Spiteri v Vassallo

Estimated net value of estate after selling expenses $1,253,799

1. The value of the net distributable estate, assuming that the plaintiff's legal costs of the proceedings on the ordinary basis are paid out the estate in the sum of $55,500 [3] and the defendants' legal costs of the proceedings on an indemnity basis are paid out of the estate in the sum of $127,000, [4] is $1,071,299.
2. The plaintiff commenced this proceeding by Summons filed on 31 May 2019 claiming an order that provision be made out of the deceased's estate and notional estate for her maintenance, education and advancement in life pursuant to Chapter 3 of the Succession Act 2006 (NSW). Frances and Manuel, as the executors of the deceased's last will, are the defendants to the proceeding. Although the Summons made reference to notional estate, the plaintiff did not seek to designate any property as notional estate.
3. The proceeding was commenced within the time permitted by s 58(2) of the Succession Act.
4. There is no dispute that the plaintiff, as the deceased's de facto spouse, is an eligible person: see ss 57(1)(b) and 59(1)(a) of the Succession Act.
5. The defendants accept that the deceased's last will did not make adequate provision for the plaintiff's proper maintenance, education or advancement in life: see s 59(1)(c) of the Succession Act.
6. The contest between the plaintiff and the defendants in the proceeding therefore concerns the amount of provision that should be made for the plaintiff pursuant to s 59 of the Succession Act.
7. The plaintiff's principal submission was that she should receive the Plumpton property. If the Court did not accept that submission, the plaintiff's alternative submission was that provision in the sum of $650,000 should be made for her (to be paid as a lump sum once the Plumpton property has been sold) in order to allow her to purchase an alternative four bedroom home in the Plumpton area. The plaintiff made the further alternative submission that, if the Court was not persuaded to make an order for lump sum provision of $650,000, then the Court should make an order for provision of no less than $450,000, being the amount that the plaintiff submitted represented sufficient funds for her to pool with her other assets to acquire a property to live in the manner in which she submitted that she had become accustomed to living with the deceased.
8. The defendants submitted that provision should be made for the plaintiff in the sum of $200,000, reflecting the amount that it was submitted the plaintiff and the deceased both mistakenly understood would be provided for the plaintiff on the death of the deceased.
9. Frances, Manuel and Anthony put forward their own circumstances, financial resources and needs in support of the provision made for them in the deceased's last will. They did not submit (and nor did the plaintiff submit) that the burden of any family provision order made in favour of the plaintiff should be borne otherwise than equally by the three of them.
10. The notice required by s 61 of the Succession Act has been given to Anthony (who is an eligible person by reason of s 57(1)(c)), Irene Vassallo (who is an eligible person by reason of s 57(1)(d)), and the plaintiff's three daughters (who may be eligible persons by reason of s 57(1)(f)). [5]

APPLICABLE LEGAL PRINCIPLES

1. The general legal principles applicable to family provision claims under Chapter 3 of the Succession Act have recently been set out by Hallen J in Page v Hull-Moody [2020] NSWSC 411 at [120]-[159] and [251]-[252] and Harris v Carter [2020] NSWSC 196 at [106]-[164]. His Honour has drawn together numerous judgments of this Court, the Court of Appeal and other courts through which principles guiding the exercise of the jurisdiction under Chapter 3 have been developed. I gratefully adopt his Honour's careful and detailed summaries, which enables me to set out the principles of particular relevance to this proceeding succinctly.
2. As noted above, there is no dispute that the plaintiff is an eligible person and that her application was made within time: Succession Act, ss 57(1)(c) and 58. The Court's power to make an order under s 59 of the Succession Act for provision out of the deceased's estate for the plaintiff therefore turns on whether the Court is satisfied, at the time of determining her application, that the deceased's last will did not make adequate provision for her proper maintenance, education or advancement in life. As Hallen J said in Page v Hull-Moody (supra), this is a question of objective fact which requires a multi-faceted evaluation: [2020] NSWSC 411 at [125] and the authorities there cited; see also Harris v Carter (supra) at [111]-[112].
3. The adequacy of the provision made by the deceased's will is concerned with quantum, whereas proper prescribes the standard of maintenance, education and advancement in life. The inquiry into adequacy is not limited to considering whether the plaintiff has enough to survive or to live comfortably without provision (or further provision, as the case may be) from the deceased's estate. Adequacy is a broader concept that requires consideration of matters necessary to guard against unforeseen contingencies. In deciding whether adequate provision has been made for the plaintiff's proper maintenance, education or advancement in life, attention may be given to how the parties lived and might reasonably be expected to have lived in the future. The concepts of adequate and proper are not assessed in a vacuum, but in the context of all of the circumstances of the case, including the plaintiff's financial position, the size and nature of the deceased's estate, the totality of the relationship between the plaintiff and the deceased and the relationship between the deceased and other persons who have legitimate claims on the deceased's estate: Page v Hull-Moody (supra) at [127]-[136] and the authorities there cited, including Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114] (Callinan and Heydon JJ); see also Harris v Carter (supra) at [114]-[122] and [149]-[154].
4. If the multi-faceted evaluation referred to above satisfies the Court that adequate provision has not been made by the deceased's last will for the plaintiff's proper maintenance, education or advancement in life, the question is whether the Court should exercise the power under s 59(2) of the Succession Act to make an order for provision and, if so, what provision ought to be made out of the deceased's estate for the maintenance, education or advancement in life of the plaintiff having regard to all the circumstances of the case.
5. Section 60 of the Succession Act provides that the Court may consider the following matters: "(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
6. The matters in s 60 are available considerations in relation to ss 59(1)(c), 59(2) and 60 of the Succession Act: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7] (Basten JA, Gleeson JA agreeing); Chan v Chan [2016] NSWCA 222 ([2014] NSWSC 392) at [21] (Basten JA, Simpson and Payne JJA agreeing); Page v Hull-Moody (supra) at [150].
7. The financial needs that may be considered under s 60(2)(d) must be more than simply wants, desires or demands, but are not limited to the necessities of life: Page v Hull-Moody (supra) at [139]-[144] and the authorities there cited; Harris v Carter (supra) at [124]-[128] and the authorities there cited.
8. Although financial needs are an important matter to be considered by the Court, the jurisdiction is not exclusively needs-based: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [124]-[132] (Brereton JA, Simpson AJA agreeing). As Hallen J said in Page v Hull-Moody (supra) at [151] (and see also Harris v Carter (supra) at [133]): "The section does not prioritise the catalogue of matters that may be taken into account. No matter is more, or less, important than any other. The weight of each of the matters specified in the section, which may be taken into account, will depend upon the facts of the particular case. There is no mandatory command to take into account any of the matters enumerated. None of the matters listed are, necessarily, of decisive significance, and none differentiate, in their application, between classes of eligible person. Similarly, there is no distinction based on gender. The subsection makes clear, since other matters may be taken into account, that the jurisdiction is not exclusively needs-based. Ultimately, it is for the Court to determine what weight should be given to relevant factors."
9. As Basten JA said (with the concurrence of Simpson and Payne JJA) in Chan v Chan [2016] NSWCA 222 at [22] (my emphasis added): "A significant set of factors in many cases is that identified as 'the financial resources (including earning capacity) and financial needs, both present and future, of the applicant …'. However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs require[s] determination of the size of the estate and the claims of others on the beneficence of the testator."
10. The Court gives considerable weight to the deceased's testamentary wishes. However, s 59 of the Succession Act is to be applied according to its terms and is not confined by notions of reluctance to interfere with freedom of testamentary disposition. The question is how that freedom is to be factored in to the assessment of whether the provision made by the deceased is adequate for the proper maintenance, education and advancement in life of the applicant in all the circumstances of the case: Page v Hull-Moody (supra) at [155]-[159] and the authorities there cited; Harris v Carter (supra) at [138]-[152] and the authorities there referred to; Olsen v Olsen [2019] NSWCA 278 at [75]-[78] (White JA, adhering to the views his Honour expressed in Steinmetz v Shannon (supra) at [49]-[56]; Meagher JA and Emmett AJA agreeing); Steinmetz v Shannon (supra) at [49]-[56] (White JA), [89]-[90], [95]-[97] (Brereton JA, Simpson AJA agreeing); Sgro v Thompson [2017] NSWCA 326 at [83]-[87] (White JA, McColl and Payne JJA agreeing). A well-established and long-standing understanding between a testator and potential beneficiary, properly informed, could well be relevant in assessing what is proper provision for that beneficiary: Steinmetz v Shannon (supra) at [112] (Brereton JA, Simpson AJA agreeing).
11. The interests of other claimants on the deceased's estate, and of beneficiaries entitled to a share of the estate under the will, are relevant to the Court's consideration of the propriety and adequacy (or inadequacy) of any provision for the plaintiff, both for the purpose of s 59(1)(c) and when determining whether any provision order should be made and the nature of any such order. In a case such as the present where the beneficiaries have adduced evidence of their financial resources and needs, this includes consideration of their resources and needs: ss 60(2)(b) and 61 of the Succession Act; Sgro v Thompson (supra) at [71]-[74] (White JA, McColl and Payne JJA agreeing); Foley v Ellis [2008] NSWCA 288 at [9] (Basten JA) and [86]-[89] (Sackville AJA, Beazley JA agreeing) and the authorities there cited.
12. The Court is not engaged in an exercise in achieving "fairness" or "equality" between beneficiaries and claimants on the deceased estate, or addressing wounded feelings or disappointed expectations: Page v Hull-Moody (supra) at [169]; Harris v Carter (supra) at [152].
13. There is no general rule that a widow's claim is paramount, although it may be proper to regard it as such on the facts and in the circumstances of particular cases: Steinmetz v Shannon (supra) at [98]-[99] (Brereton JA, White JA and Simpson AJA agreeing).
14. In Steinmetz v Shannon (supra), Brereton JA (with the concurrence of White JA and Simpson AJA) gathered together the key authorities that provide guidance relating to family provision claims by widows.
15. After referring to the fact that there is no general rule that a widow's claim is paramount, Brereton JA emphasised the importance of the following qualifying remarks by Ipp JA (Stein JA agreeing) in Bladwell v Davis [2004] NSWCA 170, a case in which there were competing claims on an estate which was insufficient to meet all claims: "1. I agree with Bryson JA, for the reasons his Honour has stated, that 'it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201 …' 2. I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."
16. Brereton JA continued (citations omitted): "101. The question of what provision ought as a matter of community standards be made for a widow has been addressed in numerous cases, and the obligations of a testator towards a surviving spouse have often been described. In Elliott v Elliott, in a passage that would later be endorsed by Young J in Court v Hunt, Powell J (as he then was) described the testator's duty to his widow of a longstanding and harmonious marriage as requiring, at a minimum, provision of security in her home for the rest of her life and the capacity to change it; an income sufficient for her to live in a reasonable degree of comfort; and a fund for modest luxuries and contingencies. His Honour said: I take the view - which view I believe, is supported by the authorities - that, in a case such as this, where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband, and assisted him to build up and maintain his estate, the duty which the deceased owes to his widow can be no less than (to the extent to which his assets permit him to achieve that result) first, to ensure that his widow be secure in her home for the rest of her life, and that if, either, the need arises, or the whim strikes her, she has the capacity to change her home; secondly, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worries; and, thirdly, that she has available to her a fund to which she might resort in order to provide herself with such modest luxuries as she might choose, and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring. 102. To similar effect, in Luciano v Rosenblum, which is perhaps the case most often cited in this context, Powell J said: 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. 103. In Paton v Public Trustee, Young J, in dealing with a long but relatively unhappy marriage, said: Whilst if there was a very large estate it may be that there would be a different result in an application under the Act between a happy marriage and an unhappy marriage, there is a basic minimum which the community regards as necessary for testators to provide for their spouses where their marriage has been of medium to long duration. Those basic necessities include a secure roof over the remaining spouse's head and at least a small capital sum. 104. The "broad general rule" referred to in Luciano v Rosenblum was echoed by the Court of Appeal in Golosky v Golosky, in which Kirby P (as his Honour then was), with whom Cripps JA agreed, said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse is provided with accommodation appropriate to that which she or he has been accustomed, and to the extent that the assets available permit, a fund to meet unforeseen contingencies: (c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above­) 69 to 70; (d) A mere right of residence will usually be an unsatisfactory method of providing for a spouses accommodation to fulfil the foregoing normal presupposition. 105. In O'Loughlin v O'Loughlin, Davies AJA, with whom Mason P and Meagher JA agreed, said: 20 It is undoubtedly true to say that there is no such thing as a "standard widow" and that every case must be determined on its own particular circumstances. However, it has long been recognized that, arising out of the marriage relationship, a testator has a duty to provide support for his widow after his death if she has need of it and if his estate has funds so to provide. Courts give more attention to the needs of a widow than they do to the needs of the children, if the children are adult and well able to support themselves. This point was made clear by the remarks of Lord Romer in Bosch v Perpetual Trustee Company Ltd which I have cited above. There are many dicta to the same effect. In Worladge v Doddridge (1957) 97 CLR 1, Williams and Fullagar JJ said at 11: It is clear that the claim of a widow, where the estate is of considerable value, and there are no competing claims of children, should not be disposed of in any niggardly manner. She is entitled to such a provision for her maintenance and support as the court or judge thinks proper and "proper" is a word which, as the Privy Council pointed out in Bosch's Case lets in all the considerations there adverted to. 21 In Gregory v Hudson [1999] NSWCA 221, Handley JA, with whom Cole AJA agreed, cited with approval the remarks of Powell J in Luciano v Rosenblum which I have mentioned. In Sayer v Sayer, Sheller JA referred to the fourth principle as stated by Stout CJ in In re Allardice, Allardice v Allardice which was referred to by Lord Romer in Bosch v Perpetual Trustee Company Ltd. At paragraph 9, Sheller JA also referred to the remarks of Powell J in Luciano v Rosenblum and expressed the view that, in the case before him, the widow's claim was "paramount". These are examples of cases where judges have referred to a need on the part of a widow for maintenance and support and a moral obligation on the part of the testator to provide it."
17. The plaintiff referred to the following statement by Young CJ in Eq in Marshall v Carruthers [2002] NSWCA 47 at [74], which has been cited with approval in subsequent cases: [6] "Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses."
18. Although there is authority to the effect that greater weight should be given to the claims of a spouse who has entered into a formal and binding marriage commitment, [7] this, too, depends on all the circumstances of the case. [8]
19. The plaintiff referred to the following remarks of Nettle J in McKenzie v Topp [2004] VSC 90 at [58], although the plaintiff's written submissions omitted the words that I have emphasised below: "Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact."
20. This remark was made in the context of a family provision claim by a stepson against the estate of his deceased stepmother in circumstances where the deceased had inherited the estate of the applicant's late father. His Honour continued in the same paragraph [58]: "But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors."
21. The facts of the present case are very different.
22. The principles in [29]-[36] above are not inflexible principles or rules of law, but guidelines that may provide assistance. However, that does not mean that they are without importance: Steinmetz v Shannon (supra) at [37]-[39] (White JA), [106]-[108] (Brereton JA); see also Page v Hull-Moody (supra) at [178]-[185] and the authorities there cited.
23. The determination of what is adequate and proper will ultimately depend on all the circumstances of the particular case. For example, if the deceased's surviving spouse has assets and income of her own, that may moderate his obligation to provide for her, particularly if there are significant competing claims: Steinmetz v Shannon (supra) at [115] (Brereton JA, Simpson AJA agreeing).

NARRATIVE

1. The following narrative of facts, matters and events relevant to the determination of the plaintiff's family provision claim is drawn from the affidavit, oral and documentary evidence adduced by the parties. Where matters referred to are in dispute, I have identified the dispute and incorporated within the narrative my findings of fact in relation to those disputed matters.
2. I have not found it necessary to resolve every factual matter raised and disputed by the parties in order to determine the plaintiff's claim in accordance with the applicable legal principles referred to above. For example, the evidence included certain allegations made by the defendants about things said by the deceased during his lifetime concerning the plaintiff's alleged dealings with Centrelink and various other matters that are not relevant to the determination of the family provision claim, except insofar as the defendants impliedly relied on them in relation to the plaintiff's character or as tending to suggest that the plaintiff was motivated to improve her financial position through her relationship with the deceased. I say "impliedly" because no submission to that effect was made, but there is no other apparent purpose for including those allegations in the evidence. I note that the plaintiff denied those allegations. Allegations made by the plaintiff about events that occurred on 2 September 2018 fall into the same category. I have addressed these allegations in [90]-[99] below, because significant time was spent on them in cross-examination. However, they are irrelevant to the determination of the plaintiff's family provision claim. As Hallen AsJ (as his Honour then was) said in Graham v Graham [2011] NSWSC 504 at [198], the Court disapproves of attempts by litigants in family provision cases to blacken each other's character by raising matters that are generally unlikely to advance either party's case and may merely deepen rifts in the family and unnecessarily prolong the litigation.
3. The evidence concerning the personal circumstances, financial resources, earning capacity and present and future financial needs of the plaintiff and each of the beneficiaries, is summarised separately at the conclusion of this narrative.
4. The family home of the deceased, in which his former wife, Manuel, Frances and Anthony resided, was on a farm in Schofields, New South Wales. The family grew fruit and vegetables on the farm for their own consumption and for sale. There were also some animals on the farm. From the ages of six and seven respectively, Manuel and Frances worked on the farm for three to four hours every day and for a full day on weekends about once every three months when fruit and vegetable crops needed to be harvested. They were not paid for this work, save that they received some pocket money.
5. Between 1980 and 1983, the family lived on another property in Cudgen in northern New South Wales, where they operated a flower and vegetable farm. Manuel left school in 1980 and worked on the Cudgen farm full-time, being 10 hours per day, six or seven days per week. Frances worked on the Cudgen farm before and after school as she had done at Schofields. Neither Manuel or Frances were paid for their work, although they did receive pocket money.
6. In 1983, the family, with the exception of Manuel, moved back to the farm in Schofields where Frances worked on the farm for about two hours each day, even though she was also working full-time as a sales assistant at the store that was then known as Grace Brothers. Manuel chose to remain in northern New South Wales and seek alternative employment.
7. For a period of about 18 months from 1984 to mid-1985, the deceased and his former wife went travelling around Australia. Frances gave evidence that she took on sole responsibility for maintaining and operating the Schofields farm during this period. Frances was not paid for this work, or for her earlier part-time work on the Schofields farm and the Cudgen farm.
8. Frances gave evidence that she shared a close and loving relationship with the deceased.
9. After leaving home when she married in 1993, Frances saw or spoke with the deceased at least three times a week. They would discuss current affairs and events going on in their lives. This continued until the relationship between the deceased and his former wife broke down in 2006.
10. Anthony also enjoyed a close and loving relationship with the deceased during his childhood and prior to the breakdown of the deceased's marriage with his former wife in 2006.
11. Manuel gave evidence that he had maintained a close relationship with the deceased, despite living in Eviron in northern New South Wales, which is a considerable distance away from the deceased's home in Sydney. Manuel said that he and the deceased used to speak by telephone every two or three weeks, and they would discuss current events, Manuel's children and partner, and the planning of fishing and camping trips. Manuel said that this was the pattern of their contact both before and after the deceased separated from his former wife. Manuel also saw the deceased in person when he visited Sydney from time to time.
12. It is not in dispute that the relationship between the deceased and the plaintiff commenced in November 2006, at which time the deceased moved in to live with the plaintiff and her three children in premises she was renting at Hassall Grove.
13. The pattern of Frances' contact with the deceased changed slightly after the deceased and her mother separated, so that she only saw him once a week over dinner at her home. However, she still spoke to him about three times a week. Frances did not speak to the plaintiff from 2006 until shortly after the deceased's mesothelioma diagnosis in July 2018. In cross-examination, Frances said that she did not hate the plaintiff, but just did not want to have anything to do with her.
14. From the breakdown of the deceased's marriage in mid-2006 until August 2018, Anthony did not have contact with the deceased other than being in the same room with him at certain family gatherings, during which he and the deceased did not speak with one another. In his affidavit sworn on 29 October 2018, Anthony deposed that he was angry and upset with the deceased because he believed that the deceased's relationship with the plaintiff had commenced before the deceased separated from Anthony's mother. [9]
15. As I have already mentioned, the deceased moved in to the plaintiff's rented Hassall Grove property in November 2006. The deceased was then 62 years old and had been working as a handyman for some years prior to 2006. His assets were tied up in the property that he owned with his former wife. Until he reached a family law settlement with his former wife, the deceased had few assets available to him other than his motor bike, his tools of trade and his income as a handyman. In cross-examination, Frances said that she believed he also had some money, but she was not sure how much.
16. The deceased and the plaintiff lived at the rented Hassall Grove property together until 2011, when they left to travel around Australia. They kept their finances separate. The plaintiff paid all of the rent for the property. They shared other expenses, and paid bills in equal shares. The plaintiff undertook all of the household cleaning and cooking.
17. On 22 October 2007, the deceased made a will in which he made provision for the plaintiff in the sum of $50,000 and provided for the balance of his estate to pass to his three children, Manuel, Frances and Anthony, in equal shares (the 2007 Will). At that time, the deceased was living with the plaintiff in the Hassall Grove property for which she paid the rent.
18. From 2011 to mid-2012, the plaintiff and the deceased travelled around Australia with the plaintiff's three children.
19. In the course of their travels, the deceased made a new will in September 2011. That will was not in evidence. However, the plaintiff gave oral evidence in chief that the deceased had told her after he consulted a solicitor that he had provided for the plaintiff to receive $100,000. He later showed her the will and she read that it provided $100,000 for her and she saw that the deceased had signed it. The plaintiff has not been able to locate that will.
20. When they returned from their trip around Australia in about mid-2012, the plaintiff and the deceased moved into rental premises, where they shared the rent. The plaintiff attended to the household cleaning and cooking.
21. In September 2014, the deceased purchased the Plumpton property in his own name after receiving approximately $1,250,000 pursuant to a family law settlement with his former wife. The purchase price of the Plumpton property was $705,000.
22. The plaintiff and her three children moved into the Plumpton property with the deceased.
23. The plaintiff and the deceased continued to maintain separate finances. They shared food and other household expenses, paying all bills in equal shares with the exception of council rates, which were paid by the deceased. The plaintiff continued to attend to the household cleaning and cooking, and also cleaned the pool.
24. On 16 August 2016, the deceased made a new will appointing Frances as his sole executor and providing for the whole of his estate to pass equally to Manuel, Frances and Anthony (the 2016 Will). No provision was made for the plaintiff in the 2016 Will.
25. On 16 August 2016, the deceased also executed a binding financial agreement under s 90UC of the Family Law Act 1975 (Cth) between himself and the plaintiff (the Binding Financial Agreement). The plaintiff executed that agreement on 22 August 2016.
26. Section 90UC of the Family Law Act provides that parties in a de facto relationship may make a written agreement about how their property or financial resources are to be distributed, or how either of them is to be maintained, in the event of a breakdown of their relationship. The agreement is binding if the requirements of s 90UJ are satisfied. Section 90UK provides that a binding financial agreement continues to operate despite the death of a party to the agreement, and operates in favour of and is binding on the legal personal representative of the deceased party. However, in the case of a de facto relationship, s 4 provides that the death of a spouse is not a "breakdown" of the relationship. That is to say, the parties' rights and obligations that arise under the agreement in the event of a breakdown of their relationship do not arise on the death of one of the parties.
27. A copy of the Binding Financial Agreement is Annexure "A" to the plaintiff's affidavit sworn 31 May 2019. Clause 2 and Annexure "A" set out the assets and liabilities of the plaintiff and the deceased. The deceased's assets were listed as the Plumpton property with a value of $1,000,000 and cash at bank in the sum of $200,000. The plaintiff's assets were listed as a savings account balance of $80,000. Annexure "A" recorded that neither the deceased nor the plaintiff had any liabilities.
28. Clause 3 of the Binding Financial Agreement provided: "In the event of a breakdown of the relationship, Paul [the deceased] agrees to give to Maria [the plaintiff] two hundred thousand dollars ($200,000.00) to help her establish her life after her separation."
29. Under cl 5 of the Binding Financial Agreement, the deceased and the plaintiff warranted to one another that they had been provided with independent legal advice concerning the effect of the agreement on their rights and the advantages and disadvantages to them of entering into the agreement. Solicitors' certificates stating that such advice had been provided to each of the deceased and the plaintiff were annexed to the Binding Financial Agreement.
30. Clause 7 of the Binding Financial Agreement provided for a release by each of the plaintiff and the deceased of their rights to apply for a family provision order, subject to the approval of the Court: Succession Act, s 95. Clause 7 gave each party the right to request the other party to join in an application to the Court for such approval. There was no evidence that any such approval had ever been sought or obtained, and no party to this proceeding submitted that cl 7 had any bearing on the plaintiff's family provision claim.
31. In her affidavit sworn on 31 October 2019, Frances deposed that she accompanied the deceased to conferences with the solicitor who prepared the 2016 Will and the Binding Financial Agreement on three occasions: in early August 2016, on 10 August 2016 and on 16 August 2016.
32. Frances gave an account of the conversations that took place between the deceased and the solicitor on those occasions. She deposed that, at the first conference in early August 2016, the deceased instructed the solicitor at the first conference to make a provision of $100,000 for the plaintiff in the Binding Financial Agreement. The solicitor advised the deceased at the first conference that the Binding Financial Agreement "will allow [the plaintiff] to be paid $100,000 when you die. Don't worry, the will and the binding financial agreement will always be read together."
33. Frances deposed that, at the second conference on 10 August 2016, the deceased said that the plaintiff had asked for $200,000 and he instructed the solicitor to increase the amount to be provided for the plaintiff to $200,000. Frances had a conversation with the deceased in the car park immediately after that conference to the following effect: "He said: Look, you won't have to worry, you won't have any problems with [the plaintiff]. We have talked about it over and over, and she is satisfied with what she is getting. I said: If you say so. He said: You know that the rest will be split between the three of you equally, you, Manuel and Anthony."
34. In her affidavit sworn on 20 November 2019, the plaintiff denied having had any conversation with the deceased at this time about an amount of money to be given to her.
35. Frances deposed that, at the third conference on 16 August 2016, she read the draft of the 2016 will aloud to the deceased, as he could not read. The deceased then asked the solicitor: "If I die, that is all she gets? The $200,000?" The solicitor replied: "Yes". The deceased then signed the will. Immediately after signing the will, the deceased said to Frances: "Good, I am glad that is done. If something happens, you, Manuel and Anthony get the house. She will get the $200,000. She wants to get the furniture and the animals."
36. Frances deposed that the solicitor with whom these conferences took place was a woman, named Jun at Maxim Legal in Mount Druitt. I infer that this is the same person as Jun Jiang, solicitor, who was one of the witnesses to the deceased's signature on the 2016 Will and who also witnessed the deceased's signature on the Binding Financial Agreement and certified that she had provided independent legal advice to the deceased in relation to the Binding Financial Agreement.
37. In her affidavit sworn on 31 May 2019, the plaintiff deposed that, at the time she signed the Binding Financial Agreement, she did not give any thought to what would happen if she or the deceased died during their relationship.
38. I consider that it is inherently unlikely that the amount of $200,000 was inserted in the Binding Financial Agreement without any discussion between the plaintiff and the deceased about whether this was an appropriate amount for her to receive if their relationship broke down. The plaintiff did not negotiate the agreement with the deceased through a solicitor. She said in cross-examination that she had only met with the solicitor on one occasion, being the day she signed the Binding Financial Agreement. That was on 20 August 2016, and the deceased had signed the Binding Financial Agreement four days earlier. The plaintiff said in cross-examination that she and deceased were open and honest with one another concerning financial matters and did not keep secrets from one another. I consider it highly unlikely that the deceased signed the Binding Financial Agreement without any prior discussion with the plaintiff about her receiving an amount of $200,000 if their relationship broke down.
39. I find that the deceased signed the Binding Financial Agreement and the 2016 Will, in the belief and with the intention that the effect of those documents was to provide $200,000 for the plaintiff if the relationship broke down or if he died. This is the understanding that the deceased conveyed in his conversations with Frances and the solicitor Ms Jiang referred to above. It was not put to Frances in cross-examination that those conversations did not occur or that she was mistaken in her recollection of what the deceased had said. In earlier wills, made at a time when he had fewer assets, the deceased had made provision for the plaintiff in the amounts of $50,000 and $100,000. By the time he made the 2016 Will, the deceased had greater assets and their relationship was of longer duration. There is no evidence to suggest that there was any reason why the deceased would have wished to make a lesser provision for the plaintiff in 2016 than he had made in earlier wills in those different circumstances.
40. It was not put to the plaintiff in cross-examination that she understood when she signed the Binding Financial Agreement that she would receive $200,000 if the deceased died, as opposed to their relationship breaking down. She was asked about her understanding, and the deceased's statements to her and to others in her presence during the period from the deceased's mesothelioma diagnosis in July 2018 until his death. The plaintiff gave evidence that she believed, and the deceased said to her and others, that she would receive $200,000 on his death. The basis of the plaintiff's belief was not the Binding Financial Agreement, but rather what the deceased told her was in his will. It is not clear from the evidence whether the plaintiff saw the deceased's 2016 Will, or any of his subsequent wills, before the deceased died. However, she did have discussions with the deceased about those wills. She gave evidence that she and the deceased had "always discussed' the need for the plaintiff to have a period of time to remain in house after he died because "I can't just be made to move out without having anywhere to go". The plaintiff said that they had discussed a period of six months and that she had been present with the deceased and a lawyer when the deceased had told the lawyer that, and the lawyer responded that four months was enough. The plaintiff said: "we always discussed that I would be permitted to stay in the house for a few months, but every time I asked him if he told the lawyer, every time he went to do a will before he would say yes, he did. But it was never on the will". In that answer, the plaintiff's reference to "every time he went to do a will before" is a reference to occasions before August 2018 when the deceased made his final will. The effect of this evidence is that the plaintiff and the deceased had discussed the need for her to be able to remain in the Plumpton property for a period of months after his demise around the occasions when the deceased had made his previous wills in May 2017 and August 2016 (and, possibly earlier wills). The evidence is equivocal as to whether the plaintiff knew that these provisions were "never on the will" from seeing those earlier wills at the time or from seeing them after the death of the deceased.
41. The plaintiff gave evidence that she thought that a provision of $200,000 for her, together with a right to remain in the Plumpton property for four months, was a fair way to look after her. The plaintiff was asked whether she had received any advice at that stage about her "rights" as a de facto spouse. The plaintiff said that she had not. However, the question was misconceived. A spouse or a de facto spouse does not have "rights" to provision over and above that made for them in the will of their deceased spouse as the authorities discussed in paragraphs [29]-[39] above make clear.
42. In summary, I find that the deceased formed the intention in August 2016 to make provision for the plaintiff in the amount of $200,000 in the event of his death, and that this remained his intention during the remainder of his life, including during his illness during the last 7 weeks of his life. Having regard to the purchase price of the Plumpton property, his discussions with the plaintiff concerning the need for her to be able to remain in the property for a few months after his death and his direction to his executors to that effect in his last will, it is clear that the deceased knew that a provision of $200,000 meant that the plaintiff would not be able to remain in the Plumpton property and would have arrange alternative accommodation using her own financial resources, including the $200,000 he believed he had provided for her.
43. I find that, during the period from August 2016 until the deceased's death, the plaintiff was aware of the arrangements that the deceased believed he had put in place for her to receive $200,000 and that she was content with that arrangement and considered it to be fair, provided that she was also entitled to stay in the Plumpton property for a period of four to six months after the death of the deceased.
44. The Binding Financial Agreement that both plaintiff and the deceased signed stated that the value of the Plumpton property was $1,000,000. I find that both the plaintiff and the deceased knew that the sum of $200,000 would not be sufficient for the plaintiff to purchase an unencumbered property of equivalent or similar standard of accommodation to the Plumpton property in the same or a similar area without contributing some of her own funds and/or borrowing funds. I find that the deceased knew this from the time that he formed the intention in August 2016 to make a provision for the plaintiff in the sum of $200,000. I also find that the plaintiff knew this from August 2016 when she understood she would receive $200,000, and that she was nevertheless content with that provision that the deceased believed he had made. It is relevant to note that the Binding Financial Agreement records that the plaintiff had assets of $80,000. By the time of the hearing of this proceeding, the plaintiff had net assets of approximately $225,000: see [106]-[118] below.
45. The deceased's nephew, Frank Said, gave evidence that he had a conversation with the deceased on about 30 December 2016 in which the deceased expressed the view that he wanted to leave his house to Manuel, Frances and Anthony and that he would give the plaintiff some money. Mr Said was not cross-examined. His evidence of what the deceased said to him on this occasion is consistent with the findings I have made above about the deceased's intentions in the period from August 2016 to his death.
46. On 9 May 2017, the deceased made a further will (the 2017 Will). The 2017 Will was also prepared by Maxim Legal and Jun Jiang was again one of the witnesses to the deceased's signature. There is no material difference between the terms of the two wills, and there is no evidence which would point to any explanation of the reasons why the 2017 Will was prepared. Under the 2017 Will, the deceased appointed Frances as the sole Executor and provided for the whole of his estate to Manuel, Frances and Anthony in equal shares. No provision was made for the plaintiff.
47. I do not consider that this reflects any change in the intention and belief that I have found the deceased formed in August 2016 concerning the effect of his will and the Binding Financial Agreement. No amendment was made to Binding Financial Agreement at this time, and there is evidence that the deceased had been told in August 2016 that his will would be read together with the Binding Financial Agreement: see [71] above. It is clear from the statements the deceased made to the plaintiff and others during the period July to September 2018 that, well after executing the 2017 Will, the deceased continued to believe that he had made provision for the plaintiff to receive $200,000 on his death.
48. In July 2018, the deceased was diagnosed with mesothelioma.
49. The deceased made his last will on 7 August 2018: see [3]-[5] above. For the same reasons identified above in relation to the 2017 Will, I do not consider that the lack of provision for the plaintiff in the deceased's last will reflects any change in the intention that I have found the deceased formed in August 2016.
50. In her affidavit affirmed on 31 October 2019, Frances gave evidence of a conversation between the deceased, Manuel, Frances and the plaintiff at the Plumpton property on 11 August 2018. Frances deposed that the deceased told her and Manuel that the plaintiff "is getting the $200,000" and "the rest is being split between the three of you, Frances, Manuel and Anthony". In his affidavit sworn on 1 November 2019, Manuel gave an account of this conversation in terms almost exactly the same as Frances' evidence. In cross-examination, both Manuel and Frances denied having discussed the matter with one another before they prepared their affidavits. In her affidavit sworn on 20 November 2019, the plaintiff deposed that there was a conversation on this date but it related only to the deceased wanting his grandson, Luke, to have his motorcycle. It is not necessary to resolve this factual dispute, given the findings I have already made concerning the deceased's intentions and the plaintiff's state of mind at that time.
51. In his affidavit sworn on 29 October 2019, Anthony deposed that Frances telephoned him in late August 2018 and told him that the deceased was very ill and that she and Manuel were going to see him. Anthony decided to go and see the deceased with them. He went to the Plumpton property, and a number of other family members were there including Frances, Manuel and the plaintiff. Anthony deposed that he and the deceased agreed to put the past behind them, and had conversation about how they both were. In their affidavits sworn on 29 April 2020 and 2 May 2020 respectively, Manuel and Frances deposed that this reunion occurred on 3 September 2018, one day after the events of 2 September 2018 that are referred to immediately below.
52. The plaintiff gave evidence that Frances and Manuel came to visit the deceased at the Plumpton property on 2 September 2018. The plaintiff deposed that, in her presence, Frances told the deceased that she and Manuel did not think that Anthony should receive an equal share of the deceased's estate with Frances and Manuel and that he should only receive $100,000. According to the plaintiff, the deceased then asked her to write a document to that effect and he signed it. A copy of the handwritten document is Annexure "B" to the plaintiff's affidavit sworn on 20 November 2019.
53. The plaintiff's account of how that handwritten document came into existence is disputed by Frances and Manuel.
54. In her affidavit sworn on 2 May 2020, Frances deposed that she and Manuel were present at the Plumpton property with the deceased and the plaintiff on 2 September 2018, but said that it was the plaintiff who suggested to the deceased that Anthony did not deserve what had been left to him in the deceased's will and should receive something less. Frances deposed that the plaintiff continued to press the deceased about this three or four times, and that the deceased appeared to her to be concerned and upset by this. The plaintiff then went to get some paper and wrote out the document that is Annexure "B" to the plaintiff's affidavit sworn on 20 November 2019, omitting the amount. The plaintiff then asked the deceased several times how much he wanted to leave Anthony, and suggested various different amounts starting at $10,000 and increasing. The deceased kept answering "I don't know". Frances then said to the plaintiff that she should "leave it" and that the deceased was agitated, upset and did not understand. The plaintiff then passed the document to the deceased and told him to get Frances and Manuel to sign it. The deceased then pushed the document across the table to Frances and said: "Do it".
55. Frances deposed that she signed the document because the deceased appeared to her to be increasingly agitated and upset by the plaintiff's urgings, she did not believe that the document would affect the deceased's will and there was no amount written in the document in any event. The document was also signed by Manuel, the plaintiff and the plaintiff's daughter, who was also present. The plaintiff then pointed to where the deceased should sign, and he signed with difficulty. Frances deposed that the plaintiff did not read the document aloud to the deceased, even though he was illiterate.
56. Manuel's affidavit sworn on 29 April 2020 gives an account of these events on 2 September 2018 that is almost identical to the account given by Frances in her affidavit sworn on 2 May 2020. In cross-examination, both Frances and Manuel denied having discussed the matter with one another before they prepared their affidavits.
57. This dispute occupied some time in cross-examination. Ultimately, it is not necessary to resolve the dispute because the plaintiff accepts that the document was not submitted as a codicil to the will when the application for probate was lodged and is therefore irrelevant, except in relation to issues of credit.
58. Mr Drummond, of Counsel, who appeared for the plaintiff, urged me to find that the plaintiff was telling truth about these events on 2 September 2018 and that Frances and Manuel were not telling the truth because their accounts were almost identical (implying, as I understood it, that they had colluded in relation to this aspect of their evidence) and because there was simply no reason for the plaintiff to have advanced a document that reduced Anthony's share of the estate. A reduction in Anthony's share would not result in any gain to the plaintiff, given that she understood that she was to receive a fixed sum of $200,000.
59. I accept that there was no apparent gain to the plaintiff to be achieved by the document. Equally, there was nothing to be achieved by Frances and Manuel advancing the document if they did not seek to have it treated as a codicil to the deceased's last will when applying for a grant of probate. They did not do so. The notion that Frances and Manuel instigated the discussion on 2 September 2018 that resulted in the creation of the document is also inconsistent with France's conduct in informing Anthony of the deceased's illness and that she and Manuel were going to see the deceased, which prompted Anthony to end his estrangement with the deceased. It is also inconsistent with the fact that, in this proceeding, Frances and Manuel have not submitted that the burden of any provision ordered in favour of the plaintiff should fall on Anthony to a greater extent than it falls on them.
60. For those reasons, I decline to find that Frances or Manuel advanced the idea that Anthony should receive a lesser share of the estate or that they were responsible for the creation of the handwritten document on 2 September 2018. It is not necessary to make any other finding about the document or the circumstances in which it was created.
61. For completeness, I note that Mr Drummond submitted that the finding for which he contented would not go to any issue in the case other than credit, and did not identify any substantive issue to which any such adverse credit finding would be relevant. [10]
62. The plaintiff took leave from her employment to care for the deceased until he passed away at home on 8 September 2018, just seven weeks after his diagnosis.
63. In her affidavit sworn on 31 October 2019, Frances deposed that, from mid-July 2018, she went to the Plumpton property every day after work and stayed with the deceased for four to five hours. From about two weeks before the deceased passed away, Frances took time off work to care for the deceased and stayed with him constantly, only leaving him to return to her home to sleep at night. Frances deposed that the plaintiff was also at the Plumpton property at various times and would sit in the room together with them. In her affidavit sworn on 20 November 2019, the plaintiff disputed Frances' account to the extent that it implied that the plaintiff was not attending to the deceased full-time during his last two weeks.
64. In her affidavit sworn on 31 May 2019, the plaintiff described her relationship with the deceased as having been a close and loving relationship from the time that it commenced in November 2006 until he passed away.
65. There are no children of the de facto relationship between the plaintiff and the deceased.
66. The plaintiff was living in the Plumpton property at the time of the deceased's death, and continues to live there. Manuel and Frances, as executors, have not requested the deceased to vacate the property.

CURRENT CIRCUMSTANCES, FINANCIAL RESOURCES AND NEEDS OF THE PLAINTIFF

1. The plaintiff is 50 years old. She has three daughters from her former marriage: Shana Spiteri (aged 24 years), Tiana Spiteri (aged 22 years), and Kisha Spiteri (aged 20 years).
2. In her affidavit sworn on 31 May 2019, the plaintiff deposed that she has no physical, intellectual or mental disability. There was no evidence to suggest that this had changed as at the time of the hearing.
3. The plaintiff was not maintained by the deceased prior to his death, save that he provided the Plumpton home for the plaintiff and her three children to live in together with him from September 2014 until his death in September 2018. As I have referred to earlier, the defendants have permitted the plaintiff to continue to live in that home since the death of the deceased. She has had the benefit of that accommodation, without paying rent, for almost two years as opposed to the four months provided for in the deceased's last will.
4. The plaintiff is employed as a housekeeper at Novotel, Rooty Hill.
5. Prior to 23 March 2020, the plaintiff's monthly income from her employment was $4,079 gross (or $3,284 net). Her family's monthly expenditure was $2,390, leaving a surplus of net income of approximately $894 per month.
6. However, the COVID-19 pandemic resulted in the plaintiff's employer reducing her working hours, which in turn reduced her gross monthly income to $722.10. In her affidavit sworn on 8 April 2020, the plaintiff deposed that she expected to receive Centrelink benefits in the near future. In cross-examination, the plaintiff said that she was receiving $650 per week in JobKeeper payments (equivalent to $2,816 per month), which had been back-paid to the end of March. This would have increased her gross monthly income to approximately $3,538 per month.
7. As will become apparent below, the COVID-19 pandemic has also adversely affected the employment and income of Frances, Manuel and Anthony. All parties conducted the hearing on the basis that this impact should be viewed as of a relatively temporary nature.
8. The plaintiff's three daughters are still dependent on her to some extent. All three of her daughters are studying, and two have part-time jobs. Her eldest daughter moved out of the Plumpton property in about mid-2016 for about two years, but has been living there again since shortly after the death of the deceased. In her affidavit sworn on 8 April 2020, the plaintiff deposed that her daughters currently live with her and do not pay board. However, it is perhaps unsurprising that the plaintiff does not require her daughters to pay board in circumstances where the defendants have permitted her to continue residing in the Plumpton property free of rent, and it does not necessarily follow that they are unable to make a financial contribution to the household in which they live as young adults. The plaintiff acknowledged in cross-examination that they should be able to contribute financially if they are still living with her, at least once they complete their studies. All three of the plaintiff's daughters will complete their studies within the next three years.
9. In her affidavit sworn on 8 April 2020, the plaintiff deposed that she has assets of $225,171.38, including vacant land said to be worth $25,000, cash of $121,000 and superannuation of approximately $68,000. Her only liability is $100 owing on a credit card. The plaintiff deposed that she does not believe that the vacant land can be readily sold, as it is zoned non-residential and cannot be built on.
10. The plaintiff submitted that, if she is required to vacate the Plumpton property, she will need to purchase alternative accommodation with at least four bedrooms for herself. She adduced evidence of three advertisements for four bedroom homes in Plumpton and surrounding areas with advertised prices in the range of $650,000 to $730,000. On the basis of these advertisements, the plaintiff deposed that the cost of "a suitable property" would be in that range.
11. It is not clear from when the advertisements were published. Whilst I am not inclined to give significant weight to an estimate of the cost of an alternative property based on three undated advertisements, it does not appear that the estimated cost is overstated in comparison with the agreed value of the Plumpton property of $856,250.
12. There is no other person liable to support the plaintiff.
13. In summary, the plaintiff has net assets of approximately $225,000 and her usual monthly net income exceeds her monthly expenses for herself and her three daughters by approximately $1,000. It is necessary to bear in mind that those expenses do not currently include accommodation costs (rent or mortgage repayments). It seems reasonable to infer that the plaintiff may have no income left over each month in the future once she begins to pay accommodation costs, although this would depend on the amount of rent or mortgage repayments, how many of her daughters live with her in the future and the extent to which they contribute to accommodation costs. There is no evidence to suggest that the plaintiff will not continue to earn approximately her current level of income until retirement age (bearing in mind the parties' approach to treating the impact of COVID-19 as temporary).

CURRENT CIRCUMSTANCES, FINANCIAL RESOURCES AND NEEDS OF FRANCES

1. Frances is 53 years old. She and her husband, Michael Gorman, have been married for 27 years and have two children.
2. Frances suffers from scoliosis. A report of a CT scan of Frances' spine annexed to the affidavit sworn on 31 October 2019 confirms that she has scoliosis together with some chronic wedge compression fractures, disc protusions, and degenerative disease in parts of her spine.
3. In her affidavit sworn on 31 October 2019, Frances deposed that her general practitioner had advised her that she will need to have some operations and will need to see specialists in relation to her condition. She also deposed that she had been advised that she requires physiotherapy in order to alleviate the problems caused by her scoliosis. However, she has not attended physiotherapy because she is unable to afford the cost of approximately $100 per week. Frances deposed that her condition makes it very painful and difficult to stand or sit for long periods of time, yet her employment required her to be on her feet and lift things, which caused constant pain and resulting headaches that had been worsening for about the past five years. Frances anticipated that she would be required to cease working within the next couple of years.
4. Frances' affidavit sworn on 31 October 2019 referred to an upcoming specialist appointment to discuss the results of the CT scan referred to above, but no evidence was adduced in this proceeding concerning the outcome of that appointment. The evidence did include a report from Dr Tim Schindler, general practitioner, dated 8 May 2020 which stated: "I have been a legally qualified medical practitioner for 40 years. I have been in general practice for 36 years. Frances Vassallo has been a patient of mine since October 2019. She suffers from Scoliosis of the theracolumbar spine, chronic wedge compressions of T8 and T9, degeneration of the thoracic spine, severe degenerative disease of L5-S1 disc disease, lumbar degenerative disease and ostoepaenia. She also has moderate degenerative disease of the cervical spine, particularly at C5-6 with impingement on the exiting C6 nerve roots bilaterally. These findings are on the basis of X-rays and CT Scans, which have been done back in October 2019. In my opinion, these condition [sic] will likely worsen with time."
5. Until the end of February 2020, Frances was employed as a visual merchandiser at Myer.
6. At the beginning of March 2020, Frances took two weeks' leave from her employment because the pain she was experiencing in her upper and lower spine and neck had increased to the point where she felt that she could not work any longer. Frances described the pain as constant. At work, she could only carry out her duties for about one and half hours before she experienced what she described as "immense pain".
7. In mid-March 2020, Frances was stood down from her employment indefinitely for reasons associated with the COVID-19 pandemic. As I have referred to earlier, all parties adopted the position that the Court should regard the impact of the COVID-19 pandemic on their employment and financial circumstances as likely to be temporary. However, in her affidavit sworn on 2 May 2020, Frances expressed doubts about whether she will be able to return to her work, given her scoliosis and the associated pain.
8. Frances's gross monthly income prior to being stood down was $2,400. She is not earning any income whilst stood down from her employment. Her husband's gross monthly income was $5,780 as at the date of Frances' affidavit sworn on 2 April 2020. There was no evidence of Frances' or Mr Gorman's net income.
9. In her affidavit sworn on 2 April 2020, Frances deposed that she has monthly expenses totalling approximately $1,802 and that Mr Gorman has monthly expenses totalling approximately $3,457 (including mortgage repayments of $1,610). Their combined total monthly expenditure is $5,259.
10. Frances and Mr Gorman jointly own their home in Vineyard, New South Wales, which has a value of approximately $800,000. An amount of $153,000 is secured by a mortgage against that property.
11. Frances and Mr Gorman also have a self-managed superannuation fund which owns a property in Melbourne worth approximately $400,000, against which a debt of $234,000 is secured by mortgage. This is their only superannuation. The unit is rented out, but there was no evidence of the amount of rental income received by the superannuation fund which, presumably, is applied to paying the mortgage. (It is relevant to note, in this regard, that the plaintiff's solicitors did not require production of tax returns for the superannuation fund.) [11] In cross-examination, Frances was unable to clarify whether the mortgage payments of $1,610 included in Mr Gorman's monthly expenses related to their home and the unit owned by the superannuation fund, or related only to their home.
12. Frances owns assets independently of Mr Gorman to the value of approximately $18,808.
13. Mr Gorman owns assets independently of Frances to the value of approximately $19,905.
14. In her affidavit sworn on 31 October 2019, Frances deposed that she and Mr Gorman need to pay off the two mortgages totalling $387,000 and they are struggling to do so.
15. In summary, Frances and her husband have joint net assets (including the assets of their self-managed superannuation fund) of approximately $813,000. Frances has additional assets of $18,808 and Mr Gorman has additional assets of $19,905. They have a combined gross monthly income of $8,180 which will reduce to approximately $5,780 if Frances has to cease work due to her scoliosis. There is no evidence of their net income. Their monthly expenses total $5,259. It is not clear whether these expenses include the mortgage payments on the property owned by their self-managed superannuation fund, or whether those payments are funded by the rent received by the superannuation fund. Either way, there is not a significant amount of excess monthly income, and there may even be a deficit if Frances ceases work before retirement age.

CURRENT CIRCUMSTANCES, FINANCIAL RESOURCES AND NEEDS OF MANUEL

1. Manuel has supported himself financially since 1983, when he remained in northern New South Wales rather than returning to the Schofields farm with the deceased, his mother and his siblings.
2. Manuel is presently 55 years of age. He lives in Eviron with his partner, Angela Pereira. He has four children, one of whom lives with Manuel and Ms Pereira and is financially dependent on them. Ms Pereira is the only person liable to support Manuel.
3. Until approximately October 2018, Manuel had full-time employment as a boilermaker. He left that employment in order to undertake the work required to repair his home at Eviron after it was damaged by Cyclone Debbie in March 2017 and the insurance moneys that he received ($67,000) were inadequate to pay for the cost of third parties carrying out the necessary work. He is uncertain whether he will be able to return to his former employment once the work is completed.
4. Manuel owns the property at Eviron in which he lives, which he estimates is worth approximately $700,000. A debt of $62,661 is secured by mortgage against that property.
5. Manuel also owns a property in Murwillumbah, which he estimates is worth approximately $320,000. A debt of $268,101 is secured by mortgage against that property. Ms Pereira operates her second hand book shop and clothing business, referred to below, from this property.
6. It is not clear whether these two properties are owned by Manuel alone, or jointly with Ms Pereira. In his affidavit sworn on 29 April 2020, Manuel refers to mortgage repayments and rates as joint liabilities of himself and Ms Pereira.
7. Manuel has superannuation of approximately $60,000 and other assets worth approximately $2,700.
8. In his affidavits sworn on 1 November 2019 and 29 April 2020, Manuel deposed that he suffers from arthritis, high blood pressure and back pain, and that this adversely affected his work as a boilermaker and has also slowed his progress in completing the repairs to his Eviron property. He anticipates that the intensity of these problems will increase if he returns to work as a boilermaker and he believes he would have serious difficulty in obtaining any other job as does not have any qualifications other than boilermaking and construction. If he does return to boilermaking, Manuel's income tax returns indicate that his net income from boilermaking would be approximately $3,000 to $4,000 per month.
9. Manuel's gross monthly income is $2,000, being rent paid by Ms Pereira as the tenant of the Murwillumbah property. Manuel has been receiving that rent from Ms Pereira since he purchased that property in about 2016. He has not disclosed this rental income in his tax returns. In cross-examination, he said that this was because the property was not negatively geared.
10. At the time he swore his first affidavit on 1 November 2019, Ms Pereira had a gross monthly income of $4,000 earned from her second hand book and clothes shop. However, by the time he swore his second affidavit on 29 April 2020, Ms Pereira had closed that shop and was earning no income. Their combined monthly expenses amount of $3,758.00.
11. Manuel deposed that he has had to cease medical therapy for his arthritis and back pain, which had previously cost $480 per month, and he is presently unable to purchase further material or equipment for the repair of the Eviron property due to insufficient funds. In his affidavit sworn on 1 November 2019, Manuel estimated that he had already spent $120,000 repairing the Eviron property and that he requires approximately $50,000 to $70,000 to complete the work.
12. In summary, Manuel has net assets of approximately $751,938. He has gross monthly income of $2,000, with the capacity to earn an additional approximately $3,000-$4,000 net per month if he returns to boilermaking. There is some doubt about whether his arthritis will prevent him from doing so. If Ms Pereira's circumstances return to the pre-COVID-19 situation, the couple would have an additional income of approximately $4,000 gross per month. Expenses are approximately $3,758 per month, without allowing for any expenditure on the ongoing repairs to the Eviron property. It appears that any excess income is likely to be consumed by the costs of those repairs in the short-to-medium term future.

CURRENT CIRCUMSTANCES, FINANCIAL RESOURCES AND NEEDS OF ANTHONY

1. Anthony is 50 years of age. He is in good health, save that he suffers from high blood pressure.
2. Anthony lives in a property owned by his mother in Riverstone, New South Wales, and pays $450 per month rent for his use of part of that property.
3. Anthony is employed as a forklift driver on a casual basis and works about 40 hours per week on average, although his hours are subject to change at short notice. His income varies according to his hours, but at the time he swore his affidavit on 29 October 2019 he deposed that his gross monthly income was $3,200 and his monthly expenses were $1,150. In the 2019 financial year, his gross taxable income was $52,593 (or approximately $45,000 after tax, which equates to about $3,750 net per month). [12]
4. Anthony has no liabilities, and has the following assets: 1. Bank accounts: $73,000 2. Vehicle: $20,000 3. Superannuation: $125,000
5. There is no other person liable to support Anthony, and he is not liable to support any other person.
6. Anthony anticipates that he will need to purchase his own property in the future. Based on his review of properties in the Riverstone area, he expects that a one to two bedroom property would cost between $450,000 and $500,000.
7. In summary, Anthony has net assets of $218,000 and net income of $2,600 after expenses (based on his income tax return for the 2019 financial year and his current accommodation expenses of only $450 per month).

CONSIDERATION AND DETERMINATION OF THE PLAINTIFF'S FAMILY PROVISION CLAIM

1. The Court has power to make an order for provision out of the deceased's estate in favour of the plaintiff only if it is satisfied of the three matters in s 59 of the Succession Act.
2. As to the first matter, I am satisfied that the plaintiff, as the de facto spouse of the deceased, is an eligible person: ss 57(1)(b) and 59(1)(a) of the Succession Act. This was not in dispute.
3. The second matter in s 59(1)(b) is not relevant to the plaintiff's application.
4. The third matter of which the Court must be satisfied is that, at the time of considering the application, adequate provision has not been made by the deceased's will for the plaintiff's proper maintenance, education or advancement in life: s 59(1)(c) of the Succession Act.
5. The defendants conceded that a direction to the deceased's executors to allow the plaintiff to continue residing in the home that she had shared with the deceased for four months after his death, rent free, was inadequate provision for his de facto spouse of 12 years.
6. This concession was appropriate, having regard to the authorities discussed in [29]-[39] above.
7. For those reasons, the Court has power under s 59 of the Succession Act to make a family provision order in respect of the plaintiff. The question is what provision would be adequate in all the circumstances of this case for the plaintiff's proper maintenance, education or advancement in life.
8. The evidence establishes that the plaintiff and the deceased had a loving and supportive de facto relationship for twelve years. This includes the period of the deceased's terminal illness in which the plaintiff took leave from work to be with him full-time and to care for him.
9. The plaintiff and the deceased did keep their finances separate throughout their relationship, but I accept the plaintiff's submission that this is not a significant consideration in determining what is an adequate provision for the plaintiff in all the circumstances of this case.
10. Considering the way the plaintiff and deceased shared the costs of their household over the twelve year duration of their relationship, [13] I do not accept the plaintiff's submission that she made a financial contribution to the deceased's estate. It was submitted that the plaintiff did make a financial contribution by allowing the deceased to live in her rented home without payment during the period from November 2006 to 2011. The evidence does establish that the plaintiff paid for the rented home that they shared during that period. However, the deceased and the plaintiff shared the rental payments after returning from their travels in 2012 until the deceased allowed the plaintiff to live in the Plumpton property rent free from 2014 until his death in September 2018. In this way, they each made a financial contribution to the estate or assets of the other by saving the other the expense of accommodation for a period of time. As things turned out, those periods of time are approximately equal.
11. The evidence suggests that, during the period in which the plaintiff paid the rent from November 2006 to 2011, the deceased may have had limited financial resources available to him. That is because his assets had been accumulated during the course of his marriage, and he did not enter into a settlement with his former wife until 2013. Substantially all of the deceased's estate was accumulated during his former marriage (leaving to one side the modest increase in value of the Plumpton property since its acquisition in September 2014).
12. The deceased did have an obligation to make provision for the plaintiff as his de facto spouse after his death. It was the intention of the deceased since approximately August 2016 to make provision for her in the form of a lump sum payment of $200,000. Indeed, this was the shared intention of the deceased and the plaintiff; see [63]-[88] above. I accept the defendant's submission that this shared intention is entitled to significant weight in all the circumstances of this case, which I consider immediately below.
13. The deceased's three children also have legitimate claims on his estate.
14. Frances and Manuel made material financial contributions to that estate with their unpaid labour: see [43]-[46] above.
15. All three children had loving relationships with the deceased, and Frances contributed to his care in the last weeks of his life: see [43]-[50], [102] above.
16. It is true that Anthony's relationship with the deceased was interrupted by a long period of estrangement as a result of the pain and distress that he felt about the deceased's separation from his mother. However, Anthony and the deceased reconciled: see [53] and [90] above. In all of the wills that he made prior to their reconciliation, the deceased left Anthony an equal share of his estate with Frances and Manuel. It is clear that the deceased had no wish to make a lesser provision for Anthony as a result of the estrangement. Unlike Steinmetz v Shannon (supra), this is not a case in which the deceased's estate is ample to meet all competing claims, and the shared intention to which I have referred reflects the manner in which the deceased and the plaintiff both understood that those claims would be accommodated. I will return to the needs of the plaintiff and the beneficiaries below.
17. The shared intention of the deceased and the plaintiff was formed two years prior to his death, at a time when the deceased was in good health. There was no evidence to suggest that either the deceased or the plaintiff formed this intention in any particular hurry. They discussed it at the time, and over the following two years, and there is no evidence that either of them wished to depart from it during that time: see [64]-[88] above. In this respect, the facts of this case are very different from the facts in Steinmetz v Shannon (supra), where the deceased's last will was made "in extremis" without the opportunity for careful consideration by the deceased as to what would be an adequate provision for her proper maintenance, education and advancement in life, and where the widow had expressed agreement to the very limited provision made for her as she sat by his hospital bedside when he was gravely ill.
18. It is clear that both the deceased and the plaintiff formed and maintained their shared intention in the knowledge that this would require the plaintiff to vacate the Plumpton property after his death and to find a new home using the $200,000 to be provided to her, supplemented by her own funds and/or borrowings.
19. In my view, the plaintiff's submission that the deceased had "permitted her to become accustomed to" a lifestyle in which she and her three daughters reside in a four bedroom home free of cost cannot be sustained when the above facts are taken into account. Over the course of their twelve year relationship, the plaintiff was accustomed to a range of different accommodation arrangements, ranging from the plaintiff paying all rent for their shared accommodation, living in a caravan whilst travelling, sharing rent and living in accommodation funded by the deceased. For the last two years of the four year period in which the deceased funded their shared accommodation in the Plumpton property, the plaintiff shared the deceased's intention that she would no longer have this lifestyle after he died.
20. Each of the deceased's children, as well as the plaintiff, have financial needs. It is true that Frances and Manuel have net assets that are materially greater than the net assets of the plaintiff. However, Frances and Manuel suffer from health conditions that are likely to adversely impact on their ability to earn an income in the immediate and long-term future.
21. By contrast, the plaintiff has no such health condition or injury and she is younger than Frances and Manuel. This is not a case in which the widow is elderly and permanently unable to increase her income, whilst the children are able bodied with good earning capacity. However, I do not overlook that each of Frances and Manuel has a partner to whom they may look for financial support.
22. Like the plaintiff, Anthony has a need for funds for a home. Frances and Manuel each have a need for funds that will enable them to reduce their debts in circumstances where their income earning capacity has been adversely impacted by ill-health. Whilst they each have a partner to whom they may look for financial support, their partner's income is unlikely to go much further than meeting their joint expenditure. However, Frances and Manuel do have a more substantial asset base (jointly with their respective partners) than the plaintiff, and the plaintiff may be left without sufficient funds to meet the vicissitudes of life if she were to receive a legacy of $200,000 and had to spend that legacy together with the whole of her savings on a property (perhaps in addition to taking out a loan). If the plaintiff needed to rent accommodation in order to preserve a fund for the vicissitudes of life, her accommodation would be less secure than it was during the last four years of her relationship with the deceased.
23. However, I do not consider that adequate provision for the plaintiff requires that she should receive the Plumpton property, or a lump sum of $650,000 that would allow her to purchase an equivalent property. Nor do I consider that adequate provision requires that the plaintiff should receive a sum of $450,000 to allow her to purchase a four bedroom home for herself and daughters by pooling the provision with her own funds. Given the size of the estate, either of these two outcomes would result in the deceased's children bearing the burden of a provision for the plaintiff's adult daughters (in addition to the plaintiff herself). In my view, this would give inadequate weight to the legitimate claims of the deceased's children and the long-standing shared intention of the deceased and the plaintiff.
24. There is no evidence concerning the cost of the plaintiff acquiring a smaller property suitable to accommodate herself, with some extra space to accommodate an additional person or persons from time to time. Recognising that the plaintiff's daughters are at an age where they can reasonably be expected to begin making their own way in the world, I am not referring to a four bedroom home.
25. Doing the best I can in the absence of such evidence, taking into account that the deceased estate has contributed to the plaintiff's assets since September 2018 by providing cost-free accommodation, and having regard to all of the matters above, I have reached the conclusion that adequate provision for the plaintiff's proper maintenance, education and advancement in life requires that she receive a lump sum of $300,000 rather than the $200,000 that the deceased believed he had provided for her. In reaching this decision, I have given significant weight to the shared intention of the deceased and the plaintiff that she should receive $200,000. However, I consider that a provision of $200,000 is inadequate for the plaintiff to acquire a home of a reasonable standard and size for her needs and to maintain some funds to meet the vicissitudes of life, having regard to her existing assets and income and the absence of any other person liable to support her. I acknowledge that the plaintiff may need to pool the $300,000 with some of her existing assets and/or borrow some funds in order to acquire such a home whilst maintaining a fund for vicissitudes. However, in my view, a provision of $300,000 will advance the plaintiff in life in the sense that she will be in a position to acquire a property in her own name and repay any mortgage debt over time and reap the benefits of any appreciation in the market value of that property, as opposed to renting her home or living in a property owned by her spouse to which she has no rights in the event of a breakdown of the relationship with her spouse.

CONCLUSION AND ORDERS

1. For all of the reasons above, I make the following orders: 1. Order pursuant to s 59 of the Succession Act 2006 (NSW) that provision in a lump sum of $300,000 be made for the plaintiff's maintenance, education and advancement in life out of the estate of the late Paul David Vassallo. 2. Direct that the parties submit to my Associate by email by no later than 5pm on 27 July 2020: 1. agreed short minutes of order in relation to costs; or 2. in the absence of agreement as to the orders to be made in relation to costs, written submissions of no more than three pages setting out the orders for which each party contends in relation to costs and the reasons why they contend such orders are appropriate.

Endnotes

1. Agreed Schedule (MFI-1).
2. The total assets shown in MFI-1 is $1,294,491, but this is an arithmetical error that was corrected in the plaintiff's submissions dated 19 May 2019 and this correction has been adopted here.
3. MFI-1.
4. MFI-1.
5. Affidavit of Daniel Lambley sworn on 8 April 2020.
6. See, for example, Weekes v Barlow [2014] NSWSC 1776 at [70].
7. Weekes v Barlow (supra) at [73] and the authorities there referred to.
8. See, for example, Blackmore v Allen [2000] NSWCA 162.
9. There was no evidence adduced about whether this was or was not the case. It is not relevant to the determination of the plaintiff's family provision claim.
10. Although Mr Drummond initially suggested that an adverse credit finding would be relevant to my assessment of the evidence concerning the financial resources of Frances, Manuel and Anthony he did not maintain that submissions when questioned about: Transcript, pages 120-121.
11. Exhibit 2.
12. Exhibit 4; Transcript, pages 109-110.
13. See [55]-[62] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2020