Scott v Scott

Supreme Court of NSW|2021-10-22|Before: Parker J

Background: Coralynne

As already stated, Coralynne returned to live with her parents at the Fairfield property following the break-up of her marriage in the late 1970s. She seems not to have become involved in any romantic relationship after that.
Coralynne was in continuous full-time employment from about 1973. She was employed with the NSW Police in a variety of administrative support roles from about 1988 onwards. This involved shift work. Coralynne also worked a second job in a supermarket.
Coralynne appears to have lived fairly frugally. She stated that she has not taken an overseas holiday for more than 30 years. Apart from a cruise with her parents and sister, and short breaks with her father or mother, there was no mention in the evidence of any local holidays either.
Over the period up to the deceased's death, Coralynne was involved in three significant car accidents. In an accident in 2012 she suffered two fractured vertebrae in her back and also experienced severe whiplash. This resulted in ongoing physical and psychological difficulties. She was involved in another accident in June 2017.
Coralynne made a successful compensation claim for the injuries she suffered in the 2012 accident. She also made a compensation claim as a result of the 2017 accident. As at late 2018, that claim was still pending. It was eventually settled in 2020.
Over the years, Coralynne built up significant cash savings. By the time she bought the Narellan Vale property in 2019, she had several hundred thousand dollars. Some of this money may have derived from the settlement of her compensation claim from the 2012 accident.

Background: Charlene

As already stated, the Fairfield property has been Charlene's principal place of residence since she returned from her second stay in London in the late 1980s or early 1990s. In accordance with the previous pattern, after the relationship between Charlene and Mr O'Hagan began in September 2017, she would occasionally go and stay with him at his home on the Central Coast. She stated that it was not until late 2018 that Mr O'Hagan first visited her in Sydney and met the other members of her family.
Clifton Jnr gave evidence of Charlene's character going back to her childhood. He stated that she liked to play the victim and when not the centre of attention, became angry and occasionally even violent. She was jealous of him for supposedly being their father's favourite.
Clifton Jnr also stated that while Charlene held a number of jobs earlier in her life, she was unable to sustain regular employment. She would complain of victimisation and leave.
Charlene stated that between 1994 and 2003 she suffered post-traumatic stress disorder ("PTSD"), major depression, anxiety and suicidal tendencies due to an unspecified "traumatic event". It seems that she may have made a personal injury claim arising out of the "traumatic event", but the evidence took this no further.
According to Coralynne, Charlene was, at least after she recovered from the "traumatic event", able to work, but she chose not to do so. Coralynne stated that Charlene applied for a disability pension on account of an alleged back condition; this was refused. Thereafter, at the deceased's request, Coralynne asked her father to agree to Charlene being nominated as his and the deceased's carer so she could receive a carer's pension. He was reluctant, as he said that Charlene did little, if anything, to help him, but agreed.
Charlene did not contradict what Coralynne said about the unsuccessful application for a disability pension and the subsequent application for a carer's pension. Charlene remained on the carer's pension from 2011 until the deceased's death in 2019.
In cross-examination, Charlene said that her last paid employment was as a court attendant or monitor in the District Court or Local Court in western Sydney. This was contract work. The period of employment appears to have been about two years.
It was put to Charlene that when her contract came to an end, she was not offered a new one. She denied this but said she refused a further contract so that she could look after her mother.
Charlene said that this employment ended in 2014. This is difficult to reconcile with her having been on a carer's pension since 2011. The May 2019 testamentary statement put the end of her employment as having occurred in 2011. The question was not further explored in the evidence.
In cross-examination, Coralynne's allegation that she was able to work but chose not to was again raised with Charlene. She started by saying that she had been unable to work for ten years because of PTSD, apparently a reference to the period beginning in 1993. She said she was still unable to work because she was still suffering from anxiety. She could not drive a car outside the local area. She also had a fear of being around too many people.
When asked about how this fitted with her undertaking the court attendant work, Charlene said: That was - no, because I was better to do that, I got better on the - I even went off my medication, but then over the time of being at home I did try to even study to try and get into counselling, because I thought I'd be perfect at it. I was doing that online. I did get to finish it, sadly a year after my father passed, I did that online, I did very well with that because there was no pressure doing it from home. Then tiny things such as this, for instance, can send me down the rabbit hole again. When Mum passed away, it hit me extreme and I'm not far from the rabbit hole.
This testimony illustrates the difficulties which were encountered with some of Charlene's oral evidence. She appeared to acknowledge that by the time she undertook the court attendant work, at the latest, she had recovered from the "traumatic event" sufficiently to be able to hold down a job. The rest of her response hinted that for some reason that had changed, but this was not explained by her reference to undertaking a study course from home after her father's death (2017) or being sent down the "rabbit hole" by her mother's death (2019) or the stress associated with this litigation (since last year). All I was left with was a further set of questions.
Overall, I am satisfied that Charlene did indeed choose not to work and to live on the carer's pension instead. The evidence to that effect was not really challenged, and Charlene's evidence on the subject was confused and unpersuasive. The evidence about her possibly being "forced" to go back to work in 2019 (see [199] below) reinforces the conclusion.

Deceased's lifestyle and health

During her retirement, the deceased seems to have led a quiet and sedentary life, increasingly so after Clifton Snr died in 2016. At home, the deceased remained independent and self-sufficient. She seemingly spent much of her time watching the television.
According to Charlene, the family did not dine together as a family after she turned eleven or so. Clifton Snr would sit at the table as he enjoyed his food. The deceased would be in the kitchen preparing meals for him or in her bedroom. The deceased did not eat much and Charlene likewise often skipped meals. As already mentioned, Coralynne was doing shift work and had a second job.
Following Clifton Snr's death, the deceased, Coralynne and Charlene apparently used the kitchen as a shared facility to prepare their own meals. The deceased did this for herself right up until her death. She did not need any assistance with using the bathroom and there is no mention in the evidence of anyone doing her laundry for her. Coralynne or Charlene took the deceased to do her shopping or did it themselves, buying what she asked for.
It seems that during Clifton Snr's lifetime, the deceased had been responsible for the payment of household expenses. She and Clifton Snr had a joint bank account. According to Charlene, following her father's death, she helped the deceased open a bank account of her own, into which her pension was paid.
According to Charlene, the new account came with an EFTPOS card which the deceased could use for shopping or withdrawing cash at an ATM. But the deceased was not computer literate, and Charlene undertook internet banking on the account for her. For this purpose, Charlene had the internet banking login code and password. When bills needed to be paid, Charlene would sit down next to her mother and pay the bills in accordance with her mother's direction.
Over the last few years of her life, the deceased was on warfarin (a blood thinning medication). According to Charlene's evidence, she had begun to take warfarin by the time Clifton Snr died in 2016. Taking it required the deceased to manage the dosage in accordance with a program prescribed by her doctor and to cut up the warfarin pills which she was prescribed in accordance with that program. Apart from a period of time in 2016 when, following a fall, the deceased was physically unable to operate the pill cutter, she did this herself.
In her affidavit, Coralynne stated that as the deceased aged she started to exhibit memory problems. She would mix her daughters up, referring to one when she meant the other. She would forget conversations and misplace things. If interrupted, she would lose her train of thought; she would have to go back to the beginning of what she had been saying and start again.
In support of this, Coralynne produced a copy of an application form for a Commonwealth medical benefit for the deceased. The form contained a section setting out the deceased's medical details. One question asked about neurological conditions; the answer stated that the deceased had dementia. The relevant section of the form was purportedly signed by Dr Nicholas and was dated 29 November 2018.
Charlene did not in her affidavit expressly address Coralynne's observations about the deceased's loss of memory. But she disputed the validity of the diagnosis apparently recorded in the benefit form. She claimed to recognise the handwriting on the medical section of the form as that of Coralynne. She pointed out that the deceased was in hospital on 29 November 2018, the implication being that Dr Nicholas could not have signed the form on that date. She stated that Coralynne "does not and cannot produce medical evidence to support a diagnosis of dementia".
In this regard, Charlene also relied in her affidavit on a certificate given by Dr Nicholas for the purpose of preparing the deceased's new will in 2019. The certificate was dated 4 April. It stated: This is to certify that I have examined [the deceased] on 04 Apr 2019. In my opinion [sic] she has been assessed with Mental State examination [sic]. Her result of 28/30 indicates no significant cognitive impairment. I believe Mrs Coral Scott is able to manage her affairs and make decisions for herself.
Affidavit evidence was also led in Charlene's case from Patricia Betteridge, a longstanding neighbour of the family who lived in the same street in Fairfield. Mrs Betteridge stated in her affidavit that her own mother had experienced dementia. By contrast, the deceased was "as sharp as a pin".
When Dr Nicholas gave evidence, he said that the medical section of the Commonwealth benefit form had been completed and signed by him, and its date was correct. Counsel did not challenge him on this. Counsel did however put to him that the April 2019 certificate demonstrated that the deceased had no significant cognitive impairment. Dr Nicholas repeatedly responded that she had no significant cognitive impairment "on that day".
In answer to questions from me, Dr Nicholas then gave the following evidence: Q. How do you reconcile the opinion that you've expressed in that certificate with the opinion that you'd expressed the previous November that the deceased had dementia? A. This lady had fluctuating levels of cognitive function. She was … subject to recurrent infections, had admissions to hospital with confusion and delirium, and there at times at which she had no - she rationally couldn't attend and couldn't remember the doses of Warfarin she was on, for example, and we had a lot of trouble managing her INR [international normalized ratio, a measure of the time it takes for blood to clot] when she was unwell. So this lady's cognitive function when she was unwell was very supple [as transcribed], it was very fragile and it didn't take much of an infection or an illness to move her into a position where she wasn't able to make such decisions. On the day I saw her, on 4 April, we had an opportunity when she was well to actually assess her, and that's where that certificate came from on that day. Q. Is dementia a progressive condition? A. It is progressive, yes. Q. So can it get better? A. Only if it's a reversible cause, which there are some. Not many. Q. Did this particular patient have a reversible type of dementia? A. She had reversible cognitive function, I will probably clarify it that way. Did she have reversible dementia? Probably not. But unfortunately the underlying state of her mind was that as soon as she was unwell she was not able to make decisions. She was not able to manage her own affairs when she was unwell. Q. So this certificate should say, "I believe Mrs Coral Scott is able to manage her affairs and make decisions for herself when she is not unwell"? A. That's very accurate.
It was clear that the difficulties the deceased was experiencing were not confined to the times she was admitted to hospital. Dr Nicholas gave the following evidence: Q. How would a lay person be able to tell whether she was unwell or not? A. She was a very talkative lady, and sometimes when she was unwell, what she was talking about wouldn't make sense, it would be more of a confusion, not answering questions correctly. An ambulance officer, for instance, would have a series of questions, she would have difficulty in answering. That's apart from temperature, pulse rate, all the clinical signs we look for. Q. … obviously if she said something that didn't make sense, you would conclude there might be something wrong with her. A. Yes. Q. But does the converse follow? A. It's a good question. To answer that, I would have to say that the ten years or so that I looked after her - and I can really only go by my own experience, and I've been a GP for 40 years now - but there were times definitely where I'd have to refer to either Charlene or Coralynne to actually finish the answer, to get an answer that I could rely on being accurate. So there were times - even though she scored 28 out of 30 on that day, there were times where I really had doubts about her capacity to manage her medication, and I suppose to that end, the number of different times we had to check her Warfarin, recheck it, adjust it, was really not indicative of somebody who was totally in control or understanding of their medication.
Given the evidence of Dr Nicholas, I cannot find that the deceased's cognitive function was unimpaired (when she was not unwell) as Charlene would have me do. I can only assume that Mrs Betteridge's contact with the deceased was not frequent or lengthy enough for her to have noticed the disabilities described by Coralynne and Dr Nicholas. But Charlene cannot rely on that excuse. And Charlene's challenge to the dementia diagnosis recorded on the benefit form by Dr Nicholas was baseless, as was shown when her counsel failed to pursue it. Charlene's evidence on this issue does not assist her credit.

Deceased's family relationships

This is the major area of factual debate in the evidence. Although the relevant relationships are between the deceased and her children, the evidence must be evaluated through the prism of the breakdown in the relationship between Coralynne and Charlene. I therefore first set out a chronology of the events in that breakdown. I will then summarise the evidence of the witnesses on the contributions issue before expressing my conclusions at the end of this section of the judgment.
Chronology of breakdown: As mentioned, the breakdown in the relationship began, at least openly, at or around the time of the deceased's fall which led to her hospitalisation on 18 November 2018. By December it had become apparent that renovations would be required to the bathroom. Underpinning works and, apparently, some preparatory works were undertaken in the first half of December.
On Friday 20 December Mr O'Hagan went on leave from his regular work and started work on the renovation. He first organised the purchase and delivery of materials to the site and then spent the week from 2 to 6 January on initial work. He returned to his regular employment on 7 January and thereafter worked on the project on his days off. The works covered not only the bathroom itself but the hallway between the bathroom and the bedrooms.
The physical altercation between Coralynne and Charlene which marked the final rupture between them took place on 9 January. The renovation work was completed on the morning of 31 January, which is the day the deceased was released from hospital.
I have mentioned that Coralynne made a compensation claim arising out of her 2017 car accident which was still pending in 2019. On 13 February, Charlene made a statutory declaration for the defendant insurer. The statutory declaration took the form of a response to a written statement by Coralynne (which is not in evidence). In the declaration, Charlene averred that Coralynne had exaggerated the extent and effect of her disabilities.
The statutory declaration was witnessed by Mr Adam Mason Abboud. He was the solicitor acting for the insurer. Coralynne became aware of the statutory declaration when her solicitors forwarded it to her for comment. This was on 5 March.
In the meantime, Mr O'Hagan was undertaking the further renovations to the loungeroom area. He appears to have been living at the house, on and off, from February onwards.
In late March or early April, Charlene made the approach to Mr Wehbe which resulted in the new will signed by the deceased in May 2019. I will set out the chronology of these events in more detail in a later section of this judgment. The will was executed on 16 May.
As part of the renovations, Mr O'Hagan installed an electronic (computer controlled) door lock on the house. According to Mr O'Hagan, this was done in June. It became one of the bones of contention between Coralynne and Charlene, as Coralynne claimed that the access card she was given would not work and she was unable to get access to the house.
The renovation appears to have continued more or less continuously from February until July. It was completed a few days after the deceased died.
Coralynne's testimony: I will deal first with Coralynne's financial contributions. In her affidavit, Coralynne stated that she was always required to make a payment by way of rent or board towards the cost of the household. This gradually increased over time until ultimately it reached $150 per week. The contribution was made in cash and the money was kept by the deceased in a biscuit tin.
Although the evidence was somewhat confused, it seems that by late 2019 the board payment had been reduced. By that point both Coralynne and Charlene were paying $50 per fortnight in board. When her mother returned from hospital, Coralynne's payment was increased to $75 per fortnight.
In cross-examination, counsel for Charlene pressed Coralynne on her evidence about making rent payments. Coralynne said that payments were made in cash. They reached $150 per week before her father's death, but she was not able to say when. Counsel asked her for supporting evidence, but Coralynne said that there were no separate withdrawals and the cash just came out of larger cash withdrawals she made from time to time. Counsel suggested she could still have presented bank statements to verify the cash withdrawals. Coralynne said this did not occur to her.
For reasons given at [271] below, I do not consider that Coralynne's disclosure obligations extended to producing supporting evidence of her rent payments, and, based on her evidence, there were no supporting documents anyway. It seems to me unlikely that Coralynne's bank statements would have taken matters any further, but had Charlene's legal advisors wished to pursue this, it was up to them to require production of the statements. In the end there seems to be no real dispute that Coralynne did indeed make rent/board payments as she claimed.
I have already referred to Coralynne's evidence that she borrowed the money necessary to make the final payment of the home loan when her father retired. In her affidavit, Coralynne stated that she made other payments for the benefit of her parents (and Charlene). These consisted of: improvements and repairs to the house; purchase and replacement of home appliances; a car for her father; payment of outgoings (cable TV and lawnmowing); and a cruise for her parents, Charlene and herself in 2015.
Coralynne stated that the deceased could be demanding and critical of the state of the house. Some of her expenditure the deceased offered to pay for, but she found it easier not to take these offers up and "appease" the deceased by avoiding further debate.
Coralynne also gave evidence of non-financial contributions. This took the form of undertaking domestic duties around the house, such as vacuuming, cleaning and gardening. She also took her parents shopping and took them to medical appointments. As well as the cruise, she took her parents on day trips and occasionally away on weekends. She also took them on outings to the shops. This continued with the deceased after Clifton Snr's death.
Coralynne stated that she had a very close relationship with the deceased. The deceased was particularly supportive when her marriage failed. The deceased was not usually demonstratively affectionate but would on occasion hug and kiss her.
Coralynne acknowledged that Charlene was home for a lot of the time. But she spent her time in her room on the computer. At times Coralynne would come home from work to find her mother bored from having been ignored all day. Coralynne would also find herself left by Charlene to take their parents to medical appointments.
Coralynne also commented on Clifton Jnr's involvement with his parents. Clifton Jnr was very ill in the last year of the deceased's life, something which he was keen to conceal from the deceased to avoid worrying her. But before that he would visit regularly, every month or so.
In her evidence, Charlene said that by 2018 Coralynne had become sick of looking after the deceased and wanted to put her in a nursing home. According to Charlene, the deceased hated the idea but Coralynne threatened her with it.
In cross-examination, Coralynne was asked whether she had made any such threats and answered "not that I can recall". Counsel then attempted to tender what purported to be a text message from Coralynne to Charlene which suggested to the contrary. Coralynne, however, did not admit that the text message was hers. Again, the text message had not been attached to any of Charlene's affidavits and was not included in the court book.
Counsel strenuously and repeatedly submitted that I should permit the tender. If genuine, the text message's relevance was not in doubt. But its genuineness was not accepted, and therefore needed to be proved. When Charlene gave evidence counsel therefore sought leave to lead evidence from her in chief that the original message was on her mobile phone.
The modern requirement that litigation be conducted with the parties' cards on the table applies in litigation of the present type just as much as it applies elsewhere. In the rare cases where such disclosure may prejudice the cross-examination of a witness, special directions can be obtained. In these circumstances, where a party wishes to spring a document on a witness in the course of cross-examination, if that is to be permitted at all, that party needs to be in a position to prove the genuineness of the document if that is disputed.
In the present case, unlikely as it may seem that the text is not genuine, permitting Charlene to give evidence about it on the run would not have allowed any technical or expert evaluation of its genuineness. Perhaps more importantly, it would not have allowed Coralynne a full opportunity to put the text (if genuine) into context. An adjournment to permit this would have been unthinkable and I therefore considered that I had no alternative but to reject the tender.
I come now to the breakdown in the relationship between Coralynne and Charlene. According to Coralynne, when she visited her mother in hospital after the fall, her mother said "I did not fall" but refused to say anything more. Coralynne stated that the deceased appeared afraid of Charlene and on later occasions said that she had gone "insane" and "gone off her brain".
The deceased had a brother, Brian, who lived in Melbourne. In the course of the eulogy which he gave for the deceased at her funeral, Brian mentioned that in the last few months of her life he had been unable to speak to her as often as he wanted. The phone at the house had been disconnected and she could only call him from the neighbour's.
Coralynne said that some time after the deceased had gone into hospital, when she and Charlene were together, Charlene rounded on her and said "you're not kicking me out of the house" and "you're not getting the house". Coralynne placed this as occurring on 28 November 2018, ten days after the hospital admission. It seems, although this was not completely clear from Coralynne's evidence, that the conversation happened in the car when the sisters were driving to the hospital.
Coralynne put this down to jealousy on Charlene's part. She said that she had been told by Clifton Jnr of a conversation which he had with Charlene a few months beforehand in which, so he told her, Charlene said that Coralynne was a millionaire and did not need the house.
According to Coralynne, Charlene's behaviour became worse when Mr O'Hagan effectively moved in and started undertaking the renovations in late December 2018. Her suggestions were ignored by Mr O'Hagan and Charlene, who treated the renovation projects, and the house, as their own.
Coralynne came into conflict with Mr O'Hagan. He would operate power equipment at all hours of the night. She denied his evidence that she interfered with the works by walking through the worksite while they were being carried out.
Coralynne stated that Charlene did her best to make life at the house unpleasant. Charlene blocked the driveway with her car to prevent Coralynne from using it with hers. A lounge belonging to her was also placed out on the lawn.
According to Coralynne, Charlene also interfered with her mail. The deceased, Coralynne and Charlene all had the initials "C A Scott". The system was that whoever brought the mail in would open it and leave any mail intended for any of the others out for them. At least in later years, the deceased did not collect the mail, and the task of bringing it in largely fell to Charlene because of Coralynne's shift work. Coralynne stated that after the dispute with Charlene arose she would come home to find her mail had been opened and scattered around the lawn. This got so bad that she got her own post office box.
According to Coralynne, there were also problems with her access to the house and some of the facilities in it. In the course of the renovations, locks were installed on the doors to some of the rooms. Then there was an electronic door locking system which was installed to the front door. Coralynne stated that she was given an access card, but it could not be made to work reliably, so she had constant problems with access. Mr O'Hagan and Charlene controlled the programming and Coralynne believed they were creating the problems deliberately. She also stated that she had been forced to shower outside.
Coralynne unburdened herself about this to a neighbour, Gary John O'Sullivan. She told Mr O'Sullivan the deceased was frightened of Charlene, that Charlene was not taking care of the deceased properly, and that she (Coralynne) was having trouble getting into the house.
Meanwhile, on 9 January, the fracas between Coralynne and Charlene took place. According to Coralynne, she told Charlene before she left for work to put out the garbage. When she returned from work, she found a garbage bin had been placed at her seat at the dining table. She remonstrated with Charlene who grabbed her and placed her in a headlock. She suffered bruising to her ribs.
Coralynne acknowledged in cross-examination that her relationship with Charlene had become "toxic" after the January 2019 fracas. But she denied that this had anything to do with her own conduct. She denied suggestions that she had an explosive temper; that she threw things; that she damaged the house; or that she had injured anyone. She also denied that she was jealous of Charlene, or of Charlene's relationship with the deceased.
Counsel put to Coralynne that her relationship with her mother declined after the rupture with Charlene. Coralynne denied the suggestion that during a visit on 16 January her mother told her to leave the hospital. She also denied Mr O'Hagan's evidence that after the deceased returned from hospital she (Coralynne) would ignore her and refuse to speak to her.
Coralynne did however describe in her affidavit an incident in May 2012 when she went to visit Clifton Jnr on the Central Coast. As mentioned, Clifton Jnr was gravely ill but asked her not to tell the deceased. When Coralynne returned to Sydney the deceased was furious that she had been away for mother's day and said things to her such as "you've been ripping me off and not paying board for sixty years", "you've destroyed things that belonged to your sister" and "you're insane, you're an idiot and a thief".
Coralynne attributed these statements to her mother being poisoned against her by Charlene. Afterwards, when they were out of eyeshot of the deceased, Charlene laughed at her. A few weeks later Charlene said to her: "You've got something coming. Don't think you'll get the house".
Dr Nicholas' testimony: Dr Nicholas stated in his affidavit that he had been the GP for both the deceased and Coralynne for about ten years. When the deceased attended his surgery, she would sometimes come with Coralynne and Charlene together, or one or the other. From his perspective, the two sisters were sharing the responsibility of looking after their mother.
Dr Nicholas stated that there were many occasions on which the deceased told him how grateful she was to Coralynne for her help at home. He specifically mentioned the deceased saying that Coralynne helped pay the household bills and she did not know where they would be without her help. The deceased also told him that she was worried for Coralynne after her 2012 car accident. The deceased thought Coralynne returned to work too quickly, before she had fully recovered. None of this evidence was questioned.
In cross-examination Dr Nicholas said that in April 2019, when he was asked to give the certificate (see [76] above), both the deceased's daughters were "unpopular" with her. He explained this by saying that the deceased was unhappy about the breakdown of the relationship between Coralynne and Charlene, which had disrupted the previous teamwork. He read out a note he made based on what he was told by the deceased on 4 April: Concerned re daughter. Coralynne with rages and threatening her sister. Breaking tools and hiding things. Claiming it's her house, screaming and violent, breaking things and tearing curtains. Coralynne was shouting in the backyard. She was accusing her sister, she was invoking support from the neighbours and she was angry at Charlene's partner.
Dr Nicholas went on to say that he later spoke to Coralynne (presumably during consultations with her) who had an explanation for all the deceased's complaints. In particular, Coralynne explained that she was being locked out of her room and Charlene's partner, Mr O'Hagan, was freeloading.
Clifton Jnr's testimony: I have already referred to Clifton Jnr's evidence about Charlene's character. In contrast, he described Coralynne as the glue which held the family together. Her nickname was "General", reflecting the fact that she took charge of family matters to ensure that they got done. This nickname came from Clifton Jnr himself.
Clifton Jnr stated that Coralynne provided financial assistance to her parents and other family members, including her siblings. She took her parents, and after her father's death, the deceased, shopping. By contrast, Charlene spent most of her time in the bedroom on her computer. Clifton Jnr stated that the relationship between Coralynne and the deceased was one of mutual love and support. The deceased was not afraid of Coralynne.
The cross-examination challenged Clifton Jnr's ability to make reliable observations of the relationship between Coralynne and the deceased, especially after Clifton Snr's death. In cross-examination, Clifton Jnr accepted that after his father's death he only visited the Fairfield household a few times a year; perhaps three times in 2018. He also accepted that he became more distant from Charlene. This was not the result of any estrangement but simply a lack of regular communication. He also became more distant from Coralynne at the same time.
It seems that towards the end of 2018, both Coralynne and Charlene began talking more often with Clifton Jnr, each complaining about the other. Clifton Jnr seems generally to have been more sympathetic to Coralynne. He stated that Coralynne complained to him about the noise of the renovations created by Mr O'Hagan and being locked out of the property. In cross-examination, he agreed that she had also raised concerns about the possibility of the deceased changing her will. No concern was raised with him about any physical threat to the deceased. Nor did Coralynne ever say that the deceased needed to go into an aged care facility.
In his affidavit, Clifton Jnr referred to the conversation with Charlene which Coralynne reported in her affidavit (see [109] above) and which apparently took place when he and Charlene were in a car together. He stated: During the course of this trip I had a conversation with the Defendant to the following effect: Charlene: You know Coralynne is a millionaire. Me: So what. She works hard. She works two jobs. And what about your money from your claim. Charlene: Oh, I did a course. The Defendant then discontinued the conversation He was not asked about this in cross-examination.
Clifton Jnr said that following the deceased's admission to hospital in November 2018 he visited her twice at Liverpool and once at Fairfield and then two more times at Braeside. The final visit resulted in a rupture between Clifton Jnr and the deceased which was referred to in the deceased's testamentary statement and was the subject of evidence from Charlene. The allegation was that Clifton Jnr threatened Charlene (who was also present) and the deceased told him to get out and not to return.
Clifton Jnr stated that on the day in question he came to Sydney at Coralynne's request to remove a tree in the garden of the Fairfield property to allow the construction of the access ramp for the deceased (see [29] above). After removing the tree, he visited the deceased in hospital.
According to Clifton Jnr's account, an innocent remark from him about Charlene having to pay for parking at the hospital unleashed a storm of abuse from her. The deceased heard this abuse but did nothing. When he responded to Charlene she accused him, falsely, of threatening her. Again the deceased did nothing. He said he had had enough and left. He specifically denied that he was asked to leave by the deceased or by the hospital staff.
As he was travelling back to his home on the Central Coast, he received a call from the deceased who berated him about supposedly threatening his sister. He said that he did not recall the deceased telling him not to visit her again, but in fact this was the last time that he saw her. He tried to call her but was unable to get through and referred to what Brian had said in the eulogy about the deceased not having access to a telephone.
Mr O'Sullivan's testimony: Mr O'Sullivan lived in a house on the other side of the road from that of the Scotts, one door down. He bought the land, which was then undeveloped, in 1962 or 1963 and built a house on it in December 1970. This was when he met the family. He and his wife lived at the house until 1975. Thereafter they lived in the country for his work and rented the house out. They returned in 1998.
Mr O'Sullivan appears to have been particularly friendly with Clifton Snr. He stated that he was told by Clifton Snr that Coralynne helped out with the house payments, and also bought him presents such as "Phantom" comics (see [296] below). He saw her taking her parents shopping or to medical appointments.
As already mentioned, Coralynne confided in Mr O'Sullivan following the breakdown of her relationship with Charlene in late 2018 or early 2019. She complained to him about the lack of access to the property and being made to shower outside. In his affidavit, Mr O'Sullivan stated that on two occasions he himself heard Charlene yelling at the deceased that if she did not change her will she would be out on the street.
Mr O'Sullivan's evidence was the subject of cross-examination by counsel. The cross-examination circumstances were adverse. Mr O'Sullivan's evidence had to be taken when he was in a car queuing for a COVID-19 vaccination. At one point it seemed his wife was talking to him and perhaps prompting him in what he was saying, and I asked him to step out of the car to complete his testimony.
Counsel for Charlene raised the question of how Mr O'Sullivan could have heard the alleged threats by Charlene about changing the will. He stated that the houses were fifty to a hundred feet apart and that he heard the yelling at his front door. He said that he recognised Charlene's voice. He said that he tried to contact the deceased to find out what was happening. First, he tried to telephone, but he could not get through. He then went over and knocked on the door, but no one would answer it.
Mr O'Sullivan accepted that Coralynne told him that Charlene was threatening the deceased to make her change the will. But she had not told him this before he heard the threats for himself. He adhered to his evidence about them.
Ms Flarrety's evidence: Cherie Flarrety is a friend of Coralynne who she met through her second (supermarket) job in 2010. Ms Flarrety was not required for cross-examination.
In her affidavit Ms Flarrety stated that she visited Coralynne at her home and met the deceased twice after the deceased had returned from hospital following her fall in November 2018. The deceased was natural and happy with Coralynne.
Ms Flarrety also reported what she had been told by Coralynne about the way the household operated. In particular, Coralynne told her that she was looking after the deceased.
At some point in 2019 Ms Flarrety visited the house again to help Coralynne to move some of her goods out of the property. She saw the bathroom door locked; the handle had been removed from the hot water tap in the laundry; and the bedroom door was also locked. She also saw Coralynne's lounge on the front lawn.
Charlene's testimony: Charlene stated that once Clifton Jnr left home, he hardly visited, to the annoyance of both his parents and Coralynne. Coralynne was close to Clifton Snr but not the deceased. According to Charlene she did not get on particularly well with her sister. She said that she was called the "General" for a reason. Charlene found her bossy and demanding.
Charlene stated that she was close to her mother. They had common interests. In particular, in later years, they would often spend the weekend together watching movies.
Charlene stated that Coralynne was wrong in saying that the deceased would kiss and hug her. Neither of the parents was given to overt displays of affection. This was not the way the deceased was.
Charlene stated in her affidavit that she paid for the telephone and the internet, and this is not in dispute. She also stated in her affidavit that she paid for the services (water, gas and electricity) and outgoings (council rates) on the property. She stated that the deceased offered to pay, but most of the time she refused. In support of this, Charlene tendered the statements for one of her bank accounts for the period from October 2012 to October 2019, marked up to show the payments of services and outgoings.
A review of part of the tender confirms Charlene's evidence that she paid some, but not all, of the council rates, water bills, gas bills and electricity bills. All of these expenses were paid quarterly and on average Charlene appears to have paid for two or three quarters per year. In cross-examination, Charlene stated that the deceased paid what she could not pay for.
Charlene acknowledged that when the board was increased to $75 per fortnight, she did not pay the additional amount. She said: No, because I was helping Mum with the utilities and I was paying the majority of the utilities. So she said, well you pay the bill - you pay that bill and then, so that's how we worked it. So I paid like the water bill and then that's like no board, but you know, I also like, you know, buy all those movies and stuff for - yeah, it didn't matter, I wasn't one to worry about money, which is probably why I don't have any, but it doesn't matter to me. Can't die with it.
Charlene was cross-examined about what she did for her mother around the house. Apart from paying bills and organising the movie weekends, Charlene spoke of changing the deceased's bandages and doing blood pressure tests for her. The deceased would also get bruising from the warfarin and Charlene would prepare ice packs to keep the bruising down. She would cut her mother's toenails because her mother could not reach them. Although the original question had asked about the period after the deceased's fall in November 2018, it was unclear whether the answer was limited to that period, and some of the activities seemed to refer to periods of time when the deceased was in hospital.
Turning to Coralynne's contribution, Charlene acknowledged that there were occasions on which Coralynne took the deceased away for day trips or short breaks. But when this was happening, she (Charlene) would look after Clifton Snr.
Charlene acknowledged that Coralynne took the deceased to medical appointments, but this was "on very rare occasions". Coralynne did pay for the newspapers, but one paper seems to have been provided for her exclusive, or at least primary, use. Coralynne only did her own laundry and cooking and only rarely cleaned. She did not take the deceased out regularly. If she did take her out it was usually for shopping.
Charlene stated that Coralynne paid board of $50 per fortnight and $75 per fortnight after hospitalisation, but the deceased would complain that Coralynne would be late in making payment. Coralynne did pay for the cable television service and part of the lawnmowing costs, but only part of them.
Charlene disputed some, but only some, of the evidence given by Coralynne, about paying for improvements and repairs. In particular, Charlene stated that some tree removal works which Coralynne said she had paid for had been paid for by her parents. Charlene herself contributed to the construction of a fence.
Charlene rejected the suggestion that her own expenses were ever paid for by Coralynne. She said that she had paid her own costs of the cruise to which Coralynne referred, although she did not dispute that Coralynne had paid for her parents.
Charlene acknowledged that she was frequently on the computer when at home, but said she was studying. She did not claim that she herself had done any cooking or cleaning.
Charlene rejected the suggestion that she was jealous of Coralynne's savings, and in particular the conversation with Clifton Jnr reported by Coralynne (see [110] above). According to Charlene, in that conversation it was Clifton Jnr who said to her that Coralynne was obsessed with money and even their father had said so.
Charlene strongly rejected the suggestion that she was in some way responsible for her mother's fall on 17 November. She explained that she found the deceased on the ground, apparently having tripped on a step. Charlene was not challenged on this evidence in cross-examination.
Charlene put the breakdown in her relationship with Coralynne down to pressure from Coralynne, after their mother's fall, to put her into a nursing home. As already noted, Coralynne had supposedly wanted to do this even before the deceased's fall, but the deceased had indignantly rejected the idea. Charlene recounted a conversation with Coralynne in about December: We had a falling out when I said that, you know, "We need to do the bathroom for Mum to be safe to come home." She got a bit antsy with that, did start to help me try and get tradesmen, because it was near the Christmas period, so that was a nightmare. Then around December, when she realised that things were going to happen with the bathroom, she started then saying, "I think we'll need to put Mum in a home," and I said, "No. I promised Mum and Dad both they're not going in a home." She said, "Well, we're going to have to," and I said, "No, she's not going in a home." I said that for Dad and I said that - because she said the same for Dad as well, and I said, "No, he's not going in a home." So then that's when problems started, because I refused to accept Mum not coming home, because I knew Mum was capable of being okay at home if the bathroom was to a standard that the OH & S guy from the rehab accepted and the standards required.
Charlene said that she did not tell her mother about this conversation because the deceased was afraid of Coralynne and Charlene did not want to "break her heart". This was not easy to understand, given the feisty reaction Charlene had described when the idea had been raised earlier. The cross-examination did not take the matter any further.
Charlene denied that she said to Coralynne "you're not kicking me out of the house" (see [109] above). She said the true position was to the contrary; Coralynne told her that she (Coralynne) would enjoy kicking her out of the house.
According to Charlene, Coralynne's behaviour became worse from this point. She would be overcome by rages and would hide Mr O'Hagan's tools. According to Charlene, it was Coralynne who parked Charlene into the house. The renovations continued into the night on a "handful of days" but never after 10:00 pm and it was necessary to work late in order to get the bathroom finished by the time the deceased was released from the hospital. Charlene did not dispute Coralynne's account of how the system for collecting mail worked, but denied she interfered with Coralynne's mail.
Charlene denied Coralynne's account of the fracas on 9 January. According to Charlene, it was Coralynne who was the aggressor and Charlene put her into a headlock to calm her down.
Charlene rejected Clifton Jnr's account of the events at the hospital (see [131]-[134] above). She did not give her own version but maintained a denial of Clifton Jnr's version in cross-examination. Specifically, in cross-examination she denied that Clifton Jnr left of his own volition.
Charlene stated that the phone connection to the house was working in 2018 to 2019. She said that the deceased's brother, Brian, tended to ramble on the phone and the deceased therefore avoided speaking to him. She said that when the deceased wanted to call her brother (or presumably anyone else) she would place the call from a telephone in the deceased's bedroom. Why it was necessary for Charlene to place the call was not explored.
Charlene also sought to connect the statutory declaration which she made in opposition to Coralynne's personal injury claim to the household situation. In the statutory declaration itself she stated: The claimant required my assistance to read and edit her statement for her solicitors Gerard Malouf & Partners with regards to her accident injury claim. Upon reading her statement, I was extremely upset and stressed over her untrue claims regarding her domestic duties, caring for our mother and the care I have provided her since her motor vehicle accident. Her statement took on my actual role with my mother and this caused my mother and I [sic] great concern that if believed, it could very likely jeopardise my carers payment to look after my mother and this would then see me forced to go back to work and my mother placed in a home as she cannot be left unattended for long if at all for most days. After reading her statement, I mentioned to the claimant my thoughts on what she had written and the possible outcome to myself and our mother if believed but she was non-responsive.
In an affidavit, Charlene stated that her mother was directly involved: Mum and the Plaintiff had an argument over the statement in which the Plaintiff claimed she was Mum's primary carer. Mum was very worried about what effect the Plaintiff's claims in the statement would have on my carer's payment with Centrelink. Mum said words to the effect of: "Coralynne you can't have those lies in your statement. You've claimed what Charlene does for me and if Centrelink read it they will take her off the carer's benefit. Who will I have then to look after me, because Charlene will have to go back to work? You won't give up your job to care for me".
Charlene stated that the deceased was in fear, but it was fear of Coralynne, not herself. The deceased would describe Coralynne as being "crazy" and "off her brain". Charlene denied threatening the deceased in the way alleged by Mr O'Sullivan.
Charlene also denied that she said to Coralynne after the new will had been executed "don't think you're getting the house". Charlene stated that she would not have said this. She said that she had been warned by her mother that if Coralynne found out about the new will she might burn the house down and Charlene with it.
Mr O'Hagan's testimony: Mr O'Hagan described the relationship in the household while the deceased was in hospital and the bathroom renovations were being undertaken as having been strained. They were worse after that. The relationship between Coralynne and Charlene was non-existent. Coralynne would barely acknowledge Charlene and was very curt with her. Coralynne would also interfere with the building work by walking straight through it.
Mr O'Hagan also described problems between Coralynne and the deceased. Coralynne would on occasion treat the deceased as if she was not there. The deceased would say to him "Coralynne is not well". From March onwards items such as tools, cutlery, plates and the like would go missing, so that the deceased was keeping them in her own room.
Mr O'Hagan described an incident after the deceased had come back from hospital when Coralynne confronted him and Charlene about her property being moved. It was explained to her that this was a requirement from the Occupational Therapist. Coralynne then went into the kitchen where she started banging pots and pans. The deceased overheard this and said "What do you think you're doing banging things around in my house?"; Coralynne responded "It's not your house, it's Dad's".
Ms Wood's testimony: Beverley Elizabeth Wood is employed as a home visit collector for pathology samples. According to her affidavit, she visited the deceased regularly (usually weekly) after the deceased returned from hospital at the end of January 2019.
Ms Wood described Charlene as always being attentive and recorded the deceased praising Charlene and Mr O'Hagan for improving the liveability of the house. On occasion Ms Wood encountered Coralynne but Coralynne ignored her and the deceased. Ms Wood was not cross-examined.
Mrs Betteridge's testimony: Mrs Betteridge said that when she visited the deceased in hospital on one occasion the deceased told her that Coralynne had changed. She also said that Clifton Jnr had come to hospital and threatened Charlene in front of the deceased.
Mrs Betteridge said that the deceased told her how much Charlene helped with the medical appointments and shopping. By contrast, she would not mention Coralynne or Clifton Jnr except to complain about them. The deceased was happy with the renovations and liked Mr O'Hagan. She thought that he was good for Charlene.
Mrs Betteridge said that she had known both sisters. She spoke highly of Charlene. But Coralynne she found aloof, especially after her mother's fall (or possibly after her mother's death; her evidence on this was not clear).
Mrs Betteridge's evidence was not challenged when she was cross-examined. However, as already noted, I have some reservations about the extent to which her observations are reliable.
Ms Evans' testimony: Danyel Evans is a friend of Charlene. She gave evidence about things Charlene told her about what was going on in the house, and also about a couple of visits to the house after the deceased returned from hospital in 2019.
Ms Evans' affidavit evidence was anodyne and does not need to be referred to. But at the end of her oral evidence she described a visit during which the deceased had said "negative stuff" about Coralynne. Ms Evans stated that she was told by the deceased that Coralynne had taken things out of the house such as cutlery. She had also become aggressive and was angry all the time. She would slam doors. The deceased also heard her tell Charlene that Coralynne wanted her (Charlene) out of the house.
There is little if any relevant dispute between the parties about the period up to Clifton Snr's death in 2016. Coralynne was contributing financially and non-financially. Her financial contributions included both regular payments of rent or board, a payment of the balance of the loan when it was discharged in 1992, and other items of improvement and maintenance. Charlene was also contributing financially at least by paying some of the services and outgoings as I have described. Whether she was paying rent or board as well is unclear. It is not possible to make any quantitative assessment of their respective financial contributions.
On the evidence, this state of affairs continued after Clifton Snr's death. In particular Dr Nicholas' uncontested evidence confirms that Coralynne was contributing financially and the deceased was grateful for that.
As will be seen below, it seems that the deceased's pension income exceeded her expenditure over this period, and this left an earning surplus which she was able to save ultimately for herself. But no doubt there was a psychological value to the deceased in knowing that Coralynne's earnings would be available to support the household if that became necessary.
It is also common ground that both sisters provided non-financial household help and companionship to their parents, and this continued with the deceased after Clifton Snr's death. But it bears repeating that the deceased was really rather independent and does not seem to have needed any great assistance with performing tasks around the house. It is notable that the only concrete assistance from Charlene actually identified in the testamentary statement was payment of the deceased's bills (see [227] below), which would hardly have been onerous or time-consuming.
I should also say that I do not accept that Charlene gave up paid employment to care for the deceased. I have already concluded that Charlene was capable of working but did not wish to do so. I accept Coralynne's evidence (which, as I have noted, was really not disputed) that Charlene was nominated as the carer for her parents when she proved unable to obtain a disability pension. Following Clifton Snr's death, the arrangement continued.
While I accept that Charlene did provide companionship and help to her mother, this was shared with Coralynne. The tasks undertaken by Charlene would not have represented anything like a full-time commitment. The pension arrangement was simply a way of providing income for Charlene (Coralynne, being in full-time employment, would presumably not have been eligible anyway).
I must now consider the breakdown in the relationship between Charlene and Coralynne, and the effect on the deceased. For this purpose, much of the evidence is of doubtful value. Taking reported statements of the deceased from late 2018 onwards, or the testamentary statement, into account is open to the objection that, on Coralynne's case, the deceased was under the influence of Charlene at the time. Observations by neighbours and friends are limited and their date is imprecise.
I do however think that Clifton Jnr's evidence calls for consideration. I accept that he was rarely present following Clifton Snr's death. Coralynne's evidence that he visited once a month is an exaggeration. But this does not invalidate his evidence to the extent that it was based on family dynamics with which he was familiar from earlier experience.
Nor does it invalidate his evidence that Charlene expressed jealousy towards Coralynne in her 2018 conversation with him. Although I think he was generally more sympathetic to Coralynne than to Charlene, he appeared to me to be generally objective. He retained sufficient goodwill towards Charlene at the deceased's funeral to thank her for looking after the deceased and to tell her that he loved her. Overall, I thought he was far more credible than Charlene. His evidence about the conversation with Charlene was not challenged. I accept it.
Clifton Jnr has made no claim and the cause of the breakdown in the relationship between him and the deceased after the incident at the hospital in January 2019 are not directly relevant to Coralynne's claim. But those events are relevant to assessing the testamentary statement, which refers to them. They are also relevant to Charlene's credit.
Essentially, the issue involves a direct credibility contest between Clifton Jnr on the one hand and Charlene on the other. I have already said that I found Clifton Jnr more credible. I also find his version of events more inherently plausible. He was still speaking to both of his sisters at the time.
Whether the deceased actually asked Clifton Jnr to leave the hospital is not important. What is important is that he had no apparent reason to threaten Charlene. I accept his evidence that he did not do so and that the incident was manufactured by her.
There are some difficulties in Coralynne's account. In particular, I do not accept it where it is in conflict with the evidence of Mr O'Hagan. Out of the three inhabitants of the Fairfield house from late 2018 up until the deceased's death in July 2019, his evidence seemed to me to be the most dispassionate. It was not challenged and I accept it.
It follows that despite Coralynne's denials, I accept that she was angry at the time and some of that anger was directed towards the deceased. I think this conclusion is supported by the probabilities of the situation. One thing which is clear is that from the end of 2018 onwards, Coralynne had been deprived of her status as a partner in the household, which was effectively being run by Charlene and Mr O'Hagan. She would not have needed to be the controlling martinet described by Charlene to have been offended by being pushed aside in this way.
Nor do I accept that Mr O'Hagan was party to tormenting Coralynne by sabotaging her access under the new security system. In any event I am not sure that that allegation has much relevance; the system was only installed in June and the complaints made by Coralynne may well date to the period after the deceased's death.
I do not, however, accept that Coralynne threatened Charlene or inflicted any harm on her or the deceased. Mr O'Hagan does not mention any such thing.
My rejection of Coralynne's evidence in part does not by any means require me to accept Charlene's version of events. It is necessary to look more closely at Charlene's evidence.
For this purpose, I think that the making by Charlene of her statutory declaration in opposition to Coralynne's compensation claim is revealing on a number of levels. First, she spoke of being "forced" back to work, which implies that she was indeed capable of working. Second, fraud in compensation claims is a serious thing. Exposing it requires no explanation or apology. But Charlene offered an explanation, and it does not withstand scrutiny. I think there are three significant points in this regard.
First, there is the sheer unlikelihood that anyone could really have thought that Centrelink would ever find out about a statement made by Coralynne in a compensation claim. It is still more difficult to imagine Centrelink then being able to use the statement to take the pension from Charlene, when, according to Charlene, it was untrue in fact.
Secondly, the timing is difficult to accept. Coralynne's statement was, according to Charlene's statutory declaration, dated 8 March 2018. On Charlene's account, she discussed Coralynne's evidence with her before the statement was signed, but the statutory declaration was not made until almost a year later, after the rupture between them had happened. If Coralynne had been so concerned, as she claimed, there would have been no reason to delay.
Third, responding to Coralynne's claim that the accident deprived her of the ability to look after the deceased was only a relatively small part of the statutory declaration. Most of it was actually concerned with rebutting other claims by Coralynne which on no view implicated Charlene or the deceased.
For these reasons I do not accept Charlene's affidavit evidence about the issue quoted at [168] above (and the passages from the statutory declaration itself). Even if Coralynne did exaggerate her claim, Charlene's response was, I am satisfied, motivated by jealousy and malice. If the deceased remonstrated with Coralynne about the preparation of the statutory declaration (which I doubt) it would only have been because of misinformation from Charlene.
Charlene was not cross-examined on this part of her evidence. But counsel for Coralynne made it clear that Charlene's credit was generally in issue, and it was specifically put to her that she was jealous of Coralynne. The points I have made about the statutory declaration arise out of the inherent improbabilities and contradictions in Charlene's own evidence. In the circumstances, I do not believe that any injustice is involved in rejecting this part of Charlene's evidence: compare White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169 at 217-219.
In all the circumstances I accept that Charlene probably did set out to torment Coralynne by scattering her mail or moving her lounge outside. It is notable that Mr O'Hagan does not address these allegations; and the latter complaint was repeated to Ms Flarrety at the time. Charlene probably also provoked the headlock incident in the way Coralynne described. Who the actual physical aggressor was does not seem to me to matter.
I think it is clear enough that Coralynne was favoured by Clifton Snr and it may be that the relationship between the deceased and Coralynne grew more prickly as both of them got older. As she aged, Coralynne may well have become more set in her ways and less tolerant. I suspect that she gave the impression that she looked down on Charlene, and Charlene resented this. But I do not accept that Coralynne was jealous of Charlene or bore her any serious ill-will, at least before the rupture took place.
While I accept Coralynne may have displayed anger and taken out her frustrations on the deceased, the fundamental cause of the breakdown in the relationship between the sisters was jealousy and spite on the part of Charlene. Charlene convinced herself that the Fairfield property should be hers. The deceased appears to have been closer to Charlene and to have confided in her. Charlene used this dependence to manipulate the deceased and turn her against Coralynne (and Clifton Jnr).

Deceased's testamentary intentions

September 2015 will: I have already referred to the terms of the deceased's September 2015 will, which is a mirror will with Clifton Snr and, in the event of his pre-deceasing the deceased, left the estate to the three children equally. Coralynne stated that she and Charlene visited the solicitor with her mother when she made this will and that she was told by her mother of its content. Coralynne also stated that on at least one other occasion she was told by her mother that the estate would be split three ways.
Charlene said in cross-examination that she did not know the terms of the deceased's 2015 will. She confirmed that she and Coralynne took their parents to Campbelltown in 2015 to have their wills prepared, but said that she did not remember ever being told about the wills' content. She added that she was not interested. For all she knew, or cared, the deceased could have left her whole estate to charity, or to Coralynne.
May 2019 will and testamentary statement: The first contact with Mr Wehbe appears to have come from Charlene in late March or early April 2019. Email records show that Charlene was referred to Mr Wehbe by Mr Abboud, the solicitor to whom she had given the statutory declaration in opposition to Coralynne's compensation claim. Evidently Mr Wehbe advised that before he could prepare a new will for the deceased a medical certificate as to her capacity would need to be obtained from her doctor, and this led to the obtaining of the certificate from Dr Nicholas on 4 April.
On 9 April Charlene emailed a copy of the certificate to Mr Wehbe. On 30 April Mr Wehbe emailed Charlene to advise her that he was now able to proceed with preparing the deceased's will. Evidently it had previously been agreed between Charlene and Mr Wehbe that the deceased would be interviewed, and the will executed, at a coffee shop rather than at her home. Mr Wehbe asked Charlene to nominate a date for the initial interview.
On 2 May Charlene responded. Mr Wehbe then sent an email back, quoting passages from Charlene's email and replying to them (quotes from Charlene's email shown in bold): My mother has difficulty hearing and relies of reading lips and therefore speaking over the telephone isn't something she can do and I fear that this may now cause a problem. Agreed this is a problem that you have not disclosed until now. Hence you seem to suggest we will need 2 personal meetings. The first will be to take instructions on what she wants to insert in her new will. The second will be to actually have her sign. the best way to go about altering her Will regarding changing the house from being inherited by all three children to just one due to recent circumstances? She also just wants something noted in her Will which she wants passed on to the other two children once she is no longer here in explanation and her reasoning for the change in her Will. The author of the will Coral can compose a separate document called a STATEMENT OF TESTAMENTARY INTENTION providing her reasons. This will form a piece of evidence to be used if anyone challenges the Will. The effect of same is not 100% guaranteed to stave off any challenges as each situation is different and each case of challenge depends on the circumstances of each case and the circumstances of each person seeking to challenge the will, if applicable. Charlene, we urge you to act on this swiftly as the doctor's opinion was dated early April and if you leave this much longer we will be forced to ask for an updated opinion from your mothers doctor.
Arrangements were subsequently made for the first meeting to take place at a coffee shop at Fairfield Heights on 9 May. Mr Wehbe's file note of that interview is in evidence. According to the note, which consists of two pages, the interview lasted for an hour. In the course of the interview, the deceased appears to have instructed Mr Wehbe that she wished to remove Coralynne from her position as enduring guardian. Mr Wehbe prepared a handwritten instruction to this effect which was signed by the deceased.
The deceased's initial instructions as recorded in the file note of 9 May recorded that she paid all the rates and living expenses and that her daughters each paid $50 per fortnight in board, although it recorded that Coralynne had begun paying $75 from February 2019 but was requiring a signature. The note records the explanation for the benefit in favour of Charlene as being: Only executor to be Charlene because she does everything for me.
The following explanation was provided for the small gift in favour of Coralynne: Coralynne has enough money to buy her own home & the way she is treating me she doesn't deserve anything. She is now greedy so I'm just giving her money.
The explanation for Clifton Jnr was: Son Clifton lives @ Budgewoi, single, security officer and owns his own home and only visits me at Christmas or if I am in hospital he may visit as a mouthpiece for Coralynne to threaten Charlene. He came to Braeside Rehab Hospital at Prairiewood in about January 2019 & started threatening Charlene saying "I'm going to get you"… I told him "get out. how dare you threaten your sister. I won't have that & your father wouldn't have had that. You're finished. Get out". I rang him a few hours later and told him "I am still upset you threatened your sister. I'm disowning you. Don't visit anymore".
On 14 May 2019 Mr Wehbe sent an email addressed to the deceased care of Charlene's email address. By this stage he had drafted a new will for the deceased. He also had a draft testamentary statement on his system. For reasons given below, I suspect that this was actually prepared by Charlene. The draft will provided for Charlene to receive the house. Out of the residue, Coralynne and Clifton Jnr were to receive a $40,000 legacy and they were to share equally in any residue which was left over.
By this stage, an appointment had already been made for the execution of the will and signing the testamentary statement in two days' time, on 16 May. Mr Wehbe's email noted the further instructions to prepare a fresh instrument of appointment of enduring guardian in favour of Charlene alone. He also asked if he could read through the draft testamentary statement to the deceased over the telephone, proposing that that be done between 2:00 pm and 3:00 pm.
This did not happen. Shortly after 4:00 pm Charlene emailed Mr Wehbe asking if he could email the draft testamentary statement to her for her to print it out and give to her mother. Mr Wehbe replied by email to Charlene, again addressed to the deceased, stating: Yes but please note we will only be available to amend any part of the attached BEFORE 11 am Wednesday after which our Mr R Wehbe will not be available and will then meet with you on Thursday morning 9.30am. The will reflects your specific instructions to give legacies of $40,000 each to Clifton & Coralynn [sic] and indeed the residue of the estate after ensuring Charlene gets the house debt free and has enough to pay the expenses of the estate. We are looking for: 1. Any more information as to how Charlene's financial circumstances have diminished due to having to care for you; 2. Any more evidence as to the strong financial position of Clifton; 3. Any more evidence as to the strong financial position of Coralynn [sic].
The following morning Charlene emailed Mr Wehbe stating: My mother has read over the draft [will] and would like deleted for both Clifton and Coralynne the section that reads "… plus half the residue of my estate…".
Nothing was said about the testamentary statement, but Charlene did provide responses to Mr Wehbe's requests for more information on the three topics nominated in his email of the previous day. She wrote: 1. Any more information as to how Charlene's financial circumstances have diminished due to having to care for you; ATO or bank statements can show the loss of income since 2011 when her caring commenced. Her previous work prior to caring was with AGD working with the local courts. 2. Any more evidence as to the strong financial position of Clifton; He has worked permanently with the same security company on the central coast for many years now and he has owned his own home for over 30 years after receiving a payout from a severe work injury and purchasing the house. 3. Any more evidence as to the strong financial position of Coralynn. Bank statements and/or payslips will show her earnings and court papers will show that over the past four (4) years she has received two large payouts from victim compensation for motor vehicle accidents and is going for her third MVA claim now.
Mr Wehbe replied: We cannot amend the will which is based on Corals direct instructions and in which she has instructed us to draft the will based on these instructions. What it means is that after the house goes to Charlene and then all debts of the estate are paid, the rest and residue of the estate is to be split between both Clifton and Coralynne. As we understand it this will only be splitting a surplus amount of cash. Those are her instructions and so the will has been drawn accordingly. If she wishes to amend those instructions then I will need to ensure the instructions are coming from her and her alone and then the obvious question is --- what does she want done with the rest and residue of her estate? Unless we hear from you within the next 30 minutes we will NOT amend and have the will as already drafted based on your direct instructions of 9 May available for you to sign tomorrow.
A file note by Mr Wehbe records that about half an hour later the deceased rang. The note states: Checked that she wants will changed Reply was that she now wants rest & residue to go to all 3 children Therefore amend will & testamentary statement Asked if Charlene with her She confirmed Charlene in another room but that this was her wish not Charlene's wish
Mr Wehbe met the deceased at the coffee shop on the morning of 16 May as previously organised. The final version of the will and the testamentary statement were executed by the deceased. There is a one-page file note in evidence. The note stated: Do not post anything to client as daughter appears to be hijacking mail.
The note continued: Client Coral extremely bright and talkative. Noted she is more than aware of the Federal election this weekend, fact that I am travelling to Paris & discussed all her travel & that of her daughters Asked me to call her Coral and I have no hesitation in confirming Coral has capacity as per the written opinion of Dr Joseph Nicholas 4.4.19.
In the following paragraphs I set out the important passages in the testamentary statements. The passages quoted are marked up to show the differences between the final version and the draft from two days earlier.
The testamentary statement dealt first with the rationale for giving the house to Charlene: 1. I have made provision for my real estate at [XX] Garran Street Fairfield West to be left to my daughter, CHARLENE ARNEL SCOTT in recognition of her care, love and devotion that she has provided to me over her adult years and especially over the last nine years when my care needs have increased and she has always been there to look after my needs and to assist with my health care needs plus travel and shopping and all domestic tasks. I would not be able to enjoy my life without her care and all the work she does for me so that I may live my independent life as best as I can at [XX] Garran Street Fairfield West. On my behalf, she physically pays all the property rates and living expenses and she cares for me by openly showing her love and devotion towards me. 2. The provision I have made in my Will for Charlene Arnel Scott recognises the many years of care she has provided me after giving up her own employment to care initially for my late husband and myself, but now more recently, to care for myself. She previously worked for the Attorney Generals Department working within Local Courts but gave that up in 2011 to care for me.
The statement addressed the circumstances of the deceased's other children in the following way: 3. I have considered the financial circumstances of my three children and have determined the provision made for them having regard to their present circumstances, future needs and financial resources. Adequate provision has been made for my son Clifton John Scott and my daughter Coralynne April Scott during my lifetime and I have made further provision for them in my will but to give them any part of my home would mean that my daughter Charlene Arnel Scott is unfairly disadvantaged. 4. As for my son Clifton John Scott, I note he is single and has owned his own home for over 30 years and has worked permanently for a Security company on the Central Coast for many years now. … 9. As for my daughter Coralynne April Scott, I note she has successfully claimed damages as an injured claimant including claims for future economic wage loss in two separate motor vehicle personal injury claims arising out of two separate payouts in the last four (4) years and she is again claiming damages for a third accident now.
The statement contained what purported to be an explanation to Coralynne, in the first person, for the small provision in her favour: 10. "Coralynne, even today I still cannot believe how you have changed. For 60 years you have lived with me and we have been through a lot together, good and bad but for you to turn out the way that you have, I do not understand. You have so much hate especially for your sister which you are not able to hide and although I always knew you were jealous of her, I didn't think that you would do and say the things that I have seen you do since I have been home from the hospitals. You are to blame for breaking up our little family from all of the lies you have told not only to your brother but to strangers and our neighbours. You are full of greed and your need to have my little old house for yourself regardless of who you hurt or what you do, to get it, is disgraceful. 11. I even asked the GP if you needed help but I knew if I told you, that you would have one of your rages (like you did when you visited me at the hospital and I had to throw you out each time) and I just don't know what you will do to me when you do go into a rage. I've heard and seen the things including physical damage that you have done to me, your sister and my house since I got home from the hospital and I do not know who you are anymore. I am extremely hurt and upset by the person you are. 12. I cannot accept your behaviour towards me after all I have been through these past few months since being in hospital and since. I know that this is the right decision for me regarding my Will. I have not forgotten or forgiven you for all the things that you have done and therefore seeing that you have more than enough money in the bank to buy your own home outright I also, out of respect to your father, leave you $40,000.00 plus half a share in the residue of my estate but no part share of my house".
The statement also contained a similar explanation addressed to Clifton Jnr: 5. "I am still today disappointed in you and thought that I could rely on you to be a man in the family after your father passed and help with both of your sisters, not for you to take the side of one and not even hear what your other sister had to say. 6. The last day you visited me in the hospital you came in rushed and agitated, Charlene was sitting beside my bed and you weren't happy when you saw her. I thought there was something wrong and knew you had just left my house where my eldest daughter Coralynne was. We chatted but you weren't really listening to me as you kept looking at Charlene who was watching TV. I was uncomfortable by the way you were acting and the strange evil grin you kept giving your sister. All of a sudden, you moved backwards and that's when I heard you threaten Charlene loud enough for two nurses to hear and rush to my room asking if everything was okay. You continued to threaten Charlene, I was shocked and couldn't believe this was happening. I was extremely upset and told you to get out or I would get Security. 7. I had to calm myself before I rang your mobile to tell you how I felt about what you did. I told you that I was disgusted and that you are no son of mine to threaten your sister and I didn't want you as my son and that if your father was still alive, he would have been ashamed of you. 8. I thought long about my decisions before changing my Will. You have your own home and therefore it is out of respect to your father that I leave you $40,000.00 plus half a share in the residue of my estate but no part share of my house".
A final paragraph of the statement reinforced the conclusions: I am completely satisfied and content in knowing that it is the right decision for me to leave my entire house to Charlene. She not only gave up work to be my Carer but she made sure that the bathroom was renovated for me to be allowed home from the hospital earlier this year, as well as other required renovations which she went half with me in the costs by using her small savings. Charlene's financial circumstances are much worse than those of my son Clifton John Scott and my daughter Coralynne April Scott.
In her formal executor's affidavit, sworn in September 2020, Charlene responded to concerns expressed by Coralynne about the level of influence she exerted over the deceased in the deceased's final months and about whether the deceased knew and approved of the contents of the May 2019 will. Charlene annexed a copy of Dr Nicholas' certificate of 4 April 2019, stating that she took the deceased to Dr Nicholas' rooms on the day but was not present during the consultation.
Charlene also deposed that she took the deceased to the café meetings with Mr Wehbe which took place on 9 and 16 May 2019. She did not attend the actual meetings. She also annexed a copy of the testamentary statement which she described as having been written by the deceased. She made no mention of the communications between herself and Mr Wehbe which I have summarised above.
In her affidavit Coralynne questioned the deceased's capacity to remember the matters recounted in the testamentary statement and stated that the allegations against her in that statement were not true. Charlene's response was: Mum's statement was taken by an experienced legal representative. The solicitor met with Mum on two occasions and had ample opportunity to satisfy himself that Mum's concerns were legitimate. He insisted that he met with Mum independently with no one else present. He also asked that Mum obtain a report from her doctor to ensure that she had capacity.
Charlene presented the decision to change the will as coming from the deceased. She said: Mum asked - Mum said she wanted to change her will, and I said, "Well, that's up to you. Think about it," because she - you know, she thought it over or whatever, and she said, "Could you try and get a solicitor that can come to me, because I can't walk up stairs" - because she was on a walker - and I said, "Well, I don't know, you know, if I can find any"--
When asked how Mr Wehbe had come to be retained, Charlene said that he was the only solicitor she could find who would come to her mother's place or meet her where she did not have to go upstairs. She said that Mr Duncombe, the solicitor at Campbelltown who had prepared the previous will, was not suitable. The deceased did not like him. Charlene volunteered that she did not like Mr Duncombe either.
Initially Charlene appeared to be saying that the testamentary statement had been prepared by her mother without her input. When it was suggested that the statement had in fact been drafted, and sent to the solicitors, by her, she said that she was not sure, it was possible, and she could not remember. Later she stated that she "drafted up" the statement for her mother but "in her words from her memory".
Counsel for Coralynne put to Charlene that she was determined to prevent Coralynne from obtaining any benefit from the house. Charlene's response was that she had made a promise to the deceased, and the deceased had told her that Coralynne would challenge the will and she was to "stand strong".
Taken as a whole, the circumstances in which the will was prepared give grounds for suspicion. There are four features of the case which I think are particularly important.
First, there was no approach to Mr Duncombe who was holding the deceased's previous will. There was no independent evidence to support Charlene's suggestion that there was some sort of animus between the deceased and Mr Duncombe. I am not prepared to accept Charlene's evidence about this when it is uncorroborated.
Second, it is difficult to accept that Mr Wehbe was really chosen because of the deceased's mobility problems. It is notable that in her affidavit evidence Charlene did mention that she obtained the referral to Mr Wehbe from Mr Abboud, who was her contact as a result of preparing the statutory declaration on Coralynne's compensation claim. This only emerged from the documents which were tendered at the hearing.
Third, it is striking that an instruction was given to Mr Wehbe not to send anything to the deceased by post. This instruction must have come directly or indirectly from Charlene, as the deceased did not collect and sort the mail and would not herself have known of letters addressed to her being "hijacked" by Coralynne. Coralynne denied hijacking the mail and her denial was not challenged. I am satisfied that the allegation was untrue.
Fourth, there is the insistence on meeting Mr Wehbe at a café rather than at home. Again, no real explanation was offered for this in the evidence.
All of these factors bespeak a desire to ensure that Coralynne would not find out about the new will. Although Charlene claimed that it was the deceased who told her to keep it secret from Coralynne, I only have Charlene's word for that. Again, I am not prepared to accept her word when it is uncorroborated and self-serving.
Mr O'Sullivan's evidence about overhearing Charlene threatening the deceased unless she changed her will was challenged in cross-examination, as I have noted. I see no reason to think that Mr O'Sullivan was doing other than trying to give his honest recollection as best he could. I do not think he imagined the incidents in question. I accept he heard Charlene yelling, went over to the deceased's house and could not get in to talk to the deceased.
But it is another thing to say that Mr O'Sullivan would have heard what was said sufficiently clearly, and with sufficient context, to enable the Court to be satisfied that he in fact heard Charlene threatening the deceased about changing the will. I am not prepared to take that step. But Mr O'Sullivan's evidence does underline the way in which the deceased was sequestered, with access to her control by Charlene, during the last six months of her life.
It is clear that the deceased did not herself draft the testamentary statement. I suspect that Charlene was the author of the first-person explanations addressed to her siblings. The initial drafts and the other paragraphs may have been prepared by Mr Wehbe. But it is clear from a comparison between the final version of the document and the material submitted by Charlene that the other parts of the statement were also based on information from her.
Taken as a whole, I think that the testamentary statement rings false. I think there are three overarching points.
First, I think the statement is unconvincing as an address from a parent (the deceased) to her children (Coralynne and Clifton Jnr). In the case of Clifton Jnr, the substantial complaint was not about the way in which he behaved towards the deceased, but about his supposed conduct towards Charlene. That also played a major part in the complaint against Coralynne.
Second, I find the reaction to Coralynne's supposed misbehaviour, as coming from the deceased, emotionally unconvincing. If Coralynne truly was behaving erratically and angrily, that would bespeak mental problems, perhaps associated with the ongoing effects of her car accidents. Even if Coralynne's conduct made the deceased uncomfortable (or worse) one would expect it, in a parent, to have provoked sympathy and a desire to help, rather than rejection and disinheritance. Especially is this so given the deceased's previously expressed concern for Coralynne's welfare.
Third, the criticism of Coralynne for breaking up the family and telling lies is premised on a supposed plan by her to have the whole of the house for herself (this is also reflected in Coralynne's version of what was said to her by Charlene in November 2018: see [109] above). But that does not make sense. Under the 2015 will Coralynne was only entitled to one-third of the house. There is no suggestion that she ever wanted, or tried to obtain, more. Even if she had, the deceased was under no obligation to agree. There was never any suggestion of Charlene being disinherited.
There are other factual difficulties with the statement. I will mention five of them.
First, the statement asserts that adequate provision had been made in the deceased's lifetime for Coralynne and Clifton Jnr. But in fact no such provision appears to have been made for either of them by the deceased or by Clifton Snr. To the extent that the evidence identifies any capital gifts having been made inter vivos, they flowed the other way, from Coralynne to her parents.
Second, the statement portrayed Charlene as the only person who helped the deceased around the home, and stated that Charlene gave up work to care for the deceased. It completely failed to acknowledge the assistance provided by Coralynne, and I have rejected the assertion that Charlene gave up work to care for the deceased.
Third, the statement referred to Coralynne having caused "physical damage" to the house, to Charlene and to the deceased herself. For the first two of these, I have only Charlene's word, which I am not inclined to accept. But not even Charlene suggested that Coralynne actually caused physical harm to the deceased.
Fourth, the statement asserts that Coralynne had more than enough money to buy her own house outright. There is no evidence that the deceased knew what Coralynne's financial position was and how much she had saved. And while Charlene apparently believed that Coralynne was a millionaire, in fact her cash savings at the time of the deceased's death appears to have been less than $500,000. This was a substantial sum, but it was not enough to enable Coralynne to buy her house at Narellan Vale outright, and she did not do so.
Fifth, the statement singles out Charlene for praise for supposedly "going halves" in the cost of the 2019 renovations. But although Charlene may have funded the initial cost of the renovations, she later reimbursed herself from the deceased's savings account, claiming that this is what the deceased had wanted (see [304]-[306] below). Nor was there any mention of the fact that Coralynne had actually contributed herself, without any reimbursement, the cost of the underpinning and ramp works (see [29] above). The deceased may not have been aware of this because it happened while she was at hospital, but Charlene would have been.
Charlene claimed that the statement represented the deceased's thoughts and words. Even if it is true that the deceased approved the wording of the statement (which I doubt) the ultimate source was Charlene. On the evidence before me the statement is riddled with distortions and falsehoods. I am satisfied that those distortions and falsehoods were the responsibility of Charlene.
It is most unfortunate that Dr Nicholas gave his certificate of 4 April 2019 in the form in which he did. He failed to mention that the deceased's cognitive function was not reliable in all circumstances. This was a critical omission given the purpose of the certificate. It meant that Mr Wehbe was not alerted to difficulties the deceased may have been experiencing even when she was apparently well.
It is true that Mr Wehbe interviewed the deceased on her own and was satisfied of her capacity. But even if it were possible to conclude that the deceased did have full capacity when she gave instructions for, and executed, the will (and that question has not been fully explored before me), that did not immunise the will against Charlene's baleful influence behind the scenes. I do not believe that the will represents a fair and considered testamentary judgment. Rather, I am satisfied that it was the result of a process of manipulation and misinformation on the part of Charlene designed to advance her own interests.

Coralynne's circumstances

The Narellan Vale property which Coralynne bought in 2019 cost her $510,000. She financed the purchase in part with her savings and in part with mortgage finance. As at September 2020, about a year after the purchase, the mortgage debt stood at $220,000.
Coralynne stated that she settled her compensation claim from the 2017 accident in April 2020 for $40,000. She gave $10,000 to Clifton Jnr who was short of money and saved the rest.
Coralynne is now aged 65. She still suffers from the after-effects of her car accidents, both physical and psychological. She also has a thyroid condition and suffers from tremors and frequent migraines. She pays ongoing visits to a psychologist and a physiotherapist (although the visits to the physiotherapist have been on hold as a result of the COVID-19 pandemic). She is currently on medication for depression, her thyroid condition, tremors and migraines. She also takes sleeping tablets.
Coralynne's current earnings with the NSW Police are $57,400 gross and $46,400 net. She continues to live at Narellan Vale. She also has cash savings and a small portfolio of shares. She drives a Suzuki four wheel drive motor car which is five years old.
Coralynne has substantial superannuation entitlements (more than $500,000) from her employment with the NSW Police. She also has a superannuation entitlement from her second job. She has substantial accrued leave from her employment with the police. According to the figures quoted at the hearing, this is 771 hours. Under the terms of the relevant award, she would be entitled to cash that leave in on retirement.
In an affidavit filed shortly before the hearing, Coralynne estimated her annual expenditure at $59,800. This is difficult to accept, as it is more than she earns from her police job. In cross-examination, she said that the figures in her affidavit were estimates and accepted that they may overstate her actual expenditure.
Counsel for Charlene raised some points in cross-examination about the adequacy of Coralynne's disclosure of her assets in these proceedings. There were four points.
Counsel first noted that in her affidavit Coralynne valued the Narellan Vale property at $510,000, which was the amount she paid two years ago. Coralynne said that it did not occur to her to get a current valuation or appraisal in the light of the increase in the property market over the last two years. Her guess at the value of the property was now $560,000 but this was not based on any enquiries that she had made. She accepted it could be incorrect.
Counsel produced in cross-examination an agent's appraisal which had been obtained by Charlene which contained a higher figure. Counsel sought to put to Coralynne that this was a correct figure but I would not permit that, as Coralynne had no relevant expertise and had no real knowledge about the question.
Counsel then tendered the valuation. Counsel for Coralynne objected that it had not been served prior to the hearing and included in the court book. Counsel for Charlene nonetheless pressed the tender. Counsel submitted that the valuation of the property was relevant and relied on authority concerning a plaintiff's duty of disclosure in family provision matters (see Leary v NSW Trustee and Guardian [2017] NSWSC 1113 at [53]).
It is true that plaintiffs relying on their financial position are obliged to disclose their assets to the Court in an accurate and complete way. That obligation is reflected in the Practice Note (SC Eq 7). But the Practice Note must be understood as operating in a forensically sensible way. As I noted in Megerditchian v Khatchadourian [2019] NSWSC 1870 at [159], the plaintiff's affidavit under the Practice Note has some similarities with the statutory affidavit in support an application to set aside a statutory demand. Its purpose is to identify the applicant's basic factual contentions but it does not necessarily need to be in admissible form or to contain all supporting documents.
In the present case, Coralynne was definitely under an obligation to disclose the existence of the Narellan Vale property. If she happened to have evidence of its current value, she would also be obliged to disclose that valuation. But she had no obligation to obtain such evidence, although failure to do so meant that the uncertainty might count against her. That did not however make the defendant's valuation admissible.
Counsel's second point concerned the valuation of Coralynne's Suzuki car. In her affidavit Coralynne put it at $5,000. Counsel attempted to cross-examine Coralynne on market value information obtained on Charlene's behalf, but had not been served, which suggested a higher figure. This gave rise to the same problem as counsel had encountered with the valuation of the Narellan Vale property. It emerged however that Coralynne had insured the car for $13,000 in January this year. She insisted nevertheless that the car was in bad shape and it would not fetch that amount.
Next, counsel pointed to the superannuation figures in the affidavit. In the case of the NSW Police superannuation figure, the affidavit figure was from the year ended 30 June 2020 rather than the year ended 30 June 2021 (which was obtained and presented at trial). Coralynne said that at the time of preparing her affidavit the later figure had not been not available. It also emerged that Coralynne can access her police superannuation at the age of 65 and not 67 as she had claimed in her affidavit.
Fourth, counsel put to Coralynne that she had failed to disclose the entitlement to cash out her leave. Coralynne accepted that this was a financial resource available to her but said that she "did not really think about it".
Counsel also referred Coralynne to her income tax return for the year ended 30 June 2019. This showed interest income of $7,400. This was however before Coralynne drew down on her cash reserves to buy the Narellan Vale property. Although she has retained significant cash holdings, falling interest rates will have greatly reduced the interest income by comparison with the 2019 year.
It also emerged that Coralynne paid Clifton Jnr another $9,000 in September 2021. The following exchange took place: Q. Ms Scott, isn't that money, that $9,000, aren't those funds that you should be keeping in your bank account for yourself? A. He's my family and I would rather meet his needs than mine. I would rather do without and make sure that he's okay. That's what families do.
Strictly speaking I do not consider that Coralynne has failed to comply with her formal asset disclosure obligations. Nevertheless I think she has dragged her feet in revealing the current value of her assets. She also appears to have adopted an unrealistically high estimate of her expenditure. This is not the approach which the Court expects of litigants and it does not assist her credit. But in the end all assets appear to have been disclosed and the expenditure estimate has not been pressed.
I set out below the asset and liability figures based on Coralynne's affidavit, as updated and corrected (I have adopted Coralynne's guess of $560,000 for the Narellan Vale property; there is no evidence to quantify the value of her unused leave entitlement from the NSW Police). The total value of Coralynne's assets may be understated because of the potential undervaluation of the car (which is unlikely to be significant in the circumstances) and of the Narellan Vale property: Assets Narellan Vale property $560,000 Contents $1,000 Car $5,000 Shares $11,000 Cash (after spending $33,000 on legal costs of these proceedings) $70,000 Liabilities Mortgage ($171,000) Credit card ($5,000) Net $471,000

Charlene's circumstances

Since the deceased died and Coralynne moved out of the Fairfield property a few months later, Charlene has continued to live there, but there have been extensive visits to Mr O'Hagan's Central Coast property. Mr O'Hagan also continues to come and stay at the Fairfield property. Following the deceased's death, Mr O'Hagan and Charlene undertook further renovations to the property, this time on the kitchen. It is unclear whether there has been any further renovation work since then.
Charlene estimated that over the two-year period from the deceased's death until the middle of this year, she spent six months in total on the Central Coast at Mr O'Hagan's house. In late June, she was there for the weekend when a lockdown was imposed (which involved special restrictions on the Fairfield Local Government Area). She stayed there until the lockdown ended in October.
But according to Charlene, her relationship with Mr O'Hagan changed at around the time of her mother's death. Sexual intimacy ceased and they are now just friends. When he comes to Fairfield, he sleeps on a mattress in the loungeroom. When she visits his house on the Central Coast, she stays in a separate room upstairs. While there she paints, plays computer games and the like. She does not like socialising and tries "to keep away from where people are". They walk the dog together but otherwise entertain themselves.
Counsel queried Charlene about the description of Mr O'Hagan as her "partner" in her affidavit of 2 October last year. Charlene stated that this did not have any sexual connotation. She said she equally described a female friend who helps her with sorting out paperwork as a partner. It follows that, in her language, she can have more than one partner at once.
In cross-examination, Mr O'Hagan described the relationship as having been one of "friends with benefits" but said, like Charlene, that sexual intimacy between them ceased following the deceased's death. His estimate of the time which he spent together with Charlene in the six months from July 2019 to June 2021 was six weeks rather than her six months.
Counsel for Coralynne suggested that Charlene had failed in her disclosure obligations because there was no evidence about the financial position of Mr O'Hagan. This submission was hardly surprising given Charlene's description of Mr O'Hagan as her "partner" in her affidavit. Charlene's explanation for her use of the term was not very convincing but her evidence that sexual intimacy between them ceased at the time of the deceased's death and thereafter they have been nothing more than friends is supported by Mr O'Hagan, who was not challenged on it. In those circumstances, there is insufficient evidence to sustain the suggestion that she is in a committed relationship with Mr O'Hagan and can look to him for support.
Charlene is now 56. She is currently on Job Seeker (unemployment benefit). She went onto this benefit when her carer's pension ceased following her mother's death.
Charlene produced a medical certificate which stated that she was unfit for work for three months from 6 June this year. The certificate identified her as having two conditions. The primary condition was major depressive illness with anxiety disorder, with a given onset of July 2019 (the month of the deceased's death), which was being treated with anti-depressants and anti-anxiety tablets. The secondary condition was frozen shoulder on her left side, with a given onset of January this year, which was being treated with analgesics and anti-inflammatories.
In her affidavit Charlene stated that she has a foot complaint for which she has been seeing a podiatrist. She is also having eye tests every six months because of a deterioration in one of her eyes, which may result in her glasses having to be changed in future. She produced documents showing that her shoulder condition was diagnosed in August as "suspected mild bursitis", for which she received a pain-killing injection; the further prognosis is unknown.
Charlene's main assets consist of some cash at bank together with superannuation from her previous periods of employment. According to her updated statement of assets and liabilities in September 2021, she has cash of $38,000 and her superannuation has a current value of $19,000. She owns a twenty year old car with an estimated value of $1,000. Her Centrelink income, which was formerly $22,300 per annum, is now $19,800 per annum. Her expenditure, which she estimates in January 2021 as $22,100 per annum, has increased because of the costs of her foot treatment. But this may be an over-estimate, because over the same period her cash increased by $5,700.
In cross-examination Charlene rejected the idea that she is capable of working. She said that her anxiety and depression had returned following her mother's death. She is unable to drive outside her "local area" and is afraid of being near large groups of people. During the lockdown she had been unable to register for a disability pension, but her doctor would now be "doing the forms" for that. She did not mention her shoulder condition as being a barrier to work. Although I do not doubt that Charlene was upset by her mother's death, given my earlier conclusions about Charlene's unwillingness to work, I treat with some scepticism her assertion that she is unable to do so.
In cross-examination Charlene was asked where she would live if the Fairfield property had to be sold. She rejected the idea that she would live with Mr O'Hagan. She then said she would go wherever would be cheapest, perhaps in a regional area. Coralynne produced evidence, which was not contested, of searches showing that a unit or townhouse could be found in the Fairfield area for $350,000 to $400,000 and in the Green Point area for $250,000 to $320,000.

Deceased's estate

It will be recalled that the will left the deceased's "household furniture and effects" to Charlene along with the Fairfield property (the valuation of which is agreed for the purposes of these proceedings at $780,000). The inventory of assets for these purposes contained "personal effects" valued at $5,000. Assuming, as I do, that these correspond with the "household furniture and effects" left to Charlene in the will, I have not considered them any further.
As already mentioned, the most significant asset in the residue of the estate was the deceased's savings account. As will be seen shortly, at the date of her death the account contained at least $154,000. The deceased would have gone onto the aged pension at the latest when she turned 65 (in 1995). Presumably the balance of the account reflected savings from her pension income over this long period.
It seems that, although not included in the inventory, a parcel of shares held by Clifton Snr in Insurance Australia Group Limited was owned by the deceased. It was common ground between the parties that following Clifton Snr's death the deceased received the dividends paid on those shares, although they remained in his name. This seems strange, and the shares should be obtained and realised as part of the residue of the estate, but it is not very important for the purposes of this litigation as the shares are worth less than $5,000.
There is however a dispute which I must resolve for the purposes of these proceedings as to the ownership and value of a comic book collection which was removed by Coralynne from the Fairfield property in 2019. Coralynne says it belonged to her. Charlene says it was the deceased's and was worth $25,000.
According to Coralynne, her father was a fan of "the Phantom", a well-known comic book character. This interest was shared by Coralynne herself. At some point after he retired, she started buying Phantom comic books for him. In the end she bought over seven hundred. This included second-hand copies of previous issues as well as current issues. Clifton Jnr also contributed to the cost.
Coralynne said that after her father's death her mother was going to throw the comic books out. She asked her mother not to do so, and to keep them so that she could take them away at some point in the future. The deceased agreed.
In cross-examination, counsel put to Coralynne that Charlene also bought Phantom comic books, and that the interest in the character was a family thing. Coralynne denied this. She said that she did not know whether Clifton Snr's comic books had any value but denied that they were worth $25,000.
Coralynne's evidence on this subject is self-serving but Charlene gave no evidence to support what was put to Coralynne in cross-examination. I accept Coralynne's account of events.
In cross-examination counsel put to Coralynne that the comic books were part of her mother's estate. Strictly speaking it is correct that the comic books were given to Clifton Snr and therefore passed under his will to the deceased. But on Coralynne's account, which I have accepted, the deceased effectively gave the comic books to Coralynne and therefore she was entitled to remove them after the deceased died.
The raising of the issue by Charlene did not show her in a favourable light. On the evidence before me Charlene never had any interest in the Phantom comics and the estimate of $25,000 was fanciful. The raising of the issue smacks of spite on Charlene's part.
As already mentioned, Charlene had access to the internet banking login and password required to operate the deceased's savings account. After the deceased's death, Charlene continued to make payments from the account. After she obtained probate the account remained open and Charlene continued to draw on it.
The evidence of Charlene's dealings on the account is incomplete. Statements are in evidence which cover the period 28 August 2019 to 1 June 2021. There are no earlier statements, although there is a transaction history printout covering the period 29 July to 8 August 2019.
Despite the absence of statements for the deceased's bank account, some earlier transactions on the account can be identified from the bank statements of Charlene's which are in evidence and cover the period. These record the receipt of payments totalling $30,000 made out of the deceased's account into Charlene's account, ostensibly by way of reimbursement for expenditure on renovations, at around the time of the deceased's death. Six payments were made of $5,000 each, on 21 July, 22 July, 23 July (the date of the deceased's death), 24 July, 25 July and 26 July.
Charlene was asked about these payments in cross-examination. She said, as I understood her, that a payment instruction was given covering all six payments before the deceased's death, presumably on 21 July (internet withdrawals from the account were, according to Charlene, limited to $5,000 per day). But the narratives for the payments are not all the same. In particular the narrative for 25 and 26 July is different from the narrative for 22, 23 and 24 July. This suggests that the payment instruction for the last two payments, at least, was given after the deceased's death.
Charlene explained the withdrawals by saying that the deceased had been worried that something would happen to her in the course of the operation and asked Charlene to set up an automatic debit in case anything did. According to Charlene, she did not want this and preferred to wait until the end of the renovations, but her mother insisted. Charlene said that her mother proposed $40,000 be transferred and that Charlene herself proposed $30,000. She said that she sat with her mother and set up the transfer in accordance with her instructions. She denied counsel's suggestion that this evidence was invented and she undertook the transfers herself.
In the course of the cross-examination, counsel probed Charlene about the statements for the deceased's account prior to 29 July 2019. Charlene said she had only been able to get account statements for the period since probate was granted to her. Counsel asked her overnight to try and obtain the missing statements. The following day she said she had been unable to do so. Counsel did not accept this explanation and suggested that Charlene was deliberately withholding the statements because she did not wish to disclose the fact that payments had been made out of the deceased's account into her account, and perhaps others.
I found Charlene's inability to obtain the statements somewhat surprising. But in the absence of evidence establishing they were actually available I was not prepared to conclude that her evidence on this point was a sham. It is worth noting that the difficulty could readily have been avoided by seeking production of the statements in advance of the hearing in the usual way, and if necessary, by subpoena from the bank.
What I am left with is that at least three payments, totalling $15,000, were debited to the deceased's account between her death on 23 July and 29 July, when the carried forward balance was $139,000. There is also a potential question about whether, even if the payments were programmed before the deceased's death, they were properly charged to her.
Charlene claimed that she had obtained oral authorisation from the deceased for the works prior to her death. But there was no evidence of what exactly the deceased authorised (if she authorised anything at all). Nor were there any supporting invoices. To get to the bottom of the question, it would clearly be necessary to conduct some sort of accounting exercise, but that is impossible on the evidence before me. Up to $30,000 (but probably considerably less, as there seems no doubt that the bathroom variations were approved by the deceased) may have been charged wrongly to the account and thus be recoverable by the estate.
In this connection it should be noted that Charlene's statements show earlier receipts from the deceased's account apparently associated with the renovations. These include receipts of $2,000 on 29 June, $754 on 16 June and $2,000 on 9 May. Any account would have to include these payments as well.
Turning to expenses, there is no dispute about the funeral and testamentary expenses (including the application for probate). They totalled $16,000 and have been paid out of the estate.
The account statements show that since the deceased's death Charlene has continued to pay outgoings for the Fairfield property from the estate account. The payments have included not only council and water rates, but insurance, and services such as gas or electricity. There was also expenditure extending into 2020 (at least), apparently associated with the kitchen renovation.
In her updating affidavit, Charlene attached a transaction statement showing the balance of the account as at 26 August this year as being $97,892.01. She provided a list of expenses (without supporting documents) paid out of the estate as follows: 1. Funeral/wake and probate $15,965.40 2. Legal expenses (these proceedings) $9,625.00 3. Utilities $6,863.04 4. Bathroom $10,000.00 5. Loungeroom $10,000.00 6. Kitchen $6,168.57
Charlene was asked in cross-examination about the withdrawal of funds to pay for the kitchen work. She replied that the work was started shortly before her mother's death. But there was no evidence to support this from Mr O'Hagan. And on Charlene's account, all that was actually done before the deceased's death was to make plans and begin to get the building materials.
There is clearly therefore an issue, which cannot be resolved now, about whether the kitchen renovation, or all of it, was properly charged to the estate. Moreover no reconciliation was provided between the figure of $6,168.57 in the list of expenses and the estate account statements (which as already noted were incomplete). Similarly the two $10,000 figures given in the list for the earlier renovations do not reconcile with the withdrawals from the deceased's account.
In cross-examination, Charlene acknowledged that after the deceased's death she used the account to pay for rates and for utilities. Counsel pressed her about this. Counsel put to Charlene that she had made payments for services provided for her personal benefit (such as electricity or gas supplied after the deceased's death), in breach of her obligations as executor. Charlene acknowledged that the payments were for her benefit, but would not accept that what she had done was wrongful. Charlene also pointed to a provision of the will enabling her as executor giving her power to spend estate money on repairing or maintaining assets of the estate.
Whether this power would justify Charlene's expenditure on the property since her mother's death is doubtful. The power is one to be exercised in aid of Charlene's duties as executor, and subject to her overriding obligation to allocate estate expenditure properly among the beneficiaries. Under the will, the property passed to Charlene. In principle it is not easy to see why expenditure on improvements or maintenance which would enure to her benefit should be charged against the residue, especially as she has not been paying for her occupancy of the property. However, the claim in these proceedings may result in the gift of the property in Charlene's favour being altered, and that could affect the proper incidence of such expenditure.
For similar reasons, property holding costs for the period since the deceased's death, such as council rates and building insurance, have prima facie been for Charlene's personal benefit, but this may be affected by the outcome of these proceedings. What is however clear is that payments solely for the benefit of Charlene as occupant of the property after her mother's death (for example, electricity and other services, and contents insurance) should not have been charged.
In final submissions, counsel for Charlene accepted that overpayments had been made and undertook on Charlene's behalf to repay the sum of $6,863.04, representing the (unreconciled) utilities figure in the list of expenditure. For reasons I have given, it is not clear, and will not be clear until the fate of the claim has been determined, whether this is enough. As counsel indicated, an account may be required.
Counsel submitted that the making of what he characterised as wrongful payments reflected badly on Charlene's credit. Certainly I think Charlene's attitude was cavalier at best. She does not appear to have considered before making the payments whether she was justified in doing so, let alone obtained advice on the question. And while she was concerned to repay hers and Mr O'Hagan's expenditure, there never seems to have been any thought about repaying Coralynne for the underpinning and ramp works she paid for.
Finally, to complete the picture on the value of the residue, I should note the evidence about the costs of these proceedings. According to Mr Duncombe's estimate, the plaintiff's total costs on a party/party basis will be $63,375. According to Mr Wehbe's estimate, the defendant's solicitor-client costs, including amounts already spent, will be $104,500.

Application for provision

There is no dispute that Coralynne, as the deceased's daughter, is an eligible person: ss 57(1)(c), 59(1)(a). The legal issues which arise on her application are: 1. whether the will failed to make adequate provision for her proper maintenance, education or advancement; 2. if so, what provision ought to be made.

Adequacy of provision for Coralynne

In support of her contention that the provision made for Coralynne in the deceased's May 2019 will was inadequate, counsel submitted that: Coralynne was dependent on her parents, and then the deceased, during the very long period during which she lived with them; she provided them with considerable care and emotional support; and she made substantial financial contributions which were ultimately reflected in the value of the deceased's estate. Counsel submitted that Coralynne needed a fund to meet expenses such as paying down her mortgage, buying a new car, and meeting future medical costs.
I do not think it is correct to characterise the period during which Coralynne lived with her parents as amounting to dependency on them. It was a mutual arrangement involving the sharing of household expenditure whereby Coralynne and her parents (and Charlene) were each able to live more cheaply, and congenially, than they could have on their own. The same was so after the death of Clifton Snr in 2016. As an able-bodied adult child, Coralynne was well able to support herself during the whole period.
Thus, the observations of Brereton J (as his Honour then was) in Taylor v Farrugia [2009] NSWSC 801 at [57] apply (citation omitted): … It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.
The proposition that generally a child has no entitlement from a deceased parent to be set up in an unencumbered home was recently confirmed by the Court of Appeal: Megerditchian v Khatchadourian [2020] NSWCA 229 at [59].
Section 59(1)(c) of the Act refers to the adequacy of provision for the "maintenance, education or advancement" of the claimant. Although the borderline between them may be in some cases difficult to draw, maintenance and advancement are not the same. The term "maintenance" is generally used to refer to sums paid periodically to meet a beneficiary's regular living expenses. The term "advancement", on the other hand, usually describes a capital sum provided to the beneficiary so as to achieve a permanent improvement in the beneficiary's circumstances. The distinction is seen in Brereton J's references to raising offspring while they are children on the one hand and providing them with a start in life on the other.
It follows that Coralynne's claim in the present case, as an able-bodied adult, should be seen as a claim for advancement. Of course, the obligation to provide for advancement is not necessarily limited to young adult beneficiaries: McCosker v McCosker (1957) 97 CLR 566 at 575. If parents are unable to provide their children with some capital when they are making a start in their lives, there may well be a moral obligation to do so by will when they are older, if assets are available.
But in such a case, it is important to remember that the purpose of the fund is for the child to build on and it will ultimately be up to the child as to how to do so. A provision for advancement should not just be calculated by reference to a list of future expenditure as if the beneficiary were making a claim for damages for personal injury. To do so runs the risk of treating a parent's moral obligation to provide a sum by way of advancement as an obligation to maintain the child into the future, which is not the same thing. It also runs the risk of conflating "needs" with "wishes". This of course is not to deny that the provision of a lump sum to pay off a home loan, or to fund the purchase of a capital asset which could not otherwise be financed out of earnings, may well be an appropriate form of advancement.
Counsel for Charlene pointed out that Coralynne only had to borrow $220,000 or so to buy her house at Narellan Vale. On the face of it she appears to be paying the loan off rapidly, having reduced the amount owing by $48,500 between September 2020 and September 2021. Counsel submitted that Coralynne, to her credit, is a strong saver who would likely be able to fund the alleged "needs" for herself.
I do not think that this submission is a complete answer to Coralynne's claim, for two reasons. First, while Coralynne clearly has achieved a degree of financial independence and security, her income is not particularly high. Nor does she have the sort of capital position which will unquestionably secure her a comfortable (and somewhat less hard-working) retirement: compare MacAlpine v MacAlpine [2020] NSWSC 824 at [334].
The second reason is more important. As I said in MacAlpine, if a claim is put on the basis of "need", then the need must be objectively assessed and if the claimant has sufficient assets to meet the need, the claim must fail. But claims under the Act for provision are not limited to claims based on "need".
In Coralynne's case, there are other factors to support her claim. In the first place, it is clear on my findings (and it is not really in dispute) that Coralynne did provide considerable assistance to her parents in their lifetimes. Sometimes this can have a direct financial impact on the claimant's circumstances, as where the claimant gives up some form of financial opportunity in order to care for the testator. That is not the case here. Coralynne's non-financial assistance may have allowed the deceased to save money on services for which she would otherwise have had to pay for. But Coralynne herself received a benefit from living with the deceased, in the form of not having to pay rent (or at least, not having to pay rent at market rates). Nevertheless the provision of assistance is something to be taken into account as relevant to the deceased's moral obligations.
Secondly, Coralynne provided direct financial assistance in the form of paying off the rest of the mortgage, purchasing capital items and funding the replacement and improvements to the fabric of the property. It may be that without this assistance, the property would have had to have been sold earlier, and the deceased's estate would not ultimately have received the benefit of its increasing value. But even if this is speculation, it is reasonable to suppose that in providing assistance Coralynne was influenced by the understanding that she would be receiving a share of the property in due course. That is a recognised basis for the recognition of a moral obligation to make provision: see Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [38].
In my view, another relevant factor is that the deceased herself inherited the property from the estate of Clifton Snr. This was pursuant to the mirror wills that Clifton Snr and the deceased executed in September 2015. While I am not saying that this went so far as to amount to a mutual will arrangement giving rise to an enforceable equitable obligation on the deceased, in my view, it is capable of giving rise to a moral obligation for the purposes of the Act. This was the view that I took in Graham v Vukic [2020] NSWSC 1801 (see at [113]).
In the present case, there is every reason to think that the understanding between Clifton Snr and the deceased up until the date of his death was that the survivor of the two of them would inherit the property and then pass it on in equal shares to the children. It is also relevant that Coralynne was aware of the terms of the mirror wills.
In the present case the moral force of the deceased's inheritance from Clifton Snr is reinforced by the fact that each of the children contributed a one-third share of his funeral and testamentary expenses when there was insufficient cash in his estate to do so. If this had not happened and the deceased had been unable to meet the expenses out of her own funds, she would presumably have had to sell the property so as to meet the expenses. As it happened, her children's contribution allowed her to take the property free of the expenses with which it was associated.
Counsel for Charlene relied upon her financial circumstances as an answer to the claim. There is no doubt that Charlene also had a moral claim on her mother. But in my view, the nature of that moral claim was not appreciably different from that of Coralynne. Indeed, on one aspect of the claim it was clearly weaker. Charlene does not appear to have made capital contributions to the household or the property which are in any way comparable to those made by Coralynne.
It is true that Charlene has no home of her own. But in my view this is not one of those cases mentioned in Taylor v Farrugia where the circumstances gave rise to a moral obligation on the deceased to provide Charlene with one. I have rejected the claim that Charlene gave up work so as to care for the deceased (or her parents). To recognise a moral obligation to provide Charlene with her own unencumbered property would be quite disproportionate to the financial contribution she in fact made to the deceased's estate, especially when it would come at the expense of a sibling who has received nothing by way of advancement herself.
This brings me to the circumstances surrounding the making of the 2019 will. Counsel for Charlene pointed out that the claim foreshadowed in Coralynne's summons to have the grant of probate revoked on the grounds of lack of capacity was not pursued. Counsel submitted that it was not possible in this case to make any finding of lack of capacity. Counsel likewise submitted that these proceedings were not the proper venue for determining whether the will was procured by undue influence on the part of Charlene.
I accept that in these proceedings the Court cannot and should not determine whether the probate of the will which has been granted (in common form only) should be revoked. But s 60(2)(j) of the Act expressly allows the Court to take into account the deceased's testamentary intentions. Indeed, as will be seen in a moment, counsel for Charlene herself relied upon the May 2019 will as a testamentary judgment adverse to Coralynne's claim in these proceedings. Plainly, in assessing the weight to be given to the 2019 will and the testamentary statement, it is relevant to consider the circumstances in which they were prepared, and the degree to which they can be said to represent an independent and considered judgment by the deceased.
As I have just mentioned, counsel for Charlene relied on what I will term the "testamentary judgment principle". The principle is stated by White JA in Sgro v Thompson [2017] NSWCA 326 at [48], reasserting his Honour's earlier statements in Slack v Rogan (2013) 85 NSWLR 253 at [127]. It may be stated as being that in determining a proper level of provision the Court should place considerable weight on the judgment of a capable and responsible testator who will have known the circumstances far better than the Court can. See also the discussion in MacAlpine at [340]-[342].
But this principle only applies if the testator's judgment is a responsible one. Counsel for Charlene submitted that the testamentary statement was taken by an experienced legal representative who had ensured his instructions were independent. But on my findings that was not so at all; the testamentary statement was the work, directly or indirectly, of Charlene. Mr Wehbe had no realistic way of identifying the distortions and falsehoods that it contained.
For these reasons the testamentary statement, and the May 2019 will, do not attract the testamentary judgment principle. But it is not merely a case of that principle being negatived in its application to the 2019 will and the testamentary statement.
Once the 2019 will and 2019 testamentary statement are swept away, the testamentary judgment principle focusses the Court's attention on the deceased's previous will in 2015. It is not suggested that the deceased or Clifton Snr was suffering from any relevant disability, or that any undue influence was brought to bear on the preparation of their 2015 wills. At that time, both of them had had many years of experience of living with Coralynne and Charlene. The judgment made by each of them was that the merits of their children were sufficiently close to make it proper to make an equal distribution between them.
I do not see, given my findings, that anything happened between 2015 and the deceased's death in July 2019 sufficient to alter that judgment as between Coralynne and Charlene. And, to the extent that Charlene's circumstances are relevant, there was no real change, or at least no change that would not have been contemplated and taken into account when the deceased made her will in 2015.
The testamentary statement tried to make the case that Coralynne had, as against the deceased, forfeited any testamentary recognition at all. The legacy of $40,000 (plus one-third of the remainder of the residue) was presented as being justified, not by Coralynne's own merits, but "out of respect" for Clifton Snr.
On my findings, the grounds relied upon to justify Coralynne's disinheritance by the deceased were false. The provision was not "proper" for that reason alone. And while the reference to respect for Clifton Snr acknowledged his contribution to the main asset in the deceased's estate, and to the family life the deceased enjoyed with him, the amount of the legacy was a cynical mockery of his wishes, as reflected in his 2015 will.

What provision ought to be made for Coralynne

In his written submissions, lodged before the beginning of the hearing, counsel for Coralynne contended that she had demonstrated "needs": to pay off her mortgage debt ($176,000); to undertake various items of repairs and maintenance specified in her affidavit ($43,000); to buy a new car ($26,000 to $35,000); and to buy some specified furniture for her home ($5,000); together with unspecified amounts for living and medical expenses. But counsel went on to say Coralynne did not seek the provision of a fund to cover all of this expenditure in full. An amount of $130,00 to $180,000, counsel submitted, would be "in the range".
I have already identified the risks in basing the quantum of a provision for advancement on a list of future expenditure. Instead, the focus should be on discharging the deceased's moral obligation to Coralynne to provide her with a capital amount to help her make her way through the rest of her life.
On my findings, Coralynne has been deprived, by the machinations of Charlene, of a one-third share of the deceased's estate, representing the deceased's previous assessment of what would be a proper level of advancement. That would suggest a provision of around one-third of the value of the estate, which would be $260,000 to $300,000. This of course is considerably above the end of the "range" specified by counsel.
In the course of final submissions, counsel submitted that ultimately the proper amount of provision was a matter for me, and I could, if I thought it warranted, award a provision of a figure exceeding $180,000. I accept that the Court's jurisdiction is not limited by the figures suggested by the parties. Nevertheless, I do not propose to award provision in a sum calculated by reference to a one-third value of the estate. Counsel did not ask for this and may have had good tactical reasons for not doing so.
Accordingly, I propose to make an order for provision in the sum of $180,000. The provision will be payable out of the Fairfield property and will replace the existing legacy of $40,000 plus one-third of what is left over of the residue.
It was common ground that Clifton Jnr's position should be protected. As his legacy is paid out of the residue it will be necessary to consider the impact of costs before the necessary orders can be formulated.

Conclusions and orders

I have concluded that Coralynne's claim succeeds, and she should receive, in lieu of the existing provision in her favour in the May 2019 will, a provision of $180,000, to be funded out of the Fairfield property. It will be necessary to formulate the precise terms of the order for provision, including whether it is to carry interest and if so from what date.
Presumably a provision in this form will result in the sale of the Fairfield property. Consideration should be given to whether any directions are required as to the method and timing of the sale.
As I have already noted, the admission to probate of the 2019 will is not affected by my decision in these proceedings. But the evidence discloses an arguable basis for challenging the grant. That is a matter of public concern which extends beyond the parties to these proceedings, and there would be no limitation bar (Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [140]-[142]).
In these circumstances, Clifton Jnr (or perhaps Coralynne herself) might wish to institute a claim for revocation. Should probate be revoked, that would automatically discharge the order for further provision in Coralynne's favour: s 70(4). That is not a reason not to finalise the form of the order, but it could be relevant to the order's enforcement. It might also be convenient, if there is to be a revocation application, for that application to be made in these proceedings. These questions should also be considered, and if possible, information obtained from Clifton Jnr as to his intentions.
A further matter which has been revealed in these proceedings is that Charlene has been applying funds from the deceased's bank account which prima facie appear (and this to some extent has been conceded) to require repayment. As at present advised, it seems to me that if, as I have assumed, Clifton Jnr's legacy, including a one-third share of whatever is left in the residue, is to be preserved, it will be necessary for that account to be taken. Presumably orders will also be sought by the parties concerning the costs of the proceedings inter partes and questions of indemnity out of the estate will arise.
I will adjourn the proceedings for a short time to allow the parties to consider the form of orders to be made and also the other issues which I have mentioned. If there is any disagreement I will hear further argument.
The orders of the Court are: 1. Adjourn the proceedings to 9:30 am on 17 December 2021 or such other time as may be arranged with my Associate. 2. Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for this purpose.

Amendments 04 March 2022 - minor typographical amendments 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: 04 March 2022

Issues for determination

The deceased's last will was made in May 2019, about two months before her death. By the will the deceased appointed Charlene as her sole executor and trustee. Probate was granted to Charlene in October 2019. The will was prepared by a solicitor, Mr Ray Wehbe, whose firm, Ray Wehbe & Co, is at Parramatta. He also acted for Charlene in the administration of the estate.
The deceased's main asset was a house at Fairfield which had been the family home. Of her other assets, the most important was a savings account which, at the date of her death, contained around $150,000.
The will left the Fairfield property and the deceased's "household furniture and effects" to Charlene. The residue of the estate, after payment of funeral and administration expenses, was to be used to pay legacies to Coralynne and Clifton Jnr of $40,000 each. The remainder was to be divided equally among Coralynne, Clifton Jnr and Charlene.
The value of the Fairfield property is now agreed for the purposes of these proceedings at $780,000. There are some uncertainties about what the net value of the residue of the deceased's estate will be, which I address in more detail below. A major factor will be the incidence of the costs of these proceedings, which of course is unknown at this stage.
According to the inventory of property which accompanied the application for probate, the value of the residue was $129,000. There may be some recoveries not included in this figure. On the other hand, the figure leaves out of account later administration liabilities, and especially costs. On some scenarios the costs payable out of the estate could exceed the value of the residue.
Coralynne is the plaintiff in the proceedings. Charlene, as both the executor and the major beneficiary, is the defendant.
The proceedings began with the filing of a summons in July 2020. The summons sought orders for preliminary discovery of documents surrounding the preparation and execution of the will, and an additional order requiring Mr Wehbe, as Charlene's solicitor, to file an affidavit setting out the circumstances in which he prepared the will.
These orders were sought so that Coralynne could decide whether to challenge the will on the grounds of lack of testamentary capacity or undue influence. The summons also sought an order for provision, so as to preserve Coralynne's right to pursue a family provision claim. The application for preliminary discovery and an affidavit from Mr Wehbe was not pursued and the case has proceeded as a family provision claim.
Coralynne seeks additional provision beyond the legacy payable to her out of the residue (which, as I have mentioned, may not be sufficient to meet the $40,000 minimum provided for in the will). She contends that the legacy was not adequate for her proper maintenance or advancement. Clifton Jnr has made no claim. Charlene contends affirmatively that the provision in her favour is justified by her circumstances.
Mr Wehbe has acted for Charlene in defending Coralynne's claim. Not long before the hearing, a subpoena was served on Coralynne's behalf requiring the production of Mr Wehbe's file, and other documents generated in the course of preparation of the deceased's May 2019 will. Mr Wehbe (who had, in accordance with the Practice Note, filed an affidavit estimating Charlene's costs of the proceedings) was also required for cross-examination. In her written submissions, filed in advance of the hearing, counsel for Charlene complained about this. She suggested that it was calculated to "create a conflict" and jeopardise the presentation of Charlene's case.
With respect, I find this criticism hard to understand. As will be seen, there can be no doubt that evidence as to the circumstances in which the will was prepared was relevant to the proceedings; indeed, reliance was ultimately placed on those circumstances on behalf of Charlene herself: see also Kelly v Deluchi [2012] NSWSC 841 at [221]-[222]. There could be no objection in principle to Mr Wehbe being cross-examined on an issue which was relevant. Any difficulty with him being required to give evidence about the circumstances in which the May 2019 will was prepared was a self-inflicted one. It stemmed from Mr Wehbe's decision to represent Charlene in proceedings in which he could potentially have been a material witness of fact. But in the end the request that he be made available for cross-examination was not pressed.

At a glance

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