Shymko v Lach - [2022] NSWSC 1096 - NSWSC 2022 case summary — Zoe

NSWNSWSC

Shymko v Lach

[2022] NSWSC 1096

Supreme Court of NSW|2022-08-03|Before: Meek J, Needham J, Young J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-08-03

Before

Meek J, Needham J, Young J

Catchwords

[2012] NSWCA 308 Ashton v Pratt (2015) 88 NSWLR 281
(2016) 15 ASTLR 317 Chapple v Wilcox (2014) 87 NSWLR 646
45 ER 1285 Diver v Neal [2009] NSWCA 54
[2002] HCA 8 Federal Commissioner of Taxation v Visy Industries USA Pty Ltd (2012) 205 FCR 317

Source

Original judgment source is linked above.

Catchwords

[2012] NSWCA 308 Ashton v Pratt (2015) 88 NSWLR 281(2016) 15 ASTLR 317 Chapple v Wilcox (2014) 87 NSWLR 64645 ER 1285 Diver v Neal [2009] NSWCA 54[2002] HCA 8 Federal Commissioner of Taxation v Visy Industries USA Pty Ltd (2012) 205 FCR 317[1980] HCA 16 Horton v Jones (1935) 53 CLR 475[1973] HCA 8 Lodin v Lodin [2017] NSWCA 327[2004] HCA 35 Palmer v Bank of New South Wales (1975) 133 CLR 150[1969] HCA 29 Poletti v Jones [2015] NSWCA 107[2014] HCA 19 Simons v Permanent Trustee Co LtdEstate D Hakim [2005] NSWSC 223 Singer v Berghouse (No 2) (1994) 181 CLR 201[1994] HCA 40 Spata v Tumino (2018) 95 NSWLR 706(2013) 301 ALR 769 Vigolo v Bostin (2005) 221 CLR 191[2005] HCA 11 Vukic v Grbin [2006] NSWSC 41 Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (In Liq) [2022] HCA 3(2022) 399 ALR 1 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Judgment (109 paragraphs)

[1]

002] HCA 8 Federal Commissioner of Taxation v Visy Industries USA Pty Ltd (2012) 205 FCR 317; [2012] FCAFC 106 Fincke v US 675 F 2d 289 (1982) Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475 Georgopoulos v Tsiokanis [2022] NSWSC 563 Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 Horton v Jones (1935) 53 CLR 475; [1935] HCA 7 Hurst v Public Trustee [2000] NSWSC 1109 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; [1973] HCA 8 Lodin v Lodin [2017] NSWCA 327; (2017) 16 ASTLR 576 Mallitt v Gow [2022] NSWSC 1012 Maloney v Goodwin (Supreme Court (NSW), Needham J, 1 August 1989, unrep) Maxwell v Maxwell [2022] NSWSC 1028 McKenzie v Baddeley [1991] NSWCA 197 Moore v Aubusson [2020] NSWSC 1466 Morgan v Bohm [2013] NSWSC 145 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51 Petrohilos v Hunter (1991) 25 NSWLR 343 Pitkin v Henderson [2001] NSWSC 207 Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353; [1969] HCA 29 Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 Porthouse v Bridge [2007] NSWSC 686 Ramsden v Dyson (1866) LR 1 HL 129 Re Fulop (deceased) (1987) 8 NSWLR 679 at 681D Samsley v Barnes [1990] NSWCA 161 Sgro v Thompson [2017] NSWCA 326 Shaw v Lambert (Supreme Court (NSW), Young J, 9 October 1987, unrep) Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Simons v Permanent Trustee Co Ltd; Estate D Hakim [2005] NSWSC 223 Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steiner v Strang [2016] NSWSC 395 Strang v Steiner [2019] NSWCA 143 Sun v Chapman [2022] NSWCA 132 Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Vukic v Grbin [2006] NSWSC 41 Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (In Liq) [2022] HCA 3; (2022) 399 ALR 1 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Watson v Foxman (1995) 49 NSWLR 315 Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep) Winter v Crichton (1991) 23 NSWLR 116 Texts Cited: Anna Lawson, "The things we do for love: detrimental reliance in the family home" (1996) 16 Legal Studies 218 JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane's Equity Doctrine & Remedies (5th ed, 2014, LexisNexis) Category: Principal judgment Parties: Natalie Shymko (First Plaintiff) Katherine Vella (Second Plaintiff) Mary Lach (Defendant) Representation: Counsel: M Pringle (Plaintiffs) K Morrissey (Defendant) Solicitors: CMM Quay Legal Group (Plaintiffs) Warren F. Ball & Co (Defendant) File Number(s): 2021/217653

[3]

Relief sought

The proceedings were commenced by summons filed on 30 July 2021 seeking family provision relief.
By statement of claim filed on 13 September 2021, additional relief apart from family provision relief was sought.
The further relief in fact has become the primary relief sought, with the family provision relief (family provision claims) now sought in the alternative.
The further relief is essentially relief that the deceased's estate is bound by alleged statements made by the deceased and purportedly relied upon by the plaintiffs as general inheritance promises.
The first alleged statements were said to be made in or about early 2002 shortly after Myron's death by the deceased purportedly to make provision of an amount equal to one half of the net distributable estate for the plaintiffs as tenants-in-common. Although the statements are disputed in the proceedings for convenience purposes, in addressing the claims, I will simply refer to the statements or claims regarding the statements as being the 'general inheritance promises'.
The plaintiffs claim that the deceased's estate is bound by a testamentary contract regarding the general inheritance promises or alternatively estopped from denying the general inheritance promises.
Further particular relief is sought in the nature of a testamentary contract or alternatively estoppel relating to sums of $50,000 said to have been offered by the deceased in or about 2005 (in the context of Natalie's separation from her then husband) to Natalie as assistance to purchase property but also on the plaintiffs' case as a promise of inheritance. Likewise, although the statements are disputed in the proceedings for convenience purposes I will simply refer to the statements or claims regarding the statements as being the '$50,000 promises'.
Additional further and alternative relief is sought that the deceased's Will, dated 13 March 2010 (2010 Will) and any Wills made between January 2002 and 23 March 2010, be set aside for undue influence (undue influence claim): CB 7.
Whilst the relief sought in particular in relation to the general inheritance promises, $50,000 promises and family provision claims is relevantly disputed, many of the facts pleaded in relation to the claim have been admitted pursuant to a defence filed on 24 September 2021: CB 19.
The family provision claims are opposed. In particular, the eligibility of the plaintiffs is disputed (T207) as is whether there are factors warranting the making of their claims: T223.
Mary is Natalie's godmother and Natalie described the family a "small, tightknit family": CB 25[10].
Each of Natalie and Kathy speak fondly of their relationship with Mary prior to the events leading up to these proceedings (CB 35[80], 47[60]). In cross-examination Kathy stated (in reference to the time up to May 2019) "Mary treated me very, very well": T113.
This case is a desperately sad one, as Ms Pringle acknowledged (T2) at the outset of the hearing.
The disputes over the deceased's 2010 Will and general inheritance promises and $50,000 promises have fractured what appear to have been generally harmonious and loving relationships between the plaintiffs and Mary.
Mediation between the parties failed to resolve their issues: T2.
In the circumstances, the Court has been asked to determine the claims. The judicial duty is to hear the case according to law: T3.

[14]

2010 Will

Probate of the 2010 Will was granted to Mary on 18 November 2020: CB 281.
The 2010 Will appoints Mary as executor and after payment of funeral, testamentary, duty and other expenses and debts leaves the residue of the estate to Mary absolutely: CB 282.
In the event that Mary predeceased the deceased the Will made provision for the balance of the estate to be distributed as follows: 1. 40% to Stan; 2. 20% to Natalie; 3. 20% to Kathy; and 4. 20% to Alise. (CB 282-283)
Significantly, whilst there is reference to the 1977 Will and the 2002 Will (made approximately seven months after Myron's death), there is no detail in the evidence of the terms of those Wills.
There is in evidence a draft copy of the 2006 Will, by which the deceased appointed Mary as executor and gave gifts of $30,000 to each of Natalie and Kathy, and $10,000 to the deceased's brother Bogdan: CB 226-227.
The balance of the deceased estate under draft of the 2006 Will after payment of funeral and testamentary expenses, duties and debts is given to Mary: CB 227.
The event of Mary predeceasing the deceased, the draft discloses there was a gift over of the residue to such of Natalie, Kathy and Alise as survived the deceased and if more than one of them in equal shares: CB 227.
It is not agreed that the draft document which appears in the court books (CB 226-228) of the 2006 Will reflects what was in the Will as signed. The plaintiffs say that it is simply not known: T184-185.
There is a letter from Mary's solicitors dated 13 May 2021 which shows that the firm Warren F Ball & Co had acted for the deceased since 2002. The letter indicates that during this time the deceased made two Wills. The letter (exhibit P2) relevantly indicates "Our client has advised that she could not locate a copy or the original of the 2006 Will at home. Our records show that we do not appear to hold in safe custody the original 2006 Will but we are still completing our enquiries. It is the firm's policy that when a client signs a new Will that they are advised to destroy any old Wills they have made and we do likewise re. any copies held in our files. We only have a computer copy of the 2006 Will but if there were any ink changes made to that Will they would not be shown. We will advise you as soon as we have completed our further enquiries."
Accordingly I proceed on the basis that there is uncertainty as to the actual terms of the 2006 Will.
However, whilst the terms of the actual 2006 Will are not known, the fact that the deceased proposed gifts of $30,000 to each of Natalie and Kathy as recorded in the draft copy of the 2006 Will arguably bears some relevance to the $50,000 promises issue. I will refer to this below.

[16]

Credit and reliability

Each of Natalie and Kathy gave their evidence in a clear way. Subject to some reservations I note below regarding their evidence, in particular on the topics of the $50,000 promises and reliance on the general inheritance promises and $50,000 promises, I generally accept their evidence.
Mary likewise gave evidence in a straightforward way. On the whole I accept her evidence. I had some reservation regarding Mary's recollection of the precise details in relation to the $50,000 promises. Otherwise, I accept the substance of Mary's evidence on the contested issues on that topic.
Whilst Stan was a little defensive in cross-examination, I had no reason to doubt that he was attempting to tell the truth as best he recalled it.
Malcolm was somewhat combative during cross-examination, suggesting at one point that the assumptions for the questions were vague and asserting that the conclusions would be similarly vague: T 133.
When asked what appeared to be a relatively straightforward question of how much of loan expenses of $5,000, he claimed as a tax deduction his response was "I don't know, because it would be annualised, so you have to multiply everything by 12, which is not the nature of your question": T137.
For a person who practised and specialised as a financial advisor, he seemed surprisingly vague regarding detail about amounts that were contributed by each of himself and Natalie to the purchase of a property at Hunters Hill (Hunters Hill property): T 132-133.
Nonetheless, in re-examination, he gave evidence of some effects of his illnesses which included inability to concentrate for long periods of time, tiredness and chronic tiredness, and it may be that his ability to recall was to some extent affected by his health: T 144.
Overall, I have no particular reason to doubt he attempted to give his evidence as best he could recall it.
Chris was not required for cross examination: T 144.
Olga, by her own admission, was somewhat stressed in giving evidence: T 75.
I had the impression that she felt the cross-examination was a little personally intrusive: T 75.35.
Clearly, she was frustrated about the events relating to the deceased's Will (T 76).
She had a view that the deceased should have left her estate equally to Mary and Myron's family, asserting that that the deceased used to talk about things being equal and fair always: T 83.
She was evidently blindsided by news regarding the 2010 Will and could not conceive of why the Will took the form it did: "A. I heard about that. Q. Well, that's it-- A. I cannot believe it. She must have been under a lot of pressure or manipulated or something was done, because I cannot believe that, I'm terribly sorry. That's not her. It's an insult to her memory." (T 83.42-.47).
My concern regarding Olga's evidence is not that she was not attempting to tell the truth. However, as the above passage shows, she had a strong sense of her own view of the righteousness of the deceased's moral obligations to the family and it seems to me that a disappointment in the terms of the deceased's 2010 Will pervaded Olga's thinking and also coloured, albeit subconsciously, her evidence. It seems to me that this is particularly so in relation to her evidence regarding the $50,000 promises.

[17]

Disputes regarding the extent of contact between the plaintiffs and the deceased

There were some differences as between Mary and the plaintiffs regarding the extent of the contact that the plaintiffs had with the deceased. The disputes in this regard were relevant to a number of issues.
One aspect of the dispute is that on Mary's case there were limited opportunities for the deceased to make the general inheritance promises to the plaintiffs.
Further, Mary says that there was no opportunity for the deceased to make statements to Olga regarding looking "after the girls": CB 174[68.1].
Mary asserts that she was always present during the deceased conversations with family members and never heard her mother make promises to that effect: CB 176[69.1].
Kathy says that Mary holidayed annually away from the deceased for approximately two months of the year: CB 103[60b].
Each year Stan and Mary took annual holidays initially going to foster with their caravan staying for about a month.
From 2012, they went further afield taking their caravan to North Queensland annually and were away for longer periods for about 6 to 8 weeks: CB 162[65.10]. However, Mary says that she spoke with the deceased on the phone every day during these times: CB 162[65.10].
As I note below, I accept that there were occasions on which the deceased interacted with Natalie and Kathy where Mary was not present and I do not doubt that there were opportunities for the deceased to make statements to Natalie and Kathy, away from the presence of Mary.
A second aspect of the level of contact related to the opportunities for Natalie and Kathy to spend time with the deceased as part of the claim for reliance upon the general inheritance promises and the $50,000 promises.
Mary commented on the relationship of Natalie and Kathy with the deceased.
Mary accepted that when Natalie and Kathy were growing up, they had a close relationship with the deceased because Myron brought them regularly to visit the deceased and for mutual family activities at that time. Mary further indicates that the period of time that Myron's family lived with the deceased in Guildford brought them closer together: CB 155[53].
However, Mary says that when Natalie and Kathy became adults that contact with the deceased was far less frequent: CB 155[54].
Mary disputes Natalie's evidence that she and Natalie called each other as frequently as once a fortnight (CB 35[80]) and rather says that she (Mary) was the one who initiated the calls: CB 167[65.28].
Mary commented that Natalie and Kathy rarely visited the deceased, particularly when she was in hospital: CB 157[59]. Kathy was cross-examined regarding this. She indicated that in 2009 she did not visit any hospitals when she was going through IVF for concern of catching infections: T 119.
It is clear that Mary lived with her mother for her whole life at the Guildford property and spent considerable time with her other than occasions when Mary and Stan went on annual holidays.
Stan indicates that in the 40 years he lived with Mary and the deceased, with the exception of family celebrations held with the Guildford property he hardly saw the plaintiffs visit, although accepts that he never formed any particular relationship with either plaintiff over that time: CB 200-201[50]-[51].
However, Stan's seeming lack of involvement in some of the family activities related to his health issues regarding vertigo and suffering migraines: T 174.
Natalie and Kathy indicate that because of the general inheritance promises and $50,000 promises they amongst other things spent more time with the deceased than perhaps they might have otherwise done, including on occasions throughout the years they did from time to time visit the deceased and additionally they celebrated birthdays and Christian and other festive events during the year.
I accept their evidence of a goodly amount of contact with the deceased. However, I have doubts regarding Natalie's and Kathy's assessment of "increased extent" of their contact with the deceased, particularly in the context of reliance on the general inheritance promises and the $50,000 promises.
Mary disputed that the contact between the plaintiffs and the deceased was constant. She indicated the contact was occasional and "not a great deal that she would've liked": T170.
As I understood this evidence, this is not said in an untoward way but rather simply recognising that the deceased appreciated the contact that she had with the plaintiffs, but recognised that their lives were busy and was perhaps even a little bit reluctant to initiate contact.
This is borne out in cross examination of Mary as follows: "Q. Because Natalie and Kathy always had contact with Baba, didn't they? A. Well, when you say, "Always had contact," because the girls worked, mum never used to bother - she knew they were busy with their working lives and their families, so nine times out of ten or eight times out of ten, it'd be me that would instigate the phone call. I'd have a talk to the girls and then they'd talk to mum on the phone. But, you know, we understood that they had family and that they were busy. So, we would ring when it was more convenient for them." (T170)
I accept that Mary was generally speaking, the instigator of contact as between the deceased and the plaintiffs.
The cross-examination of Mary proceeded on the basis that from 2011 after Mary retired, Mary "pretty much" took the deceased everywhere and she really did not go anywhere without Mary: T174.
Kathy gave some evidence regarding the deceased's independence which also confirmed the deceased's reliance upon Mary and Mary's great involvement particularly in the last 10 years of the deceased's life. Kathy's evidence to my mind supported Mary's assessment of the plaintiffs' contact with the deceased especially from about 2006 (CB 47[50]-[53]): "50 Baba was fairly independent up until she reached approximately 80 years of age Baba did not drive. She was able to get herself to church and appointments using public transport. She was able to walk on her own to Guildford shops for groceries. 51 In her eighties, Baba started to become reliant on Mary due to her health and age. Mary cared and assisted Baba when needed. 52 In the last few years of Baba's life, Baba received Community Care services and had regular visits from an Aged Care worker who took her out for a coffee. 53 In her eighties, Baba was especially reliant on Mary for transport. So much so. Baba bought Mary her car. During these later years. Mary drove Baba to church, the shops, the cemetery. and medical and legal appointments. Mary often attended these appointments with Baba."
I consider that Mary was in a good position to assess the general level of contact as between the plaintiffs and the deceased. Whilst it is true that she had no direct means of observing contact while she was away on holidays she did keep up phone contact with the deceased and had some degree of awareness that way.

[22]

Financial resources

There was some debate in the proceedings regarding the size of the resources the deceased was likely to have had at times referable to the claimed promises in 2002 and 2005.
Mary indicated that the deceased was very thrifty with her money and saved well: CB 160[65.3]. Stan indicated that the deceased used to hate spending unnecessary money and agreed she lived a very frugal lifestyle and managed her money very carefully: T191-192. He stated she "knew exactly what she was doing with her money": T192.
Natalie did not know precisely about the deceased's financial circumstances. She "just knew that she had her house in Guildford which she owned": T58, 63.
Olga was cross-examined regarding where the deceased had the money in order to make good financially the general inheritance promises and $50,000 promises.
Olga indicated that the deceased did not go anywhere, she had a pension and that she was aware from other people that "if you don't go anywhere and you save up, you can have money in the bank". Olga had the impression that the deceased was able to save and put a bit aside: T 82. However, Olga accepted that she did not know and was not privy to the deceased's finances: T83.
The deceased had relatives in Poland and she sent them money and clothes: CB 66[38].
It appeared clear on the evidence that the deceased's property following her retirement only comprised the property at Guildford, some amount of money, which was not precisely identified at any relevant point of time (other than the date of death) and the aged pension: T 82 (Olga).
It is clear from the administration of the estate that the deceased had at a term deposit with St George that at that stage had a sum of approximately $26,143 and a bank account with a small amount of money albeit that the sum of $3,100 had been withdrawn in cash post death. The deceased also had two accounts with the Commonwealth Bank with some amounts totalling a little over $4,000 which had been withdrawn in cash post death: CB 312.

[24]

Upbringing, education and employment

Mary attended initially Warragamba Public School and then Guildford Public School. She later attended Merrylands High School leaving in year 10 when she was 15 years old: CB 143[11].
Mary then attended Granville TAFE completing a course in shorthand typing and business principles. After leaving the college she worked the Commonwealth Bank in Sydney at a number of branches doing various jobs including working as a teller: CB 143[12].
Stan left school in year 10 at the age of 15 years and commenced a five-year apprenticeship as a fitter machinist with State Rail: CB 192[17]-[18].
After finishing his apprenticeship he stayed on for another nine years working in that capacity and then became an instructor with State Rail Apprentice Training College he remained for 14 years. After 28 years with State Rail, he was made redundant and received a redundancy package of about $60,000: CB 192[18].
In 1976, after ten years Mary left the bank: CB 143[12].
Between approximately 1976 and 1992, Mary worked for 16 years with Bankcard: CB 143[12].
In or about 1982, following her marriage to Stan, Mary made a promise to the deceased that they would live with her until she passed away so that she would never have to live on her own: CB 145[18].
With that in mind Mary and Stan planned to save and buy house where they could eventually live.
Between 1994 and 2011, Stan worked as a subcontractor with Triple M Mechanical Services at Silverwater doing air conditioning maintenance and mechanical work: CB 193[20].
In 1986, Mary and Stan purchased a house in Gooden Drive, Baulkham Hills (Baulkham Hills property) for $175,000 and took out a mortgage with St George Bank for about $120,000 which was repaid over the next 30 years. In the meantime, they rented that house and made up any shortfall in the mortgage repayments from the cash funds. For a number of years of high interest rates the shortfall was substantial: CB 145[19].
Between 1992 and approximately 2000, Mary had other employment.
In 2000, Mary accepted a position as a container controller with United Transport at Arndell Park and worked there for 11 years until she retired in November 2011: CB 143[12].
In November 2011, Stan retired on the same day that Mary retired: CB 193[20].
When Mary and Stan retired they had liquidated their assets (apart from the Baulkham Hills property), including their superannuation and had $600,000 in savings and term deposits as well as the rental income from the Baulkham Hills property.
In about 2015 by the time that Mary and Stan attained the age of 65, because of their holding of the Baulkham Hills property, they did not qualify and therefore did not apply for the age pension. They continue to live off the rental income and their cash funds which has been depleting: CB 144[16].

[28]

Building contract for Baulkham Hills property

In December 2020, Mary and Stan entered a building contract with Beechwood Homes (dated 23 December but signed on 24 December 2020: CB 194[30]).
The building contract (CB 287-299) has a contract price of $467,269. It is described as a "supplementary building contract".
The written contract does not (it seems) provide for demolition costs.
Nonetheless, Mary indicates that she and Stan have paid to the builder approximately $30,000 for demolition costs, plans and Council fees. She indicates the builder omitted to check the flooding issues affecting the property resulting in the commencement of works being delayed and additional costs.
The contract price has been revised. One such variation appears dated 25 February 2022 was placed in evidence. It contains a list of various additions, deletions and modifications which provided a varied figure to be paid of $727: CB 360-367. The variation was signed by the parties on 3 March 2022 (CB 363). A payment of $41,226.90 was made by Mary and Stan on that day: CB 368.
On 4 May 2022, on the laying of the slab for the property further payments have been made by Mary and Stan of $80,000 and $36,817.25 covering the total amount due for the slab: CB 380-381.
Photos of the construction of the property including the slab appear in evidence: CB 383-385.
Mary indicated in her 23 September 2021 affidavit that the construction costs will now be approximately $500,000 and take approximately 12 months to complete once a new contract is signed: CB 146[23].
At some point Mary and Stan arranged a line of credit with St George Bank for $300,000 to assist with building costs. But since before Christmas 2020 (when the tenants moved out) and the house was demolished, they have lived off and paid expenses from their cash funds and line of credit and spent $56,500 from the line of credit: CB 146[24].
Stan in his updating 26 January 2022 affidavit gave evidence regarding the building contract noting that the revised cost of the bill is estimated to be $619,269 which, coupled with other expenses (installation of carpet, floating floor, blinds, shutters, driveway, paths, clothesline, landscaping, etc) at an estimated cost of $82,450, will total $700,719: CB 194-195[30].

[29]

Financial circumstances

In about 2015 by the time that Mary and Stan attained the age of 65, because of their holding of the property at Baulkham Hills, they did not qualify and therefore did not apply for the age pension. They continued to live off the rental income (until prior to Christmas 2020) and their cash funds: CB 144[16], 146[22].
They have not qualified for the pension and will not do so until they move into the completed residence on the Baulkham Hills property: CB 144[16].
Mary and Stan's current assets and liabilities and anticipated liabilities are as follows (CB 218[6]): Assets: 94 Gooden Drive Baulkham Hills (land) ("Baulkham Hills Property") - estimate market price E $1,500,000 Furniture for new home (with cost of new lounge added since my January 2022 Affidavit) $19,525 Mary's Jewellery E$2,500 Box Trailer E$500 Goldstream Caravan (9 years old) E$20,000 2013 Mazda BT50 E$20,000 2010 Ford Festiva (with hail damage) E$3,000 Great South Bank Account No [xxx] 778 E$50,000 St George Bank Account No [xxx] 684 E$16,000 Australian Mutual Bank Account Nos [xxx] 07871 & [xxx] 604 E$15,000 E$1,646,525 Liabilities: St George Bank Line of Credit ($300,000) Account No [xxx] 67871 E$54,950 Balance due under Building Contract with Beechwood Homes (paragraph 3(c)) $304,450 Balance legal fees of these proceedings $75,000

[34]

Upbringing, education and employment

As noted above Natalie talks fondly of her upbringing in a small 'tightknit family' in which she had a loving relationship with the deceased which persisted to the deceased's her death: CB 25[10]-[11].
Family occasions were celebrated. This included, according to Natalie every family milestone being birthdays, christenings, weddings, kitchen teas, graduation ceremonies, formals, Christmas, Easter and Mother's and Father's Days and remembrance services: CB 25[11].
On birthday, Easter and Christmas occasions the deceased gave Natalie and her sons small sums of money, such as $50.
On particular special occasions such as Natalie's 21st birthday or her wedding day, the deceased gave her larger sums of money: CB 26[15].
Natalie deposes to the fact that during her teenage years her relationship with the deceased deepened: CB 27[21].
Natalie attended Carlingford High School.
In 1989, she commenced a BA in Politics at Macquarie University and graduated in 1991.
Following her marriage to Taras in 1982, in February 1983 she commenced employment as an advisor and researcher at Parliament House working for Virginia Chadwick and subsequently for Malcolm Jones: T 33, 35.
Apart from approximately a year in America (1995-1996) Natalie remained in her employment at Parliament House until approximately April 2006: T 33.
In adult years Natalie says Kathy checked on the deceased regularly when Mary and Stan went away on holidays. Natalie also visited, took the deceased shopping and to lunch: CB 27[29].
In 1998, Natalie returned to work and for several years until 2000, the deceased looked after Alex one day a week so that Natalie initially could work part-time and then full-time at Parliament House: CB 28[31]-[33].
Natalie says she was dependent on the deceased to look after Alex and could not have gone back to work part-time without the deceased's support: CB 28[35].
Natalie indicates that her relationship with the deceased into adult years remained a close and loving one: CB 32[61].
In 2000 Natalie met Malcolm: CB 129[6].
In 2005 in the midst of her marital breakdown with Taras, Natalie moved out of the marital home in Amiens Street, Gladesville, and into Kathy's two-bedroom apartment in Meriton Street, Gladesville (Meriton Street unit), with her sons.
Taras and Natalie had an informal property settlement, in which she received "half of the assets" (which assets included the matrimonial home in Amiens Street Gladesville). That occurred before the formal divorce order of the Court, which enabled Natalie to purchase another property being a unit in Linsley Street, Gladesville (Linsley Street unit): CB 30[54]; T93.
On 10 November 2005, the Linsley Street unit was transferred into Natalie's name showing consideration of $463,000. It was subject to a mortgage to ING Bank (Australia) Ltd: exhibit D1.
On or about 2 September 2011, the Linsley Street unit was sold for $540,000: exhibit D1. This appears to have been relatively contemporaneously to the time at which Natalie started living together with Malcolm.
On or about 7 October 2011, Natalie and Malcolm purchased the Hunters Hill property for $1.34 million: CB 129[1]; exhibit D5.
On or about 19 September 2014, Natalie and Malcolm purchased a unit at Surry Hills (Surry Hills unit) for $760,000 (exhibit D6), which Malcolm used as an office: T134-135.
In April 2018, Natalie, Kathy and the various family members travelled to Cowra to take the deceased to places that she had stayed at when she had settled into the immigrant camp after the war: CB 32[62], 46[42].
Natalie refers to the fact that the deceased asked her to promise that she would not let her go into a nursing home: CB 33[70]. Ultimately, the deceased remained in the Guildford property until her stroke in April 2020 and following a four-week admission to Westmead Hospital she was discharged and admitted to St Vincent's care facility at Yennora: CB 152[43].

[35]

Financial circumstances

Natalie is employed by Thales Australia as a Communications Manager and earns $5,423 per month net.
During the majority of Malcolm's working life, he was a licensed financial advisor. He is currently retired and does not receive any government benefits or pensions. He has no superannuation and subject to what is noted below states he has no income: CB 129[5], [8]-[9].
Malcolm draws approximately $4,000 per month from the investment account (CB 129[9]) which as at 10 July 2022 had a market value of approximately $2,459,804 (CB 387-388) and a closing balance as at 12 July 2022 of approximately $2,425,400 (CB 130[16)] which is primarily used to pay rent and health insurance.
Their monthly expenditure totals $9,798, the most significant items of which relate to groceries ($1,732), rent ($3,432) and entertainment ($1,500).
In late 2021, they sold the Hunters Hill property (in which they had resided) and also the Surry Hills unit and entered into a contract purchase a property in Drummoyne (Drummoyne unit) off the plan.
The purchase price is $1.9 million. They paid a 5% deposit on exchange of contracts (in September 2021): CB 130[11]. The front page of the contract indicates that a 10% deposit of $190,000 was payable: CB 319. However in "additional provisions" to the printed form the contract there was provision for payment of the deposit by instalments being the sum of $95,001 upon exchange and the balance of $94,999 on completion (or default): CB 333.
Completion is expected towards the end of this year or early 2023.
The sale of the Hunters Hill property and Surry Hills unit has left Natalie and Malcolm with funds in excess of $2 million with which to complete the purchase of the Drummoyne unit.
They are renting accommodation at Rundle Place, Gladesville for $3,432 per month for the period 13 November 2021 to 12 November 2022: CB 336.
In summary their joint resources appear as follows: 1. investment funds approximately $2,425,400; 2. motor vehicles approximately $68,000; 3. camper trailer approximately $35,000; 4. sole and joint bank accounts (nominal amount); 5. furniture and household contents approximately $120,000; and 6. Natalie's Thales shares approximately $3,532.
In addition, Natalie has a superannuation entitlement currently valued at approximately $331,408.
Their liabilities are, in summary, as follows (CB 131[18]): 1. Malcolm MasterCard $9,630; 2. share of legal fees approximately $40,000; 3. balance due on Drummoyne unit $1,805,000 (plus adjustments in legal fees); 4. stamp duty on contract for the Drummoyne unit $89,097.
Alex has a degree in communications, works full-time in and has been financially dependent upon Natalie up until the present. He found other accommodation last month: CB 126[22]; T87.
Tomas has finished a degree in economics and lives independently in an apartment in Glebe, although he is assisted by Natalie from time to time with some money for home improvements: CB 126[23]; T87.

[39]

Financial circumstances

The financial circumstances of Kathy and Chris are as follows.
Kathy has worked full-time since leaving university up to 2013. She currently works part-time three days a week: CB 58[146b].
Kathy has net fortnightly income of $1,848. Her taxable income for the year ended 30 June 2021 was $68,425 and like Chris she has not yet prepared a return for the year ended 30 June 2022: CB 118[10]-[11].
Chris operates a company Black Earth Excavations Pty Ltd (Black Earth), which owns excavation equipment and leases trucks and trailers. He is employed full-time by his company as a plant operator: CB 59[154]. Chris works often 6 to 7 days a week: CB 58[146b].
For the 2021 financial year Chris had a taxable income of $51,872. He had not at the time of the hearing prepared a return for the financial year ended 30 June 2022: CB 112[14].
Recent events such as the COVID pandemic, flooding and long periods of wet weather have had some (undisclosed) impact upon the turnover of Chris's business: CB 114[27].
The business is also affected to some degree by mechanical breakdowns and rising fuel costs: CB 114[28]-[29].
Kathy prepared a schedule of what appears to be family fortnightly income ($5,734) and expenditure ($4,904): CB 118[12], 435.
Kathy still owns the Meriton Street unit which has a net value of approximately $438,133: CB 118[14]. An appraisal for the Meriton Street unit as at 13 July 2022 assesses its current market value at $650,000: CB 398.
Kathy owns jointly with Chris a property at Spring Farm which is mortgaged with a net value of approximately $803,410: CB 118[15], CB 113[19]. There is an appraisal for the property dated 14 July 2022 which gives an estimate of its current value at $900,000-$950,000 (differing from earlier in the year of $950,000 to $1.05 million): CB 402.
The property is tenanted and the gross rent is $580 per week: CB 113[19].
Chris recently received an inheritance of approximately $84,647 from his grandmother's estate which he paid into his Spring Farm home loan: CB 113[21].
They have a joint offset deposit account with a balance of approximately $5,668: CB 113[20].
Chris and Kathy own the property at Silverdale, which is unencumbered and worth approximately $1.6 million: CB 112[15]. There is an appraisal from a Penrith real estate agent assessing the value of the property as at 12 July 2022 in the range of $1.6 million to $1.65 million: CB 389.
Chris has a number of cars valued at $8,000: CB 112[15]. Kathy has a motor vehicle estimated at $8,000: CB 118[13b].
Chris's company Black Earth owns plant and equipment totalling approximately $275,000: CB 112[15e].
Additionally, Chris has two investment properties: 1. at Pacific Pines with a net value of $498,756, which property is tenanted with a gross rent of $600 per week; and 2. a property in Gooloogong which is unencumbered with an estimated value of $270,000 but which property is not tenanted: CB 113[17]-[18].
An appraisal for the Pacific Pines property values the property in the range of $720,000-$750,000: CB 396.
An appraisal for the Gooloogong property as at 12 July 2022 suggests a value for it of $260,000 to $300,000: CB 390.
Kathy has superannuation with Hesta (approximately $184,974) and as at 30 June 2021 and superannuation with the Commonwealth Superannuation Corporation in the sum of approximately $365,533: CB 118[13].
Kathy explained that she had not separately contributed to the superannuation. Rather, the Commonwealth has a very generous superannuation scheme: T 122.
The superannuation from the Commonwealth Superannuation Corporation arose from Kathy's employment with Australian Hearing for the period of about 11 years between 1993 and 2004 and she does not continue to add to that fund: T 122-123.
The Hesta superannuation amount arises from, or is connected with Kathy's employment with Audika at Penrith and has accumulated from about December 2004: T 123.
Chris has superannuation valued at approximately $176,743: CB 112[15].

[43]

The 1978 stay at the Guildford property

In 1978, Olga and Myron commenced building a house at Carlingford as in effect an owner-builder: T29.
They sold their house at Merrylands and moved in to live with the deceased at the Guildford property for approximately up to 16 months.
At the time of the move to the Guildford property Myron was working full-time as a customs officer and Olga was working three days a week at David Jones in Parramatta as a beauty therapist, normally between the hours of 9 AM and 4 PM: CB 64[17]. She owned her own business renting a room at David Jones: T 73.
Natalie (then about 8) and Kathy (then about 7) attended Merrylands East Primary School starting school at about 9:00 AM: CB 43[20]; T 80.
During the time living with the deceased Natalie and Kathy shared a room at the Guildford property: CB 27[27].
It is common ground that Olga and Myron did not pay the deceased rent during that period of time: CB 27.
Evidence about the exact layout of the Guildford property emerged in cross-examination. The parties indicated it was described as a three bedroom with one sunroom property: T 30, 56 (Natalie), 79 (Olga), 152 (Mary).
Natalie indicated that her mother and father worked full-time, and that the deceased looked after Natalie and Kathy before and after school. She said that the deceased picked them up, helped with meals, washing and homework and that they were very reliant upon her: CB 27[27].
Natalie was cross-examined regarding this. She appeared to accept that, given the deceased was working and did not drive, that in all likelihood, Olga must have taken Natalie and Kathy to school, although she definitely recalls the deceased picking them up after school: T 30-31.
The deceased would make them some afternoon tea or something before their parents came home from work: T 31.
Olga helped with cooking and cleaning at the house and sharing chores: T 31.
Kathy says that whilst they lived with the deceased she was dependent upon the deceased's care noting that the deceased collected Natalie and Kathy from primary school three days a week: CB 43[22].
She was also dependent upon the deceased for care and support until Olga returned home from work around 4:30 PM: CB 44[23].
Olga was somewhat unclear as to who took the girls to school although thinks that she must have taken them: T 80. She indicates that the deceased may have occasionally taken them to school, which was close by to Merrylands train station: CB 64[19].
Olga indicates that they lived with the deceased for about 14 to 16 months before the home in Carlingford was completed and during that time she and Myron were dependent upon the deceased whilst living with her and grateful for her help: CB 64[22]-[23].
In or about 1979 or 1980, Myron and the family moved into the Carlingford property: CB 27[28].

[47]

Natalie's recollections

In 2005, following Natalie's separation from Taras she moved with her sons out of the matrimonial home in Amiens Street Gladesville and into Kathy's Meriton Street unit: CB 30[55].
In the context of her separation and/or divorce, Natalie says she wanted to purchase a property, preferably a house in the same area (Gladesville) and considered buying either a duplex in Junction Road Gladesville (duplex), or the Linsley Street unit. She says she needed another $50,000 to buy the duplex and was afraid to extend herself financially: CB 30[57].
Natalie says during this time the deceased and Mary called her, indicating that they had heard from Olga that Natalie was short of money and they had a conversation to the following effect: "Mary: We heard you are short of money for the house you want to buy. Don't worry, Baba wants to help. Mary passed the telephone to Baba. Baba: Natalochka, I will give you the $50,000 now if you need it. I want you to buy the house for you and the boys so you have a home. You and Kathy are my only granddaughters. my family, Myron's daughters. I promised your father I would look after you both. I love you so much. You and Kathy have inheritance money from me and you can have some of this money now. Natalie: Thanks Baba, I will think about it ... but wait what if I decide not to take the money now, what if I wait and take the money later ... what then? ... and what about Kathy? Baba: It's ok if you want to wait ... if you do, then I promise to give you the money later when I die, kicked the bucket. Kathy and you will get the same amount. Natalie: Thanks Baba. I will think about it." (CB 31[57c])
Natalie says that she telephoned the deceased that afternoon and had a conversation which included the following exchange: "Natalie: Thanks Baba for the early offer of my inheritance money, but I'm not going ahead with the duplex. If it's OK with you, I prefer to wait to get my inheritance money at the appropriate time and at the same time as Kathy. Baba: OK but if you see some other property in the meantime and want some money, I promise you it's there for you. You are my blood, my family, my eldest granddaughter. I've always said, we Shymko women stick together. I make this promise to you, you can have part of your inheritance money now or later, whichever you prefer. You know my promise is my word and when I make a promise, Baba keeps it ... God is my witness. Us Shymko women stick together." (CB 31[57g])
Whilst Natalie needed the $50,000 to buy the duplex she did not go ahead with that. Instead she purchased the Linsley Street unit, which was cheaper, and she did not require the $50,000 in order to purchase the Linsley Street unit.
Natalie was cross-examined about the $50,000 promise.
She stated (T58-59): "A. No, because I was very desperate at the time and out of the - out of - I just sat there. I was living in my sister's apartment and Mary and Baba called me and Mary said, "I heard that you are short of $50,000 to buy a house," and I said, "That's correct," and then Baba came onto the phone and Baba said, "I want to help," and that's when the offer, the testamentary promise of the inheritance and I was absolutely, like, blown away and could not believe that - the generosity and I was really touched. Q. Yes, but so there's no mistake about it, Mary denies saying that she said to you, "We've heard you're short of money," that's on the record, she denies that. If that was said, you'd be surprised because here's an aged pensioner offering to give you $50,000. Where - A. I didn't know my grandmother's financial circumstances at the time. Q. But seriously, she was, what, in her mid 70s, she was unqualified, she'd been a process worker, you knew she was on a pension and only a pension, didn't you? A. She - there was three people in the house. So, she lived a very thrifty lifestyle. Q. It's a what? A. She lived a very thrifty lifestyle. Q. Were you wanting Baba and Stan and Mary to somehow get together and raise some money for you? A. No. I, I didn't ask, they approached me. I never - this phone call came from them. They heard from my mum. I, I did not ask. I did not beg for the money. I didn't initiate any phone call. Q. Just to save time, I put it to you that the offer was not mate, that you are wrong? A. I'm right. Q. But you have no independent record of that conversation, do you? A. No, unless you - if Ronald Czinner was around, I, I talked to him about the, the testamentary promise from my grandmother and that's - he's the one that said not to buy Junction Street because there was something wrong with the contract because it old him I had that extra 50,000 from my grandmother and he said, "I wouldn't touch it. There's something wrong with that contract." Q. Yes, we understand that. Just so there's no misunderstanding, if you look at page 31, I put to you that what you say is attributed to your grandmother on the fourth line down where it says, "Natachocla(?)" that paragraph I put to you is not correct? A. That's correct. Q. I put it to you it's not correct for a number of reasons. One, is that it happened so long ago that your recollection of it is inaccurate? A. I was sitting on the bed in my sister's unit in Meriton Street when they called me. Q. I put it to you that it was an offer come from an aged pensioner just does not make sense. An aged pensioner who would only have a pension? A. She said it was, it was to, it was part of my inheritance. So, I, I do not know. That's, that was part of the conversation I had with my grandmother. Q. You're suggesting that she was offering $50,000 then to you, back in 2006? A. Because that's what I was short. Q. That might've been that's what you were short, but I'm putting to you that she was a pensioner, where would she get 50,000 from? A. I don't know. Q. I put it to you that she didn't say that she'd give you money when she dies? A. She said to me - because I said to grandma, to Baba, I said, "Baba, thank you for the offer, but I'm not going to buy the unit, the house. I'm going to buy - I'm going to wait and buy something more within my means," and she said, "Well, the money is there if you need it because that is - you can have your early inheritance," and I said, "No, I thank you for the offer but I will wait to get it at the appropriate time." Because she said, "You and your sister are going to get the same amount," and I said I would wait for the appropriate time and she said, "Well, if you see something in the meantime, give me a call." And that, that's how it - the conversation went."

[50]

2005-2006

In 2005, following Natalie's separation from Taras, Kathy states Natalie shared with both Kathy and Olga the conversation she said she had with the deceased and Mary: CB 49[81].
Kathy recounts the conversation was as follows: "Baba offered me part of my inheritance early. I was $50,000 short on a deposit for a house. Baba offered me $50,000 towards the cost of the house. Baba said this sum $50,000 would come out of my inheritance. I said no. I told Baba and Mary I wanted to receive my full inheritance at the same time as Kathy. Baba and Mary promised to honour this agreement." (CB 49-50[82])
Kathy says that after receiving legal advice Natalie did not proceed with the purchase of the house: CB 50[83].
In 2005, Kathy states that the deceased and Mary came to visit them at their newly built home in Silverdale and indicates the deceased handed to Kathy a copy of a solicitor's letter dated 3 September 2002: CB 50[93].
The letter (CB 224) is from Warren F. Ball & Co to the deceased regarding "your old will, dated 29 June 1977" and it is in the following terms: "Further to your recent attendance at this office when you signed your new Will we enclose your old Will dated 29 June 1977 which we have received from Coleman & Greig for destroying. We advise that your new Will dated 22 August 2002 together with the title deed to your property namely Certificate of Title Volume [xxxx] Folio [xx] has been placed in safe custody on your behalf." (CB 224)
Kathy said that the deceased said to her in Mary's presence: "Katya. I need you to know where my Will is kept. I need you to know who to contact for the reading of my Will" (CB 51[94])
Kathy states that the deceased and Mary asked her to keep the letter in a safe place in case either the deceased or Mary passed away. Kathy happily agreed to hold the letter and noted that the letter indicated that the deceased's Will had been updated on 22 August 2002.
There are two annotations on the letter dated 3 September 2002: CB 224. I address these below.
In early 2006, Kathy had a conversation with the deceased, Mary and Chris whilst they were sitting around Kathy's dining table enjoying lunch together. She indicates that the deceased said to Chris and herself: "when I die, the girls will be looked after": CB 49[79]
Kathy says that Mary repeated the deceased's words, saying: "Yes, the girls will be looked after".
In mid-2006, Kathy states that the deceased had a conversations with her about her Will as follows (CB 51[97a]): "Baba said she had 'made a new Will, which is held by the same Solicitor'"
Kathy indicates that she did not ask the deceased why she had updated her Will but jotted down the dates and details of the conversations on the original letter: CB 51[98].
In 2006, on the occasion that the deceased Mary came to visit the Vella's, Chris gives evidence that the deceased said: "When I'm gone, I will look after you girls": CB 111-112[12].
On the letter dated 3 September 2002, there is an annotation (CB 224) with an arrow drawn from the second paragraph which states: "- new will made mid 2006 - held by same solicitor".

[53]

2019

In 2019, the deceased was admitted to Fairfield Hospital for a knee replacement and remained there for approximately seven weeks with a severe lung infection: CB 166[65.26].
Following this time in about May 2019, Mary suffered an acute anxiety attack and admitted herself to the Northside Clinic at Wentworthville where she stayed for five weeks: CB 166[65.26].
Natalie says that during this time Mary called her several times and said: "Whatever happens Nat, please promise me that if something happens to me please look after Baba and make sure Stan doesn't get everything" (CB 34[73])
She claims that Mary repeated this over and over: CB 34[73].
On 30 May 2019, Mary called Kathy and said: "I'm calling you from the outside laundry. I can't stop shaking. Can you look alter Baba while I am in the hospital? Make sure Stan helps Baba out while I'm not here." (CB 51[100])
The conversation included the following exchange: "Mary: Kath, I'm so scared. I want you to make sure Stan doesn't get everything. Baba's Will leaves everything to me. If something happens to me. Stan gets 40%. Nat gets 20%. Kalli gets 20% and Alise gets 20%. Make sure Stan doesn't get it all. Kath, you get Power of Attorney over Baba." (CB 51[103])
Kathy promised Mary that she would look after the deceased and check in on her every few days. She states that she acknowledged to Mary that she understood that she was to hold the deceased's power of attorney even though she never held any documentation about it: CB 52[104].
The conversation continued as follows: "Mary: I'm worried Stan is going to leave me. … Mary: 'Make sure Stan doesn't get everything." (CB 52[105])
Kathy says that she believed that Mary was referring to her own Will and estate.
She states this was the first time she was told any details about the deceased's Will and didn't question the arrangement at that time, understanding that Mary was telling her about the contents of her own Will: CB 52[106].
Kathy was cross-examined regarding this and indicated that she did not raise it with the deceased because she had a good relationship with Mary and thought was possible that she would be included in Mary's Will: T112-113.
On 30 May 2019, Kathy made a note of her discussion with Mary.
The note which is handwritten (CB 272) records as follows: "Baba's will → all to Mary Mary's will → 40% Stan → 20% Nat 20% Kath 20% Alise ______________________________ POA over Baba → Kath ______________________________"
I pause to note that there was an additional note which was added to the handwritten note on 16 March 2021 and I reproduce this below in dealing with that aspect of the evidence.
During Mary's Hospital stay Kathy contacted Alise and two of Mary's closest friends, Roslyn and Beverly, and they communicated with one another to support Mary and the deceased: CB 52[111].
During the three weeks Kathy rang the deceased every few days to make sure she was okay with meals, laundry and general wellbeing: CB 52[111]. Stan was helping out with cooking meals (CB 53[111]) as is evident from the texts: CB 269[270].
Whilst Mary was in hospital Kathy had a conversation with her as follows: "Kathy: What is bothering you so much? Mary: Kath, I have lied. I need to deal with it." (CB 53[112])
Kathy says that Mary did not tell her what she lied about and did not ask.

[54]

2020

In early August 2020, and in the week that the deceased passed away Kathy had a phone conversation with Mary in which Mary indicated that she was going to withdraw some money from the deceased's account before the bank froze the account: CB 53[114].
Natalie refers to other promises she said were made by the deceased including regarding jewellery as follows: "When I was with Baba at family gatherings, I often commented on Baba's beautiful rings. Baba said: 'Well, you can have this one or this one. You choose. I want you and Kathy to have some of my jewellery to remember me by. I want my jewellery to stay in the fam1Jy as something to remember Baba by.'" (CB 32[59])
In August 2020, after the deceased's death Natalie refers to a conversation in which Mary invited her to come over to look through the deceased's things including referring to the promise of some jewellery: CB 32[60].
The deceased's death appears to have been the particular catalyst for breach of the relationship between the parties.
On 20 August 2020, Kathy visited the deceased's grave with Mary and afterwards they had lunch at Blacktown. Mary talked about how she and Stan were finally building their first home at Baulkham Hills and Kathy revealed to Mary details regarding her financial position and Mary said, "thanks for being so honest": CB 53[115].
However, after the deceased's death following a period of forty days, a memorial service was held at the church.
A few days before this, Natalie says she had telephone conversation with Mary regarding the traditional family lunch in which she asserts, Mary said: "We can go to lunch if you want but I'm not paying for everyone. All the fuckers can pay for themselves." (CB 35[84])
Natalie says she felt hurt because she thought Mary considered her to be one of the "fuckers": CB 35[81]-[84]; T 69.
Mary accepts there was some discussion but says that she did not swear rather, she said: "Everybody can pay for themselves": CB 167[65.29]
In September 2020, in the week prior to the family attending the church service to commemorate forty days following the deceased's death, Kathy likewise says she had a phone conversation with Mary in relation to the proposed lunch says that Mary said, "all the fuckers can pay for themselves": CB 53[116].
Further, following the deceased's death, Natalie says that her phone calls with Mary became less frequent and when she did speak with Mary, she had the impression that Mary wanted to get rid of her quickly. In this regard, she cites an occasion in October 2020 regarding a celebration of Kathy's birthday at a restaurant near Silverdale: CB 35[87].

[55]

2021

On 14 January 2021, Kathy and Zoey visited Mary at the Guildford house.
Kathy commented upon two wedding portraits of the deceased and Dido, and Kathy says Mary told her "I will bequeath them to you": CB 54[118].
Kathy says that at this visit Mary said that Natalie and she would receive a piece of jewellery from the deceased and Kathy mentioned a particular ring that she would like being the ring that the deceased let her wear at her 93rd birthday: CB 54[119]. There was also discussion about other items of jewellery including a necklace and other personal items: CB 54[120]-[121].
On 16 March 2021, Mary called Kathy and Kathy initiated a phone conversation about the Will as follows: "Kathy: I hope I don't upset you, but can I ask if Baba's Will has been read yet? Mary: Yes it has. Kathy: Can I ask what was in the Will?" Mary: 100% to me I'm the sole beneficiary of Baba's estate. Kathy: Was Dad's side mentioned in the Will? Mary responded words to the effect: Mary: No. Baba helped your Dad with bills when he was sick before he died and left him jewellery which your Mother has. Ask your Mother. Baba asked me to give Zoey some money from her, like she did Tom and Alex." (CB 54[123])
Kathy said Mary continued to explain that probate had been granted and said: "Mary: If I was to pre-decease Baba the Will stated 40% to Stan, 20% to Natalie. 20% to Kathy and 20% to Alise." (CB 55[124])
Although Kathy says the conversation ended amicably Kathy was bothered by the conversation: CB 55[125], [131].
On 16 March 2021, following the above, Natalie refers to a phone conversation in which Kathy telephoned her informing her of the conversation she had had with Mary about the deceased's Will: CB 36[89].
Mary says this phone call occurred (CB 171[66.19]) but disputed the final part denying that she said: "No. Baba helped your Dad with bills when he was sick before he died and left him jewellery which your Mother has. Ask your Mother. Baba asked me to give Zoey some money from her, like she did Tom and Alex.".
Kathy made a further handwritten note of the aspect of the conversation which related to the terms of the Will and the conversation. The note was made on the same document as the prior note on 30 May 2019 but as an addition on the lower half of that document (CB 272) as follows: "16.3.21 - 100% to Mary - Baba helped dad c̅ bills when he was sick. And left him jewellery which mum has. - Baba asked Mary to gift Zoey some $ from Baba, like she did Tom & Al → ?? $2,000 - $5,000 each." (CB 272)
On 21 March 2021, in the above context, Kathy initiated another conversation with me with Mary (CB 55[132]).
The conversation was as follows: "Kathy: As immediate family, why were we not invited to the reading of Baba's Will and offered an explanation of its terms? Mary: You didn't need to be. Kathy: Why was Dad's side of the family completely omitted from the Will? Mary: Baba and I talked about this Natalie and you are both set up with everything. Kathy Can I ask if you have left anything to Natalie and me in your own Will? Mary: No. We're leaving everything to our own kids ... Kathy: Do you recall the conversation Baba and you had with Natalie when Baba offered her $50,000 early inheritance to buy her own house? Mary: Nat didn't want it. Mary: Baba wanted Zoey to have a piece of jewellery to remember her by. Kathy: I'm not OK with this. You can change this. Mary: No, I don't need to. Stan is surprised you didn't ask about the Will sooner Only you've had the balls to ask. Kathy: I'm not OK with this. Does this sit it fine with you? Mary: It sits fine with me. Kathy: You're really OK with everything? Mary: I'm fine with everything. Kathy: I can't believe this; I'm not OK with this." Mary: It sounds like you're going to contest the Will." (CB 56[133])
The reference to Mary stating we are leaving everything to our own kids was raised in the cross-examination of Kathy. This was a reference to Mary having Alise and Stan having his own child (Troy).
Kathy says she did not respond to the above statement and was unable to ask any more questions to Mary about the Will or for further explanation. As Mary said: "I can see you're getting upset and I'm getting upset. I'm hanging up now." (CB 56[134])
Kathy says that Mary hung up the phone on her for the very first time, she was shocked and surprised and felt very hurt: CB 56-57[134].
Kathy says she kept repeating "are you OK with this" and each time Mary replied "I'm OK with everything": CB 57[135].
Towards the end of the conversation Kathy asked Mary for a copy of the deceased's Will: CB 57[136]. Mary took a photo of the 2010 Will and sent it to Kathy on her mobile phone: CB 311.
Kathy made a note of the discussion (CB 310): "21.3.21 $50,000 → Nat didn't want it __________________ - Jewellery → Zoey __________________ → "sits c̅ Mary fine" __________________ - POA→ Me"
On the other side of the note there is the following annotation: "> Nat - Kath - "you are set up c̅ every thing." __________________ - Mary's will = her kids, not us _______________________ → D[word unclear possibly Dementia] _______________________ → Mary To all their kids _______________________"
Kathy says that she was shocked by Mary's revelation that she and Natalie would not be receiving any inheritance from the deceased estate and felt hurt, upset and angry with Mary. She says Mary said to her: "You are both set up with everything".
Kathy comments that the deceased had always been "fair", had said her love for her two children was "equal" and her love for Natalie and Kathy was "equal": CB 57[143].
Mary acknowledges that there was such a telephone conversation but asserts the conversation was as follows (CB 167[65.30]; 171[66.20]): "Kathy: I am going to ask you some questions that you are not going to like. [Mary said "Go ahead"]. Kathy: Why weren't we invited to the reading of Baba's will? Mary: The reason you weren't invited was because you didn't have to be there as Baba left everything to me. Had I died Baba's estate would have been split 40% to Stan, 20% to Nat, 20% to Kathy and 20% to Alise."
Mary says Kathy then became very aggressive and proceeded to question her about her father's legacy over and over again and she said to Kathy: "Mary: Stan and I helped Myron when he was sick, paid some bills, gave him money and Mum gave Myron jewellery and paid for his wake." (CB 167[65.30])
Mary asserts that Kathy upset her during this phone call accusing her of fracturing the family relationship. Regrettably, they have not spoken since: CB 167[65.30].
On 21 March 2021, following the above Kathy telephoned Natalie about the conversation she had had with Mary.
Kathy told Natalie: "I raised Baba 's offer of early inheritance money with Mary. She didn't deny it. She said 'Nat didn't want the money'." (CB 32[58a])
Natalie asserts that Mary's statement as above recorded is not true and rather she said that she would wait for her inheritance at the appropriate time: CB 32[58b].

[58]

Disputes regarding the general inheritance promises

There is differing evidence from the parties regarding the general inheritance promises.
Mary disputes that the deceased made general inheritance promises. However, there is no direct conflict on the evidence of actual conversations in which each of Natalie and Kathy on the one hand and Mary on the other hand were present in which it is said the deceased made the general inheritance promises.
Rather, as noted above, Mary said there was limited opportunity for such promises to be made and says that she was never present when any such promises were made.
At least in relation to the general inheritance promises in that sense they need to be assessed on the basis of Natalie's and Kathy's recollections.
Mr Morrissey reminded me of the need for caution in relation to uncorroborated statements attributed to a deceased person.
In Ashton v Pratt (No. 2) [2012] NSWSC 3 Brereton J (as his Honour then was) said at [18]: "In the case of a claim against a deceased estate founded on the oral utterances of the deceased, which only the deceased could have denied, the Court scrutinises the claimant's evidence closely [Plunkett v Ball (1915) 19 CLR 544, 548-549 (Isaacs J); Bovaird v Frost [2009] NSWSC 337, [45]; Varma v Varma [2010] NSWSC 786, [418]-[422]], and although there is no absolute legal requirement for it, ordinarily looks for some corroboration [ Re Hodgson (1886) 31 Ch D 177; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)]."
In this case the main 2002 conversations occurred 20 years ago. One of the critical aspects of making assessments of the evidence of Natalie's and Kathy's recollections is that even though they have given evidence of the words they say that the deceased used, and have referred to part of the context below, the Court, as often happens in such cases has only a partial picture of the context.
I am, as indicated below, prepared to accept that some generalised comments were made by the deceased regarding testamentary provision for the plaintiffs.
However even on the plaintiffs' versions the generalised comments were vague and the reasons I refer to below I do not regard them as being enforceable.

[59]

Disputes regarding the $50,000 promises

There was a dispute between the parties regarding the evidence of the $50,000 promises.
I have referred to each of Natalie's and Mary's evidence regarding the $50,000 promises.
The evidence about the matter was a troubling aspect of the case.
Although Natalie in her initial affidavit indicated the conversations took place in 2006, as the hearing progressed it became obvious that the conversations must have taken place at least at some point prior to November 2005.
The conversations thus occurred almost 17 years ago.
The parties are essentially in agreement regarding the initial context of the matter.
Natalie says the deceased and Mary had heard from Olga that Natalie was short of money to potentially buy the duplex (in Gladesville) in the context of Natalie separating from Taras: CB 30[57].
Mary's evidence is similar, she heard that Natalie needed $50,000 to purchase the property [duplex] in Gladesville: CB164[65.15].
In cross-examination, Mary indicated that it was Olga who had let her know that Natalie was looking to purchase the duplex and was $50,000 short. Mary said (seemingly to Olga) that they would see what they could arrange between the deceased Stan and herself: T148-149. Her evidence in cross examination in that respect is consistent with her affidavit evidence.
The parties also agree that an approach was made at least by Mary to Natalie. In that sense Mary was the instigator of discussions.
The frailty of human memory is well known. In Watson v Foxman (1995) 49 NSWLR 315 at 319 McLelland J (as his Honour then was) said: "[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
However, it seems to me that each of Natalie, Mary and Kathy inevitably to some degree, with the passing of time, would not accurately remember the precise course of events.
On Natalie's evidence there were two initial conversations that took place. I accept that in all likelihood there were at least a couple of phone calls.
The parties differ in a couple of respects.
First, Natalie's version is that Mary telephoned her and she had a telephone discussion initially with Mary who then passed the telephone to the deceased: CB 30-31[57].
In the first conversation, Natalie says the deceased and Mary called her, indicating that they had heard from Olga that Natalie was short of money and they had a conversation. Natalie says the $50,000 promise as an inheritance was made in the first conversation: CB 31[57c].
Mary in responding to the evidence denied that there had been such an offer. Her evidence essentially indicated that there was no direct phone call as between herself and the deceased to Natalie. Rather she spoke with Natalie indicated that she would "see if Baba, Stan and I can put the money together for you". Then after discussing it with the deceased who said to her "I don't have that sort of money", and after discussing it with Stan, they decided they could not help Natalie and then she subsequently said to Natalie "Mum does not have that sort of money and Stan and I cannot afford to help": CB 164[65.15]
There is no contemporaneous record of what the deceased said.
Natalie agreed that she did not take any note of the conversations: T58. She did say that she had spoken with her mother Olga immediately after. However I have reservations about the reliability of Olga's evidence on the topic of the deceased's testamentary promises.
The closest objective reference point for the deceased's testamentary intentions at or about mid to late 2005 is the draft of the 2006 Will which refers to a sum of $30,000 to each of Natalie and Kathy, not a sum of $50,000.
The draft of the Will is not conclusive evidence of what the deceased ultimately signed. But it is some evidence (though not decisive evidence) of what the deceased instructed her solicitor in 2006 of her then testamentary intentions.
The context of the matter is important to remember.
First, Natalie was going through a separation which was messy and required funds to purchase accommodation. Although it is not precisely clear, it seems that her preferred accommodation was the duplex. In any event, it is clear that she required a sum of $50,000 to purchase the duplex as opposed to the other alternative being the Linsley Street unit.
Second, I have referred earlier to the paucity of precise evidence regarding the deceased's financial resources. However, Mary says, and I accept, that at that point of time she did speak with the deceased regarding coming up with funds to assist and indicates that between them (the deceased, Mary and Stan) they did not have readily available funds of $50,000 in 2005.
In that context, I do think it is likely that there was an initial telephone call involving Mary who had heard from Olga that Natalie was in need of funds.
Mary has no recollection of the deceased speaking directly to Natalie about the $50,000 sum: T149. That is also consistent with her evidence.
However, whilst Mary says that she spoke separately with Natalie about the matter, I think that it is more likely that there was (as agreed) a phone call from Mary to Natalie, but, the deceased was also present and Mary passed the phone to the deceased to say something to Natalie.
I think it is likely that in the first telephone call Mary was present with the deceased, and that there was some of initial discussion at least partly along the lines of what Natalie recalls to the effect of: "Mary: We heard you are short of money for the house you want to buy. Don't worry, Baba wants to help".
It seems to me at that point there was likely some discussion about Natalie's precise needs and requirements.
However, I doubt Natalie's evidence that the deceased offered immediately the sum of $50,000, I further doubt that the deceased immediately in the same statement made any description of the matter as being inheritance money at least at that point.
The context for the first phone conversation was an immediate issue with Natalie needing accommodation and in particular needing funds in order to purchase the duplex.
There was really no obvious occasion in the first phone conversation for the deceased to make a proffer of monies in respect of an inheritance. At that stage all the deceased knew was that Natalie was still to make a decision about purchasing either the duplex or the Linsley Street unit.
In the first phone conversation, I find that all that was discussed was the prospect of the deceased offering, potentially with the help of Mary and Stan, some funds to assist Natalie.
Natalie says that she telephoned the deceased that afternoon and had a conversation. Natalie says she thanked the deceased for an early offer of inheritance money but told her that she was not going ahead with a duplex and preferred to wait for "my inheritance money": CB 31[57g].
It seems to me that that is unlikely.
For the reasons I have given above I doubt there was any discussion about inheritance money at that point.
Rather, it seems to me, there was some discussion as between the deceased, Mary and Stan after the initial telephone conversation Mary and the deceased had with Natalie in which they discussed whether they could assist Natalie having spoken directly with her about her requirements.
I think it is likely, as Mary indicates, that she spoke with Natalie, most likely on the telephone, to indicate that they did not have the funds available.
I am not persuaded by Natalie's evidence that an inheritance offer was made in the first conversation and that in the second conversation her first statement to the deceased was to thank the deceased for the inheritance offer.
Rather, I find the inherent likelihood is that there was a second telephone conversation, not necessarily on the same day as the initial phone conversation on but in any event, for which Mary was not present, in which Natalie formally told the deceased (who may by then have already heard) that Natalie was not going ahead with purchasing the duplex.
It seems to me that in that context, the deceased, perhaps with some sense of regret that she, Mary and Stan had not been able to help to the tune of $50,000, expressed to Natalie some desire to give funds that she had available to Natalie as an inheritance.
Mary was cross-examined regarding the conversation she had with Kathy. It was put to her that she said to Kathy "Nat didn't want it". Mary said she could not remember saying that: T148.
It seems to me highly likely that Mary did say that. However, I do not regard that as counting against Mary's credit. It must be remembered that ultimately Natalie did not need the money for the duplex because she purchased the Linsley Street unit.
On the above basis, it makes sense that Mary at that point did not know or hear anything about an inheritance discussion.
Natalie says that she shared the conversation with Olga immediately: CB 31[57h]. However, Natalie does not say that she spoke with Kathy about it.
Kathy on the other hand, says that in 2005, following Natalie's separation from Taras, Kathy states Natalie shared with both Kathy and Olga the conversation she said she had with the deceased and Mary: CB 49[81].
Kathy recounts the conversation as follows: "Baba offered me part of my inheritance early. I was $50,000 short on a deposit for a house. Baba offered me $50,000 towards the cost of the house. Baba said this sum $50,000 would come out of my inheritance. I said no. I told Baba and Mary I wanted to receive my full inheritance at the same time as Kathy. Baba and Mary promised to honour this agreement." (CB 49-50[82])
Kathy's version indicates that Natalie had told her not only that Mary was present at the time that the deceased but that both the deceased and Mary had "promised to honour this agreement".
The conversations that were said to have taken place regarding the $50,000 are on the plaintiffs' evidence 17 years ago.
I have doubt that Kathy has recalled, the above conversation from Natalie correctly in two respects.
First, I find there was no specific promise made by the deceased of a sum of $50,000, as distinct from an intimation that she may give some money to Natalie as an inheritance.
Secondly, I seriously doubt the second part of the alleged conversation: "I told Baba and Mary I wanted to receive my full inheritance at the same time as Kathy. Baba and Mary promised to honour this agreement."
I seriously doubt and reject that Mary had made any such promise.
I mentioned earlier that whilst the terms of the actual 2006 Will are not known, the draft of the copy of the 2006 Will arguably bears some relevance to the $50,000 promises issue.
It seems to me that in light of the second conversation which Natalie says she had with the deceased, the deceased within a period of about a year reflected on what she might be able to give Natalie and Kathy as an inheritance and in all likelihood gave instructions to Warren F Ball & Co for gifts of $30,000 to each of Natalie and Kathy as recorded in the draft of the 2006 Will.
The fact that a draft will was prepared including such amount suggests that at least instructions were given for that, even if it is not known whether the Wills actually signed were in those terms.
Instructions for gifts of $30,000 suggest to me that the deceased assessed what money she might have within her own resources apart from combining with Mary and Stan together amounts of $50,000 for each of Natalie and Kathy.
I doubt the deceased made any promise of $50,000 sums for each of Natalie and Kathy.
However, even if I am wrong about that and the deceased did make a specific reference to a particular to a sum of $50,000 in the context of an inheritance, for the reasons that I outline below, I doubt the conversations gave rise to enforceable obligations.

[60]

Natalie's actions - the general inheritance promises

In the context of the alleged general inheritance promises Natalie says that she did certain things, essentially as I understood it in reliance upon the promises she said were made. In particular, she said she: 1. spent more time with the deceased; 2. included the deceased in all family functions and celebrations; 3. telephoned and visited the deceased more regularly, especially when Mary was away on holidays and the deceased was alone, checking on her health and well-being and taking her out to coffee and lunch and socialising with her; 4. went on the trip to Cowra. (CB 71-72[7])
Natalie was cross-examined regarding this.
It was put to her that the more time she spent with the deceased was not as a result of anything the deceased had said, but simply because she loved the deceased deeply, she was generous to Natalie and that it was the most natural thing in the world for Natalie to spend time with her: T 65.
Natalie indicated: "That's partly correct, but also because of the promise that my baba gave me. We - I actually - we tried to do above and beyond, and we did not leave my baba out of anything. We had birthdays, Christmas's, every birthday, not just milestone events, every birthday, Easter, Remembrance Day, Christmas, Mother's Day, Father's Day, you name it." (T 65.35-.39)
In relation to the assertion about including the deceased in family functions at least Natalie accepted that the reason for the inclusion was that she loved the deceased and not for any other reason but added: "But also, I knew that Baba, Baba said she would look after us and she left us something and I thought that was extra special, extra special": T 66.1-.3.
In relation to Natalie's assertion about extra contact, the cross-examination was as follows: "Q. I put it to you that you telephoned and visited your baba whenever that was because you loved her? A. Yes, correct." (T 66.40-.42)
In relation to the Cowra trip the cross examination included the following: "Q. So, you're not seriously suggesting that you were going beyond and above the call of duty by going down there to Cowra to see where-- A. No, I was, because we weren't going to go to Cowra, and then when I found out it was to do that, we decided to go." (T 67.42-.45)

[61]

Natalie's actions - the $50,000 promises

In relation to the alleged promise made by the deceased to offer Natalie the sum of $50,000 "from my inheritance before she died" Natalie says as a result of the promises she took the following steps, namely she: "(a) was more appreciative of Baba. I was grateful that she would want to help me. I was overawed with gratitude and love for Baba but I did not want Baba to be financially compromised by trying to help me. I was content to wait until Baba died to receive my inheritance. (b) continued to include Baba in all our family functions. I spent time talking to Baba. She also socialised with some of my girlfriends. After my partner, Malcolm's, 70th birthday party, some of our friends commented how knowledgeable and lovely Baba was and how her stories were so entertaining. I included Baba in my personal social interactions. (c) made an effort to encourage Baba by celebrating her when we got together for her birthday and other social events. I helped in any way I could. For example, if we went to the club for lunch, I always helped Mary get the orders, carry the food and cutlery to the table, buy a round of drinks. (d) tried to be generous to Baba. An example, for my 50th birthday party, I paid for everyone's food and drinks. Baba offered to help me pay for the food, but I didn't take Saba's money. (e) continued to celebrate Baba on her birthday, Mother's Day, Christmas. I always bought her presents even though Baba insisted she didn't want or need anything. Baba was included in my family life. I also gave Baba photos of my sons from various milestone events as well. (f) attended the remembrance day service at Pinegrove and Rookwood cemetery, a week after Ukrainian Easter. Baba always said this day was "particularly important" to her. The priest says a prayer for all our family members who are no longer with us. We especially remembered my dad on this day. We say a prayer for my dad. my Dido. my other grandparents. my cousin Vera, my Uncle's mother. It is very emotional. Later we only attended a service at Rookwood cemetery (priest's decision). I attended this year. Mary did not." (CB 72-73[9])
Natalie was cross-examined regarding a degree of this material such as invitation to Malcolm Jones's 70th birthday: T 68.
Natalie was cross-examined regarding her indication that part of the reliance was making an effort to encourage the deceased by taking her at family functions.
The cross-examination included the following: "Q. No, this is at 9C of paragraph page 72. A. Yes, I was referring to that when we went and had family functions, I didn't sit there and just sat there and enjoyed, I actually participated and helped with the function, rather than just get one person to get up and do everything. So, we usually went to RSL clubs, so it wasn't like a restaurant, where you just sat there and you were served. So you'd have to get up and down, up and down, up and down. Q. That's not such a big deal to place the order, was it? I mean that's-- A. It wasn't just the order, it was getting cake, it was taking care of all the orders, it was picking up the cutlery, it was moving tables. Q. Are you seriously suggesting to the Court that as a result of what you say your-- A. No, I'm just saying that's what I did. Q. Just listen to the question. You went and got up and took orders and organised cakes? A. No, I'm not suggesting that." (T 68.28-.46)

[67]

General inheritance promises

The case regarding the general inheritance promises was framed in one respect as a testamentary contract. The law regarding testamentary promises was recently considered by Ward CJ in Eq (as her Honour then was) in Moore v Aubusson [2020] NSWSC 1466. A testamentary promise is enforceable (or otherwise) according to ordinary contractual principles and, if a claimant is successful in his or her contention, as promisee he or she receives under the contract a right to an effectual transfer of the relevant asset under the promisor's Will: at [265].
The plaintiffs' submissions made reference to decisions of the High Court Horton v Jones (1935) 53 CLR 475; [1935] HCA 7 and Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51: see PWS [24]-[26].
Horton v Jones involved a case of testamentary promise framed as a contract in which it is alleged that the deceased had promised effectively that if the appellant promised to make a home for him and to look after him for the rest of his life, he would leave her his fortune. By his fortune he then described that he meant his 4/7th interest under his deceased father's Will and he also indicated he would leave her his insurance policy for £12,000: at 476, 483-484.
Various defences were raised to the claim including that the terms were vague and there was a lack of writing.
Rich and Dixon JJ, referred to the evidence and were prepared to assume that based on the evidence it was open to a jury to find that the promise was to act as the deceased's housekeeper and attendant under his reasonable and lawful directions, and that if that was its meaning it was not too vague or uncertain to afford a consideration for his promise to leave what he called his "fortune" to her: at 484.
The Court held that the agreement was unenforceable on the basis that there was a lack of writing sufficient to satisfy the provisions of the Statute of Frauds (s 54A Conveyancing Act 1919 (NSW)).
Starke J noted that it has been recognised that definite proposals to leave property by Will for valuable consideration have been enforced as contracts: at 489.
However, his Honour considered the proposal to "leave you my fortune" was quite indefinite and until his death it was uncertain what his fortune would be, he being free to deal with his property in his lifetime and for the appellant's part she was free to serve or not serve the deceased as she thought fit, none of which his Honour regarded as being language of obligation or contract, or even any evidence of it: at 489.
Evatt and McTiernan JJ, considered that the evidence given by the appellant as to the arrangement which was entered into between herself and the deceased was not reasonably capable of proving a contract substantially in the terms as alleged: at 490-491.
Their Honours concluded that the terms of the arrangement proved were too uncertain to constitute a contract: at 492.

[68]

Estoppel - distinguishing the principles

The claim regarding the general inheritance promises, was seemingly alternatively pressed on the basis of estoppel.
I was referred to the decision of Brereton J (as his Honour then was) in Vukic v Grbin [2006] NSWSC 41 at [28]; "Although numerous attempts have been made to identify the various components of equitable estoppel, for present purposes, the matters which a plaintiff must establish to found an equitable estoppel may conveniently be summarised, in the present context, as follows:- • First, in relation to the plaintiff's conduct: that the plaintiff acted (or abstained from acting) in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendant's property; • Secondly, in relation to the defendant's conduct: that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activities of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff's potential detriment and that it could be fulfilled only by transfer of the defendant's property, a diminution of the defendant's rights or an increase in the defendant's obligations; • Thirdly, in relation to the interest or property: that the assumption or expectation was one which the defendant could lawfully satisfy. [See generally, Waltons v Maher, 428-429 (Brennan J); Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, (4th ed., 2002), [17-105]]."
The precise nature of the estoppel was not identified other than by reference to the decision of the Court of Appeal, and in particular that of Barrett JA, in Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769 at [40]: "The principles to be applied in determining the appellant's claim are not in dispute and were set out by the primary judge at [117] to [135]. As noted above, her Honour proceeded on the basis (at [135]) that the appellant had to establish the following to succeed in her estoppel claim: (a) the making of a clear and unequivocal promise (such that it was objectively reasonable for the appellant to interpret the promise in a particular way and to act in reliance on that interpretation); (b) that the respondent's promise caused the appellant reasonably to assume that a particular legal relationship existed between her and the respondent; (c) that the appellant acted reasonably in reliance on the promise; (d) that the respondent knew or intended that the appellant would act in reliance on the promise; (e) that the appellant's reliance on the promise was to her detriment; and (f) that the respondent acted unconscionably in not honouring the promise."
Barrett JA in Sidhu v Van Dyke at [38]-[39] prior to the above passage referred to both proprietary estoppel and promissory estoppel. The reference to differing estoppel principles invites some consideration of the nature of the estoppel.
His Honour noted that Ward J (as her Honour then was) had drawn the principles from various authorities, including the judgment of Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; [1988] HCA 7 in describing the requirements for establishing equitable estoppel in the following terms: "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs."
Traditionally proprietary estoppel has been used to refer to one or other or both of two established forms of equitable estoppel being the doctrines descended from Dillwyn v Llewelyn (1862) 4 De GF&J 517; 45 ER 1285 and Ramsden v Dyson (1866) LR 1 HL 129. In simple terms, the doctrine associated with Dillwyn v Llewellyn is otherwise known as estoppel by encouragement and the estoppel descended from Ramsden v Dyson is otherwise known as estoppel by acquiescence or standing by: see generally JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane's Equity Doctrine & Remedies (5th ed, 2014, LexisNexis) (MGL) at page 519.
Promissory estoppel on the other hand is originally concerned with the exercise of rights arising from or said to arise from presently subsisting contractual (or legal) relations between the parties: MGL at page 532.
Proprietary estoppel enables a court to grant positive relief to a promisee by, for example, ordering a transfer of promised property by the promisor. Promissory estoppel, on the other hand, entails restraint upon enforcement of existing legal rights inconsistently with a promise: see Van Dyke v Sidhu (Barrett JA at [39]).
I understood the type of estoppel pressed by the plaintiffs was equitable estoppel in the sense of the doctrine associated with Dillwyn v Llewellyn i.e. estoppel by encouragement.

[69]

Reliance

The appeal to the High Court in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 in particular focused upon the question of reliance.
The majority described one of the questions arising in the appeal as concerning the sufficiency of proof of detrimental reliance required to give rise to a sound claim for relief based on equitable estoppel: at [2].
The majority said in relation to reliance (at [58]): "In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract. It is not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben that: 'It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.'" (footnotes omitted)
In the joint judgment their Honour's formulation is set at [84] as follows: "If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite: '[H]ere, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature ... beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based.'" (footnote omitted)
Gageler J who agreed with the joint reasons stated at [90]-[91] as follows: "90. Paraphrasing Dixon J in Thompson v Palmer, the respondent bore the onus of establishing that she believed the appellant's representations and that, on the faith of that belief, she took a course of action or inaction which would turn out to be to her detriment were the appellant to be permitted to depart from those representations. The respondent did not need to establish that the belief to which she was induced by the appellant's representations was the sole or predominant cause of the course of action or inaction she took but, in the language of Rich, Dixon and Evatt JJ in Newbon v City Mutual Life Assurance Society Ltd, she did need to establish that the belief was a "contributing cause". 91. To establish that the belief to which she was induced by the appellant's representations was a contributing cause to the course of action or inaction which she took, the respondent needed to establish more than that she had the belief and took the belief into account when she acted or refrained from acting. She needed to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have so acted or refrained from acting if she did not have the belief."
His Honour then stated at [93] that the question of causation is ordinarily framed in the following terms: "The question of causation is therefore ordinarily appropriately framed, as it was implicitly framed by the primary judge in the present case, as being: 'Despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?'" (footnote omitted)
Recently in Maxwell v Maxwell [2022] NSWSC 1028, Ward P made reference to the comments of French CJ, Kiefel, Bell and Keane JJ in Sidhu v Van Dyke at [84]. In Maxwell v Maxwell her Honour did not accept that there had been detrimental reliance in the sense of a life changing decision in reliance upon the assumption: at [252].
Often the question of reliance can be difficult to factually assess.
Anna Lawson in her article "The things we do for love: detrimental reliance in the family home" (1996) 16 Legal Studies 218 at 230-231 made the following observation: "The detrimental reliance requirement of constructive trusts and proprietary estoppel seems to cause few problems when applied to dealings between strangers. However, when the parties concerned are not strangers, but have lived together in a relationship akin to marriage, it is almost impossible to determine whether or not there was any detrimental reliance on that assurance. During the course of such relationships, the parties will inevitably change their positions in all sorts of ways and for all sorts of reasons. Allegations of detrimental reliance require judges to decide which of these changes of position would be factually disadvantageous to a claimant, should an assurance of ownership subsequently be denied, and to decide which of them were motivated by beliefs arising from that assurance. Not surprisingly, the results arrived at in the reported cases appear to be arbitrary and unrealistic." (footnote omitted)
In the context of family circumstances comments or statements that are said to give rise to obligations, there is ordinarily a question regarding whether statements are intended to create legal relations.
Whilst historically there have been presumptions that family arrangements are not intended to give rise to legal obligations, the High Court has rejected the utility of using the language of presumptions. Rather, there is more particular question of who bears the onus of proof: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [26] (per Gaudron, McHugh, Hayne and Callinan JJ).
In Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 (Ashton v Pratt (CA)), Bathurst CJ at [140]-[142], [147] stated as follows: "140 However, it is unnecessary to resolve these issues as to my mind Ms Ashton has failed to establish that she suffered detriment as a result of Mr Pratt resiling from his promise such as to give rise to the relief claimed. The detriment said to have been suffered in the present case was that Ms Ashton became Mr Pratt's mistress and did not return to the escort business. 141 The relevant detriment is that which the party asserting the estoppel would suffer, as a result of her original change of position, if the assumption which induced it was repudiated by the party estopped: Delaforce v Simpson-Cook [2010] NSWCA 84; 78 NSWLR 483 at [42], Grundt v The Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 674-675 and Sidhu at [81]. 142 What now appears clear is that there is no need to mould any remedy in the case of equitable estoppel to reflect the minimum relief necessary to remove the detriment: Giumelli at [48], Delaforce at [56]-[57] and Sidhu at [85]. Prima facie the courts should enforce a reasonable expectation which the party bound created or encouraged. However, relief will be limited where the enforcement of a plaintiff's expectation would be out of all proportion to the detriment: Delaforce at [62] and Sidhu at [85]. This is because in those circumstances good conscience does not require the promisor be held to his or her promise. … 147 As was stated by Gageler J in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; 88 ALJR 552 at [150] the detriment or harm required to ground an estoppel can be any material disadvantage. Such material disadvantage must be substantial, although it need not be quantifiable in the same way as an order of damages. In the present case Ms Ashton suffered no material disadvantage, certainly not one which could be described as substantial."
McColl JA at [222] and Meagher JA at [223] agreed with Bathurst CJ.
Meagher JA stated that the question of any intention to create legal relations turns on whether in the circumstances the participants (by what they said and did) conveyed such an intention in the sense that reasonable persons in their position would have understood that to have been intended: Meagher JA at [224] citing Ermogenous and also Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35.
However, the fact that at no stage in a conversation anything is said by one party that conveys to the other that what is being promised is to be legally enforceable is not determinative of the matter: Meagher JA at [225] citing Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353 at 367; [1969] HCA 29 per Windeyer J.
I will firstly address the plaintiffs' case in terms of contract and then, alternatively on the basis of an estoppel. As the plaintiffs' submissions placed reliance upon Van Dyke v Sidhu, I will in respect of estoppel proceed on the basis that the matters to be established in order for the plaintiffs to succeed are those which Ms Pringle's states, being the criteria from Van Dyke v Sidhu at [40].

[72]

Discussion and determination

It was suggested to Natalie in cross-examination that her memory of what was said may not be correct, not because she was being dishonest, but because of the simple frailties of human memory.
Natalie gave evidence that she had not made a record of the conversation and that the first time that she came to record it was in the period prior to the commencement of these proceedings in 2021: T 50-51.
Natalie gave reasons for indicating why her recounting of the promises was "as accurate as I can remember": T 52.24.
In particular, she referred to the fact that there were other conversations and that the memory was a raw one: "Q. I suggest to you that your memory of what was said may not be correct, not because you were being dishonest but because of the simple frailties of human memory that you didn't have a record of it, you didn't keep a record of it and you're recounting a conversation 19, almost 20 years after the date of the conversation? A. 'Cause it wasn't the only conversation. I had conversations when, you know, Baba would come over about her looking after us and you know, us sticking together. So-- Q. That's not what I'm getting at. I'm just suggesting to you in fairness to you as I must do that that your record - because this is evidence here. A. Yes. Q. Your record may not be accurate simply because you're relying upon a memory of a conversation that took place almost 20 years before it took place or after it took place? A. Well, it was, it was raw because it was after my father died." (T 51.40-52.6)
In relation to the alleged general inheritance promises, I accept Natalie's evidence that conversations were broadly to the effect that she alleges took place.
However, accepting the conversations took place, does not establish that the conversations give rise to the relief claimed that the deceased's estate is bound to make provision for the plaintiffs in an amount equal to one half of the net distributable estate.
I have the impression that perhaps even subconsciously there has been a degree of overreach in Natalie's assessment of what occurred in her conversation with the deceased after Myron's death regarding the alleged general inheritance promises and that statements of well-wishing support have been reconstructed into promises.

[73]

Vague terms

First, the promises asserted by Natalie (CB 29[43]-[46]) are vague in their terms.
This appears to have been acknowledged by Ms Pringle who made submissions as follows (PWS[22]): "In relation to the general inheritance promises, it is submitted for the plaintiffs that the deceased made promises to the plaintiffs on which they relied and in response to which they engaged with the deceased. In some respects, the promises may seem somewhat vague - "I'll look after the girls", "I'll leave you something in my will', but in other respects they are quite specific - "you can have $50,000 now or have it as part of your inheritance when I die". The defendant admits a conversation was held in which the offer was made, however she casts the conversation in a completely different light. 6 The deceased also promised the plaintiffs certain jewellery, which the defendant denies."
The above submission recognises the difference between the general inheritance promises and the $50,000 promises.
In respect of the general inheritance promises, there is an inherent vagueness in what was promised.
I raised in submissions with Ms Pringle the fact that there is a real difficulty in understanding the content, amount or quantum of the promise: T199-200.
Ms Pringle indicated that in the context of the premature death of Myron the expectation is that "Myron's half share would be preserved": T200.
I indicated that begged the question as to what evidence there was that Myron had a half share: T200.
There was discussion about this in submissions. Ultimately (as I understood it) Ms Pringle accepted that the only actual evidence was what might be inferred from representations about equality: T201.
I have set out the evidence regarding the discussions in 2002 and the discussions pleaded to have occurred in 2006. It appeared ultimately by the end of the hearing that the timing for the discussions said to have taken place in 2006 were more likely to have occurred in 2005: T203.
In any event it is necessary to deal with the discussion separately, as that is how the case is essentially framed, and also there are different juristic bases for pressing the claims.
On Natalie's evidence there is a distinct lack of clarity regarding what was promised.
In particular, the statements made by the deceased to Natalie on her first visit to the deceased after her father died, seemingly being on occasion, either in late January 2002, or February 2000 lack clarity.
The particular statements in paragraphs 43-46 of Natalie's affidavit: (CB 29) give no precision of content as to what was being proposed.
The statement in paragraph 43 of the affidavit is a statement by the deceased to Natalie.
The statements in paragraphs 44-46 are each statements that were said to be made by the deceased to Olga which have been reported to Natalie.
In Horton v Jones, the majority of the High Court found the statements that were made were too vague or uncertain to give rise to any contract.
Rich and Dixon JJ found the statements were not too vague or uncertain. However, that was in a context in which there was some description by the deceased of what he meant by his fortune: at 483.
Here there is no such description of what the deceased meant.
Kathy's version of what was said to her in 2002 after the father died and she visited the deceased contains on one view of gives a degree more particularity, namely (CB 49[77]): "When I am gone I promise I will pass on your father's share of inheritance to you and the Natalka. I will look after you girls".
Ms Pringle submitted that the expectation was that Myron's half share would be preserved: T 200.
Whilst it is understandable why this submission was made insofar as it seeks to pick up on the language used, a difficulty with the submission is that it begs the question of what was "your father's share of inheritance" and also begs the question of why there was some expectation that it would be half share: T 200.
The statement made to Kathy does not refer to equality.
Statements made by the deceased to Olga that "everyone is treated equally" begs the question as to who is "everyone".
The deceased made a number of Wills.
There is no evidence regarding the content of the 1977 Will, the 2002 Will, and no agreed position nor evidence of the final form of the 2006 Will.
The 2010 Will was executed by the deceased, but it's provisions hardly prove or demonstrate an intent of equality.
The Will provides for the whole of the deceased's estate to go to Mary. The gift over provision includes a number of beneficiaries not merely Natalie and Kathy, but also Stan and Alise. Even that gift over provision does not provide for equality between those persons but provides for 40% to be given to Stan with Natalie, Kathy and Alise receiving 20% each.
Whatever Natalie and Kathy assumed about a half share inheritance, simply does not appear to be objectively supported by the actual statements by the deceased, which as I understood it Ms Pringle accepted in submissions: T 202. Nor, is it supported by any evidence establishing in any quantitative way what was Myron's potential share of the deceased's estate.
Secondly, the conversations took place in a context fairly immediately after Myron had died.
Both in Natalie's evidence in chief and in cross-examination she accepted that the deceased was upset and grieving and that the conversation was "raw" because it was after the death of her father: T 52.
Further, there is a real doubt in my mind as to whether what was said was ever intended to be some legally binding promise between family members, as distinct from an expression of spontaneous goodwill from a mother in grief at the loss of her child.
There is a serious issue as to whether such a conversation is intended to give rise to legal relations.
As Slattery J has noted, the High Court no longer frames such questions in terms of presumptions. It is no longer presumed that in domestic transactions the parties do not intend to create legal relations. Rather, the modern approach is that the plaintiff has the onus of proving that there was an intention to create legal relations: Steiner v Strang [2016] NSWSC 395 at [117] citing Ermogenous v Greek Orthodox Community of SA Inc at [105]-[106] (Gaudron, McHugh, Hayne and Callinan JJ).
The deceased was never the same after Myron died and very soon after, saw a doctor and was on antidepressants: T 50-51.

[74]

No exchange of promises

Thirdly, accepting for the moment that the general inheritance promises were made by the deceased to Natalie and Kathy and Olga, there was no form of exchange of promises such as would give rise to a contract.
This judgment is not the occasion for analysing contractual theory.
Nonetheless, it suffices to note that a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 (Integrated Computer Services) at 11,117 per McHugh JA (as his Honour then was) citing Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523.
McHugh JA (at 11,117) commented, in the context of commercial arrangements: "It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of "offer", "acceptance", "consideration" and "intention to create a legal relationship" which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship : compare P S Atiyah, "Contracts, Promises and the Law of Obligations", Law Quarterly Review, vol 94, 1978, p 194".
Those comments in my opinion are particularly apt in the context of asserted family arrangements.
In the context of the commercial arrangements in Integrated Computer Services the question was posed as to whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. However, McHugh JA noted that the conduct of the parties must be capable of proving all the essential elements of an express contract: cf Baltimore and Ohio RR Co v US 261 US 592 (1923); Fincke v US 675 F 2d 289 (1982): Integrated Computer Services at 11,117.
In Horton v Jones there was a request which was made. Here, even accepting caution about viewing discussions in rigid contractual theory, there was on any view of it nothing approaching language of offer and acceptance or request and promise.

[87]

Reasonable reliance

Natalie's case is that there was a promise of $50,000 as a testamentary inheritance.
I have rejected that. However, if contrary to that such a statement was made, it is necessary to see what Natalie says she did based on the promise.
I find it difficult to accept the assertion that Natalie acted differently as a result of the statement.
When one compares Natalie's alleged reliance regarding the $50,000 offer with her statements regarding her actions said to be in reliance upon the 2002 statements, there is a large degree of crossover, and it is hard to glean what if any additional thing Natalie did.
The only particular thing that seems somewhat separate, is Natalie referring to attendance at the Remembrance Day service at Pine Grove and Rookwood Cemetery: CB 73[9(f)].
It was asserted that that was a form of reliance. I reject that assertion.
In Kathy's case, there was no statement made directly by the deceased to Kathy.
Kathy in her affidavit asserts reliance based on what it Natalie told her.
Kathy in her first discussions with Mary after the death of the deceased and upon learning of the content of the deceased's will did not assert to Mary that either or both of the deceased and Mary had made any binding promise to give her or Natalie $50,000.
Nor does Kathy assert to Mary that she acted in any way in reliance upon such promise.
True it is, that Kathy in discussions with Mary in March 2021 had a growing sense of disappointment that provision was not made for herself and Natalie. But Kathy did not assert any action by herself or detrimental reliance by herself or Natalie as the basis for her disappointment.
It seems to me that both Natalie and Kathy after the death of the deceased had a growing sense of disappointment with the terms of the 2010 and have taken general supportive comments made by the deceased and subconsciously elevated the remarks and their supposed reliance upon them to a level beyond what was properly conveyed by the deceased.
If Natalie had actually exchanged contracts on the duplex, in reliance upon a statement that the deceased would (with or without assistance from Mary and Stan) contribute $50,000 to that purchase, then if Natalie required the $50,000 in order to be able to complete the purchase that would arguably be a form of detrimental reliance.
However, that is not this case.
The case is that Natalie and Kathy "relied" upon a promise of $50,000 as an inheritance. I have rejected that.

[93]

Making of the 2010 Will

Apart from the fact that the deceased had made the 2010 Will, there was little detail in the affidavit evidence in chief regarding the circumstances of the making of the 2010 Will.
Mary indicated that it was in the context of the deceased's surgery for a bowel resection in August 2009 and the subsequent surgery to reconnect her bowel in 2010 that the deceased many times during that period expressed how grateful she was for the support of Mary and Stan: CB 157[61].
In early 2010, Mary indicates that the deceased "out of the blue," said: "Deceased: Can you make an appointment with the Solicitor. I want to make a new Will. Mary: Why do you want to make a new Will? Deceased: Because you and Staczek have been so supportive of me, the way you are looking after me as no other family has. I want to make sure that you benefit totally from my Will. I am still hurt that my family never once offered to help, let alone come to visit me. Deceased: You are my daughter Mary, and you and Staczek have always been there for me. I am so grateful to you both." (CB 158)
Further details of what occurred emerged in the cross-examination of Mary.
Mary's evidence regarding the making of the 2010 Will was essentially as follows.
Following a period of time (which appears to have been limited to about 8 months to a year) in which the deceased had a stoma bag inserted and Mary and Stan were helping the deceased out, the deceased expressed to Mary that she was very grateful for the assistance and asked Mary to make an appointment to see a solicitor because she wished to change her Will.
Mary did make an appointment with the firm Warren F Ball & Co in particular with a solicitor Jon Easton. Mary took the deceased to the solicitor's office and went into the office. Further, she went into the actual consultation with Mr Easton and was physically present with the deceased. When she gave her instructions for the 2010 Will: T 179-180.
Mary indicated that her mother asked her to accompany her into the room with the solicitor. Mr Easton did not suggest to her that she ought not to be in the room: T 181.
Mary upon further questioning could not recall whether the Will was actually done on the day the instructions were given, or whether she took her mother back on another day to have the deceased sign the Will that had been typed up or prepared: T 182.

[94]

Determination

Mary was asked going back to 2002 when Myron died whether she spoke with the deceased at that time about changing the Will (i.e. her Will). Mary indicated that she did not: T 178-179.
Mary was asked whether she suggested to the deceased that she should change her Will. Mary denied that indicating "I've never suggested that mum do anything with the will at all": T 179.
I accept Mary's evidence.
Stan indicates that the deceased never spoke to him about any of her Wills and he was not aware that the deceased had made a Will in 2006 and again in 2010. He only became aware of the contents of the 2006 Will (draft) after the plaintiffs filed their claims and was aware of the contents of the 2010 Will sometime after the deceased's passing when Mary showed him a copy of the Will: CB 201[52].
I accept Stan's evidence.
Mr Morrissey referred to the context in which the deceased had made the request following her operation in respect of the bowel resection and the care she received from Mary.
That is not necessarily the only consideration as to why the deceased might wish to have favoured Mary. However, it does provide a rational basis for the deceased's intentions.
The practice of a major beneficiary taking a deceased to a solicitor's office for the purpose of making a Will and sitting in on the giving of instructions is not ideal.
In some circumstances which I hasten to add, do not include this case, it might amount to a sufficient basis to give rise to this suspicious circumstances for the Will to be set aside on the basis of knowledge and approval.
However, here the case asserted is not lack of knowledge and approval but rather undue influence.
As to the allegations of undue influence Ms Pringle submitted that an inference may be derived from Mary's strenuous and repeated assertions that the deceased did nothing without her assistance and spoke to no one if she did not arrange and participate in the telephone calls, and that Mary controlled the deceased's life and her ability to socialise. It was said that this evidence tends to support the plaintiffs' claim that the 2010 Will was made under the influence of Mary: PWS [31].
In closing submissions Ms Pringle submitted that on Mary's own evidence that the deceased "didn't really go anywhere without her and that she managed the telephone access to her, she made the phone calls for her when she contacted the plaintiffs, that she essentially managed the deceased's life", which meant that whilst the deceased was dependent upon her for care and supervision and physical support, the deceased "was vulnerable, certainly vulnerable to the influence of the defendant": T205.
I reject those submissions.
I doubt that sort of case has actually been pleaded: T205.
Further I did not really understand the cross-examination to have been of a nature that suggested that there was an undue level of control by Mary or a taking advantage by Mary of a vulnerability: T205.
In any event there is simply no evidence of anything approaching coercion for the making of the 2010 Will itself.
On any view of the facts of this case I do not consider that there is any basis for considering that 2010 Will should be set aside for undue influence.

[95]

The statutory scheme

The power of the Court to make a family provision order is found in s 59 of the Succession Act. In particular, the Court may make a family provision order if it is satisfied that, adequate provision for the for the proper maintenance, education or advancement in life of the [applicant] has not been made [by either or both of the Will of the deceased or operation of the rules of intestacy]: s 59(1)(c) Succession Act. Section 60 identifies issues to be determined to which I refer below.
The Court must be so satisfied at the time that in the Court is considering the application: s 59(1)(c) Succession Act.
Significant terms used in the legislation are not defined by the Succession Act. Thus there are no definitions for any of the individual terms "adequate", "provision", etc which appear in s 59(1)(c): e.g. Mallitt v Gow [2022] NSWSC 1012 per Hallen J at [187]-[188].
Ultimately an understanding what is meant by the statutory provisions is a question of construction.
Individual English words have a meaning which can be defined. However, often dictionaries will show that words have many meanings. Ironically, sometimes the meanings which are assigned to words in statutory provisions may be the last meaning assigned to the word in a dictionary: e.g. Hope v Bathurst City Council (1980) 144 CLR 1 at 8; [1980] HCA 16 per Mason J (as his Honour then was).
Generally speaking words are never used in isolation and they gather significance by being placed together. The same word can carry a very different meaning having regard to context.
Further, it is necessary to have regard to the purpose or object underlying the provision so as to adopt a construction which would promote that purpose or object rather than a construction which would not: Interpretation Act 1987 (NSW), s 33.
Thus, in the Trustee Act 1925 (NSW), in broad terms "maintenance" denotes a periodical payment whereas "advancement" denotes a definite unique outlay for a specific purpose: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) at page 491.
However, the terms "maintenance" and "advancement" when used in family provision legislation have not been understood as being limited in the above way but have been given a broader construction.
Understanding of what is meant by these terms has historically been left to judicial explanation in what is now in NSW over a century of three principal forms of family provision legislation since 1916 (Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act); the Family Provision Act 1982 (NSW) (FP Act) and Succession Act 2006 (NSW)). Naturally, understanding of these terms has been refined over the years.
As was observed by Kirby P (as his Honour then was) there is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law: Samsley v Barnes [1990] NSWCA 161 at 4 citing Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475 at 478. The danger arises in part from the human tendency to perceive what we expect and expect that with which we are familiar: Samsley v Barnes at 4.
His Honour specifically indicated that there is a particular danger in the case of the FP Act in construing its terms by reference to the law which developed around the TFM Act: Samsley v Barnes at 4.
Likewise, the High Court, albeit in the context of taxation legislation, has affirmed that a statute is to be construed and applied according to its terms, not under the influence of "muffled echoes of old arguments" concerning other legislation: Commissioner of Taxation (Cth) v Spotless Services Ltd (1996) 186 CLR 404 at 414; [1996] HCA 34. See also Federal Commissioner of Taxation v Visy Industries USA Pty Ltd (2012) 205 FCR 317; [2012] FCAFC 106 at [52] per Edmonds, Greenwood and Robertson JJ; Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (In Liq) [2022] HCA 3; (2022) 399 ALR 1 at [169] per Edelman and Steward JJ.
However, interestingly, Courts at the highest judicial level, in construing words in successive pieces of family provision legislation, have, sometimes, done so by adopting meanings explained in earlier legislation.
For example, the High Court, in Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40 when considering the provisions of the FP Act, stated that the difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. in the context of family provision legislation were explained by the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476, a case which considered the TFM Act: Singer v Berghouse at 209.
On the other hand, Courts have at times addressed differences in successive family provision legislation.
The Court of Appeal in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 addressed the issue of whether the structural changes between the FP Act and Chapter 3 of the Succession Act meant that a two-stage approach used under the FP Act in determining whether any order should be made in the family provision claim also applied under Chapter 3 of the Succession Act.
Despite the debate about the effect of the legislation in determining whether or not the Court can and should make any family provision order, judges including those that appellate level, have proceeded to apply the terms of the Succession Act without settling on a unanimous determination about the effect of the changes in legislation.
For the purposes of Chapter 3 of the Succession Act in determining whether any order can or should be made in the family provision claim, it has been said that the question of whether the two-stage approach applies should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood: Sgro v Thompson [2017] NSWCA 326 per White JA at [68]-[69] (McColl JA at [1] and Payne JA at [4] agreeing).
White JA observed at [72]: "In Poletti v Jones [2015] NSWCA 107 Basten JA (with whom Emmett and Leeming JJA agreed) accepted that there may be circumstances in which that approach is preferable (at [19]). However, as Allsop P said in Andrew v Andrew (at [6]) this may be an analytical question of little consequence."
A practical way of approaching the matter of whether any order can or should be made in the family provision claim is by considering the matter by reference to issues posed by s 60 to be determined by the Court and provides categories of factors or "matters" which may be considered, namely (a) whether the applicant is an eligible person; (b) whether a family provision order should be made, and (c) the nature of any such order: Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 per Basten JA at [17] (Leeming JA at [94] agreeing).
Clearly in the case of applicants who eligibility arises by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in s 57, there is a further question as to whether, having regard to all the circumstances of the case (past or present) there are factors which warrant the making of the application: s 59(1)(b) Succession Act.

[96]

Section 60(2)

Additionally, in determining whether to make a family provision order in the nature of any such order the Court may have regard to a number of other matters in which further which in any given case may be relevant to assessment of whether adequate provision has been made.
As has been observed by Hallen J (e.g. Mallitt v Gow at [220]): "s 60(2) enumerates 16 specific matters, described by Basten JA in Andrew v Andrew [2012] NSWCA 308 at [37], as "a multifactorial list", and by Lindsay J in Verzar v Verzar [2012] NSWSC 1380 at [123], as "a valuable prompt" to which the Court may have regard, together with "any other matter the court considers relevant", for the purpose of determining whether the applicant is an "eligible person", whether a family provision order should be made, and if so, the nature of any such order".
Section 60(2) further contains words or expressions left undefined by the legislation such as, "financial resources", "financial needs", "financial circumstances" and "support": s 60(2)(e), (f), (l). Likewise, understanding of what is meant by these terms has been left to judicial explanation.
Hallen J has helpfully commented upon the operation of s 60(2) in the scheme of the legislation as follows, e.g. Mallitt v Gow at [222]-[224]: "[222] 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. [223] The section also does not say how the matters listed are to be used to determine the matters identified in s 60(1). Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the Court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. [224] A reference to some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and any other eligible person, as well as of any beneficiary, whilst others do not. Importantly, also, many of the matters in sub-section (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1)".
I agree with those comments.

[97]

Eligibility

A grandchild of a deceased will be eligible to make a family provision claim if the grandchild was, at any particular time, wholly or partly dependent upon the deceased: s 57(1)(e)(i) Succession Act.
Mr Morrissey submitted that the plaintiffs were not dependent upon the deceased.
In particular, he submitted that the authorities are to the effect that, for there to be dependency a grandparent had to have been in a form of loco parentis, and he submitted that the deceased was not in a relationship of loco parentis to either of the plaintiffs: T 221-222.
There has been in recent years some refinement in Court of Appeal decisions bearing upon the question of dependency.
The issue is addressed in a very recent decision of the Court of Appeal in Chisak v Presot [2022] NSWCA 100, in the judgment of White JA, with whom Macfarlan and Gleeson JJA agreed.
The case involved various issues in respect of an estate, including claims regarding the alleged lack of testamentary capacity and lack of knowledge and approval in respect of a will.
However, the case also involved a family provision claim by the appellant in respect of her grandmother.
The appellant had deposed that in about 2000 when she was five years old she stayed with the deceased in the deceased's home for about a month and stayed with the deceased on three or four occasions between 2000 and 2003 for about three weeks up to a month. The primary judge accepted that on two or three occasions between 2000 and 2003 the appellant stayed with the deceased for short periods of time: at [14], [42].
At first instance dependency was not established.
White JA reviewed the decisions regarding dependency and rejected an approach to dependency, which in the case of a grandchild requires that the form of dependency must be of such regularity and significance that one can say that the grandparent had clearly assumed a continuing responsibility for the grandchild's maintenance, education or advancement in life (e.g., Simons v Permanent Trustee Co Ltd; Estate D Hakim [2005] NSWSC 223 at [42]-[43]).
White JA considered that such an approach conflates the question of whether a grandchild is eligible by reason of dependency, wholly or in part at any particular time upon the deceased with the questions as to whether there are factors which warrant the making of the application with the question of whether adequate provision has not been made by the grandparent: at [44], [49].
The Court of Appeal in Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 rejected the notion that a restrictive meaning of dependency is to be adopted.
Payne JA rejected the approach of earlier decisions of Young J (as his Honour then was) in Clinch v Swift (Supreme Court (NSW), Young J, 13 October 1986, unrep) and Shaw v Lambert (Supreme Court (NSW), Young J, 9 October 1987, unrep) that where dependency is based on the provision of accommodation, that the grandchild is not directly dependent upon the grandparent, but rather dependent on the mother or father: see Payne JA at [66]-[82].
Macfarlan JA agreed with the judgment of Payne JA (at [1]) as did Sackville AJA at [130]-[133].
As was explained by Payne JA, there is significant High Court and Court of Appeal authority that being "dependent" has long been understood as being determined on the basis of the actual fact of dependence or put simply, whether there is reliance on another to fulfil a need: at [78].
The authorities in this regard include Ball v Newey (1988) 13 NSWLR 489 at 491-492.
The standard of support is set by the parties themselves: see Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 190; [1973] HCA 8 per Gibbs J. Hence, as was observed in Ball v Newey it is irrelevant that an applicant could have provided separate living accommodation out of his (or her) own income, if that is not what he and the deceased chose to do: Ball v Newey at 492E.
Further, as White JA in Chisak observed at [47], the phrase "partly dependent" means at least "more than minimally" and perhaps (significantly) although not (substantially) dependence citing McKenzie v Baddeley [1991] NSWCA 197 at [4].
It has been said that the test of partial dependency can be satisfied by contributions which meet a relatively small proportion of a person's needs: see Porthouse v Bridge [2007] NSWSC 686 at [18] per Bryson J.
It is not hard to find cases in which there is seemingly little factual material, which may give rise to a finding of dependency.
For example, in Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep) in a passage not set out in the law report at 29 NSWLR 687, the Court of Appeal referred to earlier Court of Appeal authority in Ball v Newey (supra) and Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 per Hope JA regarding the extent of the understanding of the concept of being dependent.
In Williams v Legg dependency was found in circumstances where some 65 years prior to the hearing of the proceedings a niece then aged 5 had lived with her aunt (the deceased) then aged 27 in a house not owned by the aunt, for a period of approximately six months. The niece in need of care received it from the deceased amongst others which care involved matters such: "as preparing food, giving her schooling, preparing her sandwich lunch and accompanying her to school and other parental care and mothering "appropriate to an aunt aged about 27 and a niece aged about 5", reading her books, putting her to bed, comforting her when in pain, accompanying her to the dentist and to school, to swimming baths, to picnics and for play in the park" (page 14).
It is clear that in a family provision context provision of accommodation can, depending on the facts, give rise to sufficient basis for dependency: see e.g. Hurst v Public Trustee [2000] NSWSC 1109 (Master Macready, 29 November 2000); Pitkin v Henderson [2001] NSWSC 207 (Master Macready, 29 March 2001); Maloney v Goodwin (Supreme Court (NSW), Needham J, 1 August 1989, unrep), Budden v The Public Trustee (Supreme Court (NSW), Needham J, 4 November 1986, unrep), Clinch v Swift (Supreme Court (NSW), Young J, 13 October 1986, unrep), Corcoran v Bizannes (Supreme Court (NSW), Needham J, 4 June 1985, unrep).
The fact that a grandchild is dependent upon a parent, does not of itself preclude a finding that the grandchild is also dependent upon a grandparent for accommodation: Spata v Tumino at [76].

[98]

Factors warranting

Mr Morrissey submitted that even if I found that the plaintiffs were eligible, I should find that there are not factors warranting the making of their applications: T 223.
The basis for that submission focused upon what Mr Morrissey described as a "pecking order in the scheme of merited claims" upon the deceased's estate in which he observed that "Mary is streets ahead by a long way".
In particular, he submitted (T 224): "MORRISSEY: Well, if you take everything into effect, in the pecking order in the scheme of merited claims on her mother's testamentary bounty, Mary is streets ahead by a long way. She's a loyal daughter, a supportive daughter who ordinarily - one hesitates to use the words community value or community test, who most people in the pub or the café or anything would conclude should receive the whole of her mother's estate." (T224.3-.8)
In the case of persons including grandchildren who are eligible by reason only of s 57(1)(d)-(f), the Court may only make a family provision order if it is satisfied that there are factors which warrant the making of the application: s 59(1)(b).
The reference to "factors which warrant the making of the application" is an essentially identical expression which appeared in the provisions of s 9(1) Family Provision Act 1982 (NSW) (FP Act).
There have been many judgments of this Court which have considered that expression.
However, for the last 35 years, this Court both by judges at first instance and judges on appeal have consistently applied the consideration of that expression of McLelland J (as his Honour then was) in Re Fulop (deceased) (1987) 8 NSWLR 679 at 681D in which his Honour (in addressing the filtering process which distinguishes between classes of applicants) indicated that the factors referred to in that subsection, are factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.
In Churton v Christian (1988) 13 NSWLR 241 at 252A-E Priestley JA substantially agreed with the analysis of McLelland J in Re Fulop, although added that: "although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." See also Petrohilos v Hunter at 347C per Hope JA.
In Brown v Faggoter [1998] NSWCA 44 Fitzgerald JA explained at 7: "Subs9(1) is considered difficult to implement in practice. As Priestley JA pointed out in Churton v Christian in most cases it is very difficult to see how the Court could comply with the command that it should 'first' determine whether there were factors which warranted the making of the application 'having regard to all the circumstances of the case (whether past or present)' until all the evidence that any party wished to put before it concerning the case was before the Court and the Court had had an opportunity to have regard to the circumstances shown by that evidence. There may be cases where the executor thought the applicant would have no chance of succeeding because the criteria in s6(1)(c) or s6(1)(d) of the definition of "eligible person" in s6(1) were not satisfied as in the case, for example, where the applicant was neither wholly nor partly dependent upon the deceased person at any particular time or never a member of a household of which the deceased person was a member. Such might be a discrete issue suitable for a preliminary hearing and not requiring an investigation of other circumstances such as the applicant's need. Provided its operation is appropriately limited to unwarranted applications, subs9(1) has a potentially useful operation in ensuring that estates are not wasted on futile proceedings. What needs to be emphasised, however, is that the Court is not authorised by the subsection to refuse to proceed with an application if there are "factors which warrant the making of the application". Once the Court is satisfied that such factors exist, the application must be determined on the merits. While an onus is cast on an applicant by the subsection, it is only an onus to establish that the application was warranted. In my opinion, the trial judge was wrong in his view that subs9(1) involves a "reasonably strict test". The requirement that an application is warranted is fulfilled if the application has reasonable prospects of success. It need not be demonstrated for the purpose of subs9(1) that the application is entitled to succeed; ie, that an order in favour of the applicant is warranted. Conversely, if an application is entitled to succeed, it is axiomatic that the making of the application was warranted".
In many judgments of Macready AsJ, his Honour drew attention to the fact that that the comments of Fitzgerald AJA (with whom Sheller JA and Sheppard AJA agreed) seem to suggest that an application might be warranted if the application has reasonable prospects of success, and presented a somewhat different and perhaps easier test than that which the Court of Appeal had approved in Churton v Christian: e.g. Morgan v Bohm [2013] NSWSC 145 at [144].
In late 2017, in Lodin v Lodin [2017] NSWCA 327; (2017) 16 ASTLR 576 White JA (after referring to Re Fulop, Churton v Christian and Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639) cast doubt on the observations of Fitzgerald AJA in Brown v Faggoter in the following terms (at [9]-[10]): "9. It is true that in Brown v Faggoter [1998] NSWCA 44 Fitzgerald AJA with whom Sheller JA and Sheppard AJA agreed, said that: 'The requirement that an application is warranted is fulfilled if the application [for a family provision order] has reasonable prospects of success. … Conversely, if an application is entitled to succeed, it is axiomatic that the making of the application was warranted.' 10. In Yee v Yee [2017] NSWCA 305 McColl JA observed in a footnote (footnote at n 136) that Brown v Faggoter has never been applied nor commented upon in this Court and although this Court has not said that Brown v Faggoter is wrong, the fact that it has been singularly ignored is 'surely telling'. I agree. I agree with Windeyer J's observations in Penfold v Perpetual Trustee [2002] NSWSC 648 at [50] concerning Brown v Faggoter. It has often not been followed at first instance, as being inconsistent with other statements of principle in this Court (Doshen v Pedisich [2013] NSWSC 1507 at [75]-[81] per Hallen J)."
As recently as late July 2022, the Court of Appeal has yet again referred to the comments of McLelland J in Re Fulop in respect of factors warranting with seeming approval: see Sun v Chapman [2022] NSWCA 132 at [119] per White JA, Leeming JA at [1] and Brereton JA at [88] agreeing. Indeed, Brereton JA in additional comments expressly endorsed the test, as indicated by McLelland J: at [193].

[99]

Adequacy of provision

Logically, in approaching the question of inadequacy provision one needs to have some reference point for assessing inadequacy.
This issue was addressed by White JA in Sgro v Thompson. His Honour stated at [86] that: "The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate"
The evaluative judgment made under s 59(2) is fact specific and that the general words of the provision cannot be read down by applying constraints that are not to be found in the text of the legislation: Sgro v Thompson per White JA at [67] citing Bates v Cooke [2015] NSWCA 278 at [67].
Whilst an applicant's financial needs and the financial needs of other persons with claims on a deceased's testamentary bounty are important, and often highly important considerations, it "is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter": Sgro v Thompson at [71] citing Basten JA in Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 at [22]. The adequacy of provision is not to be determined by a calculation of financial needs: Sgro v Thompson at [71].
Nonetheless, judicial comment at the highest levels of Court hierarchy have provided sufficient guidance to enable judges in applying the legislation to the facts of the various cases that come before the courts.
"Provision" covers the many forms of support and assistance which one individual can give to another": Mallitt v Gow at [187] citing Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 at [34] (Basten JA).
"Maintenance" clearly includes sufficiency of means upon which to live but is clearly not to confined to that: Vigolo v Bostin (2005) 221 CLR 191 at 228-229; [2005] HCA 11 per Callinan and Heydon JJ.
"Advancement" goes beyond the need for education and maintenance: Bartlett v Coomber [2008] NSWCA 100 at [50] per Mason P (Hodgson JA agreeing).
The question as to whether an applicant has been left with inadequate provision for her proper maintenance, education or advancement in life involves a finding of fact, albeit one that is, in light of the substantive character of the matter to be decided, evaluative. It does not involve an exercise of discretion: see Strang v Steiner [2019] NSWCA 143 at [76] per Macfarlan JA and at [131] per White JA; Georgopoulos v Tsiokanis [2022] NSWSC 563 at [256] per Hallen J.
In relation to the general principles regarding grandchildren claims both counsel referred me to the decision of Hallen AsJ (as His Honour then was) in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113] and the apparent approval of those comments by the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 per Basten JA at [17]-[21] and Barrett JA at [65]-[67].
A specific consideration, as acknowledged by Hallen J and also by the Court of Appeal is that the general principles are not rules of law and each case is fact specific: e.g. Sgro v Thompson per White JA at [49].

[101]

Factors warranting

Mr Morrissey submitted that I must look at the facts now not at the time of the Will, nor when Myron died and indicated that his in submission, the plaintiffs would not now be regarded as natural objects of testamentary recognition: T 225.
Whilst the determination of the Court as to whether to make a family provision order is made, having regard to the facts known to the Court at the time that the order is made: s 59(2), the consideration of facts or circumstances that may bear upon factors warranting is not limited to circumstances as of the date of the hearing.
The wording of the statutory provision is that the Court may have regard to all the circumstances of the case (whether past or present) as to whether there are factors which warrant the making of the application: s 59(1)(b).
I do not think it is right to assess factors warranting through the prism of a pecking order of scheme of merited claims on the deceased's bounty nor, do I consider it appropriate to assess it through a prism of community value or "a pub or café test": T 223-224.
It seems to me that that submission conflates the assessment with the consideration of whether adequate provision has been made (s 59(1)(c)) which it is the point of the observation of White JA in Chisak at [44].
The facts which in my opinion could have established the dependency of Natalie and Kathy, and so permit the finding of eligibility relates to the period of time in which they with their parents resided with the deceased at the Guildford property between 1978 through to 1979-1980.
Apart from those circumstances, a clear indication of whether an applicant is or might be described as a natural object of testamentary recognition involves looking at the terms of the Will or Wills that the relevant deceased person has made.
The terms of the Wills, apparently made in 1977, 2002 and 2006 (leaving aside the draft 2006 document) are not in evidence.
The 2010 Will makes clear reference to Natalie and Kathy in a provision of a gift over of the residue of the estate in the event that Mary were to have predeceased the deceased.
Each of Natalie and Kathy are given in that circumstance 20% of the deceased's estate.
That fact is, in my estimation, a strong factor suggesting factors warranting. It is one of a number of indicia that arise.
There is other very significant material indicating a warm and loving relationship between each of Natalie and Kathy with the deceased for many years and up until the time of her death.
This is borne out in part by numerous photos of family gatherings showing many if not most members of the plaintiffs' families celebrating events with the deceased and Mary: CB 82-83[19], 223, 229, 230 234-237, 241-246, 248-253, 258, 278, 422-423.
In particular, there are comments that on their account of the evidence were made by the deceased, which, even if they did not amount to general inheritance promises were some indication of the deceased's then present intention towards Natalie and Kathy.
It seems to me that in the circumstances there are factors which warrant the making of the application by each of Natalie and Kathy.

[103]

Submissions

Ms Pringle indicated that Natalie and Malcolm were essentially on a comparable footing in relation to Mary and Stan in respect of properties: T206, 209. Ms Pringle noted that Natalie and Malcolm had been compelled to downsize into unit that "will no doubt be relatively comfortable, but it is not an extraordinarily valuable remarkable property having regard to Sydney prices": T209.
Ms Pringle submitted that Natalie has some need in so far as she does not have secure employment. It is said that she only has contract work which may or may not endure: T209. Ms Pringle reinforced that if Natalie is unable to secure another contract, she will be too young for anything like the age pension and if she is forced rely upon Centrelink for unemployment benefit, it is unlikely that she would survive financially: T210.
Ms Pringle, with commendable frankness, acknowledged that Kathy's family provision claim was far more problematic: T210. She observed, in my view rightly: "Her husband has significant assets and Kathy herself is not without resources. It is submitted that a further modest provision might be made for her, but having regard to her family circumstances, that may not be, in your Honour's mind, a realistic submission." (T210)
Mr Morrissey submitted that the deceased's testamentary intentions as reflected in the will are of paramount and primary importance and should only be interfered with where absolutely necessary: T225.
In relation to Kathy, Mr Morrissey commented that she is in an extremely good financial position. She's a qualified audiologist and has a capacity to earn a substantial income. She and her husband have combined assets of at least $4.7 million and through hard work, savings and not being extravagant, which is to their credit, they simply are extremely well off: T225.
In relation to Natalie's claim, Mr Morrissey submitted Natalie is young and highly qualified. She has been continuously in employment, to her credit, for 30 years and (because of Malcolm's health problems early last year) she has been choosing at the moment not to exercise her full vocational capacity: T226.
He continued (T226) as follows: "The relationship with Mr Jones seems to be a stable one. They've been together now for over a decade, I think it's around 11 years now. He's a bit older than her, but they have three cars between them, they have superannuation, they have funds in accounts, most of which will be used towards the house, but she has not established that she's been left without adequate and proper provision, nor if she did, should she receive provision."
As to the s 60 factors, regarding Mary, Mr Morrissey submitted that Mary had a relationship with her mother which was as close as "could probably imagine". He indicated that there was a high degree of obligation owed by the deceased to Mary, which the deceased recognised, leaving her whole estate to Mary. He submitted that Mary and Stan have made a substantial contribution to the main asset being the Guildford property, in the sense that they enabled the deceased to hold onto it, "not to have to sell it or move". They "improved it, conserved it and enabled it to be available for sale in 2022": T 226.

[104]

Section 60(2) factors

The Court in assessing that may have regard to factors as set out in section 60(2) on the question of whether the applicants have been left with inadequate provision.
Many of the s 60(2) factors are applicable to consideration on that question.
Clearly, as has already been indicated there was a warm and loving relationship between each of Natalie and Kathy and the deceased.
Reference has already been made to evidence of testamentary intentions of the deceased, including evidence of statements made by her: s 60(2)(j).
There is no suggestion that there is any aspect of the character and conduct of Natalie and Kathy that count against them in the consideration: s 60(2)(m).
Each of Natalie and Kathy have given evidence of some contribution by them at least to the welfare of the deceased: s 60(2)(h).
Whilst Natalie and Kathy have each received some gifts from the deceased during her lifetime, the gifts would not be considered to be significant provision for them: s 60(2)(i).
However, there are compelling factors that count against each of Natalie and Kathy.
Natalie's financial position, albeit somewhat weaker than that of Kathy, is relatively strong. That is particularly so when one has regard to the financial resources of Malcolm, with whom which Natalie cohabits: s 60(2)(e).
Whilst Natalie has some health issues she is able to work and function relatively well: s 60(2)(f). She is still relatively young: s 60(2)(g).
Whilst I accept that Natalie has contributed to the welfare of the deceased there is no suggestion that she contributed in any way to the acquisition, conservation and improvement of the deceased's estate: s 60(2)(h).
Further, Natalie has the support of Malcolm Jones, both financially and relationally: s 60(2)(l).
Kathy's and Chris' financial position is very strong: s 60(2)(e). Kathy has a few health issues, which are not disabling. She is able to work and function well: s 60(2)(f). She is a year younger than Natalie: s 60(2)(g).
As is the case with Natalie, whilst I accept that Kathy has contributed to the welfare of the deceased she did not contribute in any financial sense to the acquisition, conservation and improvement of the deceased's estate: s 60(2)(h).
Kathy is secure in a long-term loving marriage with Chris with whom she has support both financially and relationally: s 60(2)(l).

[106]

Natalie

In relation to Ms Pringle's submissions about Natalie and Malcolm having a comparability of property situation with Mary and Stan, in the sense of having available to them real property, that is correct.
Both Natalie and Malcolm on the one hand and Mary and Stan on the other hand are in situations in which their residences are in the process of being constructed. They have financial outlays that are required before they can move into their residences going forward.
However there is a significant difference in the sense that Natalie and Malcolm have financial resources of their own in order to complete purchase of the Drummoyne unit, whereas, Mary and Stan are reliant upon the provision that is given to Mary under the Will in order to effectively pay for the completion of the Baulkham Hills property.
Whilst Malcolm draws upon his investment amount clearly the investment amount generates a degree of income and interest albeit that it is susceptible to market movements: CB 421.
Taking into account the balance due under the contract for the Drummoyne unit and stamp duty and discharging Malcolm's MasterCard debt will consume approximately $1.9M of the funds available to Malcolm.
I accept that once the monies needed to complete the Drummoyne unit purchase is used Malcolm will have significantly less capital to generate income.
Nonetheless, that will still leave him with in the order of $500,000 of funds available to him.
Natalie is employed part-time. I do not accept that Natalie's employment or contract work is as tenuous as suggested.
In any event, Natalie has significant superannuation available to her in the order of $331,408: CB 125[18].
Once they complete the purchase of the Drummoyne unit their expenses per month will drop, by over one-third, by virtue of not having to pay rent. Without any revision of budgeting based on their current income that would have a shortfall of income over expenses of about $12,000 per annum, if one only counted Natalie's net wage: CB 436. With contributions from Malcolm's drawings they are able to cover expenses.
They maintain at least three motor vehicles which accounts for at least some of the expenditure as outlined by Natalie. Their expenditure may be able to be diminished by budgeting, quite apart from whatever further income may be able to be cleaned by Natalie and Malcolm using their initiative and undoubted qualifications.
The assessment of whether Natalie has been left with inadequate provision is not merely a financial one. However, when I have regard to all the circumstances of the case including the s 60(2) criteria I have referred to above, I am not persuaded that Natalie has been left with inadequate provision.
I consider that in light of Mary circumstances and her claim to retain the provision that has been given to her that Natalie has not established that adequate provision for her proper maintenance, education and advancement in life has not been made.

Shymko v Lach

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