NSWNSWSC

Sreckovic v Sreckovic

[2018] NSWSC 1597

Supreme Court of NSW|2018-09-18|Before: Hallen J, Young J, Kirby J, Legislation Amendment J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-09-18

Before

Hallen J, Young J, Kirby J, Legislation Amendment J

Catchwords

[2007] SASC 327 Burke v Burke (2015) 13 ASTLR 313
[2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Butler v Morris
[1953] HCA 64 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127
[2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Dugac v Dugac [2012] NSWSC 192 Forsyth v Sinclair (No 2) (2010) 28 VR 635

Source

Original judgment source is linked above.

Catchwords

[2007] SASC 327 Burke v Burke (2015) 13 ASTLR 313[2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Butler v Morris[1953] HCA 64 Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127[2007] WASCA 235 Diver v Neal [2009] NSWCA 54 Dugac v Dugac [2012] NSWSC 192 Forsyth v Sinclair (No 2) (2010) 28 VR 635[2008] QCA 159 Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134[1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In re Green, deceasedZukerman v Public Trustee [1951] NZLR 135 Kalmar v Kalmar[1918] HCA 73 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9Palffy v Rogan (2013) 85 NSWLR 253[2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson (2015) 14 ASTLR 175[2015] NSWCA 297 Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475Byrne v Pickering [2011] NSWSC 572 Tobin v Ezekiel (2012) 83 NSWLR 75[2015] NSWCA 269 Valbe v Irlicht [2001] VSC 53 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar (2014) 12 ASTLR 523[2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191

Judgment (35 paragraphs)

[1]

Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159 Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 Hunter v Hunter (1987) 8 NSWLR 573 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 MacGregor v MacGregor [2003] WASC 169 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Marks v Marks [2003] WASCA 297 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Moore v Randall [2012] NSWSC 184 Nicholas v Tubb [2016] TASSC 53 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Re Salmon, Deceased [1981] Ch 167 Re the Will of Gilbert (1946) 46 SR (NSW) 318 RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 Salmon v Osmond [2015] NSWCA 42 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Smith v Johnson (2015) 14 ASTLR 175; [2015] NSWCA 297 Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475; [1957] HCA 27 Steinmetz v Shannon [2018] NSWSC 1090 Stone v Stone [2016] NSWSC 605 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 Toscano v Toscano [2017] NSWSC 419 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Valbe v Irlicht [2001] VSC 53 Verzar v Verzar [2012] NSWSC 1380 Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Texts Cited: Rosalind Atherton, "The Concept of Moral Duty in the Law of Family Provision - a Gloss or Critical Understanding?" (1999) 5(1) Aust J Leg Hist 5 Category: Principal judgment Parties: Ljiljana Sreckovic (Plaintiff) Gina Sreckovic (Defendant) Representation: Counsel: Mr R M Higgins (Plaintiff) Mr M Cleary (Defendant)

[2]

Solicitors: Patrick Hargraves & Co (Plaintiff) Giles Payne & Co (Defendant) File Number(s): 2017/143021

[3]

Introduction

HIS HONOUR: In these proceedings, the Plaintiff, Ljiljana Sreckovic, who also goes by the name "Lillian", seeks provision out of the estate and/or notional estate of her mother, Josipa Sreckovic ("the deceased") pursuant to Chapter 3 of the Succession Act 2006 (NSW) ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. It replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.
As in so many cases, nowadays, which proceed to hearing, involving a claim by a mature, adult child, seeking provision, or additional provision, out of the estate of a parent, the major issues revolve, principally, around the character and conduct of the applicant and her, or his, relationship with the deceased, the deceased's views of those things, as well as the relationship of the deceased with one, or more, of her, or his, other children, as reflected by the last Will that was made.
In the present case, a further issue is whether the Plaintiff's application should be permitted to be made since it was not commenced within the time permitted by the Act. Although I do not suggest the solicitor for the Plaintiff was the cause of the failure to commence proceedings within time, the case serves as a further reminder that a legal representative acting for an applicant under the Act should ensure that instructions are obtained to, and that they do, file, and serve, the application within the period prescribed by the Act. A significant issue would have been avoided had that occurred.
As in so many other cases, the person seeking to uphold the testamentary wishes of the deceased, is a sibling of the applicant. Often, and regrettably, the cases heard by the Court also involve, as this one does, the somewhat acrimonious relationship of the siblings. Here, the Defendant is Gina Sreckovic, the only other child of the deceased.
Finally, in this case, also, is the unresolved sense of hurt, felt by the Plaintiff, in not appearing to not have been considered an important, positive, part of the overall life of the deceased, and not being recognised for what are said to be her contributions, by way of assistance to, and support of, the deceased, throughout most of the deceased's life. Whilst an applicant's feeling of hurt will not be a relevant consideration in the determination of a family provision claim, often it explains, at least partially, a driving motive in the cases that are not resolved other than by contested hearing.

[4]

The Claim

The deceased, who was born in September 1925, died, a widow, on 20 December 2015, aged 90 years. Her only husband, Jezdimir Sreckovic, had predeceased her, having died in October 1996. There were only two children of their marriage, being the Plaintiff, who was born in November 1952, and who is aged almost 66 years, and the Defendant, who was born in June 1959, and who is aged 59 years.
The Plaintiff filed a Summons on 12 May 2017, in which she sought an order that the time for the making of her application be extended to the date of the filing of the Summons, the family provision order, and an order for her costs to be paid out of the deceased's estate. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person.
The Defendant is the sole executrix and universal legatee appointed in the Will made on 24 January 2005, by the deceased, and the person to whom this Court granted Probate of the deceased's Will on 1 April 2016.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased.
Section 58(2) provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown, or the parties to the proceedings consent to the application being made out of time. (Relevantly, the Act was recently amended by the Justice Legislation Amendment Act 2018 No 4 (NSW), which was assented to on 21 March 2018. Section 58(2) of the Act commenced, as amended, on 2 July 2018.)
It is not in dispute that the Plaintiff did not commence the proceedings within the time prescribed by the Act. The time for making the claim is calculated from the date of death of the deceased to the date of filing of the Summons in the Court Registry: s 58(3). The Plaintiff's Summons was filed about 5 months out of time.

[5]

Background Facts

In claims such as these, factual context is necessary. It is convenient to begin with a statement of some of the background, and the formal, facts, since these provide the context in which the issues in the case arise. Many of these facts are taken from the affidavits read in the proceedings, or from the oral, or other, evidence, given during the hearing, which are uncontroversial. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the background facts set out hereunder should be regarded as the findings of the Court.
The deceased came to Australia, with her two children, in about June 1969 to join her husband (and their father). He had been living in Sydney, having arrived, in about 1968, from Serbia. Between their arrival and 1979, the family lived together, in different accommodation, in Sydney.
On two occasions, between 1976 and 1978, the Plaintiff had left her parents' home, for about six to eight months, in total, to move in with a boyfriend. On each occasion, when the relationship ended, she returned to their home.
In about 1979, the deceased and her husband purchased the Pagewood property for about $64,000. The deceased, her husband, and the parties, lived in the Pagewood property thereafter.
In 1987, the Plaintiff moved from the Pagewood property to Canberra. She lived there with a man (she had hoped to marry), until about 1994, when they moved to Brisbane. The Plaintiff had a son, Benjamin Parry, in May 1991. Regrettably, the Plaintiff's relationship ended and she, again, returned to live in the Pagewood property, with Benjamin, in about December 1997. They remained living there, with the deceased, and the Defendant, until February 2005. She and Benjamin left, then, following receipt of a letter from the deceased's solicitors, to which I shall refer later in these reasons.
There is an issue, to which it will also be necessary to return, about the relationship of the Plaintiff and the deceased, after January 2005 and the death of the deceased. There is no dispute, however, that the Plaintiff moved back into the Pagewood property, for approximately six months, after the deceased was discharged from Prince of Wales Hospital on 21 October 2014. She moved out again after the deceased went to live in a nursing home in March 2015.

[6]

Costs and Disbursements of the Proceedings

Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the Defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, would be entitled to an order that her costs, calculated on the indemnity basis, should be paid out of the estate.
Basten JA wrote in Chan v Chan [2016] NSWCA 222, at [54], that "[I]n considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, as I have repeated many times, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
In an affidavit sworn on 15 August 2018, by Mr A G Hatsatouris, solicitor, the Plaintiff's costs and disbursements, including a share of the costs of mediation, to the conclusion of a 2 day hearing, were estimated to be $73,104. Mr Hatsatouris did not state, in the affidavit, whether the estimated costs had been calculated on the ordinary, or the indemnity basis. He also did not state whether the Plaintiff had paid any amount on account of the costs and disbursements. (These are matters that should always be included in a solicitor's affidavit as to costs relied upon at the hearing.)
At the commencement of the hearing, counsel for the Plaintiff, informed the Court, without objection, that the estimate had been calculated on the ordinary basis. Counsel for the Defendant accepted, for the purposes of the calculation of the estate which may be available for distribution, that the estimate should be used in order to determine the value of the estate out of which an order for provision may be made: T4.30 - T4.38.

[7]

Prior Will of the deceased

In Steinmetz v Shannon [2018] NSWSC 1090, Pembroke J, after referring to an earlier Will of the deceased in that case, which Will had made much more generous provision for the applicant, stated that "the proximity of death and the clear light of perspective sometimes focus [sic] the mind; providing a final opportunity for considered reflection. The only Will that matters is the deceased's last Will."
Whilst the last sentence quoted is, undoubtedly, correct, so far as the principal questions for determination under the Act are concerned, the earlier testamentary intentions of the deceased, as disclosed in a prior Will, or Wills, are also important, particularly if there was a long standing testamentary intention revealed by earlier Wills, and where there has been an incident, or incidents, that have caused a change to those long held testamentary intentions.
An earlier Will of the deceased may also reflect the recognition by the deceased, at the time of the prior Will, of a degree of testamentary duty owed by her, or him, towards the applicant.
Also, as will be read, one of the matters to which the Court may have regard, is "any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person": s 60(2)(j) of the Act.
The deceased had made a Will on 10 March 1997 ("the 1997 Will"), in which she appointed both of her children to be executors and trustees and left the whole of her estate, upon trust, to sell, call in, and convert the same into money, with power to postpone sale, calling in, and conversion, and after the payment of all debts, funeral, and testamentary expenses, and all death duties and estate duties in respect of her estate, or by reason of her death, she left the balance for "such of my children as should survive me and if more than one, equally between them". (The 1997 Will was the only prior Will of the deceased that formed part of the evidence in the proceedings.)

[8]

Statements made by the deceased

Section 100(2) of the Act provides that in any proceedings under Chapter 3, evidence of a statement made by a deceased person is, subject to the section, admissible as evidence of any fact stated in it of which direct oral evidence by the deceased person would, if the person were able to give that evidence, be admissible. A statement in the section "includes any representation of fact whether or not in writing" s 100(1).
Sub-section (5), (6), and (8) of s 100, provide: "100 Evidence (5) Where a statement made by a deceased person during the person's lifetime was contained in a document, the statement may be proved by the production of the document or, whether or not the document is still in existence, by leave of the Court, by the production of a copy of the document, or of the material part of the document, authenticated in such manner as the Court may approve. (6) Where, under this section, a person proposes to tender, or tenders, evidence of a statement contained in a document, the Court may require that any other document relating to the statement be produced and, in default, may reject the evidence or, if it has been received, exclude it. … (8) In estimating the weight, if any, to be attached to evidence of a statement tendered for admission or admitted under this section, regard must be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including: (a) the recency, or otherwise, at the time when the deceased person made the statement, of any relevant matter dealt with in the statement, and (b) the presence or absence of any incentive for the deceased person to conceal or misrepresent any relevant matter in the statement."
Many years before the inclusion of the section, Gibbs J had written in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134, at 150; [1979] HCA 2: "… in Australia for many years the courts have admitted evidence of statements made by a testatrix explaining why she made her will as she did. In taking this course the courts have no doubt been influenced by a desire to be informed of the reasons which actuated the testatrix to make the dispositions she had made, and by the consideration that in cases of this kind a claim is made against the estate of a person who is deceased and can no longer give evidence in support of what she has done. It is doubtful whether, in most cases, such evidence is relevant, but usage justifies its reception. The question is for what purpose it may be used, once admitted. The balance of authority clearly favours the view that it is admissible only to provide some evidence of the reason why the testatrix has disposed of her estate in a particular way, and that it is not admissible to prove that what the testatrix said or believed was true: Re Jones (1921) 21 SR (NSW) 693, at p 695; In re Smith (1928) SASR 30, at p 34; In the Will of Joliffe (1929) St R Qd 189, at p 193; Re G. Hall, deceased (1930) 30 SR (NSW) 165, at p 166; In re Green, deceased; Zukerman v Public Trustee (1951) NZLR 135, at pp 140-141 (a case decided before the amending legislation was enacted in New Zealand). This view was accepted as correct by Taylor J. in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR, at p 24; Taylor J. dissented in the result in that case but there is nothing to suggest that his opinion on this point differed from that of the majority of the Court."

[9]

The Plaintiff's evidence about her relationship with the deceased

The Plaintiff dealt with the statement made by the deceased in Clause 6 of the Will. She wrote: "Clause 6 of the Probated Will contains a number of statements which seek to serve as an explanation as to why the deceased omitted me from her Will. As noted above the Will was signed on 24 January 2005, following the incident when the police were called to the home. Noting the date of the Will and the date of the letter I received a letter from my mother's solicitors, dated 25 January 2005, I believe that when the deceased makes comment of myself and my son being 'disrespectful' to her and causing her 'great distress' she is referring to this incident. I believe that the deceased gave these instructions in the heat of our disagreement and would not have given such instructions had the Will been drafted at any other time. The deceased and I began reconciled [sic] our relationship thereafter, to the point where we were calling each other every day. Indeed, for her last months in her own home I was her sole carer, and during her last six months of life she had appointed me as her guardian. After our reconciliation, I also frequently heard my mother telling people: 'I am very proud of my grandson' Regarding the statement that I have financial resources whilst Gina does not 'own any such property,' I can only infer that this is in reference to my real estate in Canberra. This asset however is by no means adequate to support even myself, as my financials disclose. My sister Gina has always lived at home and had no dependants. I have no idea of her accumulated savings. With regard to the statement that I had 'deliberately distanced' my son from her, I do not know what the deceased is referring to given that in or around December 1997 I had quit my job and removed my son from his school to move to Sydney from Brisbane to live with the deceased at her request. I believe this is reflective of the fact that in the midst of a disagreement, oftentimes my mother could behave in a manner that was volatile and in a way that indicated that she was not thinking clearly and rationally."
It is difficult to accept that the relationship of the Plaintiff and the deceased repaired as quickly as the Plaintiff asserted, particularly when the deceased had viewed its cause as sufficiently significant to involve a solicitor. However, I think it more likely than not that their relationship was volatile and that it was not the same as the deceased's relationship with the Defendant, which appears, overall, to have been much more stable and calm.

[10]

Benjamin's failure to give evidence

In RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270, Ward JA (with whom Meagher JA agreed), wrote, at [160] - [161], and at [165]: "It is well known that a Jones v Dunkel inference is open where there is an unexplained failure to call evidence as to a matter which calls for explanation from a person whom it could reasonably be expected would be called to give such evidence. The rule in such a case permits evidence in relation to that matter to be given greater weight, and an inference or inferences to be more readily drawn, when the party who might have called evidence to the contrary has chosen not to do so. In Commonwealth of Australia v McLean (Court of Appeal (NSW), 31 December 1996, unrep), Handley JA and Beazley JA, as her Honour then was, said that '[t]he rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default'. RHG accepts that a Jones v Dunkel inference, if one does arise, can do no more than permit the court to infer that the uncalled evidence or missing material would not have assisted the relevant party's case; it does not permit the court to infer that the uncalled evidence would have been positively damaging to that case. Thus, it allows for the more ready acceptance of evidence which might have been contradicted but which was not. What a Jones v Dunkel inference does not permit is a choice between two guesses or conjectures, nor does it supply missing gaps in evidence (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446; (2006) 229 ALR 136 at [50]). … It is important to keep in mind that the 'rule' in Jones v Dunkel is not mandatory (as McColl JA noted in the earlier judgment of this Court and as the primary judge noted in his judgment following the remittal). If a judge is comfortably satisfied on the evidence (circumstantial or otherwise) that a particular inference favourable to the party in question should be drawn, as the primary judge here was, then the rule does not mandate that an adverse inference should instead be drawn by reason of that party's failure to call a witness who might reasonably be expected to be able to shed light on that particular issue."
One would have expected Benjamin to give evidence since he, as well, as the Plaintiff, is specifically referred to in the Will, and in the written, and other, statements, made by the deceased. He was also the person said to have called the police at the time of the incident in 2005, following which the deceased saw the solicitor who was instructed to write to the Plaintiff and Benjamin requesting that they leave the Pagewood property.

[11]

The Statutory Scheme

In order to place into context the reasons for the Court's decision, it is, next, convenient to consider the statutory regime and the legal principles that govern the circumstances in which the Court can exercise the discretion under the Act. The legal principles are not in dispute.
Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.
As stated, s 58(2) of the Act, relevantly, provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (It is to be noted that s 58(2) is in terms similar to s 16 of the former Act, but the words "for the application not having been made within that period" are not included after the words "sufficient cause being shown".)
If sufficient cause is shown, then the Court, having regard to all the circumstances of the case, may extend the time for making an application. Clearly, permitting the court to "otherwise order" was included in the legislation to avoid the section becoming an instrument of injustice.
Yet, "[T]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality": Verzar v Verzar [2012] NSWSC 1380, at [98]. (The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175.)
In Madden-Smith v Madden (Estate of the late Doris Linda Madden), at [23] - [24], Pembroke J put it more strongly: "… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3). The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator's death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased's relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring 'sufficient cause' may well apply."

[12]

Adequacy and propriety of provision

It is only if eligibility is found, and if sufficient cause for an order extending the time for the making of the Plaintiff's application is shown, that the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made. It is this mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied of the inadequacy of provision that consideration is given to whether to make a family provision order (s 59(2)). Only then may the Court 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".
There is no automatic entitlement to provision stipulated by the Act and the deceased's Will applies unless a specific application is made and acceded to by the Court.
As I wrote in Dugac v Dugac [2012] NSWSC 192, at [29]: "The long title of the Act describes [Chapter 3] as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the deceased's power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter the deceased's disposition of his, or her, estate, to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary."
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575.
This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations. But, as Basten JA wrote in Chan v Chan, at [22]: "… [I]t 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."

[13]

Some Additional Principles

Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order 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: Pontifical Society for the Propagation of the Faith v Scales at 19; McKenzie v Topp [2004] VSC 90 at [63].
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, that it is not appropriate to endeavour to achieve "an overall fair" disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
Long before, in Handley v Walker (1903) 22 NZLR 932, at 933, Stout CJ had written "…the statute is not an Act to modify or set aside unjust wills, but is meant only to provide for maintenance of persons whom the testator was bound to maintain". (In that case, his Honour considered that "there are very special features in this case".)
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447 at 453-4, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."

[14]

Estrangement

On the topic of estrangement, in Underwood v Gaudron [2014] NSWSC 1055, I set out the principles at [230] - [233]. An appeal was dismissed: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269, with the summary of principle not disturbed on appeal.
That summary of the principles was also referred to by Ward JA (as her Honour then was) (and with whom Meagher JA agreed) without any dissent, in Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195 at [95]. It was also referred to, more recently, in Nicholas v Tubb [2016] TASSC 53 at [21], by Holt AsJ, with approval, in Toscano v Toscano [2017] NSWSC 419, by Robb J, at [90], and by Kunc J in Condello v Kim [2018] NSWSC 394, at [190].
I repeat what I wrote in that case: "On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson [2010] NSWCA 359, at [80]: 'The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.' Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered: (a) The word 'estrangement' does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33]. (b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that: '... the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.' (c) There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to 'ample' provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases. (d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility': Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. (e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed): 'If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.' (f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3]. (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102]. In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows: 'As explained by the primary judge, the term "estrangement", which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the "natural" process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience.' His Honour added: 'The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation. … Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of "love and support" from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility. … Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.'"

[15]

Qualifications on "Principles"

As long ago as 1980, in White v Barron (1980) 144 CLR 431, at 440; [1980] HCA 14, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have also repeated (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar [2012], at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18] - [20], and by Barrett JA, at [66] - [67]; and, also, in Burke v Burke, at [84] - [85]. They must be remembered.
The statements may provide useful assistance in considering the statutory provisions the terms of which must remain firmly in mind. As Barrett JA said in Chapple v Wilcox, at [67], the guidelines "provide a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply 'the feeling and judgment of fair and reasonable members of the community'" in family provision cases: also, see, Yee v Yee [2017] NSWCA 305, per McColl JA (with whom Gleeson and Simpson JJA agreed), at [172].

[16]

The Plaintiff's Evidence regarding the extension of time

Until the hearing, the Plaintiff gave no evidence of the reasons why she had not commenced proceedings within the time prescribed by the Act in any of her three affidavits. On the first day of the hearing, counsel for the Plaintiff sought to file in Court, without objection, an affidavit sworn by the Plaintiff on 13 September 2018 (one working day before the hearing). The affidavit had annexed to it, a copy of a number of letters passing between the legal representatives of the parties, and the last 3 paragraphs state: "3. As at 20 December 2016, I was unaware of any requirement to commence proceedings within 12 months of the date of my mother's death, and I still hoped that the matter could be sorted out between the solicitors without the need to commence proceedings. 4. I then had to move in February, which delayed me seeing my solicitors in early 2017. 5. A barrister, Mr Tristan Bors, had been briefed, but fell sick about this time. I did not discover this until later. When he returned to work for a brief period in about late April or early May, the application was filed soon after."
In an earlier affidavit, the Plaintiff stated that, at about the time of the deceased's death, the Defendant had told her that there was no Will. However, the Plaintiff had retained solicitors to act on her behalf within a short time after the death of the deceased. Her current solicitors wrote a letter dated 3 February 2016, informing the Defendant's solicitors, that they had received instructions from the Plaintiff to ask for a copy of "the Will of the deceased; copies of any previous Wills held by your office on behalf of the deceased; [and] an outline of the estate assets and liabilities as currently understood".
The Plaintiff's solicitors were provided with a copy of the grant of Probate, the Will, and the Inventory of Property, under cover of a letter dated 8 April 2016. (This, of course, was only about 4 months after the death of the deceased.) Accordingly, upon being provided with a copy of the deceased's Will, the Plaintiff would have known that the deceased had made no provision for her in that Will, Probate of which had been granted.
On 9 May 2016, the Plaintiff's solicitors wrote again to the Defendant's solicitors stating that: "[O]ur client considers that they [sic] have been left without adequate provision for their [sic] proper maintenance education and advancement in life. Unless the executor agrees to enter into a deed of family arrangement to provide for the payment to our client of a reasonable sum out of the estate or notional estate having regard to all relevant circumstances our client will commence proceedings for an order for provision pursuant to the Act."

[17]

Additional Facts

I set out some more facts by reference to s 60(2) of the Act. Where necessary, I shall express the conclusions to which I have come in relation to areas of dispute between the parties. I have taken this course, not "to dwell on particular matters as if they were, in themselves, determinant of the broad judgments required to be made under s 59" (Verzar v Verzar [2012] at [124]), but in order to complete the recitation of facts that will assist me to determine the questions that must be answered.

[18]

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

The Plaintiff is one of the two children of the deceased. She gave evidence of what may be described as a, generally, good relationship with the deceased, and other members of the family, otherwise. The Plaintiff stated that her mother and father had during their joint lives, chosen to run the household "the traditional Yugoslavian way, which for parents meant that children were expected to be obedient and to comply".
(As mentioned earlier, the Plaintiff lived with the deceased, her father and the Defendant for much of her early adult life, from about June 1969 to 1987. I also mentioned, in this time, she left the family home for only about six to eight months, in total, to be with a boyfriend.)
Then, between when she moved back into the Pagewood property, in 1997, and early 2005, the relationship between the deceased, the Plaintiff and Benjamin, started to deteriorate.
The Plaintiff worked at various places from when she arrived to Australia. She worked as a "Process Worker" at Telephones and Cables Pty Ltd, then, after various promotions, she was retrenched and moved to work for Nixdorf Computer Pty Ltd in about 1977. During the period that she lived at the Pagewood property, between 1969 to 1987, the Plaintiff contributed to the household by giving the entire of her "pay packet to mum and dad, no questions asked. My father would give back to me an [estimated] allowance of $15 per week for fares to and from work and sundries". However, as time went on, she would retain funds from her pay in order to purchase personal items.
(The Plaintiff gave evidence, in her affidavit sworn 29 September 2017, that there was a period of time where she occasionally worked weekends and weeknights at "milk bars in Enmore and Newtown". She received money from this employment in cash, which she did not provide to her parents, but rather kept for her own expenses.)
An affidavit sworn 14 March 2018, of Mr Zlatko Blajer, accredited translator, translated from Serbian an affidavit of Mr Zivorad Marjanovic. Mr Marjanovic was a friend of the deceased and a good friend of the Plaintiff's father. He wrote he was aware that the Plaintiff "started working full time almost as soon as she moved to Australia in 1969". He also gave evidence that he saw the Plaintiff give her pay packet to her father on several occasions, and that she said, on many occasions, words to the effect of, "I give my entire pay packet to my father. He gives me money back for buses and sandwiches". He was not cross-examined and there is no reason, otherwise, not accept his evidence in so far as it corroborates the evidence of the Plaintiff.

[19]

(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

There is no definition of the words "obligations" or "responsibilities" to which the sub-section refers to in the Act. Each word is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound.
The responsibility of a testator was expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd at [478]-[479]: "Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father."
Yet, the Act does not expressly refer to, or identify, any "moral duty". However, what is to be considered is the nature and extent of any legal, or moral, obligations or responsibilities to not only the applicant, but also to the beneficiary or beneficiaries. There is a balancing of potentially competing obligations.
Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased did not have any legal obligation to any of her children, once they became adults, imposed upon her by statute or common law.
Yet, an obligation or responsibility to make adequate provision for the proper maintenance, education or advancement in life, is recognised in the case of a child. In Flathaug v Weaver [2003] NZFLR 730 at [32], the origin of the obligation which underpins the recognition of the duty owed by a parent to a child in the equivalent Act in New Zealand was put in this way: "The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."

[20]

(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

I have earlier dealt with these matters. The value of the net distributable estate, even considering the costs of the proceedings, is on any view, reasonably large.

[21]

(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

The Plaintiff gave evidence of her financial circumstances in her affidavit in chief. She is currently employed in the public service as an Executive Assistant. She had stated that her gross monthly income, including income from rent, was $5,270. However, in her oral evidence, the Plaintiff accepted that her present gross monthly income, currently, was $6,789, consisting of a salary of $4,964 and rental income of $1,825: T46.13 - T46.46.
There was some difficulty, on the evidence, and at hearing, during cross-examination, in coming to a clear figure, of what the Plaintiff's monthly income was after tax: see, T45 - T48; T87.39 - T89.18.). In a document provided, on the second day of the hearing, as an aide memoire to the Court, by the Plaintiff, under cover "Summary of [P]laintiff's income and expenditure", her total weekly income after tax was said to be about $1,176 (or about $4,704 per month): T154.13 - T154.14. In all the circumstances, I am prepared to accept this estimate of her net income.
The Plaintiff gave evidence that her current assets comprise of an investment property in Flynn, located in the Australian Capital Territory, ($500,000), superannuation ($89,167), furniture ($1,000), shares ($25,766), a car ($7,950), funds in a joint term deposit held by the Plaintiff and her son ($13,787), and, also, solely owned cash in bank ($12,652).
In cross-examination, the Plaintiff accepted that the current balance of her superannuation has increased and comprises $119,348: T40.29 - T40.44; Ex. 3. She also accepted that the value of her property located in Flynn, in the ACT, was likely to have a value of between $500,000 and $540,000: T40.50 - T41.20.
She did not disclose any liabilities. As such, the Plaintiff's net financial position consists of property with an estimated total value between $680,504 and $720,504: T41.33 - T41.37.
The Plaintiff also disclosed her monthly expenditure over various months, of which June 2016 was the latest completed month. (There was, also, annexed, her expenditure for July 2016, however, this entry appears incomplete.) Her total expenditure per month was January 2016 ($3,498), February 2016 ($3,639), March 2016 ($4,025), April 2016 ($4,001), May 2016 ($7,416) and June 2016 ($3,333). The Plaintiff's average expenditure, omitting July 2016 from the calculation, as the entry was incomplete, was, therefore, about $4,319 per month. (In coming to this figure, I did not accept the figure provided by counsel for the Plaintiff in the aide memoire calculating the average weekly expenditure, as it appeared to be mathematically incorrect.)

[22]

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person

The Plaintiff gave evidence, in her affidavit in chief, that she lived with Benjamin, who was a full time student, and who is currently studying the degree of Juris Doctor of Law at the University of Technology Sydney. Benjamin was said to be completely dependent on the Plaintiff and she pays him "pocket money".
However, in cross-examination, she stated that Benjamin will finish his law degree this year: T49.15 - T49.18. She gave further evidence, at T49.43 - T49.17, that: 1. He is training to be a solicitor; 2. He is now working for a law firm and is being paid a salary (the amount of which the Plaintiff did not know); and, 3. He no longer lives with the Plaintiff, but lives in Botany with friends, for which she understands her son to be paying rent.
However, whilst, initially, the Plaintiff did not accept that Benjamin was not dependent upon her, she also gave the following evidence at T51.22 - T51.30: "Q. All children depend on their parents for a long time, but that the moment financially he is independent from you? A. This month yes. Q. From this month going forward? A. I guess. Q. Yes or no? A. Yes, yes."
Consequently, I am satisfied that Benjamin is no longer living with, or dependent upon, the Plaintiff.

[23]

(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

The Plaintiff suffers from a number of medical conditions. In a letter dated 28 September 2016, from her General Practitioner, Dr J Salmon, these conditions included "stress, high blood pressure and possible sleep apnoea and coronary artery disease". She is also being treated by a cardiologist.
In cross-examination, the Plaintiff accepted that she was "relatively" healthy and that she takes "high blood pressure medication" for a heart condition: T52.09 - T59.16. It was put to the Plaintiff that this medication "doesn't affect your ability to work", to which she answered "No it doesn't": T59.12 - T59.20.
The Defendant is currently 59 years old and reports being in generally good health. However, she has also stated that she has "high blood pressure and [has] suffered from this condition for about 22 years. I am on Carvalside and Norvasc to control it". She stated that although she had requested a letter verifying this condition from her General Practitioner, "he has not provided it to me".
She also reported that she has issues with her teeth. She believes that some of her teeth "will need to be pulled out and replaced with a bridge or dentures in the near future as [she is] in some pain". In support, the Defendant annexed a letter, dated 8 November 2017, to her affidavit sworn 29 November 2017, from Dr G Selia, her dentist, which stated that "[t]he likely budget for the next few years will be at least in the vicinity of $75,000 - $110,000. This is very hard to predict accurately".
The Defendant was not cross-examined on the state of her health.

[24]

(g) the age of the applicant when the application is being considered

The Plaintiff is currently 65 years old.

[25]

(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 have earlier discussed some of the contributions to the family household between 1969 and 1987, and then, between 1997 and 2005.
In addition to this, the Plaintiff gave the following evidence, in her affidavit in chief, as to her financial contributions to the deceased's estate, between 1997 and 2005: "During that time I also paid 100% of the costs to replace a pergola after a hail storm in 1999 and around 95% of the costs to reupholster the chairs in the dining room. I also purchased a new washing machine for the household."
The Plaintiff's evidence in regards to the dining room chairs and the pergola was accepted by the Defendant. The Plaintiff estimated that the pergola cost approximately $500, whereas, the cost of reupholstering the chairs was approximately $1,200. She also noted that the washing machine cost about $1,000, however, she took it with her when she moved from the Pagewood property in 2005.
The Defendant also gave evidence that she had repaid the Plaintiff at least some of the cost of the re-upholstering. She annexed a copy of a cheque butt that referred to payment of $1,000 in which the payee was the Plaintiff. In cross-examination the Defendant accepted that the cheque butt referred to her payment towards the re-upholstering and that she "did not repay [the Plaintiff] for the pergola": T104.25 - T104.50.
The Plaintiff's contribution, in this regard, was a relatively small contribution, in all the circumstances.
It would appear that at least until 1997, the deceased regarded the Plaintiff favourably. She certainly did not distinguish between her two daughters in the 1997 Will. I have earlier noted that their relationship changed in the following years, until early 2005, and then they were estranged, thereafter, until about 2011. From then until about 2014, she would bring food to the deceased, on her way to work and would see her every weekend.
She also gave evidence that she attended multiple doctor appointments, as well as other health related appointments, with the deceased, in which she took time off work, because the deceased "had some difficulty understanding English and required assistance".

[26]

(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

The Defendant alleged that the Plaintiff had taken approximately $35,000 from the bank account of her parents to "furnish a unit and buy a motor vehicle for her then partner", as she recalled a conversation of her parents discussing this matter.
This was denied by the Plaintiff, who stated in her affidavit of 22 February 2018, at [5] and [21]: "At no time did I receive any money from our parents to furnish a unit or buy a motor vehicle. When I moved out, I used $3,000 of my own money to purchase 2 chairs, a coffee table and a couch, as well as to pay the deposit on a car. The balance of the car was paid for by finance, with the repayments being made by me. When I moved back home, the 2 chairs and the couch were sold by auction, with our parents taking the proceeds of sale. My parents kept the coffee table, and it is still in the family home. My father took the car. He used it for a while and then sold it. My parents kept the proceeds of the sale. … … I never touched my parent's bank account. With respect to the suggestion that they paid for furniture and a car for me, I repeat paragraph 5 above. …"
In cross-examination, the Plaintiff, again, denied the accusation that she had taken money from her parents' bank account: T54.45 - T55.04. In referring to what was stated by deceased in her testamentary statement, the Plaintiff could not offer any reason for the deceased having fabricated the assertion other than to blame the Defendant: T55.40 - T56.45.
Counsel for the Plaintiff also questioned the Defendant on this topic, in which there was the following exchange (T98.04 - T98.10): "Q. In it you suggest that you overheard a conversation with your parents talking about your sister taking approximately $35,000? A. Yes. Q. You have no idea whether that conversation - whether those events happened or not, do you? A. No, I don't personally. I'm only going by what our mother said."
In all the circumstances, and bearing in mind the limited evidence that would support such a finding, I am not prepared to conclude that $35,000 was given to, or taken by, the Plaintiff during the lifetime of the deceased.
I also bear in mind lived in the Pagewood property, effectively rent-free, for so many years.

[27]

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

I have earlier discussed the terms of the Will and the written statement the deceased made, in combination with the Will, as evidence of the deceased's testamentary intentions. The terms of the 1997 Will, to which reference has also been made, should not be forgotten.

[28]

(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

There is no evidence that the Plaintiff was being maintained by the deceased in the years immediately prior to the deceased's death.

[29]

(l) whether any other person is liable to support the applicant

There is no person with any liability to support the Plaintiff.

[30]

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

I have discussed, already, that the deceased and the Plaintiff, were estranged between 2005 and about 2011. Yet, thereafter, to the credit of both, their relationship was resurrected. I have also considered the conduct of the Plaintiff in sacrificing her leave entitlements, in order to care for the deceased, following the deceased's stroke and ensuring that she did not go into a nursing home.

[31]

(n) the conduct of any other person before and after the date of the death of the deceased person

The Defendant gave the following evidence in her affidavit sworn 29 November 2017 which was not the subject of any challenge: "While I lived at home, I supported my mother financially, physically and emotionally particularly towards the end of her life. I was not reliant on my mother financially or physically but I did enjoy living with and sharing my life with mother."
After the deceased was discharged from hospital following her stroke, the Defendant continued to take time off work to attend appointments with the deceased. She also made various contributions to the deceased's welfare, which included: 1. Organising with the pharmacy to prepare medication in blister packs; 2. Organising various services for the deceased, including the adjustment of the shower and "Vital-call"; 3. When the deceased was in a nursing home, visiting the deceased, at first, three times a day and, after about 5 months, twice a day, until the deceased passed away; and, 4. Also, while, she was in the nursing home, assisting the deceased by preparing her breakfast, bringing her lunch, doing her laundry and ensuring she had the necessary toiletries.
I am more than satisfied that the Defendant made a very significant contribution to the deceased's welfare, both financially and emotionally, throughout their joint lives. This was not really the subject of any dispute and is amply demonstrated by the content of the deceased's last Will and the written statement. It is not necessary to repeat the other evidence in this regard.

[32]

(o) any relevant Aboriginal or Torres Strait Islander customary law

This factor is not applicable.

[33]

(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

There are no other matters that I consider relevant.

[34]

Determination

Having established eligibility, and as the proceedings were not commenced within time, the question for consideration is whether the Plaintiff has established that an order should be made permitting her application to be made outside the period prescribed by the Act for the making of her application. This requires the Court to consider, amongst other things, the adequacy of any explanation for the delay, any possible prejudice to either party arising from that delay, any unconscionable conduct by either party and the merits of the Plaintiff's substantive claim.
As stated, the Plaintiff did not provide any reason for not making the claim within time. For almost the whole of the 12 month period following the death of the deceased, she had legal representation, and I have not accepted her evidence that she was not aware of the time prescribed by the Act for the making of her application.
Yet, I do not regard her lack of action in commencing the proceedings by December 2016, as fatal, principally because the delay following that period was not inordinate, being a matter of 5 months. The Defendant did not give any evidence that she would suffer any prejudice, actual or presumptive, if the time were extended, or that there was any unconscionable conduct on the part of the Plaintiff in not bringing the application within time. Importantly, also, for reasons to which I shall come, I am satisfied that an order for provision, in favour of the Plaintiff should be made. A refusal to extend time would result in prejudice to the Plaintiff. The justice of the case, in my view, requires the Court to make an "otherwise order".
In all the circumstances, the Plaintiff has satisfied me that there is sufficient cause, to which s 58(2) is directed, for allowing her application to be made out of time.
The next question for determination is whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the Will of the deceased.
What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.
There was no provision in the deceased's last Will made for the Plaintiff. However, this does not, automatically, mean that she will have satisfied the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate and proper provision" even though no, or little, provision is made for her in the deceased's Will.

[35]

Amendments 24 October 2018 - [75] Formatted to italics "(Estate of the late Doris Linda Madden)". [79] Removed italics from "RHG" in paragraph [161] of quote. [95] "Defendant" changed to "defendant" in quote. [103] "not" added before "bringing". [124] Close bracket moved to end of sentence. [145] "to" added after "challenge". [146] Kirby J changed to Kirby P. 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: 24 October 2018

Sreckovic v Sreckovic

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (35 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (100)