you agree or disagree?
A. I, I, I'd actually say that, what I said first, I mean I lived in that house since it was built. The way I took it as, you know, I mean I put a lot of energy, not just my design or my own money into that house, but I took it as though she was trying to say that I should be caring about staying in the house, caring about the stability of my child rather than looking at moving, 'cause she's asked me to move. In this she's, she's more or less said in - this is the writings, but she asked me to move out of the house.
WILSON
Q. Continuing on with the second sentence, 'and consider your father and probably me to belong in an unhealthy relationship, unsuitable role models for Ricky.' Your mother's not saying to you 'Dear Snooky, I'm living in an unhealthy relationship with your father.' What she's saying is 'You consider your father and me, and probably me, to belong in an unhealthy relationship' Correct?
A. I believe my parents lived in an unhealthy relationship.
HIS HONOUR
Q. No, please--
A. But--
Q. Ms Sarant, listen to the question that's being asked of you please.
A. Sorry, yeah.
HIS HONOUR: Could you ask the question again?
WILSON
Q. Your mother is not saying to you in the letter, 'Dear Snooky, I'm living in this unhealthy relationship with your father.' She's not saying that. What she said to you is this, 'you consider your father and probably me belong to an unhealthy relationship'. There's a difference isn't there?
A. Yes.
Q. Indeed, your mother is writing to you from the stance of a unified--
A. Front.
Q. --unit--
A. Yes.
Q. --of her and your father.
A. Yes, and I understand that, yes.
Q. Yes. Not separated at all. Writing to you as a unit.
A. Yes.
Q. Saying 'I will not be subjected to emotional turmoil', in other words, 'I will not be subjected to emotional blackmail by you', correct?
A. Yes, it's directed at me.
Q. The blackmail being 'Don't impose rules in relation to what we do concerning Ricky because we regard it as emotional blackmail'. That's what she's saying to you isn't it?
A. She is. Can I say--
HIS HONOUR
Q. No, just listen to the question.
A. Just listen, okay.
WILSON
Q. That's as you understood what she was saying?
A. Well I lived in the front house with my husband. I had intrusions of my parents into what I classified my home at that time. I believe my mother wrote this in disappointment of the way I was behaving at that time, but it was short lived, so the letter really doesn't mean anything to me."
As to the "intrusions" Maria-Lyn explained in her affidavit, sworn on 10 February 2020, that
"… some problems arose between my parents on the one hand and Andre and me on the other. Andre, Riki and I occupied the front residence at the Bronte property … I found that both [George] and the deceased came into the front residence at the Bronte property at will. I felt as if we were living in the one house instead of separate residences. Riki, Andre and I had very little privacy as a family. It was around this time that my relationship with the deceased became somewhat strained, and the deceased wrote the letter to me … However, our relationship returned to its previous closeness once we moved out of the Bronte property, and we were no longer living in the same property."
The second letter, addressed to Maria-Lyn, dated 6 May 2005, reads:
"Riki had always been happy in your father's company, and sometimes he has said the wrong thing to his detriment. You have continually made us feel tense and we have to worry if we have done something wrong in your eyes. It is obvious neither of you want any relationship with us, and as I've said I am not prepared to live like this anymore, nor be critized [sic] and emotionally blackmailed.
You and Andre made your choice, as you have so kindly, reminded me 'We all have a choice'. You both get out and live your own life and live according to your own convictions. You will no longer impose your ideas on me.
Sincerely Elizabeth."
In cross-examination Maria-Lyn's evidence, as to the second letter continued (Tcpt, 20 October 2020, p 83(24) - p 84(17)):
"Q. Once again, your mother is writing to you from the perspective of a unified unit, the unit being her and your father, correct?
A. My mother wrote this, not my father.
Q. Yes. She says in the third sentence, 'It is obvious neither of you want any relationship with us.' She's referring to 'us' being her and her (as said) father. She's not writing from the perspective of a woman who has separated from her husband is she?
A. No, in relation to the house.
Q. There's a specific reference to being criticised and emotionally blackmailed isn't there?
A. Yeah. As I said at the beginning, it's from Andre, it's not from me. I didn't do that with my mother. Andre did it, especially with my father. Andre was exceptionally rude where, you know, he'd come back home and he threw a dirty diaper in my father's face. I'm not agreeing with what he did when that happened.
Q. So are you saying your mother in this letter writes you a letter saying 'you're emotionally blackmailing me' but really she's meaning to say 'Andre's emotionally blackmailing me'?
A. Well I went along with what my husband wanted at that time.
Q. You deny emotionally blackmailing your mother?
A. I do.
Q. Did you in any way impose rules on the access your mother and father had to Ricky?
A. No.
Q. You did, you imposed certain principles in relation to what they did with Ricky.
A. Could you give me an example?
Q. No, no, I'm asking the questions.
A. That's very, it's very broad. So there were certain things that parents request off the parents, whether it's junk food not to be fed to kids or what have you, so when you say impose, my parents had access to Ricky. We lived in the same dwelling. They had daily access to him and not many grandparents have that access, a close relationship. But there was to an extent where it became overbearing and overwhelming and the judgment was thrown at us that we weren't good parents. So it continued into a very stressful environment on both sides. So the best thing I did was to move and within a week I had the relationship back on track with mum."
Another letter, dated the same, addressed to Maria-Lyn and Andre, continuing on from the previous reads:
"Snooky and Andre
… following the incident yesterday afternoon.
I am very hurt, it is very distressing to hear Riki crying for lengthy, periods I felt sick. I came around to help out was greeted with on unwarranted outburst from you, and you even felt it necessary to complain to Andre. How do you think I felt being more or less reprimanded I cannot deal with the ongoing hurt and degradation. You arranged for Andre to look after Riki on Tuesday. You did not even tell me. I had to ring Andre late on Tuesday morning. To my knowledge George (your father) knocked on your door re-Riki going to hurt us. You expect your father to give a nights work so you and Andre can out, it is alright when it suits you, and yet you denied him (your father) a seat in you [sic] car, he had to take his own car.
Very callous, selfish, do you treat you friend's as such.
We are not interfering with Riki's upbringing, I do not want the responsibility, I've done it and are well [a]ware of the scaryfaces and outcome.
We are the grandparents, have a different role to you. There is no way I am going to live in such close proximity and ignore him. I cannot understand how you feel this is good for him, isn't it better to be made a fuss of and be played with."
Her evidence as to that letter, in cross-examination, ensued as follows (Tcpt, October 2020, p 85(32) - p 86(17)):
"Q. 'You expect your father to give a night's work, so you and Andre can hang out, is it all right when it suits you? And yet, you denied him, your father, a seat in your car. He had to take his own car.' Just dealing with that incident, do you recall such an incident occurring?
A. I don't, I don't recall specifics. I know that back then I was doing every Tuesday and weekends when I went back off maternity leave. I knew that Andre clashed with my parents on a Tuesday, and I know that I gave the Tuesdays up as a result of my parents and my ex-husband clashing, but I don't remember specifics. I just remember a lot of intrusion and a lot of arguments.
Q. But you certainly--
A. But I still, I still maintained a relationship with my mother all the way through these letters.
Q. Certainly, fishing was an important part of your father's life, historically, wasn't it?
A. Absolutely.
Q. And he liked to take your son fishing?
A. And he took us fishing as well.
Q. You recall occasions when you said to your father, 'No, you can't take Ricky fishing'?
A. In actual fact, that was more of a health reason. My father had a stent done and he wanted to take Ricky out on the boat on his own. So, it's not that he couldn't go, it's that somebody had to go with Ricky. And it wasn't actually me that made that decision, my mother was the one that talked that over with my father. So, my father did take Ricky just on a jetty, not on a boat.
Q. The allegation of emotional blackmail, did you understand it to relate to the occasions or the rules that you imposed on when your parents could see Ricky and when they were not permitted to see Ricky?
A. No, look, from my point of view, there was never any emotional blackmail. My parents did see Ricky throughout all of his childhood. It's only been recently that that has changed, over the last five years. Not recent, but five years."
A letter, again to Maria-Lyn and Andre, by the deceased and George reads:
"Dear Andre + Maria
I want you to vacate our home..
We are considering other options and hereby give you two weeks notice effective as of today. Your last day being Tuesday 4th October.
There [w]ill be no extensions.
Attempts by George to get both families together, and a 'professional counsellor were rebuffed.
You have made us the problem rather than face your issues and emotional instability.
Rikis [sic] welfare and happiness has been lost in your misguided perspective and jealousy. Such restrictive practices and unwillingness to see the positive effects of grandparents will impact on Rikis wellbeing. You are isolating yourselves.
Riki should feel secure and know we are there for him especially when distressed, not ignored when he reaches out, it is natural to pick him up, you can't, due to his parents distorted belief that we are undermining their authority. As grandparents we expect to have an ongoing relationship with Riki.
Yours Sincerely,
George and Elizabeth Sarant"
Her evidence as to the letter, in cross-examination, ensued as follows (Tcpt, 20 October 2020, p 86(35) - p 87(27)):
"Do you remember receiving this letter?
A. I, I do remember it, yes.
Q. Do you remember your mother giving you notice to leave?
A. Yes.
Q. With two weeks' notice to get out, in effect?
A. Yes.
Q. Do you agree, was she correct when she said, 'Attempts by George to get both families together and a professional counsellor were rebuffed by you'?
A. Well, the attempts were actually by both my parents and they were trying to get both of Andre's parents at the time into some form of mediation because of Andre's behaviour.
Q. Certainly, your mother's writing from the perspective of efforts by her and George to get both families together as a unified unit, correct?
A. Mum was always trying to do the best by me.
Q. You would accept they weren't separated, at least at the time this letter was written, wouldn't you?
A. No, I wouldn't.
Q. You wouldn't? Not even a possibility in your own mind?
A. There's no possibility.
Q. Their relationship had irretrievably broken down prior to this letter being written?
A. If anything that my mother did, she always did from a - whether it be letters off to counsel, or, like, it was always inclusive of my father. But it was, it was my opinion that they didn't have a relationship.
Q. Up until 2014, sleeping arrangements at the home were dictated, to some degree, by one, whether you were living in the home?
A. Sorry, sleeping arrangements between my parents?
Q. Yes.
A. No, absolutely not.
Q. What I'm suggesting is that when you and your family were living in the home, that dictated where your mother and father slept?
A. In actual fact, no. Because I had moved out a few times when I went travelling. The situation remained the same.
I find Maria-Lyn's evidence on the topic of the correspondence, and her suggestion that the deceased was addressing letters which were not addressed to her then husband, as being directed to his conduct, rather than Maria-Lyn's own conduct, implausible bearing in mind the terms of the letters. The deceased's use of pronouns, alone, makes it clear that Maria-Lyn's indication as to whom, and what matters, the letters addressed, were not as she says. I do not accept her evidence on this topic.
In addition, the assertion that her mother and father were estranged at the times the letters were written, demonstrates a determination to maintain a stance that supported her case, rather than presenting the true position made clear by the substance of the letters - as she acknowledged, the deceased was presenting a united front, or unit, with George. I find her evidence to be self-serving, not completely honest, and I do not accept it.
In her primary affidavit Maria-Lyn detailed, at some length, her observations as to the nature of the relationship between George and the deceased. In her view, George did not provide any emotional, or physical, support to the deceased following an injury to the deceased's foot and her unfair dismissal from her employment as the director of nursing with Mayfair Nursing Home in Marrickville, this being the so-called "catalyst" for the deceased having had her Will written in the way she did and severing the joint tenancy.
In the years that Maria-Lyn occupied the front residence of the Bronte property she states that she observed no close, or intimate, relationship between George and the deceased for some twenty to twenty-five years before their separation in 2014, and at which time George moved into the front residence. That would put the date as being in the 1990's. It is inconsistent with letters written in 2005, in which the deceased refers to it being Maria-Lyn's view that "your father and probably me belong to an unhealthy relationship", a statement that the deceased does not adopt, and refers to George's attempts at "to get both families together, and a professional counsellor [which] were rebuffed". The last statement is hardly consistent with a husband and father who does not have a close relationship with his wife and who does not wish to maintain an existing family relationship.
On the topic of the separation of the deceased and George, I have earlier referred to the letter from the deceased's family law solicitors to George in 2017. In that letter, the deceased had given instructions that separation under the one roof, had occurred in 2014. That date is different from the evidence of their separation asserted by Maria-Lyn: Tcpt, 20 October 2020, p 75(08) - p 76(50). (A copy of the letter had been annexed to George's affidavit, sworn on 13 September 2019, Annexure C.)
I have earlier referred to Maria-Lyn's affidavit, sworn on 8 April 2020, at par 58, in which she asserted that George had said, on many occasions, that "[he did not] want the girls to inherit [his] estate". She maintained that assertion when cross-examined on the topic: Tcpt, 20 October 2020, p 97(23) -
p 98(39). The assertion is inconsistent with the Will that George made in 2000, in which Will Melissa and Maria-Lyn are named as the devisees of the Bronte property, which Will he did not change until after the death of the deceased.
Melissa also gave evidence and was cross-examined. By contrast, I have no reason at all to question her honesty, or the general reliability, of her evidence. She did not hesitate in making admissions as to her relationship with George, the anger she felt towards him and the resentment over his inheritance of Theo's residuary estate, part of which she thought she would receive: Tcpt, 20 October 2020, p 70(45) - p 71(28).
Where she did not recollect whether something had occurred she said so, and where it did not, she either accepted, or denied, it.
Melissa recalls the deceased reporting to her feelings of unhappiness with her life, and in her marriage to George. She recalls arguments between them.
I accept her evidence in this regard. This is not unheard of in a marriage spanning almost half a century. There is no such thing as a perfect marriage. As I wrote in O'Leary v O'Leary & Eccles [2010] NSWSC 1347 at [81]:
"The conduct of an applicant is, as it always has been, a matter for the court's consideration. However, a wise testator will recognise that perfect harmony between spouses is, in the nature of things, not to be looked for. Differences of outlook between spouses are not exceptional, so some friction between them ought to be accepted as almost inevitable. A wise testator should not allow such disharmony to blind him, or her, to the needs of his, or her, spouse for maintenance, education, or advancement in life. Some acrimony, or even estrangement, for a short period, between spouses, particularly in a long marriage, does not destroy the obligation to make such provision. The important matter is whether, in all the circumstances, it would be expected, by the community, that the testator would have to make a greater benefaction than he, or she, in fact, did, to constitute adequate provision for the proper maintenance and advancement in life of the applicant."
[20]
The Statutory Scheme
The principles to be applied are well known and I have dealt with them in many cases. For the benefit of the parties, as it is important that they are able to following the reasoning, and for each to be satisfied that I have considered the evidence and the submissions put on his, or their, behalf, I shall repeat the relevant principles as I have done in other cases.
The starting point is s 59(1) of the Act which confers jurisdiction on the Court to make a family provision order in relation to the estate of a deceased person if, relevantly, the Court is satisfied that:
1. the person in whose favour the order is to be made is an eligible person; and
2. …
3. at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased person.
Thus, to justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2).
Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application: s 59(1)(c) of the Act. This does not mean, however, that considerable weight should not be given to the assessment of a capable testator, who has given due consideration to the claims on her, or his, estate: Sgro v Thompson [2017] NSWCA 326 at [6] (Payne JA).
The basis upon which the evaluative judgment is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act, and the deceased's Will applies unless a specific application is made, and acceded to, by the Court.
Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the Court to the provision made for the applicant in the Will of the deceased, on the one hand, and to the requirement for maintenance, education or advancement in life of the applicant on the other. No criteria are prescribed by the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education or advancement in life of the applicant.
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210-211; [1994] HCA 40 at [20]-[24] (Mason CJ, Deane and McHugh JJ); White v Barron (1980) 144 CLR 431 at 434-435, 443; [1980] HCA 14 at [5] (Barwick CJ, albeit in dissent in the result), [8] (Mason J). Nevertheless, making the finding involves a binary choice - either adequate provision has been made, or it has not.
"Provision" is not defined by the Act, but it was noted in Diver v Neal (2009) 2 ASTLR 89 at 97 [34]; [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime".
The word "adequate" connotes something different from the word "proper". "Adequate" is concerned with the quantum, described by Rosalind Atherton in "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5, 10, as reached upon "a purely economic and objective basis", whereas "proper" prescribes the standard of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127 at 145 [72], 145-146 [77]; [2007] WASCA 235 at [72], [77] (Buss JA, Pullin JA agreeing), which seems to invite more subjective criteria.
In Pontifical Society for the Propagation of the Faith v Scales at 19, Dixon CJ (McTiernan J agreeing) pointed out that the words "adequate" and "proper" are always relative and that what the testator regarded as "superior claims or preferable dispositions" is a relevant consideration:
"The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning."
In Goodman v Windeyer (1980) 144 CLR 490 at 502; [1980] HCA 31, Gibbs J (as his Honour then was) (Stephen and Mason JJ agreeing) at [18] (quoted in Singer v Berghouse at 211 (Mason CJ, Deane and McHugh JJ)), wrote:
"… the 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." (citations omitted).
In Vigolo v Bostin (2005) 221 CLR 191 at 228 [114]; [2005] HCA 11 at [114], Callinan and Heydon JJ wrote:
"… the use of the word 'proper' … implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances and would entitle a court to have regard to a promise of the kind which was made here … The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
Santow J (as his Honour then was) pointed out in Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep), that "adequate" and "proper" are independent concepts. His Honour wrote, at 12:
"'Adequate' relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. 'Proper' depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied …" (citations omitted)
In Palagiano v Mankarios [2011] NSWSC 61 at [72], White J (as his Honour then was) observed that the question of what provision for a person's maintenance, education or advancement in life is "proper" and the question of whether the provision made by the deceased was "adequate" for that person's maintenance, education or advancement in life "involve value judgments on which minds can legitimately differ", and that "[t]here are no definite criteria by which the question can be answered".
White J, in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 283-284 [123]; [2013] NSWSC 522 at [123] wrote:
"The question of what level of maintenance or advancement in life is 'proper' depends on all of the circumstances of the case 'including the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty' (Singer v Berghouse … at 210)."
The word "maintenance", and the phrase "advancement in life", is not defined in the Act.
In Vigolo v Bostin, Callinan and Heydon JJ, at [115], commented:
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In Alexander v Jansson (2010) 6 ASTLR 432 at 440 [18]; [2010] NSWCA 176, Brereton J (Basten JA and Handley AJA agreeing), wrote, at [18]:
"'Proper maintenance' is not limited to the bare sustenance of a claimant … but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility." (citations omitted)
In McCosker v McCosker (1957) 97 CLR 566 at 575; [1957] HCA 82, Dixon CJ and Williams J wrote:
"The presence of the words 'advancement in life' in the ... Act in addition to the words 'maintenance and education' is not unimportant ... 'Advancement' is a word of wide import."
In Bartlett v Coomber [2008] NSWCA 100 at [50], Mason P (Hodgson JA agreeing) wrote:
"The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker … at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams …)."
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from his, or her, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573 at 575 (Kirby P, Hope JA agreeing). This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for him, or her, out of the estate, should be the dominant consideration. The existence, or absence, of "needs" which an applicant cannot meet from her, or his, own resources, will always be highly relevant, and quite often decisive: Singer v Berghouse at 227 (Gaudron J, albeit in dissent in the result); Bkassini v Sarkis [2017] NSWSC 1487 at [296]-[297] (Robb J).
In Devereaux-Warnes v Hall (No 3), at [81]-[84], Buss JA (as his Honour then was) wrote:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer (at 227) per Gaudron J.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 at 10-11 per Bryson J.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. see Hunter (at 575) per Kirby P
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc: see Singer (at 227) per Gaudron J at 227. Compare Gorton (at 6-11) per Bryson J; Collicoat v McMillan [1999] 3 VR 803 at [38], [47] per Ormiston J."
However, as will be read, s 60 of the Act invites the Court to have regard to various matters, including, but not limited to, financial resources and financial needs: s 60(2)(d). If the Court does so, as will also be read, one of the purposes for which that is done is for determining "the nature of any [family provision] order": s 60(1)(b) of the Act.
No doubt, this has prompted White J to write, in Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473 at [147], that "… the need a claimant must demonstrate is a need for 'proper' maintenance, education and advancement in life", but that does not mean that "… adequate provision for proper maintenance and advancement in life implies no more than provision for the necessities of life, irrespective of the size of the estate and the effect, if any, of an order for provision on others …". Respectfully, I agree.
Of course, "need" is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from "want" and does not simply mean "demand" or "desire". The latent difference between the words was explained by Lord Neuberger (the former President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808 at 1825 [54]; [2008] UKHL 52 at [54]:
"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll (2014) 119 SASR 523 at 530 [41]; [2014] SASC 86 at [41], David J added:
"'Need' is not so synonymous with 'want' such that the two are interchangeable."
However, no narrow view of what is encompassed by the concept of "need" is to be adopted. In Gorton v Parks (1989) 17 NSWLR 1 Bryson J (as his Honour then was), at 8, commented that "[i]t does not seem possible to give a complete or exhaustive statement of the concept".
Yet, as Basten JA wrote in Chan v Chan, at [22]:
"… it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
Callinan and Heydon JJ emphasised in Vigolo v Bostin at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. Adequacy is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined.
Sackville AJA (Macfarlan and Ward JJA agreeing) pointed out in Smith v Johnson (2015) 14 ASTLR 175 at 194 [84]; [2015] NSWCA 297 at [84], that:
"… the assessment of an applicant's needs is not a mechanical process. In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [12], Allsop P observed that '[a]ccepted and acceptable community values permeate or underpin many, if not most, of the individual factors in s 60(2)'. That observation applies to the concept of 'financial needs' embodied in s 60(2)(d) of the Succession Act. The needs of a person depend on a range of factors that will vary from case to case. Some of those factors, such as the person's age and earning capacity, are specifically mentioned in s 60(2). Other factors, such as the person's financial or non-financial responsibilities to family members, or the standard of living which the deceased encouraged the person to enjoy, are not expressly identified in s 60(2) of the Succession Act."
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
Then if satisfied that provision ought to be made, it is no answer to the claim for provision to assert that to make an order would be to defeat the intentions of the deceased. The Act requires a deceased's intention to be displaced if the Court is satisfied that the provision made for the applicant's proper maintenance, education and advancement in life is inadequate and if it considers that some provision other than that made under the will is the provision which ought to be made for the maintenance, education or advancement in life of the eligible person: Kembrey v Cuskelly [2008] NSWSC 262 at [45] (White J).
Section 60 of the Act provides:
(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and
(b) whether to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
It can be seen that s 60(2) enumerates 15 specific matters described by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]; [2012] NSWCA 308 at [37], as a "multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the Court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order.
In Chapple v Wilcox (2014) 87 NSWLR 646 at 649 [7]; [2014] NSWCA 392 at [7], Basten JA wrote:
"Section 60 of the Succession Act spells out the matters which the court may have regard to in determining whether the claimant 'is an eligible person' and whether to make a family provision order: s 60(1). Most of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57. The matters set out must be available considerations in relation to both limbs of s 59(1) dealing with a family provision order, namely par (b) and par (c). Section 60 provides no assistance in relation to the different considerations which may arise in respect of each paragraph of s 59(1). The factors are also relevant to the determination of the 'nature of any such order', which presumably includes the discretionary element to be found in s 59(2): s 60(1)(b)."
The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no statutory imperative to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The sub-section makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to the relevant factors.
Furthermore, the sub-section also does not say how the matters listed are to be used to determine the matters identified in s 60(1) of the Act. Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical.
A reference to some of the matters in s 60(2) of the Act not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1) of the Act.
Leaving aside the question of eligibility, the matters referred to in s 60(2) of the Act may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2) of the Act, attention is drawn to matters that may have existed at the deceased's death, or subsequently.
[21]
Some Additional Principles
Accepting that no two cases will be exactly alike, as each case turns on its unique constellation of facts, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
Bryson J noted in Gorton v Parks, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]:
"Fairness and equality are not touchstones for relief under the Succession Act."
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the Plaintiff might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.
In Foley v Ellis at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse:
"… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the … Act."
In Stott v Cook (1960) 33 ALJR 447 at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to the Court's own notions of fairness. His Honour 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."
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes:
"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."
The Court should, and does, give considerable weight to the deceased's wishes in recognition of the better position in which he was placed. Of course, this is subject to the qualification that the Court's determination under ss 59(1)(c) and 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: Slack v Rogan; Palffy v Rogan at [127] (White J).
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:
"It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that:
"Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
As was written by White JA (McColl and Payne JJA agreeing) in Sgro v Thompson at [86]:
"I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. 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."
This passage confirmed that the Act is to be applied according to its terms, and is not confined by notions of reluctance to interfere with freedom of testation. As was stated, subsequently, by Brereton JA in Steinmetz v Shannon at [97]:
"The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom."
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19 (Dixon CJ); Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) at 30-31; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269]-[274] (Ward J).
In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190 at 202-203 [41]; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96 at 110 [67]; [2013] VSC 35 at [67] (Hargrave J).
Section 65(1) of the Act requires a family provision order to specify:
(a) the person or persons for whom provision is to be made, and
(b) the amount and nature of the provision, and
(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and
(d) any conditions, restrictions or limitations imposed by the Court.
The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit": s 65(2) of the Act. If provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.
Section 66 of the Act sets out the consequential and ancillary orders that may be made. It provides:
(1) The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order:
(a) the transfer of property of the estate directly to the eligible person in whose favour the order is made, or to any other person as trustee for that person,
(b) where property is to be held on trust, the purpose of the trust and the way in which it is to be constituted,
(c) the appointment of a trustee of property of the estate,
(d) the powers and duties of a trustee of property of the estate, including any trustee constituted or appointed under this section,
(e) the vesting in any person of property of the estate,
(f) the exercise of a right or power to obtain property for the estate,
(g) the sale of or dealing with property of the estate,
(h) the disposal of the proceeds of any sale or other realising of property of the estate,
(i) the securing, either wholly or partially, of the due performance of an order under this Part,
(j) the management of the property of the estate,
(k) the execution of any necessary conveyance, document or instrument, the production of documents of title or the doing of such other things as the Court thinks necessary in relation to the performance of the family provision order,
(l) any other matter the Court thinks necessary.
(2) The Court may make such additional orders as it considers necessary to adjust the interests of any person affected by a family provision order and to be just and equitable to all persons affected by the order.
(3) The execution of an instrument relating to property in the notional estate of a deceased person pursuant to an order under this section is not liable to duty under the Duties Act 1997.
Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As was written by Brereton J in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is:
"… a unique [one] which in effect, is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such."
[22]
A claim by a spouse
Much was made by Maria-Lyn and Melissa of the fact that the deceased and George had separated prior to the death of the deceased. I have earlier referred to the evidence on this topic.
As I have stated, I have come to the view that the deceased and George separated under the one roof in 2014, as was asserted in the letter from the deceased's solicitor to George in 2017. However, as at 2014, they had been married for 44 years. It cannot be forgotten, also, that that they remained married, and remained living in the Bronte property, albeit in separate parts thereof, at the date of the deceased's death.
On any view, their marriage, even before separation, was an extremely long one and it continued until the deceased's death. However, I shall bear in mind that they did separate before her death, even if there was "somewhat" of a reconciliation closer to the time of her death.
In Kalmar v Kalmar [2006] NSWSC 437, White J noted, at [50], that the bond of matrimony, prima facie, gives rise to a testamentary obligation, and that it could not be assumed that such an obligation would come to an end on the parties separating without them being divorced, at least where there had been no conduct by the applicant disentitling him to provision. His Honour cited Re Clissold (deceased) [1970] 2 NSWR 619 at 621-622 (Street J), and Re Mercer (deceased) [1977] 1 NZLR 469 at 472-473 (White J), which had been cited with approval in Palmer v Dolman [2005] NSWCA 361 at [118] (Ipp JA, Tobias and Basten JJA agreeing).
Whilst remembering that the deceased and George had separated under the one roof in 2014, and bearing in mind that the Court must apply the Act in its terms, in relation to a claim by a spouse, particularly of a marriage of this duration, the following principles are useful to remember:
1. A spouse, particularly of a long marriage, has a primary right to be considered by the deceased, but the extent that he, or she should provide for that spouse is to be governed by his, or her, needs, both at present, and in the foreseeable future and also the needs of any competing claimants.
2. The capacity of the spouse, himself, or herself, to provide for those needs must also be considered.
3. The general duty of the deceased to the spouse, to the extent to which her, or his, assets permit her, or him, to do so, is to ensure that the spouse is secure in the matrimonial home, to ensure that he or she has an income sufficient to permit him or her to live in the style to which the spouse is accustomed, and to provide the spouse with a fund to enable her to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free the mind of the spouse from any reasonable fear of any insufficiency as he, or she, grows older and his, or her, health and strength fail: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 47 (Sheller JA, Handley JA agreeing). See also Brereton JA in Steinmetz v Shannon at [101], citing Powell J in Elliott v Elliott (Supreme Court (NSW), 18 May 1984, unrep), which decision was affirmed by Glass JA (with whom Kirby P and McHugh JA agreed) in Elliott v Elliott (Court of Appeal (NSW), 24 April 1986, unrep).
4. Concern as to the capacity of the spouse to maintain himself, or herself, independently, and autonomously, may also bear upon the notion of what is proper provision: Richard v AXA Trustees Ltd [2000] VSC 341 at [31] (Eames J).
5. Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where he, or she, is the master, or mistress, of his, or her, own life, and in which, for the remainder of his, or her, life, she is not beholden to beneficiaries: Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep) at 29.
6. Greater weight may be given to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 at [63] (Hodgson JA, Young CJ in Eq and Palmer J agreeing); In the Matter of the will of G.G. Sitch (deceased) [2005] VSC 308 at [109] (Gillard J); Sellers v Scrivenger [2010] VSC 320 at [68] (Daly AsJ).
It should be remembered that the three elements identified in (c) above are not necessarily mutually independent and it may be, in some circumstances, that the style of living to which the spouse may be said to have been accustomed during the lifetime of the parties, may be lower than the standard of living which is his, or her, proper due after the death of the deceased: Aroney v Aroney (Supreme Court (NSW), McLelland J, 26 July 1988, unrep) at 6.
However, while a spouse's standard of living during the lifetime of a deceased may be a useful yardstick, it is not necessarily decisive as to what would be appropriate provision for the spouse in the future.
Where the spouse is elderly, it has been said that he, or she, should not be given a large capital sum, because to do so, in the event of her early death, may result in a substantial benefit to her relatives contrary to the wishes of the deceased: White v Barron at 444-445 (Mason J). Yet, the fact that the provision of a capital asset to the spouse may, incidentally, enable him or her, in due course, to pass that asset on to children, or otherwise, contrary to the deceased's wishes, is not determinative of the propriety of such a provision: Worladge v Doddridge (1957) 97 CLR 1 at 19 (Kitto J); [1957] HCA 45.
A mere right of residence will, usually, be an unsatisfactory method of providing for a spouse's accommodation. This is because the spouse may be compelled, by sickness, age, urgent supervening necessity, or otherwise, with good reason, to leave the residence. The spouse may then be left without the kind of protection which is normally expected should be provided by a deceased who is both wise and just: Moore v Moore (Court of Appeal (NSW), Hutley JA, 16 May 1984, unrep) at 1; Golosky v Golosky (Court of Appeal (NSW), Kirby P, 5 October 1993, unrep) at 17. It may also be unsatisfactory where the plaintiff and the defendants do not get along as such an order will keep them financially interconnected. (The same point may be made in respect of a Crisp order.)
A spouse who has contributed to the accumulation of the deceased's estate, such as it is, is entitled to more than bare subsistence, or an amount sufficient to meet daily needs. A pension entitlement is no equivalent. Such an entitlement is a circumstance to be taken into account, but is not something which enables the Court to reduce the sum to which, in the events which have happened, the spouse is entitled under the deceased's will.
In a long marriage, the words of Kay J (although in another context and in dissent in the result) in In the Marriage of Aleksovski (1996) 135 FLR 131 at 146-147; (1996) 20 Fam LR 894 at 910, should, also, be remembered.
"What his Honour had to assess by way of contribution was 18 years where each party provided their labours towards the acquisition, conservation and improvement of assets, and towards the welfare of the marriage generally. Additionally, late in the marriage, the wife received a large capital sum arising out of a motor car accident. In my view whether the capital sum was acquired early in the marriage, in the midst of the marriage or late in the marriage, the same principles apply to it. The judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital. A party may enter a marriage with a gold bar which sits in a bank vault for the entirety of the marriage. For 20 years the parties each strive for their mutual support and at the end of the 20-year marriage, they have the gold bar. In another scenario they enter the marriage with nothing, they strive for 20 years and on the last day the wife inherits a gold bar. In my view it matters little when the gold bar entered the relationship. What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship. Just as early capital contribution is diminished by subsequent events during the marriage, late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given something less than directly proportional weight because of those other elements."
In stating the above matters, of course, I remember, also, what was confirmed by the Court of Appeal, in Bladwell v Davis [2004] NSWCA 170, that "rules of thumb" should not be elevated to rules of law: at [12]-[19] (Bryson JA, Ipp JA and Stein AJA agreeing).
Ipp JA added at [1]-[2]:
"I agree with Bryson JA, for the reasons his Honour has stated, that 'it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201 …'
I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."
Because so much was made of the separation of the deceased and George, it is necessary to refer to Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204, in which Robb J dealt with the issue at [320]. It is only necessary to refer to the following passage in his Honour's reasons:
"… the applicant and the deceased had cohabited for a substantial period of years before their separation. It appears that in both cases the applicant had made a substantial contribution during the course of the marriage to the marital property and circumstances. In Scott v Scott, there had been an informal division of assets, and the relationship between the parties to the marriage was tantamount to their being divorced at the time of the husband's death. In Jordan-Watt v Riordan the parties to the marriage were in the course of negotiating a matrimonial property settlement. The reasoning in these cases suggests that, the circumstances contemplated in Luciano v Rosenblum, justify a particular approach in the case of conventional marriages of long standing, but the circumstances of other marriages may invoke different considerations, depending upon the nature and length of the relationship between the parties to the marriage, the contribution made by the applicant, and the extent to which, before his or her death, the deceased has made proper provision for the applicant, whether formally or otherwise, measured by reference to the arrangements that would be considered appropriate to be made in conjunction with the formal dissolution of the marriage."
In the present case, there is an additional matter of principle that is important since the only substantial asset of the deceased is the her one half share as tenant in common in the Bronte property, which was, after all, the financial product of the deceased's and George's common endeavour.
The observations of Lord Nicholls of Birkenhead (Lord Hope and Lord Mance agreeing) (admittedly in a different context) in Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618 at 634 [22]; [2006] UKHL 24 at [22], underline the importance to the spouse of the matrimonial home:
"The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage."
Different principles might apply in a case where there has been a formal, or informal, division of assets prior to death and where the marriage is to all intents and purposes over, there having been a long separation of the parties to the marriage.
[23]
Qualifications on "Principles"
As long ago as 1980, in White v Barron, at 440, Stephen J wrote:
"… this jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases, and as Bladwell v Davis and Steinmetz v Shannon make clear, what I have described as "principles" or "general principles" are not intended to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. Cases involve different classes of eligible person, different factual circumstances, and different competing claims by others upon the estate of the deceased.
As Lindsay J wrote in Verzar v Verzar at [131]:
"Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis … at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox at [18]-[19] (Basten JA), [66]-[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke (No 2) (2015) 13 ASTLR 313 at 329 [84]-[85]; [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and Steinmetz v Shannon at [37] (White JA). They must be remembered.
But, as Brereton JA also wrote, in Steinmetz v Shannon, at [106]-[108]:
"As this Court pointed out in Burke v Burke, such observations are not rules of law, but guidelines that may give assistance and provide guidance that are not to be elevated to rules of law. That does not mean that they are without importance and significance, because, as Basten JA explained in Chapple v Wilcox:
[19] … the real provenance of the 'principles' is that they constitute a reflection of community values, being a factual matter, but one as to which reasoned findings of judges with experience in these matters may well provide valuable guidance
Similarly, Barrett JA explained:
[67] … [they] provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply 'the feeling and judgment of fair and reasonable members of the community' in cases of the present kind.
Such guidelines also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency."
(In relation to Steinmetz v Shannon, I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that "[t]he appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave": Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and Keane JJ).)
In addition, the formulation of principles, whilst not intended to "constitute a fetter upon the discretion not intended by the legislature", may assist in avoiding arbitrariness and capricious decision-making, and may serve the need for consistency that is an essential aspect of the exercise of judicial power under the Act: see, generally, the discussion of Mason CJ in Latoudis v Casey (1990) 170 CLR 534 at 541-542; [1990] HCA 59 and earlier comments made by his Honour and Deane J in Norbis v Norbis (1986) 161 CLR 513 at 519; [1986] HCA 17.
[24]
Additional Facts
I next set out some facts, by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59": Verzar v Verzar, at [124], but in order to complete the recitation of facts that will assist me to determine the questions that must be answered. Facts previously stated above will not be repeated unless essential.
[25]
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
Hardly surprisingly, George accepted, in a marriage of the duration of their marriage, that his relationship with the deceased varied over time. From the letter discussed earlier, in which the deceased's solicitors wrote to George requesting a property settlement, I have concluded that the deceased and George separated in October 2014.
George was candid in his evidence as to the nature of his relationship with the deceased, but perhaps was not as candid as to the cause of the separation. Again, it is all a matter of perspective. There is some evidence that the deceased suffered from a longstanding depressive illness pre-dating their marriage.
George attributed much of the discord in his relationship with the deceased, and what he regarded as being his wife's attitude towards him, to Maria-Lyn, commencing, on his evidence, sometime following the construction, and Maria-Lyn's occupation of, the front house of the Bronte property in 1999. From then, George states that the deceased's depression worsened; she would get upset and stressed.
It is not possible, or necessary, to determine the precipitant of the discord in their relationship. George's evidence does appear to be consistent with the letters written by the deceased to Maria-Lyn, set out above, in which the deceased expressed her frustrations at, inter alia her presence in the Bronte property.
Following a mediation, on 20 March 2018, George says his relationship with the deceased "softened" and they began to speak to each other more regularly. No proceedings were ever commenced by the deceased, or by George, thereafter, for property adjustment under the Family Law Act 1975 (Cth). I have referred to some of his evidence on this topic earlier.
As Sackville AJA noted in Foley v Ellis at [102]:
"Care should be taken, however, not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of the raw emotions experienced at the time."
In any event, as I have earlier stated, the marriage of the deceased and George was an extremely long one, even if the marriage had irretrievably broken down in 2014.
[26]
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate
Despite there being no definition of the "obligations" or "responsibilities" to which this sub-section refers in the Act, consideration is given to the nature and extent of any legal, or moral, obligations or responsibilities owed to the applicant by the deceased.
I have earlier referred to the nature and extent of obligations or responsibilities owed by the deceased person to an applicant in the position of George, as a widower of such a long marriage.
Despite the evidence relating to her relationship with the deceased at the time of the correspondence to which I have referred, I am satisfied that, overall, each of Maria-Lyn and Melissa, had a close and loving relationship with the deceased.
In any event, whatever the relationship was, they are both the chosen objects of the deceased's testamentary bounty. Any obligation, or responsibility to Maria-Lyn and Melissa was that arising, naturally, from the deceased's parental relationship to them. On their own evidence, Maria-Lyn and Melissa, each of whom is an adult, had been financially independent of the deceased for a number of years prior to her death.
With respect to Maria-Lyn, in a fleeting submission, counsel attempted to suggest at least, some, partial dependence on account of her paying a reduced rent to live in the Bronte property. Be that as it may, any benefit she received in the form of a reduced rent would seem to militate against placing too much importance on the contributions she made to the maintenance of the Bronte property, as detailed above: Tcpt, 21 October 2020, p 142(16-27).
In any event, I shall not disregard the interests of each of Maria-Lyn or Melissa as the chosen objects of the deceased's bounty.
[27]
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered
I have set out these matters earlier in these reasons.
It is a reasonably large estate, albeit it comprises one asset, being the deceased's one half share as tenant in common in the Bronte property which, at all times was, and remains, the matrimonial home of the deceased and George. It did, at different times, also provide accommodation for each of their children. It currently provides accommodation for Maria-Lyn although it is clear that she does not wish to stay living there.
There is no property sought to be designated as notional estate.
[28]
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate
[29]
George
George has not been in paid employment since his retirement as a bus driver with the State Transit Authority in January 2015. He does not receive a pension or other form of Centrelink payment.
To meet his daily expenses, he relies upon the proceeds of sale of the Camperdown property, which as averred to earlier, was sold in September 2016 and the net proceeds of which ($1,500,000) George invested into a term deposit with the Commonwealth Bank of Australia (CBA) and thereafter, into other savings, or transaction, accounts.
During the period of the term deposit and, each month, until reaching maturity in November 2019, George received, on average, $3,600, as interest on the funds held. Between December 2019 and April 2020, he received $1,800. Since June 2020 to present, he received around $55 in interest.
For the financial year ending 30 June 2018, George's total taxable income was $49,502, being the collective interest earned on the funds set out above for that period. For the financial year ending 30 June 2019, George's total taxable income was $49,313 again, being the collective interest earned on the funds set out above for that period.
The current balances of accounts held by George are $9,481 (CBA Netbank Saver); $8,677 (CBA Pensioner Security Account) and $54,404 (NAB account), bringing the total amount held by him, personally, to $72,562: Affidavit, George Sarant, 2 October 2020 at par 16.
As stated earlier, the present balance of the savings across the various accounts into which the proceeds of the Camperdown property has been deposited is $1,400,000. However, as also stated, strictly the amount does not beneficially belong to him bearing in mind the terms of Theo's Will. I propose to treat the amounts held by him as a financial resource to which he may have access.
In terms of assets, George states that he owns, although no valuation is provided, a 2002 Toyota Rav 4 and a 2001 Toyota Prado, used to tow his, five metre, Seafarer fibreglass boat. Apart from these, George owns no other assets, other than clothing and furniture, to which no value was attributed by George.
George has one principal liability, being an NAB Visa credit card debt of $23,239.
In terms of needs, George states:
"In the event that the Read Street property were sold [I] do not believe that I would be able to find or afford a suitable alternative place to live. I do not wish to be displaced from my home of so many years for whatever time I have left".
Whilst I am unable to accept that George, in the event of sale of the Bronte property, would not have sufficient funds, or access to sufficient funds, with which to purchase alternate accommodation, I am satisfied that to require him to do so would displace him from his home and would not provide the amenity that he has had during the last 38 years or so. I am satisfied that George does not have any earning capacity.
[30]
Maria-Lyn
So far as can be elicited from the voluminous, and quite often, irrelevant, affidavits, Maria-Lyn's personal circumstances are as follows. As at the date of the hearing Maria-Lyn is 49 years of age. She is twice divorced and has one child, Riki, who is currently 17 years of age, with whom she lives in the rear residence of the Bronte property, having done so since April 2019.
In the years 1998-2006 and 2008-2014, she had resided in the front residence of the Bronte property with Riki.
Maria-Lyn has a split parenting arrangement with Riki's father, Andre, such that Riki is with her 9 days out of each fortnight, and with his father for the balance. During school holidays his care is split.
Maria-Lyn is presently employed, part-time, as a nurse at the Prince of Wales Hospital in Randwick. She holds a Bachelor of Nursing from the University of Technology, Sydney which she completed in 2001. In the year following, she completed a graduate program in nursing at the Prince of Wales Private Hospital in Randwick, having subsequently obtained work there until September 2007. From then until the latter part of 2008, she instead assumed full-time care of Riki and did not otherwise engage in paid employment. Other than looking after Riki, she does not suggest any reason for not being employed on a full-time basis.
In 2010, after her divorce from her then husband, Andre, she commenced work in her current role. By that time Riki was enrolled in primary school and "did not require the same level of care". I note that Riki is now about
17 years of age.
In her affidavit, sworn on 10 September 2020, Maria-Lyn updated her financial circumstances. Her assets may be summarised as follows:
Description Value($)
NAB Term Deposit 165,000
NAB Savings Account 10,000
2011 Fiat 500C Motor vehicle 5,000
2013 Fiat Panda 5,000
Furniture and personal effects Nil Commercial Value
Sub-total 185,000
First State Super superannuation fund 115,000
Total Assets 300,000
[31]
Maria-Lyn has no liabilities. She estimates her (and Riki's) monthly expenditure to be $4,000.
When working 20 hours per week, she receives a net monthly income of $2,750. Supplementing that amount, are monthly child support payments, in the amount of $700, which she receives from Riki's father. She states "I live week to week. I have to live meagrely".
I am satisfied that Maria-Lyn does have a greater earning capacity than is demonstrated by her present income from part-time work. She did not satisfactorily explain why she could not obtain full-time employment.
As to her future needs, although I tend to think of them as wants, Maria-Lyn says that she wishes to purchase a two bedroom home having "looked at units on the market in eastern suburbs of Sydney. Despite her counsel's assertion to the contrary, she did not give evidence that she has, in fact, inspected any of those properties: Tpct, 21 October 2020, p 129(39) -
p 130(06).
To her updating affidavit, sworn on 10 September 2020, Maria-Lyn annexed a set of advertisements from realestate.com.au for two bedroom apartments in Randwick, the prices of which appear to range between $950,000 and $1,695,000.
She states that in addition to her share of the proceeds of sale of the one-half share of the Bronte property, she would need a mortgage in the range of $300,000 and $500,000. Again, it appears her enquires have been minimal at best, stating that "[she does] not currently know the likelihood of [her] being able to obtain a mortgage advance in that range".
In the event that she is not able to afford a property in Sydney, which seems fairly likely on the figures, Maria-Lyn states that she has given consideration to moving to Melbourne, given the more moderate price range. Again by way of annexure to her updating affidavit, prices range for two bedroom apartments in South Yarra from $749,000 to $1,235,000.
Failing there being sufficient funds with which to purchase a property, Maria-Lyn states she would like to have enough funds to be able to rent a small house in the eastern suburbs of Sydney. Rental advertisements annexed to her updating affidavit reveal weekly rents for a two bedroom house in Bondi are between $750 and $900.
Maria-Lyn would like to purchase a newer, and larger, car as her Fiat is
9 years old, prices of which appear to be in the range of $16,990 and $28,990.
As noted above, she has already received, by way of death benefits, the amount of $128,861.
[32]
Melissa
Melissa is presently 51 years old. She is unemployed. She holds a Bachelor of Education (Secondary) from the University of Sydney, which she completed in 1995 and a TAFE Certificate in Computing, which she completed in 1999. She has had a number of, relatively short, teaching and other clerical, positions, the longest of which was as a computer teacher at St Vincent's College in Potts Point: Tcpt, 20 October 2020, p 66(45) - p 67(12).
For the last past 12 years, since about October 2009, she has lived in a Housing Commission flat in South Coogee. From the age of 23, she has been in receipt of a Centrelink disability pension, from which her rent is automatically deducted and from which she receives $1,434 each month: Affidavit, Melissa Randie Sarant, 10 September 2020 at par 15; Tcpt, 20 October 2020 p 64(40-46). She estimates her current monthly expenses to be $1,280.
In July 2019, Melissa received $128,861 from the deceased's HESTA superannuation account. Between the receipt of those funds and as at the date of swearing her updating affidavit, on 10 September 2020, she has spent $122,000 on the following: the purchase of a 2019 Suzuki Baleno motor vehicle and car insurance (which she subsequently sold for $11,500); the purchase of a 2020 MG3 Core motor vehicle (for $15,000); outstanding legal fees pertaining to proceedings in which she, and Maria-Lyn, sought release of the deceased's body from the Coroner's office and access to the Bronte property to take an inventory of the deceased's property; legal fees relating to these proceedings; legal fees regarding the preparation of her Will and expenses relating to the replacement of household items and general living.
It follows that she has very little in savings apart from the $6,000 remaining from the deceased's death benefits and additional savings of $1,500, deposited in ANZ accounts. Despite having no liabilities, she has little, to no, money left at the end of each month, has no financial buffer to meet the exigencies of life and no superannuation.
She is, quite understandably, dissatisfied with her current accommodation and has been listed for a transfer since 2013 due to the antisocial behaviour of her neighbours, having had a neighbour attempt to kick her door down in 2017. She described her living situation, and its effect on her, in the following way (Tcpt, 20 October 2020, p 64(29-38); p 64(48) - p 65(06)):
"Q. Have you had problems since then or have things been a bit smoother with your neighbours since then?
A. The lady next door passed away who was the one who yelled and the police used to come nearly every week to violent assaults, you know, with her boy - or men who used to come to her unit. So she passed away I think about two months ago so it's been quieter, but I'm still frightened of the other people there.
Q. Living in Housing Commission accommodation is not perfect is it?
A. No.
…
Q. Is it fair to say that living in Housing Commission accommodation is far from perfect but you're coping okay?
A. Not really. I'm frightened all the time.
Q. Is part of the reason you're frightened because you suffer from an anxiety disorder?
A. Not really, because the people in the building they all take drugs, most, or nearly all of them, and they're all males and they're taking drugs and all that, so I'm frightened of that."
She rejected the proposition, put to her by counsel for George, as to a possible correlation between her underlying anxiety condition and her current fears, as follows (Tcpt, 20 October 2020, p 65(15-32)):
"Q. You've suffered from nerves and anxiety--
A. Yeah.
Q. --since you were a young lady?
A. I, I don't know, because the doctor said other - I am diagnosed with three things so--
Q. What were they?
A. He said anxiety, schizophrenia, depression, so all three.
Q. So it may be that you would to some extent suffer from anxiety wherever you lived?
A. No.
Q. It's possible given your history of anxiety?
A. Well I lived with my boyfriend for six years. We didn't have - I didn't have - get frightened of the neighbours around there."
Her desire to seek alternative accommodation, namely by having sufficient funds with which to purchase an apartment in the eastern suburbs, or on the northern beaches, of Sydney whilst understandable given her present living milieu, may be nevertheless, financially unrealistic. By reference to the sale advertisements annexed to her updating affidavit it would appear that a one bedroom unit in Kensington or Randwick would cost between $600,000-$700,000, with prices higher again in the northern beaches.
I should note, also, that it would seem that if Melissa were to receive a capital sum excess of $185,000 from the deceased's estate, her pension entitlement would be reduced each fortnight. To what extent, regrettably, I cannot say as there was no evidence going to that point: Tcpt 21 October 2020, p 134(15-25); p 153(25-27).
I accept that Melissa has a limited earning capacity.
[33]
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person
George is not-cohabiting with any other person, although Maria-Lyn does live in the other part of the Bronte property.
[34]
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated
George stated that he is in reasonable health, although he provided evidence of a number of health conditions from which he has suffered since 2018. The conditions identified were: a back injury in which four of the discs required operative intervention (2018); five teeth implants (2018); a heart attack requiring a period of hospitalisation and post-operative rehabilitation (mid-July 2019); following which stents were inserted: four around his heart, one in his back and one inserted around his eyes (July 2019 and August 2019); and treatment for cataracts and glaucoma of both eyes.
To treat his various conditions George takes daily Atacand, Cartia and Metoprolol for his heart and Pravachol for his cholesterol.
He stated that his back condition was significantly better since an operation in 2018: Tcpt, 20 October 2020, p 26(49) - p 27(32).
As to her health concerns, in her primary affidavit, sworn on 10 January 2020, Maria-Lyn gave evidence that in December 2014, she injured her back, the result of which led her to develop persistent, and chronic, back pain. Having sought treatment with the pain management team at the Prince of Wales Hospital, in the period following the injury and until mid-2019, it appears those issues have stabilised without the need for medication, other than pain relief in the event of a flare up.
As at the date of swearing her primary affidavit, Maria-Lyn stated that she had been experiencing acute anxiety responsive to a spate of difficulties with the neighbours adjacent to the rear residence of the Bronte property, such that she was unable to work for a period of time, during which she received an unspecified social security payment. Following the relocation of those neighbours in April 2020, Maria-Lyn's anxiety has dissipated, such that she has been able to return to work, albeit, on a part-time basis.
Melissa, as indicated earlier, has been receiving the disability pension for about the last 28 years. She has been diagnosed with anxiety, depression and schizophrenia: Tcpt, 20 October 2020, p 65(08-24), for which she receives monthly injections of Abilify (Aripiprazole). She suffers from glaucoma of both eyes, treated nightly, with Xalatan (Latanoprost) drops and vertigo, treated with Serc (Betahistine), as needed. In the period between 1998 and 2016, she underwent five root canal treatments and anticipates requiring more, in the future.
In December 2003, Melissa was hit by a bus at a pedestrian crossing in Double Bay from which she sustained a fractured skull and was unconscious for a number of days following. She cannot recall the details of the incident and has since experienced irreparable impairment to her short, and long, term memory. She states that she has been told by a neurosurgeon at Prince of Wales Hospital, whose name she cannot recall, that her memory will not return.
In the few after school care, and other volunteer, positions she has held since she has been unable to work for more than two hours at a time due to lethargy and an inability to concentrate.
[35]
(g) the age of the applicant when the application is being considered
As at the date of the hearing, George was 75 years old.
[36]
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant
The contribution made by an applicant to the estate of the deceased is a factor of significance. In Goodman v Windeyer, Gibbs J wrote, at 497-498:
"One of the circumstances that must be considered in deciding upon the deserts of a claimant to a testator's estate, and in determining whether proper maintenance has been provided, is the manner in which that claimant has conducted himself or herself in relation to the testator. If the claimant has contributed to building up the testator's estate, or has helped him in other ways, that may give the claimant a special claim on the testator's bounty. This was recognized by Dixon CJ in Coates v National Trustees Executors & Agency Co Ltd when he said that the natural claims of a son upon his mother's testamentary bounty were 'much strengthened by his cooperation and support in the conduct of her business and of her affairs'. Perhaps the most recent example in this Court of a case in which a son's claims have been strengthened for this reason is Hughes v National Trustees Executors & Agency Co (Australasia) Ltd. There is, however, no reason in principle why a son should stand in a special position in this regard, and the authorities here consistently treated the fact that a claimant has rendered services to the testator as relevant in cases of this kind - whether the claimant be a daughter (Blore v Lang), a widow (E v E, discussed in In re Worms; Worms v Campbell) or a widower (In re McElroy). The claimant's conduct does not cease to be relevant if it has not been of financial benefit to the testator - if, for example, the labour has been in vain. If the claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided."
I have referred to the circumstances in which the Bronte property was purchased and the contributions made by George to the building up of the estate through the rebuilding of the back house in 1986 and the construction of the front house between 1997 and 1999, including the replacement of lighting fixtures in the front and rear house; the repair of a leaking roof ($5,000); the installation of new hot water system; the construction of a billiards room as well as a deck ($22,000). (This is not to say that the deceased did not herself make a significant contribution.)
(I note the inordinate number of paragraphs of Maria-Lyn's and Melissa's affidavits in reply which took issue with the proposition that George had engaged tradesmen to attend to the plumbing, carpentry and electrical work and had consulted an architect to draw the plans for the construction. Whether George simply "ma[d]e tea or coffee for the builders" is beside the point, as it was George who co-ordinated, and, with the deceased, who paid, for the work to be carried out. )
There is little doubt that, for at least some time, during their married relationship, George would have contributed to the deceased's welfare.
I have referred to the deceased's comment in the correspondence addressed to Maria-Lyn referring to George's attempts to bring the families together.
Whilst it may be that the contributions of the deceased and George to each other's welfare were reduced in later years, the fact remains that, not only in the eye of the law, but so it would seem, also in the eyes of each other, they remained married. In addition, they continued to reside in the same home, albeit in separate parts of the Bronte property.
[37]
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate
George was left with no provision under the terms of the deceased's Will. I do not regard the unilateral severance of the joint tenancy, in 2000, by the deceased as an amicable, and reasonable, settlement of obligations to George so many years later.
[38]
(j) any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased
I have dealt with the deceased's testamentary intentions, and statements made by the deceased, earlier in these reasons.
[39]
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so
As earlier stated, George had been separated from the deceased under the one roof since 2014. There was evidence that they had kept their finances separated for many years before that. I am satisfied that he was not being maintained by the deceased for many years prior to her death.
[40]
(l) whether any other person is liable to support the applicant
No other person is liable to support George.
[41]
(m) the character and conduct of the applicant before and after the date of the death of the deceased person
An evaluation of "character and conduct" may be necessary to enable consideration of what is "adequate and proper" in all the circumstances. Whilst the Act places no limit on the matters of "conduct" to which consideration may be given, it seems that the conduct matters raised by Maria-Lyn and Melissa going to George's relationship with the deceased prior to her death and thereafter, in respect of the release of the deceased's body from the Coroner, are nonetheless, of little significance. I note that a series of letters exchanged between 20 September 2018 and 11 February 2019 between Blanchfield Nicholls Partners (the solicitors for Maria-Lyn and Melissa) and McGirr Lawyers were annexed to the affidavit of Maria-Lyn, sworn on 10 February 2020.
Whilst I have had occasion to read, and refer to, those letters, I am not satisfied that any of the conduct issues raised therein, are determinative, other than possibly being demonstrative of the extent of the disharmony between George, Maria-Lyn and Melissa.
As has recently been written in Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [34], by Meagher JA (with whom Gleeson and Leeming JJA agreed):
"… the matters contained in s 60(2) may be considered for the purpose of determining whether to make a family provision order and the nature of any such order. In that context the reference in para (m) to 'the character and conduct of the applicant' echoes the language of s 3(2) of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), which permitted the Court to refuse to make an order in favour of any person whose 'character or conduct' was such as to disentitle him or her to the benefits of such an order. In Re the Will of FB Gilbert, Jordan CJ (at 321) and Maxwell J (at 326) rejected a submission that perjury committed by the applicant in giving evidence in support of her application amounted to such disentitling conduct. The Chief Justice proffered that the character or conduct with which the Act was concerned was 'for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default'. However, as his Honour then emphasised, that did not mean that the applicant's conduct as a witness may not be taken into account in assessing her evidence and whether her case has been established on the facts."
I am satisfied that there is nothing in George's conduct not already referred to, before, or after, the death of the deceased, which is relevant.
[42]
(n) the conduct of any other person before and after the date of the death of the deceased person
George states that after the death of the deceased, his daughters took control of the deceased's funeral arrangements such that he was neither informed of, nor allowed to attend, her funeral. George states that he has been abused by Maria-Lyn; that she has made false allegations to the police; and has restricted his access to the rear lane of the Bronte property, along Belgrave Lane, to effect that is unable to place his garbage out for collection.
At Tcpt, 20 October 2020, p 103(10-12), Maria-Lyn made the following abundantly, yet unnecessarily, clear:
"A. I would rather do a clear cut.
Q. Do you understand that the effect of the clear cut means that the home in which your father has lived for over 30 years will mean that it will no longer be his home?
A. That's correct."
This demonstrates no concern for George by Maria-Lyn in particular, or an understanding of the obligation that may have been owed to him by the deceased.
[43]
(o) any relevant Aboriginal or Torres Strait Islander customary law
This is not a relevant consideration in this case.
[44]
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered
There are no other matters that I consider relevant to address.
[45]
Determination
What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered.
As stated earlier, being an "eligible person" is a necessary precondition to the Court being empowered to make an order for the maintenance, education or advancement in life of the applicant. In this case, there is no dispute that George is an eligible person within the meaning of s 57(1)(a) of the Act.
There is also no dispute that George commenced the proceedings within the time prescribed by the Act.
Having established eligibility and that the proceedings were commenced within time, the first question for determination is whether, at the time the Court is considering the application, adequate provision for George's proper maintenance or advancement in life has not been made by the Will of the deceased.
I have referred to the length of the marriage of the deceased and George.
A marriage that spans 48 years, on any view, is an extremely long marriage, a matter which must be regarded as being of much significance in the proceedings. Furthermore, this is not a case of a long-standing severance of the marital relationship. On the evidence, they separated under the one roof in 2014, just four years prior to the death of the deceased.
It is not suggested that the deceased and George had much by way of assets at the commencement of their marriage and the evidence, overall, suggests that they contributed equally, albeit in different ways, throughout the marriage.
There was no explanation given by the deceased for the complete omission of George as a beneficiary (other than she did not trust that he would leave the Bronte property to their children, a reason unjustified until after her death when he left his interest therein to his only grandson). In any event, any explanation by the deceased would not relieve the Court from conducting the enquiry required by the Act.
Earlier, I have referred to the Bronte property, which was their only matrimonial asset of any real value, being "[George's] life's work", a matter that Maria-Lyn accepted: Tcpt, 20 October 2020, p 99(05-14). I treat this statement as reflecting that since its purchase, he has wished the Bronte property to serve as the place in which to share his life with the deceased; then the home in which the survivor would reside for as long as he, or she, wished; and that then, after the death of the survivor, because of the way in which it had been built, it could provide a home for each of Maria-Lyn and Melissa. The view is, at least in part, based upon my acceptance of the discussions that George and the deceased had about how the Bronte property would be held reflected in the terms of the Will that he made in 2000 and which he did not change until after the death of the deceased.
The evidence, on the whole, points to the meaningful connection George has to the Bronte property. Currently, he is able to continue to live there independently and he wishes to continue doing so. It also clear that each of Maria-Lyn and Melissa have no attachment, at all, to the Bronte property, other than as a means of providing a source of funds which would enable her to alter her current accommodation.
Having considered the matters I am required to consider, I am satisfied, for the purposes of s 59(1)(c) of the Act, that adequate provision for the proper maintenance or advancement in life has not been made for George.
No provision was made for him in the deceased's Will with the consequence that, if things are left as they are, he will be forced out of the home in which he has lived for over 38 years and he will be left with half of the net proceeds of sale and his other resources to find alternative accommodation. In reaching this conclusion, I have not disregarded the legitimate claims upon the bounty of the deceased of each of Maria-Lyn and Melissa and the obligation and responsibility owed by the deceased to provide for each of them.
It is also clear that George has some "needs". As stated above, "need" in the context of the Act is not determined by reference only to minimum standards of subsistence. Nor is it limited to whether the applicant has, at the date of hearing, an immediate need for financial assistance with respect to his maintenance. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies.
Furthermore, I cannot decide the question of the adequacy, or inadequacy, of the provision made, if any, in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive, or live comfortably. The word "proper" in the collocation of words in the section of the Act to which I have referred is of considerable importance.
As stated earlier, I find myself quite unable to accept the submission, made on behalf of Maria-Lyn and Melissa, that George has not satisfied the jurisdictional threshold and that there should be no provision made, that his Summons should be dismissed, that orders for the sale of the Bronte property should be made and that he should pay their, and the balance of his, costs. The submission is wholly unrealistic, and does not focus upon the terms of the Act.
I am satisfied that, as a spouse of such a long marriage, provision ought to be made for his benefit out of the estate of the deceased. Whatever the resentments, or complaints, the deceased raised with either Maria-Lyn, or with Melissa, about the marriage, they were not significant enough for either to formally end the marriage or formally seek an alteration of the matrimonial property interests. The circumstance that each retained a degree of financial independence, and that the deceased and George, for some years, did not comingle assets is of slight significance and is not forgotten.
In determining whether adequate provision has been made by the deceased, I accept that she was not required to ensure that George must be provided for to such a level as would ensure that his available assets are not reduced in consequence of the death and that he should not be obliged to re-arrange, or re-organise, his available assets: Marinis v Jeweller [2000] NSWCA 282 at [26] (The Court). In this regard, I do not forget George's financial resources, including the value of his one half interest as tenant in common in the Bronte property and the amount of his father's estate, to which estate he has access. Yet, the Act is concerned with provision not only for maintenance, but also for "advancement in life", which envisages not merely maintaining a standard or status of an eligible person but, in an appropriate case, improving and enhancing it.
It is then necessary to consider whether to make a family provision order and the nature of any such order. Again, I am satisfied that the Court's discretion has been enlivened and that it should be exercised to make provision for George.
It seems to me that for a spouse of such a long marriage, who has lived in the home for many years, to which home he has made significant contribution, which, at least in part, comprises the only substantial asset of the deceased, and who continues to wish to, and is able to, live there, the expectation in the community would be that a wise and just testator would ensure that he is able to do so, particularly if remaining living there is not a fanciful desire.
The general community expectation, by which I mean the Court's perception of what fair and reasonable members of the community would expect of a wise and just testator, would be that she, or he, should make provision to ensure that her, or his, spouse can lead an independent and dignified life.
That prospect might be diminished when the spouse does not have the benefit of the fee simple, but only, a right of occupation of his home.
I accept, however, that a slightly different expectation might apply where there are competing claims upon the bounty of the deceased: Robertson v Pearce [2010] NSWSC 124 at [44]-[45] (Macready AsJ), as there are in the present case.
Having considered all of the facts, I find myself unable to accept the principal submission made on his behalf that George should receive the whole of the deceased's interest in the Bronte property absolutely. To provide him with such provision is equally unrealistic and ignores the deceased's freedom of testation and also the competing claims of Maria-Lyn and Melissa. Nor do I think that a Crisp order, or other form of right of occupation in the whole property is satisfactory, not only because of the acrimonious relationship between a father and his daughters, but also because it means that Maria-Lyn and Melissa will not receive any part of the provision made for her under the Will of the deceased until George dies, or until he otherwise vacates the Bronte property. Furthermore, it would deprive George of the degree of financial autonomy and independence which he should have.
Maria-Lyn has made it clear that she no longer wishes to remain living in any part of the Bronte property. Melissa has fears about neighbours where she lives. If that can be avoided, it would not be in the interests of either to require her to remain where she is, and in the case of Maria-Lyn, when the lines of communication have so fundamentally broken down.
In considering what provision ought to be made, I have concluded that George should be given, by way of an order for provision, an absolute devise of the whole of the deceased's interest in the Bronte property, and such of the personal effects, furniture and contents, therein as he wishes to retain, that form part of the deceased's estate (if any), upon certain conditions. (Clearly, the Court has power to impose conditions, restrictions or limitations, in a family provision order: s 65(1)(d) of the Act. The Court also has power to require the provision to be made in one or several ways, including by payment of a lump sum of money, and by way of an absolute, or a limited, interest only, in property: s 65(2) of the Act. If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.)
The first condition imposed should be that George should pay to the estate, within three months of the date of the making of orders, or within such other time as the parties agree, or the Court, on further application, allows, a lump sum of $600,000. This amount equates to about one-third of the gross value of the current estimated net distributable estate of the deceased. No interest should be paid on the lump sum if it is paid within three months of the date of the making of orders, or within such other time as the parties agree or the Court, on further application, allows.
Although there was no evidence on the topic, it does not seem to be beyond the realms of possibility that George may be able to borrow, or otherwise obtain, a lump sum from the estate of his father. If he is able to do so, in order to pay the lump sum and satisfy the condition, a registered mortgage, or some other form of appropriate security, registered on title to the whole of the Bronte property, could be given, in order to secure the amount borrowed, unless agreement is reached with George's mother (assuming she is capable of making such an agreement). Alternatively, he may be able to obtain finance by way of a senior loan or reverse mortgage.
If each of Maria-Lyn and Melissa receives about half of the lump sum of $600,000 that is paid, that should provide a reasonable deposit for her accommodation, or alternatively a fund for exigencies of life, out of which rent for alternative accommodation could be paid.
The next condition to be imposed, if the lump sum of $600,000 is paid, is that George should provide a charge to the estate, secured on the whole of the Bronte property, for a lump sum calculated as 30 per cent of the net proceeds of sale. No interest should be paid on that lump sum as Maria-Lyn and Melissa will receive the benefit of any capital appreciation of the Bronte property.
On the above basis, the Bronte property should be sold if George permanently ceases to live there, or within three months of his death, whichever is sooner.
Maria-Lyn and Melissa, as executors of the deceased's estate, may lodge a caveat on the title to the Bronte property to protect the interest created by the charge, or otherwise secure the lump sum, in a manner upon which the parties are able to agree, or the Court, on further application, allows.
Depending upon any agreement on the order for costs, George may have to pay an additional amount to the estate on account of Maria-Lyn's, and Melissa's, costs of the proceedings now, but I am unable to determine whether he will have to do so at this time and upon what basis.
In this way, George will be given the opportunity of remaining in occupation of the Bronte property for so long as he is able, and so long as he wishes, to do so. I consider that if, and when, the time comes for him to move from there, and when the Bronte property is sold, he will be left with sufficient proceeds of the sale, even after the repayment of $600,000 to his father's estate, and the repayment of the lump sum calculated as 30 per cent of the net proceeds of sale, to allow him to purchase alternative accommodation, and have sufficient funds left over to enable him to live without financial anxiety.
At the time the Bronte property is sold, each of Maria-Lyn and Melissa should receive a reasonably substantial lump sum. This will enable her to reduce any mortgage secured on property that has been purchased by her. It will also mean that each will have received, as a result of the death of the deceased, the death benefits that were paid ($128,861) and almost the whole of the value of the deceased's interest in the Bronte property. The amount received out of the deceased's estate would not be significantly less, and probably more, than each would receive if the Bronte property were sold immediately and the expenses of sale and the costs of the proceedings, as estimated, were paid out of the proceeds of sale.
If the conditions are not complied with, then an order should be made permitting George to remain in occupation of the Bronte property, rent and occupation fee free, for a period of three years from the date of the making of the orders, or until he is unable to continue to do so, whichever is earlier. By that date, having continued to live in the Bronte property in the meantime, he will be 78 years of age.
After three years, the Bronte property should be sold by the parties, or if they are unable to co-operate, by trustees for sale, and each of the deceased's estate, and George, should receive 50 per cent of the net proceeds of sale. George's share of the proceeds of sale would then leave him with sufficient funds to purchase, or to otherwise provide him with, alternative accommodation, particularly taken with his other financial resources.
Taking this course will provide George with the opportunity to remain in occupation of the Bronte property for about five years after the death of the deceased, by which time it may be necessary for him to move to some form of assisted living accommodation or otherwise.
Whether the Cross-Claim is dismissed will depend on the approach taken by the parties and whether there is likely to be a degree of co-operation between them. This matter should also be considered in the short minutes of order provided to the Court.
I shall stand the matter over to 9:00 a.m. on 15 December 2020 to enable the parties to reach agreement on the form of orders. If agreement can be reached on costs, then orders reflecting the agreement reached should be included. Otherwise, I shall hear any argument on the form of orders and on the costs of the proceedings, on the papers. The orders should include an order that there be liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff.
The Court:
1. Stands the matter over until 9:00 a.m. on 15 December 2020 to enable the parties to reach agreement on the form of orders, including the order for costs.
2. Directs, if agreement cannot be reached within 7 days of the delivery of reasons, that each party deliver to the Court, within 10 days thereafter, written submissions, in hard and soft copy, comprising no more than 5 pages in length, setting out the orders sought and the basis for the making of that order.
[46]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 November 2020
Parties
Applicant/Plaintiff:
Sarant
Respondent/Defendant:
Sarant
Legislation Cited (8)
Testator's Family Maintenance and Guardianship of Infants Act 1916(NSW)
ple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246; [1992] FCA 503
Cohen v Cohen (1929) 42 CLR 91; [1929] HCA 15
Court v Hunt (Supreme Court (NSW), Young J, 14 September 1987, unrep)
Cowap v Cowap [2020] NSWCA 19
Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), 18 December 1979, unrep)
Darmanin v Cowan [2010] NSWSC 1118
Day v Couch [2000] NSWSC 230
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54
Easterbrook v Young (1977) 136 CLR 308; [1977] HCA 16
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Elliott v Elliott (Court of Appeal (NSW), 24 April 1986, unrep)
Elliott v Elliott (Supreme Court (NSW), 18 May 1984, unrep)
Estate of Joan Esme Little and the Succession Act 2006 [2015] NSWSC 1913
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Ferella v Official Trustee in Bankruptcy (2015) 13 ABC(NS) 452; [2015] NSWCA 411
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Foundas v Arambatzis [2020] NSWCA 47
Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep)
Golosky v Golosky (Court of Appeal (NSW), Kirby P, 5 October 1993, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359
Harkness v Harkness (No 2) [2012] NSWSC 35
Harvey v Delaney [2003] NSWSC 589
Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)
Hoffmann v Hoffmann (1909) 29 NZLR 425
Hunter v Hunter (1987) 8 NSWLR 573
In the Marriage of Aleksovski (1996) 135 FLR 131; (1996) 20 Fam LR 894
In the Matter of the will of G.G. Sitch (deceased) [2005] VSC 308
Jones v Padavatton [1969] 1 WLR 328; [1968] EWCA Civ 4
Kalmar v Kalmar [2006] NSWSC 437
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Kembrey v Cuskelly [2008] NSWSC 262
Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204
Langtry v Campbell (Supreme Court (NSW), Powell J, 7 March 1991, unrep)
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Liprini v Liprini [2008] NSWSC 423
Marinis v Jeweller [2000] NSWCA 282
Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McKenzie v Topp [2004] VSC 90
Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109
Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618; [2006] UKHL 24
Moore v Moore (Court of Appeal (NSW), Hutley JA, 16 May 1984, unrep)
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
O'Leary v O'Leary & Eccles [2010] NSWSC 1347
Palagiano v Mankarios [2011] NSWSC 61
Palmer v Dolman [2005] NSWCA 361
Papas v Co [2018] NSWSC 1404
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
R v Ulcay [2008] 1 WLR 1209; [2007] EWCA Crim 2379
Re Clissold (deceased) [1970] 2 NSWR 619
Re Hodgson; Beckett v Ramsdale (1886) 31 Ch D 177
Re Meier (deceased) [1976] 1 NZLR 257
Re Mercer (deceased) [1977] 1 NZLR 469
Re Schlink; Keane v Corns [2020] VSC 180
Re Stojanovska; Stojevski v Stojevski [2020] VSC 702
Richard v AXA Trustees Ltd [2000] VSC 341
Robertson v Pearce [2010] NSWSC 124
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 [2014] NSWSC 473
Sellers v Scrivenger [2010] VSC 320
Sgro v Thompson [2017] NSWCA 326
Shannon v Steinmetz [2019] HCASL 332
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297
South Australia v Commonwealth (1962) 108 CLR 130; [1962] HCA 10
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
The Auckland City Mission v Brown [2002] 2 NZLR 650; [2002] NZCA 33
Thomas v SMP (International) Pty Ltd [2010] NSWSC 822
Varma v Varma (2010) 6 ASTLR 152; [2010] NSWSC 786
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Watson v Foxman (1995) 49 NSWLR 315
Webb v Ryan [2012] VSC 377
Weeks v Hrubala [2008] NSWSC 162
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Worladge v Doddridge (1957) 97 CLR 1; [1957] HCA 45
Yee v Yee [2017] NSWCA 305
Texts Cited: Les Handler, Richard Neal and Michael Handler, Mason and Handler Succession Law and Practice NSW (2020, LexisNexis)
Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - A Gloss or Critical Understanding?" (1999) 5(1) Australian Journal of Legal History 5
Category: Principal judgment
Parties: George Sarant (Plaintiff)