Shelley v Prager

Supreme Court of NSW|2020-05-22|Before: Williams J

INTRODUCTION

William Andrew Watson (known as "Bill") died on 12 May 2018, aged 90 years. He was survived by his wife Elizabeth Drummond Watson (known as "Betty") and four of his daughters.
Mrs Watson is aged 89 years. She suffers from dementia and resides in a nursing home.
The four surviving daughters of the deceased and Mrs Watson are: 1. Dianne Elizabeth Shelley (aged 70 years), who is the plaintiff in this proceeding; 2. Susan Elizabeth Prager (aged 67 years); 3. Yvette Amy Bouzerouata (aged 53 years); and 4. Michelle Leah Warren (aged 46 years).
The deceased and Mrs Watson had another daughter, Deneice Julie Watson, who died on 28 July 2002 aged 46 years. Deneice Watson was survived by her son, Lachlan Brady.
In these reasons, I shall refer to the deceased's wife by the name "Betty" by which she is known and to the deceased's daughters and grandson by their first names. This is how the daughters and grandson who gave evidence in this proceeding referred to the deceased's wife and to one another. No disrespect is intended.

The Inventory of Property also identified several assets owned jointly with his wife Elizabeth, including the value of the deceased's interest: Asset Estimated or known value Lot 1 in DP 596254 (the Currabeen House) $350,000 Lot 321 in DP 844395 (the Currabeen Land) $250,000 Two Water Access Licences servicing the Currabeen lots $25,200 Unspecified plant and equipment $2,500 Total: $627,700

Thus, the total value of the assets of the deceased's estate at the time of death was $701,799.37. The Inventory of Property identified no liabilities of the estate.
The parties prepared a schedule of assets and liabilities of the estate on the first day of the hearing and a further version of the schedule on 29 May 2020. The parties did not reach agreement as to the value of the estate, but the extent of the disagreement is not significant. The position may be summarised as follows: Plaintiff's position Defendants' position Assets of the deceased estate as at the final day of the hearing $732,913.88 $741,539.30 Liabilities of the deceased estate as at the final day of the hearing $119,882.80 $119,882.80 Net assets of the estate as at the final day of the hearing $613,031.08 $621,656.50

The disagreement stems from the calculation of the assets of the estate. There is no dispute that the estate received proceeds of sale of assets in the amount of $741,539.30. The executors contend that this is the extent of the value of the assets of the estate. However, Dianne contends that the assets of the estate ought to include the value of a loan made by the deceased to Betty (said to be in the order of $14,479). Dianne also contends that the value of the assets (which principally comprises the proceeds of sale of the two Currabeen lots) ought to be reduced by half of the total costs and expenses associated with the sale of those properties (said to be $23,100.69). Taking these factors into account, Dianne contends that the value of the assets of the estate is $732,913.88, not $741,539.30 as submitted by the executors.
Dianne contends that $181,861.93 [1] is available for designation by the Court as notional estate of the deceased. For the reasons addressed in [133] to [155] below, I reject that contention.
The schedule provided by the parties on 29 May 2020 stated that Dianne's costs of the proceedings on an ordinary basis are $143,600 (of which the plaintiff has paid $7,528.68 to date for disbursements) and the executors' costs on an indemnity basis are $87,247.50 (of which $26,427.50 has already been paid out of the estate).
Accordingly, adopting the executors slightly higher valuation of the net assets of the deceased estate of $621,656.50, the net distributable estate if Dianne's claim were to succeed and an order were to be made that her costs be out of the estate on an ordinary basis and that the executors' costs be paid out of the estate on an indemnity basis, would be $390,809.
Dianne commenced this proceeding by summons filed on 18 April 2019 claiming an order that provision be made out of the deceased's estate and notional estate for her maintenance, education and advancement in life pursuant to Chapter 3 of the Succession Act 2006 (NSW).
The proceeding was commenced within the time permitted by s 58(2) of the Succession Act.
It is common ground that Dianne, as a child of the deceased, is an eligible person: see ss 57(1)(b) and 59(1)(a) of the Succession Act.
In her affidavit sworn on 24 September 2019, Michelle identified the other eligible persons as Betty, Susan, Yvette, Michelle and Lachlan. In fact, Lachlan is not an eligible person, as there is no evidence that he was wholly or partly dependent on the deceased: s 57(1)(e) of the Succession Act.
The Court was not referred to any evidence of the notice referred to in s 61(2)(a) of the Succession Act having been given to Betty, Susan, Yvette and Michelle. Michelle is Betty's attorney under an enduring power of attorney, Susan and Michelle are the defendants and have given evidence, Yvette has also given evidence, and Michelle and Yvette (together with Lachlan) have put their financial circumstances in issue. In those circumstances, each eligible person is clearly aware of the proceedings and I am satisfied that notice is unnecessary: s 61(2)(b) of the Succession Act.
Dianne contends that provision should be made for her in the amount of 22% of the net distributable estate, with the burden of that provision falling on the beneficiaries in such a manner that each of Susan, Michelle and Yvette also receive 22% of the net distributable estate and Lachlan receives 12% of the net distributable estate.
The defendants contend that no provision should be made for Dianne, as she has net assets significantly greater than Michelle, Yvette and Lachlan (Susan not having put her financial circumstances in issue) and has not demonstrated that she has any need for provision out of the deceased's estate.

APPLICABLE LEGAL PRINCIPLES

The general legal principles applicable to family provision claims under Chapter 3 of the Succession Act have recently been set out by Hallen J in Page v Hull-Moody [2020] NSWSC 411 at [120]-[159] and [251]-[252] and Harris v Carter [2020] NSWSC 196 at [106]-[164]. His Honour has drawn together numerous judgments of this Court, the Court of Appeal and other courts through which principles guiding the exercise of the jurisdiction under Chapter 3 have been developed. I gratefully adopt his Honour's careful and detailed summaries, and this enables me to set out the principles of particular relevance to this proceeding succinctly.
As noted above, there is no dispute that Dianne is an eligible person and that her application was made within time: Succession Act, ss 57(1)(c) and 58. The Court's power to make an order under s 59 of the Succession Act for provision out of the deceased's estate for Dianne therefore turns on whether the Court is satisfied, at the time of determining her application, that the deceased's last will did not make adequate provision for her proper maintenance, education or advancement in life. As Hallen J said in Page v Hull-Moody (supra), this is a question of objective fact which requires a multi-faceted evaluation: see [125] and the authorities there cited; see also Harris v Carter (supra) at [111]-[112].
The adequacy of the provision made by the deceased's will is concerned with quantum, whereas proper prescribes the standard of maintenance, education and advancement in life. The inquiry into adequacy is not limited to considering whether the plaintiff has enough to survive or to live comfortably without provision from the deceased's estate. Adequacy is a broader concept that requires consideration of matters necessary to guard against unforeseen contingencies. In deciding whether adequate provision has been made for the plaintiff's proper maintenance, education or advancement in life, attention may be given to how the parties lived and might reasonably be expected to have lived in the future. The concepts of adequate and proper are not assessed in a vacuum, but in the context of all of the circumstances of the case, including the plaintiff's financial position, the size and nature of the deceased's estate, the totality of the relationship between the plaintiff and the deceased and the relationship between the deceased and other persons who have legitimate claims on the deceased's estate: Page v Hull-Moody (supra) at [127]-[136] and the authorities there cited, including Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114] (Callinan and Heydon JJ); Harris v Carter (supra) at [114]-[122] and [149]-[154]; Blendell v Blendell [2020] NSWCA 154 at [7]-[8] (Meagher JA, Gleeson and Leeming JA agreeing).
If the multi-faceted evaluation referred to above satisfies the Court that adequate provision has not been made by the deceased's last will for the plaintiff's proper maintenance, education or advancement in life, the question is whether the Court should exercise the power under s 59(2) of the Succession Act to make an order for provision and, if so, what provision ought to be made out of the deceased's estate for the maintenance, education or advancement in life of the plaintiff having regard to all the circumstances of the case.
Section 60 of the Succession Act provides that the Court may consider the following matters: "(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
The matters in s 60 are available considerations in relation to ss 59(1)(c), 59(2) and 60 of the Succession Act: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7] (Basten JA, Gleeson JA agreeing); Chan v Chan [2016] NSWCA 222 at [21] (Basten JA, Simpson and Payne JJA agreeing); Page v Hull-Moody (supra) at [150].
The financial needs that may be considered under s 60(2)(d) must be more than simply wants, desires or demands, but are not limited to the necessities of life: Page v Hull-Moody (supra) at [139]-[144] and the authorities there cited; Harris v Carter (supra) at [124]-[128] and the authorities there cited.
Although financial needs are an important matter to be considered by the Court, the jurisdiction is not exclusively needs-based: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [124]-[132] (Brereton JA, Simpson AJA agreeing). As Hallen J said in Page v Hull-Moody (supra) at [151] (and see also Harris v Carter (supra) at [133]): "The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The subsection makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to relevant factors."
As Basten JA said (with the concurrence of Simpson and Payne JJA) in Chan v Chan (supra) at [22] (my emphasis added): "A significant set of factors in many cases is that identified as 'the financial resources (including earning capacity) and financial needs, both present and future, of the applicant …'. However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs require[s] determination of the size of the estate and the claims of others on the beneficence of the testator."
The Court gives considerable weight to the deceased's testamentary wishes. However, s 59 of the Succession Act is to be applied according to its terms and is not confined by notions of reluctance to interfere with freedom of testamentary disposition. The question is how that freedom is to be factored in to the assessment of whether the provision made by the deceased is adequate for the proper maintenance, education and advancement in life of the applicant in all the circumstances of the case: Page v Hull-Moody (supra) at [155]-[159] and the authorities there cited; Harris v Carter (supra) at [138]-[152] and the authorities there referred to; Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 at [75]-[78] (White JA, adhering to the views his Honour expressed in Steinmetz v Shannon (supra) at [49]-[56]; Meagher JA and Emmett AJA agreeing); Steinmetz v Shannon (supra) at [49]-[56] (White JA), [89]-[90], [95]-[97] (Brereton JA, Simpson AJA agreeing); Sgro v Thompson [2017] NSWCA 326 at [83]-[87] (White JA, McColl and Payne JJA agreeing); Megerditchian v Khatchadourian [2020] NSWCA 229 at [43] (Payne JA, Macfarlan JA and Emmett AJA agreeing).
Although the determination of what is adequate and proper will necessarily depend on all the circumstances of the case, certain general principles were identified by Hallen J as useful to remember in cases involving claims by adult children of the deceased in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111] (cited with approval in Chapple v Wilcox (supra) at [21] (Basten JA, Gleeson JA agreeing)) and in Page v Hull-Moody (supra) at [176]. It is convenient to set out in full the principles as articulated by his Honour in Page v Hull-Moody (supra) at [176]: "(a) The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, 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 his, or her, child up in a position where she or he 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": Taylor v Farrugia [2009] NSWSC 801 at [57] (Brereton J); McGrath v Eves [2005] NSWSC 1006 at [67]-[71] (Gzell J); Kohari v Snow [2013] NSWSC 452 at [121]; Salmon v Osmond (2015) 14 ASTLR 442 at 463 [109]-[110]; [2015] NSWCA 42 at [109]-[110] (Beazley P, McColl and Gleeson JJA agreeing). (c) Generally, also, "… the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia at [58] (Brereton J). (d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker at 576 (Dixon CJ and Williams J); Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 545- 546 (Holland J); Bondelmonte v Blanckensee [1989] WAR 305 at 309-310 (Malcolm CJ, Nicholson J agreeing); Hawkins v Prestage (1989) 1 WAR 37 at 44-45 (Nicholson J); Taylor v Farrugia at [58]. (e) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 at [179]-[182] (Templeman J); Crossman v Riedel [2004] ACTSC 127 at [49] (Gray J). Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297 at [43] (Wheeler J, albeit in dissent in the result). In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287 at [74]-[90] (Martin CJ); Butcher v Craig [2009] WASC 164 at [17] (Sanderson M). (f) The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149 (Gibbs J, Mason and Aickin JJ agreeing); [1979] HCA 2."
These are not inflexible principles or rules of law. There is no predisposition for, or against, the making of an order for provision in favour of an adult child: Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [167]-[170] and the authorities there cited; Page v Hull-Moody (supra) at [178]-[185] and the authorities there cited.
An order for provision in favour of a child of the deceased is not made for the purpose of punishing the deceased, or compensating the applicant, for the deceased's past conduct or limitations as a parent. However, the deceased's past conduct may be relevant where it has had the effect of depriving the applicant of opportunities in life, or there is some other causal connection between that conduct and the applicant's need for provision: Harris v Carter (supra) at [157]-[159] and the authorities there referred to.
The significance of any estrangement between the child applicant and the deceased parent to the child's family provision claim will depend on the all the facts of the case. The length of the period of estrangement, the circumstances in which it occurred and the reasons for it will be relevant, together with all of the other relevant factors referred to above. There is no rule that a plaintiff who has been estranged from the deceased is not entitled to provision, irrespective of the plaintiff's needs, the size of the estate and the existence or absence of other claims on the estate. On the other hand, there are circumstances in which the Court may need to recognise that the deceased was entitled to make no provision for a child, such as where the child has callously withheld love and support from the deceased in their declining years without proper justification, or been hostile to the deceased: Amos v Hogg [2018] NSWSC 1226 at [238]-[252] and the authorities there cited; Keaton v Gumulak [2020] NSWSC 943 at [230]-[234] and the authorities there cited.
The interests of other claimants on the deceased's estate, and of beneficiaries entitled to a share of the estate under the will, are relevant to the Court's consideration of the propriety and adequacy (or inadequacy) of any provision for the plaintiff, both for the purpose of s 59(1)(c) and when determining whether any provision order should be made and the nature of any such order.
In a case such as the present where some beneficiaries have adduced evidence of their financial resources and needs, this includes consideration of their resources and needs: ss 60(2)(b) and 61 of the Succession Act; Sgro v Thompson (supra) at [71]-[74] (White JA, McColl and Payne JJA agreeing); Foley v Ellis [2008] NSWCA 288 at [9] (Basten JA) and [86]-[89] (Sackville AJA, Beazley JA agreeing) and the authorities there cited.
In respect of beneficiaries who choose not to adduce evidence of their financial circumstances, the Court may infer that that they have sufficient resources to meet their financial needs, but must nevertheless assess the competing claims for those beneficiaries as the chosen objects of the deceased's bounty: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA, Basten and Campbell JJA agreeing); see also Blendell v Byrne [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell (supra) at [17] and [42] (Meagher JA, Gleeson JA agreeing).
The Court is not engaged in an exercise in achieving "fairness" or "equality" between beneficiaries and claimants on the deceased estate, or addressing wounded feelings or disappointed expectations: Page v Hull-Moody (supra) at [169]; Harris v Carter (supra) at [152].
The determination of what is adequate and proper will ultimately depend on all the circumstances of the particular case.

NARRATIVE - THE RELATIONSHIP BETWEEN DIANNE AND THE DECEASED

The narrative that follows is drawn from the affidavit, oral and documentary evidence adduced by the parties. Where matters referred to are in dispute, I have identified the dispute and incorporated within the narrative my findings of fact in relation to those disputed matters to the extent that it is necessary to make such findings in order to determine Dianne's claim.
Regrettably, there was a great deal of dispute between the parties about particular incidents and occasions in the course of the lifetime of the deceased and his dealings with Dianne and his other daughters. It is not necessary to refer to all of that evidence, or to make findings about each and every disputed incident or occasion, in order to assess the relationship between Dianne and the deceased and other matters in s 60(2) of the Succession Act for the purpose of determining Dianne's family provision claim. As Campbell JA said in Hampson v Hampson [2010] NSWCA 359 at [79] (Giles JA and Handley AJA agreeing): "The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge."
The evidence concerning the present and future financial resources, earning capacity and financial needs of Dianne and those beneficiaries who put their financial circumstances in issue is summarised separately at the conclusion of the narrative.
Before embarking on the narrative, it is appropriate to make some observations concerning the credibility of Dianne's evidence.
To my observation, Dianne's answers to questions in cross-examination were frequently argumentative in substance or in tone and she had a tendency to give answers that exaggerated or misstated the true position if she perceived that the answer might assist her claim.
For example, under cross-examination about the frequency of occasions on which she had spent time with her parents in the past 10 years, Dianne said: "I've always done everything for mum, over the years, and dad". It was immediately put to Dianne that this was not the case, and Dianne answered, adamantly: "Incorrect". When asked questions to explore her assertion that she had "done everything", Dianne initially protested: "What sort of a question is that?". Dianne proceeded to answer the questions, as she was required to do, and ultimately conceded that she had not done everything for her parents. Dianne was then asked about the care that Michelle had provided for the deceased and Betty, and initially disagreed with the proposition that Michelle had been on hand to assist them as required. A short time letter, Dianne conceded that both Michelle and Susan had done a great deal to care for the deceased and Betty, had maintained an excellent relationship with them and had fostered a lovely relationship between their children and the deceased and Betty.
Thus, the true position that Michelle and Susan had taken on most of the burden of assisting the deceased and Betty over the years, and Dianne's role had been very much less, had to be dragged out of Dianne in cross-examination. Dianne would have been prepared to have the Court believe that she had "done everything" for her parents if the cross-examiner had not challenged this aspect of her evidence.
A further example is evidence given by Dianne in cross-examination that was plainly inconsistent with her own affidavit and which she had to concede was incorrect after being pressed for details. In her affidavit sworn on 27 May 2019, Dianne deposed that she did not go out of her way to visit the deceased or to speak with him after they had an argument in 1996. Dianne said: "I did not want to expose myself or my children to his behaviour towards any of us". She deposed that she did still see the deceased at family events, but did not speak with him on those occasions.
However, in cross-examination, Dianne said that she saw the deceased "when possible" in the period after 1996 and that she had "made a lot of effort to visit my father". When pressed for details, Dianne said that the deceased's behaviour had been erratic in the period immediately after 1996 and that she "wasn't encouraged to go and see him". She then conceded: "Well, I didn't make an effort really, I suppose".
This entire exchange occurred in less than 50 lines of transcript. Having regard to the clear inconsistency between Dianne's initial answer in cross-examination and her affidavit, and her rapid reversal of her evidence in cross-examination when pressed for details, I formed the impression that Dianne's initial answer was an attempt in the heat of the moment during cross-examination to introduce some evidence that she perceived would assist her claim.
By way of further example, Dianne cavilled in cross-examination with the proposition put to her that her relationship with the deceased had broken down in 1996 after she asked him to leave her home and told him not to come back. Dianne described the deceased as "quite a recluse" who did not visit anybody regularly. Dianne then said that she, Michelle and Susan had all been very busy with their own families and the deceased was also very busy, so "this business of the family together all the time wasn't really the case with Dad". This is entirely inconsistent with Dianne's concession a short time later during the cross-examination that Susan and Michelle, and their respective children, had an excellent relationship with the deceased and Betty.
For these reasons, I have not accepted Dianne's evidence about disputed matters where her evidence is not corroborated by another witness or by some contemporaneous record and there is no evidence of any circumstances that point to the likelihood of Dianne's account of the disputed matter being true.

Relationship between Dianne and the deceased during Dianne's childhood

In her affidavit sworn on 27 May 2019, Dianne described growing up in a household in which children were not permitted to question their parents, and were to be seen and not heard. She gave evidence to the effect that the deceased did not show affection or appreciation towards his children, and was quick to criticise them. She described him as abrupt and intolerant.
In the same affidavit, Dianne also described her father as "a giant of a man and very intimidating in stature". She gave evidence that he had "unpredictable moods", at which time Betty would send the children to their rooms. Dianne also referred to an incident during her childhood in which the deceased had deliberately overturned the breakfast table and spilled porridge everywhere, before walking out and leaving others to clean up the mess.
Susan is three years younger than Dianne. They had a shared childhood in the household of the deceased and Betty.
In her affidavit sworn on 14 June 2019, Susan replied to Dianne's affidavit sworn on 27 May 2019. Susan made no reply to Dianne's evidence to which I have referred immediately above. Susan's affidavit emphasised that the deceased and Betty had provided for her and Dianne and had imparted to them the need for a good education and the importance of lifelong learning. There was no dispute about this - Dianne acknowledged it to be true in her affidavit in reply sworn on 18 September 2019.
In her affidavit sworn on 12 August 2019, Susan deposed that she and Dianne were "lucky and happy growing up in what I consider to have been a constructive, learning family environment". In cross-examination, Susan described her father as having been verbally abusive at times during her childhood, but emphasised that she did not fear him. Susan also said that her father had not been physically abusive to family members during her childhood, although she acknowledged incidents of physical violence that occurred during the childhood of Yvette and Michelle to which I refer later in this narrative.
In her affidavit in reply sworn on 18 September 2019, Dianne deposed that she did not know and could not admit Susan's evidence of a constructive, learning family environment, and that she adhered to her earlier evidence about her childhood.
In cross-examination, Dianne was not challenged on her evidence concerning the deceased's lack of affection towards her, intolerance and unpredictable moods during her childhood. I accept these aspects of Dianne's evidence and, on the basis of that evidence, I find that her relationship with the deceased during the period in which Dianne lived at home was not a close relationship.

Relationship between Dianne and the deceased during Dianne's adult life prior to 1996

In the late 1960s, Dianne moved out of the family home. Yvette was a baby and Michelle had not yet been born.
Dianne met Malcolm in 1969 and they married in 1970. Their first child was born in 1971.
Michelle was born to the deceased and Betty in 1974.
In about 1975, the deceased and Betty purchased three lots of land at Scone, New South Wales, comprising approximately 260 acres in total. One of the lots had a house on it, known as "Currabeen".
Dianne and Malcolm's second child was born in 1975. By this time, Susan was also married and raising young children.
In her affidavit sworn on 27 May 2019, Dianne deposed that she and Malcolm and their children often saw the deceased and Betty, Yvette and Michelle during this period, including frequently visiting them at Currabeen and staying at the house with them . Dianne deposed that they used to see the deceased and Betty, Yvette and Michelle "every few weeks" and that special occasions such as birthdays, Mother's and Father's Day and Christmas were held either at her parents' home, Dianne's home, or at Susan's home.
Dianne's evidence in this regard is inconsistent with her own evidence in cross-examination that Betty "doesn't believe in birthdays" and that Betty "didn't have birthdays".
Dianne's evidence is also inconsistent with the evidence of Michelle and Yvette.
Michelle deposed in her affidavit sworn on 20 August 2019 that Dianne and her family seldom visited Currabeen during Michelle's childhood, and that she could only recall one occasion on which Dianne, Malcolm and their family had stayed at Currabeen. Michelle also deposed that the family did not celebrate birthdays or Christmas, as Betty had raised them as Jehovah's Witnesses. I note in passing that, when cross-examined about family occasions, Yvette also said "we don't have birthday things".
Similarly, in a statutory declaration annexed to her affidavit sworn on 19 August 2019, [2] Yvette stated that she could only recall Dianne visiting Currabeen twice in the period between the deceased and Betty moving to the property in 1975 and Yvette leaving home when she was almost 21 years of age (that is, in about 1988). Yvette gave evidence to the same effect in cross-examination.
Ultimately, Dianne conceded in cross-examination that she and Malcolm and their children had probably not visited the deceased and Betty, Yvette and Michelle every few weeks. However, Dianne maintained that they had visited with their children "on numerous occasions".
By contrast, Michelle recalled Susan's children and Deneice's son, Lachlan, staying at Currabeen and spending time with them during the school holidays when Michelle was a child.
In about 1976, Dianne and Malcolm purchased the property at Peats Ridge where they still live today. Malcolm and Dianne had purchased a business making and selling aquariums, and Malcolm made the aquariums whilst Dianne "did the retail side of the business". Once they purchased the Peats Ridge property, Malcolm built the aquariums on the property and Dianne continued to work at the business premises at Hornsby. The Peats Ridge property was 40 acres when Dianne and Malcolm purchased it, but was subdivided into two 20 acre properties in about 1997. Dianne and Malcolm sold one of those properties and continued to live on the remaining 20 acres.
Dianne and Malcolm's third child was born in 1980.
In her affidavit sworn on 27 May 2019, Dianne deposed that, from about the early 1980s, Betty began to tell her that the deceased's behaviour was becoming erratic, including making threats to burn down the house and losing his temper so badly that Betty, Yvette and Michelle moved into a motel at times rather than staying at Currabeen.
Dianne's evidence about Betty reporting abusive and aggressive behaviour of the deceased from about the early 1980s is corroborated by the following evidence of Yvette and Michelle, who were still living at Currabeen during this period: 1. There was an occasion on which the deceased broke Betty's jaw. Whilst Dianne recalled this as having occurred in late 1996 or 1997, Michelle deposed that it occurred during the 1980s and Yvette deposed that it happened when she was still living at home (that is prior to about 1987, when Yvette left home at the age of 21). Betty moved out of Currabeen for a period after this assault. Together with Yvette and Michelle, Betty moved into a motel for a couple of months (according to Yvette's recollection) or a couple of weeks (according to Michelle's recollection). 2. Yvette gave evidence in cross-examination that the deceased had once, in a state of anger, thrown a dining table and the roast dinner sitting on it through an open window of the house at Currabeen into the garden below. 3. Michelle gave evidence in cross-examination that the deceased once broke a kitchen cupboard door off its hinges. On another occasion, he threatened to burn the house down when he was angry. 4. In addition to the time that she lived in the motel with Betty and Yvette after the deceased broke Betty's jaw, Michelle recalled that Betty took her and Yvette to live with their aunt for a period of time after her parents had an argument.
This aspect of Dianne's evidence is also consistent with Susan's evidence. In cross-examination, Susan said that the deceased "was not physically violent with any of us except the stories that I know that there was a period in Michelle and Yvette's growing up that I was able to discuss with mum or mum used to ring me and discuss things of that type. But no, dad could not be generalised as a violent or angry man". The stories that Betty discussed with Susan included that the deceased had broken her jaw.
For the reasons in [47]-[54] above, having regard to Dianne's acknowledgement that her account of visiting the deceased and Betty every few weeks was inaccurate and the inconsistency between her evidence of having visited on special occasions such as birthdays and her evidence that Betty did not celebrate birthdays, I prefer Michelle and Yvette's evidence that Dianne visited the deceased and Betty infrequently during the period from 1975 to the early 1980s and I reject Dianne's evidence that she and Malcolm visited with their children on numerous occasions.
Putting to one side Dianne's evidence of visits to Betty and the deceased to which I have referred above, Dianne did not give evidence of any indicia of a relationship with the deceased in the 1970s and early 1980s.
I find that, not having had a close relationship with the deceased in the period in which she lived with her parents, Dianne did not develop a close relationship with him in the years after she left home, married and started her own family.
There is no evidence to suggest that the position changed in the years between the early 1980s and 1996. On the contrary, Dianne's evidence that Betty reported to her abusive and aggressive behaviour by the deceased from the early 1980s suggests that Dianne's relationship with him is unlikely to have changed for the better during that period. It is not disputed that Dianne was close to Betty. Betty's reports are unlikely to have resulted in Dianne having more contact with, or developing a closer relationship with, the deceased.

Relationship between Dianne and the deceased during the period from 1996 until the death of the deceased in May 2018

In her affidavit sworn on 27 May 2019, Dianne gave an account of her "outburst" at the deceased on an occasion when he and Betty visited Dianne at her Peats Ridge home. According to Dianne, the deceased was criticising a close friend of Dianne's and the horse riding camp that she operated and "just kept going on and on about it" for about five to ten minutes before Dianne said: "I've had enough. Just go. Don't come back". The deceased and Betty then left.
In cross-examination, Yvette said that she was present at Dianne's home on the occasion of this "outburst" (to use Dianne's term). Yvette gave an account of a slightly more heated exchange, in which Dianne called the deceased an "opinionated bastard".
It is not necessary to resolve this conflict between Dianne's evidence and Yvette's evidence. Nothing turns on the precise details of the exchange. As will become apparent below, its relevance to this proceeding is that it marks the start of a very long period during which the deceased and Dianne had no meaningful contact at all until at least 2013.
According to Dianne's evidence in her affidavit sworn on 27 May 2019, she did not go out of her way to visit the deceased or to speak with him after this incident in 1996. Dianne said: "I did not want to expose myself or my children to his behaviour towards any of us". She did still see the deceased at family events, but did not speak with him on those occasions.
In cross-examination, Dianne gave evidence to the effect that she saw the deceased "when possible" in the period after 1996 and that she had "made a lot of effort to visit my father". When pressed for details, Dianne said that the deceased's behaviour had been erratic in the period immediately after 1996 and that she "wasn't encouraged to go and see him". She then conceded: "Well, I didn't make an effort really, I suppose".
Dianne also said in cross-examination that it was "not necessarily" the case that she and the deceased did not speak when present in each other's company at family occasions in the period after 1996. I reject that evidence. It is contrary to Dianne's evidence in her affidavit sworn on 27 May 2019 to which I have referred above. It is also contrary to Michelle's evidence in cross-examination that the deceased and Dianne simply did not engage at family gatherings after 1996, and I repeat my observations at [47]-[54] above.
There is no dispute that Dianne's relationship with Betty continued in the period after 1996.
In late 1997, Betty was hospitalised with a broken femur when the deceased ran into her in his car at Currabeen. Betty lived with Dianne at Peats Ridge for a period after being discharged from hospital, before returning to live with the deceased at Currabeen in about January 1998.
Dianne continued to see Betty after she returned to live at Currabeen in 1998, but only saw the deceased at family functions. Dianne and the deceased did not speak at those functions. In her affidavit sworn on 27 May 2019, Dianne deposed that she felt that there was "no use trying to talk to him as he would not have listened to me or spoken back nicely to me". Michelle also gave evidence to the effect that Dianne and the deceased would not engage with or acknowledge one another at family functions.
The years between the late 1990s and the early 2000s were difficult for Dianne in many respects, owing to serious illness and injuries of loved ones (including the death of Deneice, the third child of the deceased and Betty, in 2002) and the failure of a pet shop business operated by Malcolm and Aran (Dianne and Malcolm's son), and financial hardship endured by Malcolm and Dianne as they struggled to repay the debts of that failed business.
After Deneice passed away, her son, Lachlan, continued to have regular telephone contact with Betty and the deceased, as he had done while his mother had been alive. He spoke with them on the phone every two or three months and visited occasionally. Visits seem to have been infrequent, owing to the seven and a half hour travelling time from his home to Currabeen.
In October 2002, the deceased wrote the following letter to Susan, Michelle and Yvette: "It is my wish and instructions as stated in my will that your sister DIANNE and her siblings receive NOTHING from my estate. She has not been a good daughter to me, ie has only visited me at 'Currabeen' may be [sic] 6 times in the past 30 years, NOT as a family visit, usually on the way to somewhere or during the course of business. It was in about 1996 that Dianne verbally abused me during a visit to her home, she ordered me to leave. Since that unpleasant drama each time I answer the phone at my home she hangs up in my ear. Dianne has never shared her children with me or her mother or encouraged them to know or love us. DIANNE's behaviour towards me is unwarranted, disgusting and unforgivable. I will rest in peace loving you knowing the three of you will agree to carry out my wishes. Thank you Darlings, Love Dad. xxx."
The reference to "DIANNE and her siblings" is curious, given that the letter was addressed to Susan, Michelle and Yvette. The deceased's complaint about Dianne's infrequent visits to Currabeen during the past 30 years is broadly consistent with the evidence of Michelle and Yvette referred to in [70]-[71] above. There is also a ring of truth to the deceased's statement that Dianne would hang up the phone if he answered when she telephoned Currabeen. In cross-examination, Dianne admitted to hanging up the phone on the deceased, although she was being questioned about a later period in time.
From 2009, Michelle and her family lived in Scone. In her affidavit sworn on 14 June 2009, Michelle described this move as allowing her family to be close to the deceased and Betty and to have a relationship with them. Michelle described a loving and supportive relationship between the deceased and Betty and Michelle's children, and Dianne did not dispute this.
In her affidavit sworn on 20 August 2019, Michelle deposed that, during the period after she moved to Scone in 2009, she liaised and co-ordinated with Susan to attend to the needs of the deceased and Betty. According to Michelle, Dianne did not play a role in caring for them or meeting their needs. Susan gave evidence to similar effect in her affidavit sworn on 21 August 2019. Dianne does not claim to have assisted the deceased and Betty with household chores or to have provided meals for them on a regular basis in their advancing years.
In about July 2009, Betty appointed Dianne, Susan and Michelle as her attorneys and guardians under an Enduring Power of Attorney and Appointment of Enduring Guardian. Betty revoked the appointment of Dianne and Susan in about November 2010, leaving Michelle as her sole attorney and guardian. Dianne became aware of this through correspondence received in the mail at some time between November 2010 and December 2011 when she commenced the proceedings in the New South Wales Civil and Administrative Tribunal to which I will refer below.
Dianne gave evidence in cross-examination that, on the occasions prior to 2010 when she visited Currabeen to pick up Betty for an outing or to take her to an appointment, Dianne's contact with the deceased was "minimal".
In her affidavit sworn on 27 May 2019, Dianne deposed that when she telephoned Currabeen in order to speak to Betty from about late 2010, the deceased would hang up on her. Dianne believed (and continues to believe) that the deceased was encouraging other family members not to have contact with Dianne at this time. Dianne said that she was "not game" to drive to Currabeen to see Betty because she knew that the deceased would be home "and I did not wish to have to deal with him". In cross-examination, Dianne acknowledged that she would sometimes hang up on the deceased if he answered the phone when she called Currabeen during this period.
I note that Michelle and Susan both gave evidence disputing that Dianne was unable to contact Betty during this period. The evidence does not reveal any reason why Dianne had been prepared to visit Currabeen to pick up Betty for an outing prior to late 2010, having minimal contact with the deceased, yet felt unable to do so from late 2010. The only thing that appears to have changed is Betty's revocation of Dianne's appointment as enduring attorney and enduring guardian.
Michelle also gave evidence that Dianne had chosen not to attend the family celebration of the deceased's and Betty's wedding anniversary in 2010. Dianne admits not attending, but attributes this to her failure to open a link in the electronic invitation because she is not computer literate.
In December 2011, Dianne made an application to the New South Wales Civil and Administrative Tribunal. In her affidavit sworn on 27 May 2019, Dianne describes this as an application "to be able to talk to and see my Mum". It is clear from the reasons for decision of the Tribunal that the application was for a guardianship order, a review of the appointment of enduring guardian and a financial management order. The reasons for decision record that Dianne had stated that she wanted a role in Betty's life and was concerned about the limited information she had concerning Betty's circumstances. The reasons for decision also record that Dianne had expressed concern that Betty was vulnerable to exploitation, but that there was no evidence that Betty had been exploited or that her financial affairs were not being adequately looked after by Michelle. Dianne withdrew the applications following mediation.
Dianne gave evidence that, from about 2013, she was able to see and speak to Betty again after Susan encouraged the deceased not to hang up on Dianne when she telephoned. Susan denies intervening on Dianne's behalf. Dianne gave evidence that the deceased started to talk to her again at about this time and "I was involved in Dad's life again".
When asked in cross-examination to give examples of how she became involved in the deceased's life again in the period after 2013, Dianne said that she had telephoned and spoken to Betty and, on one occasion when she had visited Betty at Currabeen, the deceased had telephoned her to make sure she had arrived home safely after her journey.
Michelle deposed that there had been no relationship between Dianne (or members of her family) and the deceased since the 1996 incident. Michelle described that incident as having "severed" the relationship between Dianne and the deceased, and denied that Dianne became involved in the deceased's life again from 2013. Michelle did not dispute that Dianne had continued her relationship with Betty after 1996 (including after 2013), and that Dianne would sometimes see the deceased when visiting Betty or at family gatherings. According to Michelle, both Dianne and the deceased would be polite in the company of Betty, and Dianne would avoid the deceased and would not speak with him at family gatherings.
Susan gave evidence that Dianne's relationship with the deceased "was never the same again" after the 1996 incident, although they were civil and polite in each other's presence at family gatherings. Susan acknowledged that their relationship had become a little easier in the last few years of the deceased's life, but said that this had happened at some stage in the period 2015 to 2017, and not in 2013. Susan attributes the shift to her father feeling sorry for Dianne when he admired a family tree that Susan had made showing the members of the family, including Dianne.
In about May 2014, Betty had a fall at Currabeen and broke her hip. This resulted in Betty being hospitalised for many months.
In July 2014, there was a dispute between Dianne and Malcolm and their son, Aran, about the aquarium business. Aran had been working in the aquarium business with them after the failure of their pet shop business some years earlier. Dianne discovered that the amount of the business debts secured against the Peats Ridge property was far greater than she had believed to be the case.
Dianne suffered a stroke in July 2014. She has subsequently made a very good recovery.
Betty was discharged from hospital towards the end of 2014. She lived with Michelle, whilst the deceased continued to live at Currabeen. In her affidavit sworn on 27 May 2019, Dianne deposed that she, Susan and Michelle would take turns in checking in on the deceased. Michelle denied this in her affidavit sworn on 20 August 2019. According to Michelle's evidence, it was her husband and children and Susan who supported her in caring for Betty and it was Susan who prepared meals for the deceased and cleaned the home at Currabeen for him during this time. Susan gave evidence to the same effect in cross-examination. Michelle deposed that Dianne never offered to assist her and Susan or to support the deceased and Betty during this time. In her affidavit sworn on 18 September 2019, Dianne denied that she offered no assistance. However, she acknowledged in cross-examination that she had not taken turns with Michelle and Susan in checking on the deceased.
In May 2015, Dianne stayed at Michelle's home for about four nights and cared for Michelle's daughters and Betty while Michelle travelled to Queensland.
In September 2015, Dianne attended Maitland Hospital, where the deceased had been admitted with a neck injury.
In March 2016, Dianne stayed at Currabeen for three days to care for the deceased and Betty, at Michelle's request. Michelle had to attend a commitment with her children during this time, and was unable to arrange carers to attend her home to look after Betty.
In August 2016, Betty returned live to Currabeen two or three nights per week with the assistance of carers. However, this arrangement was short lived because Betty moved to live in Strathearn House nursing home from November 2016. With the exception of these two or three nights per week from August 2016, Betty had lived with Michelle for the whole of the period from December 2014 until November 2016.
It is not necessary to refer to the factual disputes between Dianne on the one hand, and Michelle and Susan on the other hand, about the extent to which Dianne was involved in Betty's medical appointments, or in discussing the state of Betty's health with Michelle or with Betty's doctors, in the three or four years before Betty's admission to Strathearn Nursing Home in November 2016.
In her affidavit sworn on 27 May 2019, Dianne deposed that she visited Betty at the nursing home, and the deceased would often be there during those visits. In her affidavit sworn on 14 June 2019, Susan acknowledged that Dianne had seen the deceased on occasions when they both happened to be visiting Betty at the nursing home. In cross-examination, Dianne said that she had been to Currabeen to see the deceased on a couple of occasions at his invitation after she had finished visiting with Betty and the deceased at the nursing home. There was no mention of such visits to the deceased at Currabeen in Dianne's affidavits, and her evidence in cross-examination did not rise above a very general assertion that she had visited Currabeen on occasions. I have no doubt that Dianne understood that any such visits may be relevant to her claim. In my view, it is most unlikely that she would have failed to mention the visits in her affidavits. For these reasons, and for the reasons in [47]-[54], I reject Dianne's evidence that she visited the deceased at Currabeen after attending the nursing home on some occasions.
In November 2017, one of the lots of land at Scone owned by the deceased and Betty as tenants in common was sold for $500,000. It will be necessary to return to this sale, and how the proceeds of sale were applied, later in these reasons.
In the period after Betty was admitted to Strathearn Nursing Home, the nursing home staff raised concerns about the behaviour of the deceased, including towards Betty. In December 2017, the nursing home staff called the police as a result of the deceased's behaviour towards another resident. There was a good deal of evidence about this, and aspects of the deceased's behaviour towards medical and nursing staff on earlier occasions when he was a patient in hospital. It is not necessary to go into detail about this evidence, or express any views about the explanations for his behaviour proffered by Michelle and Susan. It suffices to say that there is evidence of the deceased behaving in a manner that others found offensive or challenging on many occasions, irrespective of whether the deceased intended to cause offence or to upset anyone. As Michelle acknowledged in cross-examination: "he could be difficult at times. He'd been perceived as difficult at times, yes."
In her affidavit sworn on 27 May 2019, Dianne deposed that she visited Betty and the deceased for Christmas lunch at the nursing home in 2017, and continued to see them at the nursing home during 2018. In her affidavit sworn on 20 August 2019, Michelle disputed that Dianne had visited Betty during 2018, with the exception of her visit on 5 May 2018 referred to immediately below. However, Dianne did visit at least on 20 March 2018. Photographs of the deceased and Betty taken by Dianne on that occasion were in evidence. In any event, the dispute about the frequency of Dianne's visits to Betty during 2018 and any contact that she had with the deceased incidental to those visits is of little relevance to the issues in this proceeding.
On 4 May 2018, Dianne arranged with the deceased that she would stay at Currabeen the following evening on her way to Tamworth. On 5 May 2018, Dianne visited Betty at the nursing home before driving to Currabeen, where she found the deceased unwell. Initially, Michelle took the deceased to a doctor, but Dianne took him to hospital later that evening. Dianne visited the deceased in hospital the next day, being 6 May 2018. She knew that he was refusing treatment in order to die, but nevertheless continued on her journey to Tamworth. She did not return to visit him again because "I don't handle death very well". She was not present when Susan and Michelle took Betty to the hospital to say her goodbyes to the deceased. The deceased died on 12 May 2018.
The deceased's funeral was held on 18 May 2018, and Dianne and Malcolm attended. Their children did not attend. One of their daughters sent Dianne a text message, saying: "I just wanted to send you a message because I heard about your dad's passing. Sorry for your loss. Hope you are doing ok." The tone of this message is consistent with Dianne's evidence in cross-examination, when she acknowledged that her children did not have a relationship with the deceased.
Dianne visited the offices of the deceased's solicitor to obtain a copy his will before attending his funeral. Susan and Michelle were very upset about this.
Taking all of this evidence into account, I make the following findings.
I find that Dianne had no relationship with her father in the period from 1996 until at least 2013.
Dianne avoided seeing the deceased because she did not want to expose herself or her children to his behaviour towards them, which she found unacceptable. She attended family functions at which the deceased was present, but she did not speak to him because she believed that he would not listen to her or speak to her nicely.
In the period prior to late 2010, Dianne had minimal contact with the deceased on occasions when she went to Currabeen to pick up Betty, with whom she did maintain a close relationship.
In about late 2010, Dianne began to feel excluded from Betty's life. The reasons for this are not clear, but it coincided with Dianne becoming aware that Betty had revoked her appointment as attorney and guardian. Dianne stopped going to Currabeen to pick up Betty, and the minimal contact that she had previously had with the deceased came to an end.
At some point after 2013 and prior to March 2016 when Dianne stayed at Currabeen and cared for Betty and the deceased for three days, Dianne's minimal contact with the deceased resumed. On Dianne's own evidence, her becoming "involved in" the deceased's life again entailed the occasional contact with the deceased in connection with Dianne's visits to Betty and at the nursing home. Dianne and the deceased were able to be polite to one another on those occasions. This was the extent of their relationship, with the exception of Dianne's stay at Currabeen for three days in March 2016 and the visit to Currabeen on 5 May 2018 to stay overnight on her way from Peats Ridge to Tamworth.
Dianne did not assist Michelle and Susan in caring for the deceased and Betty in their advancing years, save for two isolated occasions on which she attended to Betty (in May 2015) and to the deceased and Betty (in March 2016). Dianne happened to be at Currabeen when the deceased was admitted to hospital a few days before he died. She was therefore involved in his hospital admission, but she did not remain. Although she knew that he was dying, Dianne went about her life, as I have referred to in [121] above. In my opinion, this reflects the minimal contact they had with one another in the period shortly before his death, the lack of contact between them for many years prior to that and the absence of a close or affectionate relationship between them at any time during Dianne's life. I reject Dianne's assertion in cross-examination that she "always in actual fact got on with Dad over the years." It is entirely inconsistent with the other evidence to which I have referred above, including Dianne's own evidence in her affidavits.
By contrast, each of Susan and Michelle had an excellent relationship with the deceased, as Dianne acknowledged in cross-examination.
In the statutory declaration attached to her affidavit sworn on 19 August 2019, Yvette stated that she had lived in many places since leaving home at the age of 21, but always visited her parents once a year and stayed with them for a few weeks so that they could spend time with Yvette's children. Yvette also stated that she had regular telephone contact with the deceased and Betty in between visits. Yvette gave evidence to similar effect in cross-examination, albeit going into more detail about her pattern and frequency of contact with Betty and the deceased at different times in her life when she was living in different places, both before and after having her six children. Yvette said that, irrespective of where she was living, she had always made time to visit her parents at least once a year with her children and to stay with them for at least three weeks. This was as much about sharing her children with her parents as about spending time with them herself, and it had given her parents a lot of joy to get to know and spend time with her six children. Yvette also gave evidence of the deceased and Betty having visited her at various places that she had lived over the years. It was not put to Yvette that this evidence was inaccurate, or that she did not have a close relationship with the deceased.

NOVEMBER 2017 LAND SALE AND WHETHER PART OF SALE PROCEEDS ARE NOTIONAL ESTATE OF THE DECEASED

In her affidavit sworn on 14 June 2019, Michelle deposed that the deceased and Betty decided in about 2016 to sell one of the three lots of land at Scone that they had purchased in 1975 as tenants in common. The lot sold was Lot 323 in DP 844395. I shall refer to it simply as Lot 323.
Lot 323 was sold in November 2017 for $500,000.
In her affidavit on 14 June 2019 and 1 April 2020, Michelle has given the following explanation of how the sale proceeds of $500,000 were applied. Disbursements $18,131.91 Nursing home bond for Betty $296,942.70 Repay loan made available to the deceased by AP & SE Prager to assist the deceased with living expenses $50,000.00 Subdivision costs $42,993.43 Betty's expenses and care costs $15,000.00 Hammond Care weekly accommodation $19,405.00 Home maintenance & expenses (incurred 2015-2018) AP & SE Prager $102,418.27 Expenses of the deceased and Betty $7,375.86 Total $552,267.17

Subject to one exception, the explanation provided in Michelle's affidavit sworn on 1 April 2020 is consistent with a detailed schedule and supporting invoices annexed to her affidavit sworn on 20 August 2019.
The exception is that the home maintenance and expenses figure shown in the spreadsheet as having been paid by Susan and Alan is $42,418.27. The figure of $102,418.27 in Michelle's affidavit sworn on 1 April 2020 also appears in the spreadsheet and comprises: 1. the home maintenance expenses amount of $42,418.27; plus 2. $50,000 lent by Susan and Alan to the deceased and Betty and repaid out of the Lot 323 sale proceeds, being the $50,000 amount included separately in Michelle's explanation in her affidavit sworn on 1 April 2020; plus 3. a further $10,000 paid by Susan and Alan to Eclipse Financial Group in January 2019.
In short, the expenses paid from sale proceeds listed in Michelle's 1 April 2020 affidavit are mistakenly overstated by $60,000 because the subdivision costs are mistakenly stated to be $102,418.27 rather than $42,418.27.
In relation to subdivision costs, Michelle gave evidence to the following effect in her affidavits sworn on 20 August 2019 and 1 April 2020: 1. In about May 2004, the deceased and Betty obtained development consent to subdivide Lot 323 into 5 lots. The consent had a deferred commencement. 2. Between 2009 and 2013, Michelle attended numerous meetings with her parents, representatives of the Council, surveyors, engineers, contractors and rural financial planners in relation to the proposed subdivision. 3. During the same period, Michelle and her parents had discussions with Susan and her husband Alan about Susan and Alan providing financial assistance to facilitate physical commencement of works before the development consent expired. The deceased and Betty had no source of income by this time, other than the age pension. 4. Physical commencement of the works took place in or by July 2013. 5. There were then further discussions between Michelle, the deceased and Betty, and Susan and Alan, about how to finance completion of the work. Completion would be costly due to the conditions of development consent requiring the construction of roads. 6. Between about 2013 and 2017, there were discussions with Council about whether those conditions could be modified. In about March or April 2017, the Council decided that it would not modify the conditions. Michelle deposed that it then became uneconomical to proceed with the subdivision. 7. The deceased and Betty then sold Lot 323 and were responsible for decisions concerning the disbursement of the sale proceedings. 8. Susan and Alan had loaned to the deceased and Betty the funds to pay for the expenses incurred in relation to the commencement of the subdivision, the application to modify the development conditions and exploration of the prospects of completing the subdivision.
The spreadsheet describes the $15,000 spent on Betty's expenses as having been loaned to Betty by Susan and Alan.
It is not clear from the spreadsheet or Michelle's affidavits whether or not Susan and Alan paid on behalf the deceased and Betty any or all of the disbursements of $18,131.91, the Hammond Care weekly accommodation costs of $19,405, or the other expenses of the deceased and Betty of $7,375.86.
Michelle was not cross-examined about any of her evidence about these expenses or how they were funded or paid for.
The solicitor who acted for the vendors in relation to the sale of Lot 323 sent emails to Michelle dated 21 November 2017 and a letter to Michelle dated 23 November 2017 describing the disbursement of the sale proceeds as follows: 1. the deposit of $33,500 was paid to Susan and her husband, Alan, on settlement; 2. two further sums of $50,000 and $24,769 (totalling $74,769) were paid into different bank accounts in the name of Susan and Alan; 3. a further sum of $370,534 was paid to a company controlled by Susan and Alan; and 4. the only other sums paid out of the sale proceeds were $2,624 paid to Strathearn Village and $440 paid to Scone Legal.
Thus, the total amount paid to Susan and Alan and the company controlled by them was $478,803. [3]
Susan was asked a total of five questions in cross-examination about the amounts paid to her and Alan and to their company out of the sale proceeds of Lot 323. Susan had a general awareness of the amounts paid and that they were to repay moneys lent to the deceased and Betty, but said that she was not across the detail of the loans as these matters were handled by her financial adviser and the accountant for the company.
As I have referred to above, Michelle gave evidence that the aged pension was the sole source of income of the deceased and Betty in the period from 2009 when these expenses were being incurred. This was not disputed. It follows that the deceased and Betty would not have been able to meet the substantial expenses relating to the subdivision, in addition to the costs of maintaining Currabeen, the costs of Betty's care and their other living costs solely from that source of income. I accept Michelle's evidence, about which she was not cross-examined, that Susan and Alan lent funds to the deceased and Betty over the years to cover those costs (or paid costs directly on their behalf, by way of loan).
It is common ground that, of the $478,803 paid to Susan and Alan and their company out of the sale proceeds of Lot 323, $296,942 was for the refundable accommodation charge paid to Strathearn Village for Betty. That leaves a balance of $181,861 [4] that Dianne submitted "does not appear to have been used for the benefit the deceased or is wife" and "could, at the discretion of the Court, be made available for designation as 'notional estate'".
It was submitted on behalf of Dianne that there was no evidence about why the sum of $181,861 had been paid to Susan and Alan. That is incorrect. I have summarised the evidence above.
The majority of the $181,861 is explained by: 1. Michelle's unchallenged evidence that $50,000 was to repay a loan from Susan and Alan to assist with the deceased's living expenses; 2. Michelle's unchallenged evidence that $42,418.27 was to repay home maintenance expenses paid by Susan and Alan and behalf of the deceased over several years; 3. Michelle's unchallenged evidence that $15,000 was to repay monies lent by Susan and Alan to fund Betty's expenses; and 4. Michelle's unchallenged evidence that $42,993.43 was to repay monies lent by Susan and Alan to fund expenses relating to the subdivision of Lot 323.
These four amounts total $150,411.70, leaving $31,450 paid to Susan and Alan out of the sale proceeds of Lot 323 unexplained by the evidence.
As I have said above, it is not clear from the evidence whether or not the disbursements of $18,131.91, the Hammond Care weekly accommodation costs of $19,405, or the other expenses of the deceased and Betty of $7,375.86 referred to in Michelle's affidavits and spreadsheet were also funded by Susan and Alan. If they were, this would more than account for the remaining $31,450 paid to them out of the sale proceeds of Lot 323.
The Court may make an order designating funds paid to Susan and Alan or their company as notional estate only for the purposes and in the circumstances provided for in s 78 of the Succession Act. In the first instance it is necessary for the Court to be satisfied that the payment is a "relevant property transaction" within the meaning of Part 3.3 of the Succession Act. If so, then it is necessary to consider whether the requirements of any of ss 80, 81 or 82 apply and whether the Court is satisfied of the matters in s 83. If so, then it is necessary for the Court to consider and be satisfied of the matters in ss 87 to 90. None of these issues were addressed in the submissions made on behalf of Dianne. The submissions were limited to those referred to in [147]-[148] above.
It seems me that, in the circumstances of this case, s 80 is the relevant section pursuant to which the payments to Susan and Alan might potentially be designated as notional estate of the deceased if the Court is satisfied that the payments are a "relevant property transaction" and if the transaction is one of a kind referred to in s 80(2).
I am not satisfied that the payments to Susan and Alan are a "relevant property transaction" as defined in s 74 of the Succession Act because, on the basis of the evidence summarised above, I am not satisfied that the payments were made without full valuable consideration from Susan and Alan. The consideration was the loans made by Susan and Alan to fund expenses incurred by the deceased and Betty over the years.
It follows that the payments to Susan and Alan from the sale proceeds of Lot 323 will not be designated as notional estate of the deceased.

PLAINTIFF'S FINANCIAL RESOURCES, EARNING CAPACITY AND NEEDS

Dianne was born on 14 July 1950. She is currently 70 years old and lives with her husband, Malcolm in the Peats Ridge property. They have lived at that property since 1976. The plaintiff and Malcolm have three adult children (Aran, born in 1973; Kylie, born in 1976; and Kirsty, born in 1980), who are no longer dependent upon Dianne and Malcolm for financial support. The children do not reside at the Peats Ridge property.
Dianne completed secondary school education up to 16 years of age and was then employed in a variety of occupations, including as a medical receptionist, trainee nurse and florist. From the 1980s until her retirement in 2017, Dianne was employed in Malcom's business in a role that she described as a "Business Assistant".
Dianne is presently in good health, despite having suffered a stroke in 2014.
Dianne is the sole proprietor of the Peats Ridge property in which she lives together with Malcolm. The property was valued between $1,350,000 and $1,500,000 as at 10 March 2020. The defendants relied on a slightly higher valuation of between $1,500,000 and $1,700,000. I was not assisted by any submissions about why one valuation should be preferred to the other. Conservatively (that is, in favour of Dianne), I will adopt the range of between $1,350,000 and $1,500,000. There is a mortgage over this property securing a debt of $619,300 as at March 2020. Dianne's equity in the property is therefore worth between approximately $730,700 and $880,700.
Dianne's other assets are a total amount of $22,879 in various bank accounts, a motor vehicle worth approximately $28,000, and several goats (which Dianne values at about $50 per head, or $350 in total). Dianne previously owned shares in AIG, but those shares were sold at some time after May 2019 for $5,469.18.
The debt secured by mortgage over the Peats Ridge property is Dianne's only liability.
Accordingly, the value of Dianne's net assets is between approximately $781,929 and $931,929 (the difference between the two figures reflecting the range of $1,350,000 to $1,500,000 for the value of the Peats Ridge property).
Dianne shares the income earned by Malcolm from his business. In addition, Dianne has received income from the following sources in the last three years: 1. income (earned jointly with Malcolm) totalling less than $1,500 over the last three years from an intermittent caravan storage arrangement on the Peats Ridge property; 2. approximately $60 per week from another storage arrangement on the Peats Ridge property. Dianne's evidence is that she has received less than $1,500 in total from this arrangement; 3. dividends from some of the IAG shares before they were sold, as referred to above. The amount of the dividends received is not clear.
Dianne's total taxable income from all of these sources is set out in the table in [171] below together with Malcolm's taxable income.
Malcolm, was born on 15 April 1947. He is currently 73 years old.
Malcolm has undertaken various different business ventures since the 1970s. Since 2014, he has worked as a sole trader designing and constructing lobster tanks and fish ponds. Malcolm works out of a shed located on the Peats Ridge property, which he also uses to store equipment and consumables. He makes some of the items and tanks in the shed and then completes the work and the installation on the customer's premises.
The evidence does not reveal that Malcolm has any assets. The Peats Ridge property is in Dianne's sole name, as I have referred to above.
Malcolm gave evidence explaining how he applies the revenue earned from his business. Customers pay invoices directly into Malcolm's personal account with the National Australia Bank. Malcolm then transfers some of those monies into Dianne's National Australia Bank account. Some of the monies from Dianne's account are then paid into one of the two mortgage accounts secured against the Peats Ridge property. The remainder of the monies are used to pay Malcolm's business expenses, Malcolm and Dianne's living expenses or transferred into Dianne's other bank accounts for her personal use. Malcolm gave evidence in his affidavit and in cross-examination that they often "recycle" money by making payments against the mortgage accounts and then redrawing on those accounts in order to pay business and living expenses and, on occasions, to fund the mortgage repayment that is next due.
On 6 October 2017, Malcolm received a legacy in the sum of $261,440.67 from his mother who passed away that year. That amount was used to pay business debts, including by reducing the debt secured by the mortgage over the Peats Ridge property. Some of it has subsequently been redrawn from the mortgage to fund business and living expenses.
In her affidavit sworn on 30 March 2020, Dianne also referred to Malcolm redrawing on the mortgage to pay business expenses.
Neither Malcolm nor Dianne gave evidence about the amount of their individual or shared expenses. However, Dianne's affidavit sworn on 30 March 2020 annexed statements for the two mortgage accounts secured against the Peats Ridge property. Those statements showed that, as at March 2020, Dianne and Malcolm were repaying $925.32 per month against one mortgage account and $4,233.96 against the other mortgage account, being a total of $5,159.28 per month. Malcolm gave evidence in cross-examination that these mortgage repayments are paid by the business. It follows that these expenses have been paid before Dianne and Malcolm receive the income disclosed in their tax returns. The taxable income shown in their tax returns for the past five financial years was: Financial year Dianne Malcolm Total shared taxable income 2014-2015 $27,006 $25,000 $52,006 per annum ($4,333.83 per month) 2015-2016 $26,474 $25,671 $52,145 per annum ($4,345.42 per month) 2016-2017 $29,090 $30,381 $58,471 per annum ($4,955.92 per month) 2017-2018 $6,578 $11,741 $18,319 per annum ($1,526.58 per month) 2018-2019 $20,534 $8,447 $28,981 per annum ($2,415.08 per month)

Malcolm deposes that since the onset of the COVID-19 pandemic, his income has been reduced as some of his creditors have stopped paying invoices. As at May 2020, he was seeking government financial assistance during the pandemic.
Neither Dianne nor Malcolm have any superannuation.

BENEFICIARIES' FINANCIAL RESOURCES, EARNING CAPACITY AND NEEDS

Michelle, Yvette and Lachlan have given evidence of their financial circumstances. Susan has not put her financial circumstances in issue.
Michelle gave evidence that she and her husband own their residential home in Scone, New South Wales. The home is valued at approximately $600,000, subject to a mortgage of approximately $460,000 (as at August 2019). Accordingly, their equity in their home is approximately $140,000. They do not own any other property.
Michelle gave evidence in cross-examination that her taxable income for the 2018-2019 financial year was approximately $82,000 and her husband's take home pay (that is, after tax) was approximately $90,000 per annum.
There was little evidence about the expenses that Michelle and her husband have to meet out of this income. They are repaying loans for two motor vehicles, but the evidence does not disclose the amount of these payments. Michelle and her husband have three dependent daughters. The eldest daughter is attending university in Newcastle, and Michelle and her husband pay her accommodation costs of approximately $320 per week.
Yvette has provided a statement of assets and liabilities in her affidavit sworn on 19 August 2019. Her assets are stated to be $346,500.00 comprising an interest in real property at Bowraville, New South Wales, a motor vehicle, investments and stocks. Her liabilities are stated to be $89,460.43 comprising the value of a mortgage in respect of the Bowraville property and credit cards debts. Accordingly, Yvette's net assets are approximately $257,039.57.
Yvette has provided a copy of her estimate of her tax return for the financial year ending 30 June 2018. The estimate shows that she has earned income of $18,179.00.
Yvette has six children, three of whom are still dependent on her.
Lachlan's total assets and liabilities are contained in a table which is annexed to his affidavit sworn on 19 August 2019. The table is a little difficult to interpret. By way of example, it lists certain property which is described as an asset but the same property is also listed as a liability without further specificity. I assume that those entries relate to loans that Lachlan has taken out in order to finance the corresponding assets. In summary, Lachlan discloses total assets of $314,408.54 (comprising real property in Ashley, New South Wales, money in bank accounts, various motor vehicles and trailers, tools and household items) and total liabilities of $192,310.97, leaving him with net assets of $122,097.57.
Lachlan gave evidence that his monthly expenditure at the time of swearing his affidavit on 19 August 2019 was $7,060.50 comprising repayments of loans that were advanced in relation to his Ashley property and other repayments associated with his motor vehicles, council rates, insurance payments and other utilities and personal expenses.
Lachlan provided his tax return from the 2017-2018 financial year. The tax return describes Lachlan's occupation as a truck driver. He confirmed in cross-examination that truck driving is his sole source of income. He works as a contractor, using his own vehicles, trailers and equipment.
Lachlan's taxable income for the 2017-2018 year was $63,301. There was no evidence of his taxable income for the 2018-2019 year. This is regrettable, but Lachlan's past earnings have limited relevance to the assessment of his circumstances as at the time of the hearing due to the impact of his medical condition on his capacity to work.
Lachlan gave evidence that he has not been able to perform his usual employment duties in the past year due to being diagnosed with ulcerative colitis in March 2019 for which he is undergoing treatment. He has been doing whatever general labour work he has been able to find, but this has been difficult due to the drought and because he has to avoid heavy lifting with his condition. He will have ulcerative colitis for the rest of his life. He is hopeful that the treatment he is having will put it into remission, but this has not worked yet.
Lachlan is behind on his mortgage and loan repayments. He had approximately $20,000 or $30,000 in savings before he became unwell, but now has no savings left.
Lachlan has a partner who lives with him. She works at a commercial vehicle dealership. Lachlan did not know what his partner's annual income is, but made a rough guess in cross-examination of approximately $30,000 per annum.

CONSIDERATION AND DETERMINATION

The Court has power to make an order for provision out of the deceased's estate in favour of Dianne only it is satisfied of the three matters in s 59(1) of the Succession Act.
As to the first matter, I am satisfied that Dianne, as a child of the deceased, is an eligible person: ss 57(1)(c) and 59(1)(a) of the Succession Act. As I have already noted above, this was not in dispute.
The second matter in s 59(1)(b) is not relevant to Dianne's application.
The third matter of which the Court must be satisfied is that, at the time of considering the application, adequate provision has not been made by the deceased's will for Dianne's proper maintenance, education or advancement in life: s 59(1)(c) of the Succession Act.
Applying the principles summarised in [24]-[42] and after considering all of the evidence summarised in [43]-[132] and [156]-[187] and the written submissions provided by both parties at the commencement and conclusion of the hearing, I am not satisfied that the deceased's will did not make adequate provision for Dianne's proper maintenance, education or advancement in life. My reasons are as follows.
The question whether the deceased's will made adequate provision for Dianne's proper maintenance, education or advancement in life must be considered in the context of the totality of the relationship between the deceased and Dianne, the relationships between the deceased and the beneficiaries, the size of the deceased's estate, the competing claims of the beneficiaries (having regard to the evidence summarised above concerning the financial circumstances of Yvette, Michelle and Lachlan and assuming that Susan has sufficient financial resources to meet her financial needs): see [26] above.
The relationship between Dianne and the deceased was not a close relationship. Indeed, they had no relationship at all for all or at least the best part of 20 years after 1996. I refer to my findings in [61], [81], [82] and [124]-[129] above.
Dianne is an adult child of the deceased. The deceased and Betty supported her into early adulthood.
Although Dianne and Malcolm have suffered various business and financial problems throughout their life together, they have accumulated net assets of between approximately $781,929 and $931,929: see [162] above. Their taxable income is modest, but it must be borne in mind that their mortgage payments are made out of their pre-tax income and they have no dependents to support with their taxable income. I accept their evidence that they pay money to the mortgage and then re-draw it in order to meet their expenses, but there was no evidence of the amount of their expenses (other than the mortgage repayments), and no evidence of the revenue generated by Malcolm's business (as opposed to taxable income of Malcolm and Dianne derived from that revenue after payment of the mortgage and all business expenses). It is therefore not clear whether or to what extent the money "recycling" is done to address cashflow difficulties as opposed to a deficiency of income compared to expenses in any given financial year. The evidence does not allow an assessment of the amount of any such deficiency.
It was submitted on behalf of Dianne that she needs some provision for her retirement and a buffer or contingency fund to meet ill health and other demands that she is likely to face in her advancing years.
The value of Dianne and Malcolm's net assets from which this need could be met is greater than the value of the net assets of the deceased's estate and significantly greater than the net assets of those beneficiaries who have put their financial position in issue: see [9]-[14] and [174]-[187] above.
Dianne and Malcolm also have a greater income that Yvette, and Yvette must pay her mortgage and provide for three dependents out of her modest income.
Michelle and her husband have a far more comfortable income, but they must also pay their mortgage and provide for their three children out of that income. One of those children requires financial support to live away from home at university.
I accept the submission made on behalf of Dianne that she is not required to demonstrate that she is financially worse off than the beneficiaries in order for her family provision claim to succeed. However, the fact that she has significantly greater assets than those beneficiaries who put their financial circumstances in issue is one matter to be considered, together with all other relevant circumstances, including Dianne's needs.
There is no reason that emerges from the evidence why Dianne's needs could not be addressed by Dianne and Malcolm realising part of their net assets by downsizing to a property of less than 20 acres with sufficient size for Malcolm to conduct his business that generates their income. As the defendants submitted, a 20 acre property is not required to accommodate the shed from which Malcolm works. The evidence does not support the submission made on behalf of Dianne that she and Malcolm must retain the 20 acre Peats Ridge property in order for Malcolm to keep working.
It must be borne in mind that the deceased expressed his testamentary wish in his last will dated 22 July 2009 that Dianne should not receive anything from his estate: see [7]-[8] above. Dianne's relationship with the deceased deteriorated even further after July 2009 before she resumed occasional courteous contact with him incidental to her visits to Betty at some time between 2013 and March 2016: see [129] above. There is no basis for inferring that the deceased's testamentary wishes in relation to Dianne had changed between the date of his last will and his death, particularly in circumstances where: 1. the deceased continued his excellent relationship with Susan and Michelle during that period, and it was Susan and Michelle who provided the assistance and care that the deceased and Betty increasingly required in the years after 2009 as they aged: see [130]-[131] above; 2. the deceased also continued a close relationship with Yvette, despite being geographically more distant from her than from Susan and Michelle: see [132] above; and 3. the deceased also stayed in contact with Lachlan, even though Lachlan lived about seven and a half hours' drive from the deceased: see [93] above.
It was submitted on behalf of Dianne that the deceased's difficult personality led to the rift between them that occurred in 1996, and that his stubbornness led to the rift continuing until 2013. I do not accept this submission entirely. I do accept that the deceased's lack of affection, intolerance and instances of verbally abusive conduct towards Dianne during her childhood, his physical violence towards Betty, Yvette and Michelle from the 1980s to the mid-1990s and the distress that this caused Dianne, and his difficult conduct towards others in later years, contributed significantly to the lack of a close relationship between Dianne and the deceased throughout the whole of the deceased's life. However, the evidence suggests that there was also an element of stubbornness on Dianne's part that contributed to the total breakdown in their relationship enduring for almost 20 years. I refer in particular to Dianne's steadfast avoidance of conversation with the deceased at family occasions and her conduct in hanging up if he answered the telephone when she called Currabeen: see [86]-[100] above.
I reject the submission made on behalf of Dianne that she had a good relationship with the deceased for most of her life: see [61], [81], [82] and [124]-[129] above. I also reject the submission that the relationship between Dianne and the deceased strengthened after 2013. The relationship did not strengthen in any meaningful sense. Dianne's contact with the deceased continued to be limited to occasions on which he was present when she was visiting Betty, with the exception of her stay at Currabeen on 5 May 2018 to break her journey to Tamworth. The only difference was that Dianne and the deceased were now able to speak to one another during such incidental contact, as opposed to ignoring one another: see [129] above.
I also reject the submission that Dianne made every effort to support both the deceased and Betty, and made a meaningful contribution to his welfare. With very few exceptions, the support and care required by the deceased and Betty was provided by Susan and Michelle. Dianne maintained social contact with Betty, with whom she remained close: see [130] above. It was nothing more than a coincidence that Dianne was at Currabeen when the deceased was taken to hospital a few days before he passed away. Even then, Dianne did not stay and comfort or care for the deceased, but continued her journey to Tamworth: see [121] above.
Susan, Yvette and Michelle developed and maintained close relationships with the deceased despite this conduct.
It is no criticism of Dianne that she did not develop a close relationship with the deceased, that she had no relationship with him for almost two decades after 1996, or that she chose not to take an active role in assisting and caring for him in his declining years. However, it is a relevant factor to be considered, together with the causes of the lack of close relationships and estrangement, the size of the estate, Dianne's financial circumstances and needs, the other claims on the estate and the deceased's testamentary wishes expressed in his last will in 2009, in deciding whether the deceased has made adequate provision for Dianne's proper maintenance and advancement in life: see [36] above.
The deceased's conduct towards Dianne was not what a daughter would hope for from her father. His violent conduct towards Betty was reprehensible, and directly affected Yvette and Michelle and I have no doubt that it would have caused distress to Dianne and Susan. However, an order for provision in favour of a child of the deceased is not made for the purpose of punishing the deceased, or compensating the child for the deceased's past conduct: see [36] above.
Whilst the deceased's testamentary wishes are not determinative, I consider his intention expressed in his last will reflected his view that Susan, Yvette, Michelle and Lachlan were the most worthy recipients of his estate in view of the totality of his relationships with them. I refer only to the deceased's last will, and disregard his October 2002 letter as having been overtaken by his more recent expression of his intention in the will made on 22 July 2009. The submissions made on behalf of Dianne relied on some notes in hospital records as suggesting, if the deceased had wanted to change his will in favour of Dianne in the period after 2013, he would have been too preoccupied with his own state of health to do so and may even have lacked the mental capacity to do so. This simply begs the question whether the deceased wanted to change his will in favour of Dianne. The evidence concerning the state of the relationship between the deceased and Dianne in the period after 2013 does not support an inference that the deceased wanted to change his will: see [129] above.
In my opinion, considerable weight must be afforded to the deceased's testamentary wishes in circumstances where Dianne has had a long adult life to accumulate assets and funds to meet her needs, she and her husband have in fact accumulated significant assets, and Dianne never had a close relationship with the deceased or made any material contribution to his welfare, in stark contrast to the beneficiaries. I do not consider that the community would expect that the deceased should leave part of his modest estate to Dianne to ease the financial constraints that she is currently experiencing compared to earlier times in her life, at the cost of reducing the modest gift he is able to provide for his other children and grandchild with whom he maintained close relationships and, in the case of Susan and Michelle, who assisted and cared for him in his old age despite his shortcomings as a parent: see [34]-[35] above.
Having regard to all of those circumstances, I reject the submission made on behalf of Dianne that the deceased had just as much of an obligation to her as his daughter as he had to his other children and to his grandson, Lachlan. In substance, this submission was a plea for equality between claimants. The exercise of the jurisdiction under Chapter 3 of the Succession Act is not an exercise in achieving "equality" or "fairness": see [41] above. I also reject the submission that community expectations are that an adult child will receive an inheritance from each of his or her parents, absent grievous conduct. That submission is inconsistent with the authorities referred to in [34] above, and ignores the need to examine all the circumstances of each individual case.
For all of those reasons, I am not satisfied that adequate provision has not been made by the deceased's will for Dianne's proper maintenance, education or advancement in life. The summons is therefore dismissed.
I will determine the question of costs on the papers, after receiving brief written submissions from the parties.

CONCLUSION AND ORDERS

For the above reasons, I am not satisfied that the deceased's last will did not make adequate provision for Dianne's proper maintenance, education or advancement in life. The Court therefore has no power under s 59 of the Succession Act to make an order for provision in favour of Dianne in this case.
I make the following orders and directions: 1. Order that the summons filed on 18 April 2019 is dismissed. 2. Direct that: 1. within 14 days of the date of these orders, the parties file and serve written submissions of no more than 4 pages in length addressing the orders for which they contend in relation to the costs of this proceeding; and 2. within 21 days of the date of these orders, the parties file and serve any written submissions in reply to the submissions referred to in order 2(a) above, of no more than 2 pages in length. 1. Direct that the question of the costs of this proceeding be determined on the papers.

Endnotes

Incorrectly calculated in the plaintiff's submissions as $131,861.93.
The statutory declaration was admitted into evidence without objection, save for the last two paragraphs which were not relied on by the defendants.
Incorrectly calculated in the plaintiff's submissions as $428,803.
Incorrectly calculated in the plaintiff's submissions as $131,861. 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: 19 October 2020

(2019) 101 NSWLR 225

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