NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
HCA 19
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse (No 2) (1994) 181 CLR 201
Source
Original judgment source is linked above.
Catchwords
NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9HCA 19
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse (No 2) (1994) 181 CLR 201
He was survived by his widow, Binnaz, who was his third wife. They married on 27 May 1984. He was also survived by his adult daughters, Hatice and Ilay (who are aged 50 and 46 respectively) born to his first wife, Muserref. Muserref died in 1998.
The deceased was briefly married, evidently in 1981, to a woman named Sema (who cannot now be located) prior to his marriage to his widow. In due course, I will make an order under s 61(2)(b) of the Succession Act 2006 (NSW) that service on Sema is now impracticable.
For convenience, and without intending any disrespect, I will refer to the deceased's daughters by their given names. I will refer to his widow as Mrs Sitki.
At his death, the deceased owned three adjoining properties in Earlwood.
One, which I will call "number 6", is the home in which the deceased and Mrs Sitki lived from the time of their marriage until the deceased's death. The others, which are known as "number 6A" and "number 6B" are house properties at the rear of number 6, both of which are tenanted.
The deceased, who was a builder, built number 6 in about 1981, number 6A in about 1989 and number 6B in about 2010.
It is common ground that those properties, which are unencumbered, are valued at approximately:
1. number 6 - between $1.5 and $1.65 million;
2. number 6A - $1 million; and
3. number 6B - $1.05 million.
The deceased also owned four apartments and two shops in his native Cyprus. The deceased also had at the date of his death an entitlement to a 1/6 interest in his late father's estate, which also comprises property in Cyprus. Under the law of Cyprus (or Turkey) Hatice and Ilay are now jointly trustees of that property on behalf of the deceased's estate.
The property that belonged to the deceased comprised two shops and four apartments. Hatice asserted in an affidavit that "[b]ecause of the unstable political situation in Cyprus, these properties have become derelict and are unlikely to have significant value unless there is a political solution in Cyprus". I allowed that material only as a contention. In cross-examination, Hatice agreed that she had never seen the properties and was relying on what "the lawyer who collects the rents" had told her. On the other hand, Mr Smith, who appeared for Ilay, suggested to Hatice in cross-examination that the properties form part of a complex of 8 shops and 16 apartments, all of which are rented out. Hatice did not accept that proposition and I was not directed to any evidence to this effect.
In her executor's affidavit sworn 23 July 2015, Mrs Sitki stated that the value of the apartments was $210,000 and the value of the shops $127,000: a total of $337,000. That evidence was received without objection.
In her affidavit of 18 December 2015, Ilay stated that each apartment was worth between $39,000 and $46,500 and each shop $54,000: a total of between $264,000 and $294,000. That evidence was also received without objection. There was no other evidence before me as to the value of the deceased's Cyprus properties. There was no evidence at all as to the value of the deceased's interest in his father's estate.
Finally, the deceased left cash in a bank account of some $100,000.
By a will made on 6 November 2014 (three weeks before he died) the deceased left:
1. the three Earlwood properties to Mrs Sitki for her life and upon her death, to Ilay absolutely;
2. the Cyprus properties to Mrs Sitki for her life and upon her death, to Hatice absolutely;
3. his interest in his late father's estate to Ilay on trust for her children, Melisa and Mehmet; and
4. the residue to Mrs Sitki, Hatice and Ilay equally.
On 24 July 2015 probate of the will was granted to the named executors, Mrs Sitki and Ilay.
Each of Hatice and Mrs Sitki seek additional provision from the deceased's estate pursuant to Ch 3 of the Succession Act.
Ilay does not seek further provision but participated in the hearing before me as a "beneficiary/competing claimant".
No party has been appointed to represent the estate. One of the executors, Mrs Sitki, has an obvious interest in disturbing the deceased's bequests. The involvement in the proceedings of the other, Ilay, was directed to defending the provision made for her in the will and to defeating Hatice's claim for provision; and only in that sense to uphold the will. Thus neither Mrs Sitki nor Ilay are objective executors, intent only on placing before the Court balanced submissions as to the competing claims on the estate.
Nonetheless, the parties joined in urging me to hear and decide the case, without appointing any truly objective party to represent the estate. As Ilay has the most to lose from an order for provision made in favour of either Mrs Sitki (with whom she has a very close relationship) or Hatice (from whom she is estranged), I was prepared to proceed on this basis, with Ilay acting as a contradictor of sorts.
[3]
Some common ground
A number of matters are common ground.
[4]
The Cyprus property
The first is that, for all practical purposes, effect cannot be given to the deceased's bequests in respect of the Cyprus properties, nor his interest in his late father's will. That is because, under Cypriot law (or, perhaps more accurately, the law of Turkey as it is applied in North Cyprus), regardless of the provisions of the deceased's will, that property must be divided as to 1/6 to Mrs Sitki, as the deceased's widow, and as to the balance equally between his daughters, Hatice and Ilay (that is, 5/12 each).
[5]
The provision for Mrs Sitki is not adequate
The second is that the provision made by the deceased for his widow, Mrs Sitki, is not adequate. There was no dispute before me about that.
Mr Brian Lane, the solicitor that drafted the will, said that the deceased had told him that the reason he was leaving no more than a life interest to Mrs Sitki in the Earlwood and Cyprus properties was his apprehension that:
"If I leave the properties to her in her own right, she may be persuaded by other persons after I'm gone to sell those properties and that could be to her disadvantage."
However, as Mr Ellison SC, who appeared with Ms Warren for Mrs Sitki, pointed out in submissions, there is no evidence of any circumstance which indicates that Mrs Sitki is vulnerable to exploitation or that there are people who might seek to buy her real estate inappropriately. No suggestion to this effect was put to either Mrs Sitki, Hatice or Ilay in cross-examination and I see no basis to so conclude. Indeed, Mrs Sitki struck me as being an alert, articulate and strong minded woman who has no difficulty in acting independently and in her own interests.
Mrs Sitki is now 70 and was married to the deceased for almost half her life. She and the deceased lived at number 6 all of that time. There is no dispute that her marriage to the deceased was close and loving.
Mr Ellison drew my attention to the oft cited observations of Powell J (as his Honour then was) in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70:
"It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies."
And to the observations of Ipp JA in Bladwell v Davis [2004] NSWCA 170 at [2]:
"[W]here competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."
Those authorities have been cited on numerous occasions, including by Hallen J in such cases as Graham v Graham [2011] NSWSC 504 (at [88]ff), Hedman v Frazer; Egan v Frazer [2013] NSWSC 1915 (at [164]ff), and in Epov v Epov; Epov v Epov [2014] NSWSC 1086 (at [139]ff).
In Epov v Epov, Hallen J referred to the statement of Ward J (as her Honour then was) in Cross v Wasson [2009] NSWSC 378 that "the position of [a] surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims" but added:
"Where, after competing factors have been taken into account, it is possible to do so, a spouse ought to be put in a position where she is the mistress of her own life, and in which, for the remainder of her life, she is not beholden to beneficiaries." [At [148], citations omitted]
In those circumstances, it was common ground that adequate provision for Mrs Sitki required that she receive from the estate (at least) one of the Earlwood properties and a fund to provide her with income and to meet exigencies.
[6]
One of the Earlwood properties must be sold
Finally, it is common ground that it is inevitable that, whatever be the result of the proceedings, at least one of the Earlwood properties must be sold.
A preliminary distribution of $10,000 has been made to each of Mrs Sitki and Hatice.
Taking into account those distributions, and the payment to Mrs Sitki of some $25,000 on account of her legal costs as an executor, the amount of cash in the estate is now some $38,000. The result is that it is inevitable that one or the other of the Earlwood properties will have to be sold, if only to fund legal costs.
For those reasons, it is convenient to deal first with Mrs Sitki's claim for provision and to then deal with Hatice's claim.
First, I will set out the relevant principles.
[7]
Relevant principles
Section 59 of the Succession Act provides that the Court may make, on the application of an "eligible person" (there is no dispute that Mrs Sitki or Hatice are "eligible persons"), a family provision order in relation to the estate of a deceased person if the Court is satisfied that:
"…at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person…".
The section provides that, if the Court is so satisfied, then:
"The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made."
I consider that the test to be applied remains the two-stage test referred to in Singer v Berghouse (No 2) (1994) 181 CLR 201; HCA 40 at 208-209; namely, determining whether adequate provision has been made in the will for either Mrs Sitki or Hatice, and, if not, what provision should be made.
A different view as to the applicability of the two-stage test has been expressed by one member of the Court of Appeal (Basten JA in Andrew v Andrew [2012] NSWCA 308 at [29] and [41]). Differing views were expressed by other members of the Court in that case (see Allsop P at [6] and Barrett JA at [65], [79]-[81] and [94]).
In Nowak v Beska [2013] NSWSC 166 Hallen J said at [113]:
"It seems to me that the two stage approach adopted in the myriad of cases determined under the former Act and under the Act, including Keep v Bourke [2012] NSWCA 64, enables me, despite what has been said by Basten JA [in Andrew v Andrew], and until uncertainty is resolved, to continue to follow that approach in determining cases under the Act. As Allsop P said [in Andrew v Andrew at [6]], 'it may be an analytical question of little consequence' since what has to be decided by the court is whether to make a family provision order and the nature of any order."
His Honour expressed the same view more recently in Ciric v Ciric [2015] NSWSC 313 at [86], and observed that that view was unaffected by the more recent decisions of the Court of Appeal in Phillips v James (2014) 85 NSWLR 619; NSWCA 4, Verzar v Verzar [2014] NSWCA 45 and Salmon v Osmond [2015] NSWCA 42. I agree.
The first stage of the two-stage test involves a question of fact, namely whether the deceased has made adequate provision for either Mrs Sitki or Hatice's proper maintenance, education and advancement in life.
The aim of the first stage is to assess whether the Court can make an order for provision. As Hallen AsJ (as his Honour then was) said in Lajcarova v Todorov [2011] NSWSC 522 at [79]:
"Unless the court comes to the conclusion that inadequate provision has been made, it is not empowered to make an award. This is commonly referred to as 'the jurisdictional question'. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant."
The second stage, should it arise, involves an exercise of discretion. The Court must assess whether provision ought to be made in either Mrs Sitki or Hatice's favour.
The object of the second stage is to assess whether the Court should make an order for provision. As Hallen AsJ said in Lajcarova v Todorov at [84]:
"At the second stage, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour."
Although Hallen AsJ was then considering a claim under the former Family Provision Act 1982 (NSW), I see no reason to adopt a different approach under the Succession Act.
It is clear that the determination of the second stage involves similar considerations to that of the first stage: Singer v Berghouse (No 2) at 209-210.
What is involved is "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific" (Manuel v Lane [2013] NSWCA 61 at [9] per Emmett JA, with whom Meagher and Ward JJA agreed, speaking of the discretion to be exercised under s 20 of the Property (Relationships) Act 1984 (NSW); which I see as involving, in this respect, the same notions as arise under the Succession Act).
The guiding "principles" were summarised by Hallen AsJ in Gersbach v Blake [2011] NSWSC 368 at [94]-[96] as follows:
1. it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate;
2. it is not part of the Court's role to achieve some kind of equity between the various claimants;
3. the Court's role is not to reward an applicant, nor to distribute the deceased's estate according to notions of fairness or equity;
4. the Court is to be vigilant in guarding against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate;
5. rather, the Court's role is of a specific type and goes no further than a making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant (see also Bryson J in Gorton v Parks (1989) 17 NSWLR 1 at 6);
6. the Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation (see also Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; HCA 19 at 19 per Dixon CJ and McKenzie v Topp [2004] VSC 90 at [63] per Nettle J); and
7. freedom of testamentary disposition remains a prominent feature of the Australian legal system (see also Lajcarova v Todorov at [91]).
I may also have regard to the matters set forth in s 60(2) of the Act.
[8]
Mrs Sitki's claim
Mrs Sitki is in fair health for a person of her age. She has a slight tremor which means that she has some difficulty with housework. She has difficulty with vacuum cleaning and needs a cleaner for about an hour a week. She has high blood pressure, high cholesterol and has suffered from stomach ulcers. She has a family history of diabetes.
There is, however, no reason to think that Mrs Sitki will not live well into her 80s, if not beyond.
Mrs Sitki has assets in the order of $94,000 including some $70,000 in bank accounts, a new car (which she purchased in January 2016 for $18,600) and furniture, chattels and personal effects.
Her current liabilities include income tax and the cost of these proceedings which is in the order of $74,000.
Mrs Sitki currently receives the income from number 6A and 6B amounting to some $4,500 per month. There was no suggestion that, at her stage in life, she should be in employment. Her regular monthly expenses are approximately $3,600.
Mrs Sitki would like to engage additional domestic assistance which is likely to cost $520 per month and would like to make provision for travel (she and the deceased travelled regularly both within Australia and abroad). Her estimate of the extra monthly amount she would need for those matters is something in the order of $1,400, bringing her total monthly expenses to something in the order of $5,000.
Mrs Sitki would very much like to continue living at number 6 and has given evidence of capital expenditure needed at that property including a new carport ($6,500), blinds ($2,000) and repairs and maintenance of some $110,000.
Mrs Sitki also needs dental work which will cost something in the order of $5,000.
As I have said, it is common ground that adequate provision is not made in the will for Mrs Sitki.
There was debate before me as to what order ought be made in Mrs Sitki's favour in the exercise of the "evaluative determination" required (see [47] above).
Mr Blackah, who appeared for Hatice, submitted that an appropriate order would be to cause number 6A to be transferred to Mrs Sitki, to grant her a life interest in number 6 (so that she could receive rental income from that property), to sell number 6B and make further capital provision from the proceeds of sale (Mr Blackah suggested something in the order of $200,000) for unseen contingencies.
On the other hand Mr Ellison submitted that I should order that number 6 and number 6B be transferred to Mrs Sitki, so that Mrs Sitki could continue to live in number 6 and receive the rental income generated by number 6B, that number 6A be sold and that Mrs Sitki receive the majority of the proceeds of sale of that property.
In my opinion, neither of those courses is appropriate.
I am satisfied that the proper exercise of my discretion requires that I make an order that number 6 be transferred to Mrs Sitki absolutely. This was the matrimonial home in which, as I have said, Mrs Sitki lived happily with the deceased for all of their marriage and almost half of her life. It is true that number 6 (being a five bedroom house) is very much larger than Mrs Sitki needs for her physical accommodation. It would not be appropriate to compel Mrs Sitki to move from number 6 to number 6A, as suggested by Mr Blackah. On the other hand, the more than ample accommodation in number 6 means that Mrs Sitki will have an asset that, if she chooses or if unexpected financial circumstances arise or if she is unable to manage two story accommodation, she can realise and move into something smaller (for example, an apartment).
The question then is what further provision should be made for Mrs Sitki to "ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies" (per Luciano v Rosenblum at 69-70).
My conclusion is that the provision that should be make for Mrs Sitki (beyond title to number 6) is to settle on her a sum which, if invested at current bank rates, would enable her to draw down the amount she needs to cover her current expenses, and the further expenditure she would like to make (travel and further housekeeping assistance) over her remaining years: that is some $5,000 per month (see [54] and [55] above).
On my calculations, were Mrs Sitki to live until she is 90, that would require settling a sum on her in the order of $900,000. However, I will hear submissions about the figure.
In addition, in my opinion, a further $100,000 should be settled to cater for contingencies. That sum, together with the funds Mrs Sitki can expect to receive from the Cyprus properties (between $44,000 and $56,000; see [11] and [12] above), her 1/6 share in the deceased's interest in his father's estate, her possible realisation of number 6 (see [63] above) and the cash she presently has (see [52] above) will, in my opinion, constitute adequate provision for her likely needs.
[9]
Ilay
Under the will, Ilay is the ultimate beneficiary of the three Earlwood properties and, in that sense, the principal beneficiary of the estate.
She is not a claimant for provision. Her financial position has, however, some relevance to the claim for the provision made by her sister, Hatice.
Ilay is now 46 and, since 1990, has lived in Istanbul.
She is married to a surgeon, Sevki Muret Aksoy. They have two children, Melisa who is now 15 and Mehmet who is now 10.
For about 10 years, Ilay ran a textile business, primarily directed at wedding planners. Ultimately Ilay became a wedding planner herself.
In about 2008, that business had financial difficulties and Ilay approached the deceased for assistance. The deceased gave Ilay two properties he owned in Cyprus which Ilay sold for £88,000.
This caused difficulties in the relationship between Hatice and both Ilay and the deceased. I will return to this below.
Ilay's business either closed or was sold (she said both in different affidavits) in late 2014. Ilay is currently unemployed.
Her husband's income in 2005 was the equivalent of approximately $127,000.
Ilay, her husband and the children, live in rented accommodation in Istanbul. They own a house some 70km from Istanbul which they use as a country house. It is valued at approximately $250,000 with a mortgage of $80,000 that Ilay anticipates will be paid off over the next four or five years.
[10]
Hatice's claim
Hatice is now 50.
She is highly educated. She has a master's degree and a PhD in communications. Hatice is the non-paid president of a number of organisations including the Society for Intercultural Education Training and Research and has contributed papers to numerous conferences concerned with multicultural issues.
Hatice is married but separated. There are no children of the marriage. Her husband has, in the past, provided some financial support but, Hatice said, no longer does so. Hatice has taken no steps to seek financial support from her husband under the Family Law Act 1975 (Cth). She said "I haven't been well enough to do so".
For 13 years until 2010 she was employed at the Department of Industry, ultimately on a salary of $60,000 per annum. In 2010 she resigned because, she said, of a chronic psychological condition. She gave evidence that she cannot work because she suffers from depression and severe panic attacks but that she hoped to return to work and was "working very hard to get better to do so". She was not able to say when that might be.
Hatice said she needs a knee operation and ongoing treatment for anxiety and depression. She gave no evidence of what expenses she would thereby incur.
Hatice is the beneficial owner of a three bedroom house in Rivett. She bought that house in 1998 for $115,000. The deceased gave her $20,000 to assist with the purchase. She agreed that she would not have been able to purchase the property without that assistance. The property is now worth something in the order of $550,000 and is encumbered by a mortgage under which some $38,000 remains owing. It is thus worth twice as much as the property Ilay owns with her husband outside Istanbul.
Hatice said the house is in need of extensive repairs. However, she adduced no evidence as to the likely cost of those repairs, nor even give her own estimate of the likely cost of those repairs.
Hatice also said that she needed a new car as her current vehicle is almost 30 years old and is in bad condition. She did not nominate what car she would wish to purchase, nor the cost of any such car.
Hatice did not disclose any other assets.
In an affidavit sworn on 30 March 2016 Hatice said that she received $1,000 per month from Australian Government Superannuation. A document Hatice produced in response to a notice to produce shows her monthly income as at December 2015 was in fact around $1,215. In her affidavit, Hatice estimated that her expenses were between $950 and $1,000 per month. She did not detail those expenses. Although that income is modest compared to the salary Hatice was earning at the Department of Industry, Hatice did not suggest in her evidence that it was insufficient for her day to day needs.
In October 2015, she travelled to North Cyprus "to make enquiries about my Father's estate". She also travelled to Turkey in June 2016 to meet her legal advisers concerning the Cyprus properties. The latter trip was funded from the $10,000 interim distribution to which I have referred. Hatice did not explain how she funded the October 2015 trip. She did not disclose any source of funds that enabled her to do so.
As I have mentioned, in 2008 the deceased gave Ilay two properties that he owned in Cyprus to assist her with financial difficulties she was then experiencing in relation to her business.
Hatice gave this evidence about that transaction:
"[I]n 2008 and without any reference to me whatsoever, [the deceased] gave my sister a block of land in North Cyprus that rightfully belonged to me, as my sister had got herself into financial difficulties in Istanbul."
Hatice said that the deceased said to her, at about this time:
"I have to help your sister as she is in serious financial difficulties. If I do not help her our family name will be disgraced. But I promise you that I will make sure that the value of the land, which is approximately 45,000 pounds sterling, will be taken into account when I make my will. I will leave you 45,000 pounds over & above the half share you will receive from my estate".
Consistently with that evidence, Mr Lane said in his affidavit that in November 2008 the deceased instructed him that he had given Ilay £90,000 and wished to amend his then will to provide that on the death of Mrs Sitki and the sale of the Earlwood properties the proceeds should be divided equally between Ilay and Hatice, but with an adjustment in favour of Hatice to take account of the money (in fact it was property) that he had given Ilay.
The will that Mr Lane drew for the deceased on 18 November 2008 and again on 6 August 2013 reflected these instructions and the deceased's then evident intention that Ilay and Hatice should share his estate equally, subject to adjustment for the transfer of the Cyprus properties to Ilay in 2008.
Hatice said that her relationship with the deceased:
"…became very strained after he gave my sister my inheritance from our grandfather as I was very much in financial need at the time. In January 2014 [the deceased] telephoned me & said to me: 'Hatice, I am so sad about the rift that has developed between us. I do love you and I want us to be close again. I am very proud of your academic achievements'."
Nonetheless Hatice did not see the deceased again before he died.
Hatice's mother, the deceased's first wife, was diagnosed with multiple sclerosis in around 1980, when Hatice was 15. Hatice clearly feels aggrieved at the burden that, as she sees it, was cast on her to care for her mother following the breakup of the marriage to the deceased.
Thus she said, in her 30 March 2016 affidavit:
"Many years before the deceased died I made a contribution of great significance to his first wife, my mother. The deceased left my mother at a time when she was suffering from multiple sclerosis. From the age of 15 I took over all housekeeping duties i.e. cleaning, cooking, washing, ironing & looking after my sister. My parents divorced & my father remarried in 1981. My sister, the Second Defendant, moved to Istanbul in 1990 & has lived there ever since. From my mid-teens until my mother died in 1998 I was the one responsible for her care. This robbed me of a great deal of the normal things a teenager & someone in her early 20s should have been experiencing & enjoying. I believe the responsibilities associated with my mother's care made me somewhat 'old before my time'. My sister was never involved in our mother's care. She would not even communicate with our mother. The deceased never provided adequate or any consideration for the sacrifices I was compelled to make in his & my sister's absence. On our mother's behalf I fought the Department of Health (Disability Section) for our mother's continued place at The Multiple Sclerosis Centre Nursing Home at Lidcombe. When she passed away I organised the funeral & paid all expenses associated with it. When Mother was placed in the 'high needs' care category I found a nursing home for her in Canberra & continued to be her sole family contact & carer."
In cross-examination, Hatice agreed that, contrary to the latter part of this passage, the deceased paid for about half of Hatice's mother's funeral expenses.
In answer to questions from Mr Ellison, Hatice agreed that one of the reasons she had brought these proceedings was "to receive proper consideration", "in the form of money", from the deceased for "the sacrifices" she had made for her mother.
I mention these matters to acknowledge how Hatice feels about these matters. On her account of it, she devoted much time to the care of her mother during a long and debilitating illness.
However, I do not think I can give these matters great weight in considering the questions that arise in these proceedings. Hatice did not point to any financial disadvantage she suffered as a result of the care she devoted to her mother or any expense of the deceased that was thereby spared. Indeed, Mr Blackah stated that he did not submit it was a "factor that has great significance".
The deceased intended that Hatice have his Cyprus properties, subject to Mrs Sitki's life interest. To the extent that Cypriot/Turkish law has overridden that intention, the deceased's testamentary wishes have been thwarted. Instead of receiving all of the Cyprus properties after Mrs Sitki's death (which could be many years from now), Hatice will receive a 5/12 share in those properties (as well as those that the deceased inherited from his father) in the reasonably near future. It is hard to say whether Hatice will be thereby worse off.
As it is, Hatice stands to receive 5/12 of the proceeds of the various Cyprus properties; that is, on the evidence before me, between $110,000 and $140,000 (see [11] and [12] above) plus 5/12 of the deceased's interest in his father's estate.
That may well be sufficient to pay off the mortgage on the Rivett property and to meet the financial needs that Hatice has identified: a knee operation, ongoing psychological care, the repairs needed in relation to the Rivett property and her need for a new car.
The difficultly I have is that Hatice has adduced no evidence of the likely cost to her of meeting those needs nor as to whether her likely share of the Cyprus properties will be insufficient to do so.
Hatice is the applicant for provision, and it was for her to show that the provision made by the deceased for her in the will is not adequate for her proper maintenance and advancement in life.
On the state of the evidence, I am not persuaded that the provision that she will receive from the estate is not adequate for her needs, as she has described them. Accordingly, I am not persuaded that I should make any order for provision in her favour.
The result will be that Ilay receives considerably more from the estate than will Hatice. That may strike some minds as being unfair to Hatice. But that is not the test on an application for provision.
In his earlier wills, the deceased manifested an intention to treat Hatice and Ilay equally. Evidently, he formed a different view late in his life, perhaps because of his apprehension that Ilay had been more attentive to him during that period.
Mr Lane, the solicitor who drafted the will, had acted for the deceased for almost a quarter of a century before his death and had drafted a number of wills for him (the earliest being in 1992).
Mr Lane described the deceased as an intelligent, logical and rational man and said that:
"There is no doubt that on 6 November 2014 [the date of the will] he was alert, focussed and well aware of the contents of the will he signed on that day.
Immediately after he signed the will he said words to the effect 'I have now provided for everyone, my wife, my two daughters and my grandchildren'."
That evidence, and a comparison of the will with the will that the deceased had made earlier in 2014, leave me comfortably satisfied that the deceased gave careful consideration to his decision to prefer Ilay to Hatice when giving instructions as to what became his final will. As the above authorities make clear, it is not the Court's role on an application like this to achieve some kind of "fair" disposition of the deceased's estate. It is certainly not the Court's role to usurp the functions of an evidently rational testator.
As White J said in Friend v Brien [2014] NSWSC 613 (at [62] and [63]):
"To remodel the will because the judge thought that some additional provision would be fairer, would pay no more than lip service, or not even that, to respecting a capable testator's judgment where it appears that a reasonable judgment has been made. …
In my view, where there is a range in which views may legitimately differ as to what provision is adequate for proper maintenance and advancement in life and where the deceased has apparently conscientiously made a judgment about how his estate should be disposed of that falls within such a range, and where the circumstances have not materially changed between the time of the making of the will and the court's considering the position, a court should not substitute its judgment for that of the testator to determine that the provision made was inadequate."
For those reasons, I do not propose to make any order for provision in favour of Hatice.
[11]
Conclusion
I will hear submissions as to the sum to be settled on Mrs Sitki (see [66] above) and, otherwise, invite counsel to bring in short minutes to give effect to these reasons.
[12]
Amendments
04 October 2016 - Correction to first defendant/cross-claimant's solicitors
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Decision last updated: 04 October 2016