Staal v Cox [2026] NSWSC 944 | Case summary | Zoe

NSWNSWSC

Staal v Cox

[2026] NSWSC 944

Supreme Court of NSW|2026-08-06|Before: Bennett J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-08-06

Before

Bennett J

Catchwords

SUCCESSION — Family provision — Proceedings not commenced within time — Where defendants did not oppose an order for application to be made out of time — Where delay was minimal and caused by Registry irregularities SUCCESSION — Family provision — Claim by de facto widow — Where plaintiff received right to occupation of deceased’s property in the will — Where right to occupation was contingent on plaintiff not repartnering — Where residue of estate divided between two children — Where evidence of plaintiff is unreliable, confusing and treated with extreme caution — Where deceased raised two children largely as single parent — Where plaintiff and deceased had a relationship that was loving at times, but filled with arguing at other times — Where plaintiff has limited savings — Where children of deceased put financial circumstances into evidence — No issue of principle

Catchwords

SUCCESSION — Family provision — Proceedings not commenced within time — Where defendants did not oppose an order for application to be made out of time — Where delay was minimal and caused by Registry irregularities SUCCESSION — Family provision — Claim by de facto widow — Where plaintiff received right to occupation of deceased’s property in the will — Where right to occupation was contingent on plaintiff not repartnering — Where residue of estate divided between two children — Where evidence of plaintiff is unreliable, confusing and treated with extreme caution — Where deceased raised two children largely as single parent — Where plaintiff and deceased had a relationship that was loving at times, but filled with arguing at other times — Where plaintiff has limited savings — Where children of deceased put financial circumstances into evidence — No issue of principle

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Staal v Cox [2026] NSWSC 944

Hearing dates: 24 June 2026

Date of orders: 6 August 2026

Decision date: 06 August 2026

Jurisdiction: Equity – Probate and Family Provision List – Family Provision

Before: Bennett J

Decision: Plaintiff to receive portable life interest in property of deceased but no further provision, see [276]

Catchwords: SUCCESSION — Family provision — Proceedings not commenced within time — Where defendants did not oppose an order for application to be made out of time — Where delay was minimal and caused by Registry irregularities
SUCCESSION — Family provision — Claim by de facto widow — Where plaintiff received right to occupation of deceased’s property in the will — Where right to occupation was contingent on plaintiff not repartnering — Where residue of estate divided between two children — Where evidence of plaintiff is unreliable, confusing and treated with extreme caution — Where deceased raised two children largely as single parent — Where plaintiff and deceased had a relationship that was loving at times, but filled with arguing at other times — Where plaintiff has limited savings — Where children of deceased put financial circumstances into evidence — No issue of principle

The following background is a narrative of the relevant history. The facts set out at [5]-[26] below go towards the underlying factual matrix of this application and are not contested, unless otherwise indicated. I will separately address the factual background in greater detail having regard to issues of credit and reliability when relevant.
The deceased was born on 18 September 1947 and died on or about 20 December 2023 at the age of 76.
The deceased was first married to Celestina Felicity Micallef, who died of cancer on 5 March 1996. There were two children born to the deceased and Celestina, being James Barrie Allgood, born in May 1989, and Ashleigh Kathleen Gluyas, born in December 1990.
Following the death of Celestina, the deceased retired at age 48 to raise James and Ashleigh, as a single father. James and Ashleigh were 6 and 5 years old at the time.
The deceased also had a child from a previous relationship, Michelle June Fardell, who died in July 2024 at the age of 52 years.
Wendy was born in August 1961 and was 64 years old as of the date of the hearing.
Wendy estimates she first met the deceased and commenced a relationship with him in early 2010.
It was around this time, in March 2010, that the deceased utilised an inheritance he received from his parents to purchase a unit at X Buller Street, Port Macquarie (the Buller Street unit). The deceased also purchased a Beneteau Oceanis 416 yacht (the yacht) sometime between 2012 and 2014.
Wendy deposes that from 2012 she was living with the deceased on the yacht and in the Buller Street unit. Wendy and the deceased continued to live together in a de facto relationship, on both the yacht and in the Buller Street unit for about five to six years. From about 2017, Wendy deposes she and the deceased lived in the Buller Street unit and spent less time on the yacht, an arrangement which continued until the deceased’s death. The Buller Street unit remains Wendy’s home.
Throughout the course of the hearing it appeared to be common ground between Wendy, James and Ashleigh that the deceased could be physically and verbally aggressive, and that he was a heavy consumer of alcohol (PWS 11(vi); TR P88 L20-37; P91 L49-P92 L25). The deceased’s cause of death was described as “cardiomyopathy alcohol related, 6 years” and “right upper lung cancer with lobectomy, 2 years”. To this extent, it is undisputed that the deceased was a heavy consumer of alcohol which eventually caused him health related problems, and was known to be (at least, on occasion) violent and aggressive, particularly verbally.
There was little or no direct medical evidence before the Court in relation to the deceased’s medical history, although it did appear that the deceased became sick and was hospitalised twice before his death.
Wendy gave evidence that the deceased suffered a stroke in 2017, at which time it was discovered he also had “heart issues”. I understand this to be the first of the deceased’s hospitalisations. Whilst there was no independent medical evidence of the stroke and or the heart problems, I consider that Wendy’s evidence on the deceased’s stroke is supported by the Death Certificate which states the duration of the deceased’s alcohol related cardiomyopathy was 6 years, from the date of death.
Wendy also gave evidence that in 2021, the deceased was diagnosed with lung cancer, for which he had surgery in 2022. This account was accepted by the defendant in court (TR P119 L5-34). I understand this to be the second of the deceased’s hospitalisations.
The level of care the deceased required and the level of care Wendy provided in association with the deceased’s ill health was heavily disputed by the defendant.

Clause 4(b) of the Will provided that the house and contents shall not be sold without the written consent of Wendy, until in the opinion of the trustee Wendy has ceased to live in the house permanently or to comply with the conditions of her right of occupation.
Clause 4(c) provided that at the written request of Wendy, the trustee shall sell the house and buy another residence to which the same provisions shall apply, but that this power may not be exercised if the proceeds of sale would not be equal to or exceed the sum of the purchase price and all costs of the sale and purchase. Any cash balance arising from such sale and purchase was to form part of the residue of the estate (cl 4(d)). When Wendy ceased to live permanently in the house, the house was to form part of the residue of the estate.
Clause 5 provided that the residue of the state was to be distributed equally between James and Ashleigh.
In relation to Michelle, who was alive at the time the Will was drafted, at clause 6 the deceased declared that he had made no provision for her as “she takes no interest in my life or wellbeing”.
The deceased did have a former will also in evidence, dated 29 June 1998 (the 1998 Will). In that former will, the deceased’s estate was to be divided between James and Ashleigh on attaining the age of 21. The 1998 Will otherwise also provided for James’ and Ashleigh’s guardianship should the deceased die whilst they were still minors.
As of 6 June 2025, the only people potentially eligible under the Act were stated to be Wendy, James, and Ashleigh, all three of whom were said to have notice of the proceedings. The defendant recorded that at that stage of the proceedings, James and Ashleigh were not likely to raise their financial circumstances as competing claimants.
Notwithstanding this, I note that in each of the recently sworn affidavits of James and Ashleigh (dated 10 June 2026), issues relevant to their respective financial circumstances are raised. There is no explicit indication in the updating affidavits of James and Ashleigh of when they first proposed to raise their financial circumstances as competing claimants. I was told from the bar table that Wendy was informed by the defendant that James and Ashleigh were likely to raise their financial circumstances as competing claimants (per [18.12] of SC PN Eq 7) as early as November 2025, and that there was no complaint from Wendy of the approach adopted (TR P10 L42-48).

The defendant made extensive submissions regarding the Wendy’s credit and reliability. Wendy did not make submissions directly of this issue.
Of the defendant’s submissions on this issue, he first submitted “the plaintiff has demonstrated herself to be unreliable, if not sometimes dishonest” (TR P124 L20-21). The defendant characterised the answers Wendy gave during cross-examination as “inconsistent answers. Non-response answers…. Even when asked about minor, obvious mistakes that don’t, in themselves, much matter, the plaintiff would not make appropriate concessions” (TR P129 L30-37). The defendant also pointed to myriad examples of “exaggeration or lack of candour” from Wendy (TR P125 L1). The defendant submitted that “the plaintiff had a tendency to… say what she thought would advance her case at that moment and very often without regard to what she’d said previously” (TR P126 L7-10).
As a consequence, the defendant submitted that Wendy’s evidence should be treated with “extreme caution”, and that the Court should not accept it “unless it’s supported by objective independent evidence” (TR P112 L24-37). In this, the defendant submitted that a “significant feature” of Wendy’s case “is that there is no independent, objective support for any of the contentious matters for which [Wendy] contends” (TR P124 L31-37). The “ultimate submission” from the defendant, then, is that the Court won’t be satisfied it can accept anything Wendy says (TR P112 L35-37).
For the reasons which follow, I broadly accept these submissions. I find the evidence of Wendy to be generally unreliable, and to the extent matters are in dispute, I will seek documentary or objective support or other corroboration for Wendy’s contentions before accepting her evidence. I will also consider any contentions against the inherent probabilities of the issue, or otherwise in accordance with the principles set out above at [65]-[67].
Due to the reliance on a great number of inconsistent statements to demonstrate Wendy’s unreliability and ultimate lack of credit, the following section will traverse much of Wendy’s account of events and her financial position, as well as competing accounts of events from other witnesses and documentary evidence where available. In this way, the following section will contain findings on Wendy’s credit and reliability, as well as some of the Court’s findings on facts on the issues in dispute. In assessing the evidence in the proceedings generally (see legal principles above), I have approached the evidence having regard to objective surrounding facts which are either not in dispute or established by contemporaneous and independent documents and the inherent probabilities of life as they bear upon the events (see In the matter of Hoju Jobs Pty Ltd [2021] NSWSC 302 at [77] per Williams J citing, inter alia, Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 129 per Gleeson CJ, Gummow and Kirby JJ; as applied by Meek J in Clayton v Clayton [2023] NSWSC 399 at [152]). Such a process is necessary considering the extensive nature of the defendant’s submissions regarding Wendy’s credit and reliability, and the ultimate submission (which I accept) that the Court won’t be satisfied of “anything the plaintiff says” without further corroborating support.
Wendy stated in an affidavit that she moved Port Macquarie in 1997, and that in 2001 she started working for a local car dealership where she worked until approximately 2005-2006. Accordingly, it would appear that Wendy worked at a local car dealership for some four years. From 2006-2010 Wendy says she helped her first husband, Michael Staal, with his business, and from 2010 to 2012 she worked at Regis Aged Care Facility.
During cross-examination, Wendy rejected that she worked at the car dealership for four years. However, she was unable to recall how long she did work there (TR P23 L1-13).
When asked to explain this inconsistency, Wendy indicated that the error in her affidavit was because she was emotionally distraught after the death of the deceased, so her dates were likely to be mixed up. The defendant pointed out that this affidavit was written roughly 18 months after the death of the deceased (TR P23 L19-39).
Of this the defendant made the following submission (TR P125 L39 to P126 L9):

I accept the submission of the defendant that this line of questioning demonstrates Wendy was unwilling to make appropriate concessions about minor and obvious mistakes or confusing elements of her evidence (TR P129 L34-P130 L10). The phrasing of Wendy’s affidavit was confusing, and it would have been candid to acknowledge that confusion.
Wendy makes the following recount of the level of care she provided to the deceased. When Wendy moved in with the deceased, she says she would contribute half of everything, for example, for food, utilities and home care items. Wendy did all of the cooking and cleaning in the Buller Street unit from 2012 until the deceased’s death. Notwithstanding this, the deceased still made Wendy pay for half of the food and other items. Each time Wendy and the deceased left the unit to live on the yacht, Wendy cleaned and prepared the unit for rental guests. It was her job to do this as the deceased refused to pay a cleaner.
Wendy also deposed that “the deceased never liked spending money and did not go out very much”.
Wendy deposes that after the deceased suffered a stroke in 2017, Wendy called the ambulance and the deceased was taken to Port Macquarie Hospital. The deceased had tests on his heart and went to a heart specialist and was put on medication. Following the stroke, the deceased did not leave the home for at least a year. Wendy looked after him full time over this period.
After this, Wendy says that in 2017 the deceased deteriorated quite markedly. Wendy says that at this time she was looking after the deceased full time as well as her mother. Wendy would drive the deceased to all of his doctor’s appointments and to rehabilitation, as well as do everything for him.
After the deceased with diagnosed with lung cancer in 2022, the deceased underwent an operation. Wendy deposes he was very unwell after this. He mostly stayed in the unit, although he would go to the Settlers Inn, a tavern in Part Macquarie, each day to have one beer.
According to Wendy’s account, from the years 2017 to 2023 Wendy did everything for the deceased. She showered him and assisted with his toileting when he was too weak to do this himself. Wendy continued to do all of the cooking, cleaning, shopping, and attending to all of the other needs of the deceased. During cross-examination, Wendy clarified that it was only after the lung operation that the deceased couldn’t even shower and toilet himself (TR P37 L16-18).
The defendant rejects both the level of care the deceased needed and the level of care that Wendy provided.
The defendant submits that the deceased going to the Settlers Inn every day for a beer is not consistent with both the deceased not liking to spend money or go out and with the severity of the deceased’s supposed illness. I accept this submission as far as it goes. By this I mean that I am of the view that to buy a beer each day is not necessarily inconsistent with not being a big spender, however, I consider a daily trip to the Settler’s Inn is inconsistent with not wanting to go out.
The defendant also submits that Wendy was inconsistent and unresponsive when addressing her holidays with the deceased. Wendy deposed that the last holiday she went on with the deceased was four years ago, to visit Ashleigh and Ashleigh’s husband Steven Gluyas in Queensland. Ashleigh confirms that Wendy and the deceased visited her over the Christmas period of 2022 (TR P93 L28-41). Wendy says her last holiday otherwise was with the deceased on a cruise to Vanuatu in or about 2011. However, during cross-examination, Wendy elaborated on the trips she and the deceased would take in the yacht: for instance, to the Whitsundays, to visit Ashleigh in Queensland and to Laurieton (TR P27-28). The yacht, by Wendy’s account, was only purchased in 2012, so trips on the yacht must have occurred after the Vanuatu holiday. Nevertheless, in Ashleigh’s affidavit, she confirms that as the deceased’s health began to fail, his ability to sail declined, but notes that Wendy and the deceased would still regularly travel to visit Ashleigh in the Gold Coast.
The defendant submitted, and I accept, that Wendy was frequently unresponsive, with “utterly no attempt to engage with the question asked”. So much is demonstrated in the following exchange about holidays:

Having regard Wendy’s affidavit evidence on this issue, I accept that it is confusing and inconsistent in the context of her oral evidence.
Regarding the nature of the relationship between Wendy and the deceased, Wendy deposes that they “got on very well and were in a very loving relationship for the first few years”, but the deceased could also be verbally and physically abusive and controlling, particularly when drinking alcohol.
I have already accepted that it is consistent with the medical evidence, as well as James and Ashleigh’s evidence, that the deceased was heavy drinker and was, at least occasionally, violent (see [13]).
Wendy also deposed that “the Police had to come around to the Buller Street property at least on 2 occasions and serve AVOs [apprehended violence orders] on the deceased. The matters went to Court but I did not pursue it”. When asked about the AVOs in cross-examination, Wendy was not able to recall the dates. Wendy also accepted that she had not taken any steps to obtain documentary evidence about the AVOs (TR P40 L5-26). I am of the view these answers reflect that Wendy’s responses frequently lacked detail and that the documentary evidence was frequently insufficient to support her claims.
Regarding the deceased’s relationship with his children, Wendy says that when the deceased had his lung operation in Sydney, his children did not visit him, or ring her or the deceased.
Conversely, James deposes that even when he was in the Navy, he would call the deceased at least once a week to keep in touch. James recalls getting leave from his deployment to fly back to be with the deceased whilst the deceased recovered from his lobectomy in 2022. James also video called the deceased at the time of the surgery. Ashleigh similarly deposes calling her father weekly, though makes no recount of communication near the time of the lung operation.
Regarding Wendy’s current circumstances, Wendy deposed in September 2025 that “Approximately 10 months ago, my daughter and granddaughter fled a domestic violence relationship. They moved in with me and are currently sharing the spare bedroom. My daughter is unemployed and is unable to contribute to household expenses. I am financially supporting my daughter, granddaughter and myself. My daughter is looking to move into her own property in the future. However, until such time that she is able to support herself, she will remain living with me. My daughter suffers from mental health issues [not in evidence]. My daughter is named as a protected person under an Apprehended Domestic Violence Order against her husband. My daughter’s husband is not allowed to come within 100 meters of her”.
Wendy’s daughter Bianca was born in 1993 to Wendy and her then husband Michael Staal.
After taking Wendy to her bank statements, which included payments as early as July 2024 labelled “Bianca Staal board”, Wendy stated that Bianca had lived with her in the Buller Street unit since at least July 2024, and had moved in with her husband, Aaron Mills (TR P48 L8-10). Regarding this apparent inconsistency (ie, inconsistent with Bianca fleeing a domestic violence relationship 10 months before), the following exchange occurred (TR P48 L23-40):

The defendant submitted, regarding this exchange, that Wendy’s answers were “utterly contradictory” and demonstrate that Wendy was “incapable of making concessions that ought to have been made” (TR P130 L47-P131 L2). I accept this submission.
Wendy’s suggestion that Bianca was unable to contribute to household expenses was also successfully challenged by the defendant. During cross-examination, the defendant took Wendy to several transactions from Bianca in Wendy’s bank statements, such as:
“Deposit Osko payment Bianca Staal bill”, $100, July 2024;
“Deposit Osko payment Bianca Staal board”, $290, July 2024;
“Deposit Osko payment Bianca Mills X”, $50, August 2024; and
“Bianca Mills money”, $270, September 2024.
The bank statements also show that Bianca’s husband, Aaron, paid money to Wendy whilst he was living at the property, throughout February and March 2025.
Regarding Wendy’s bank statements, a protracted exchange occurred during cross-examination in relation to $5000 deposited in Wendy’s bank account in February 2024. Wendy initially denied that this money was her inheritance from her mother’s estate, and stated it was from the sale of a Holden Cruze (TR P52 L26-48). On being taken to a $7,990 transaction labelled “Cruze sale” on 24 June 2024, Wendy noted she was mistaken, and that $5,000 must have been for purchasing the Cruze, and confirmed that the $5,000 was not from her mother’s estate (TR P54 L7-11). Finally, on noting the $5,000 was a credit to her account, not an expense, Wendy determined that she thought the money was her inheritance money, and that she was confused by the earlier questions (TR P55 L25-40). Such an exchange is, in my view, a strong demonstration of Wendy’s tendency to say what she thought would advance her case, in the moment, without regard to her earlier statements.
Wendy was also taken to bank statements showing payments from her ex-husband Michael, such as a $50 payment titled “Happy birthday, Wendy, darling. Xx” (TR P67 L26-32). To this Wendy said that Michael regularly paid sums of money to her to help with his granddaughter (TR P69 L38-40).
Regarding Wendy’s relationship with Michael and his financial contributions to Wendy prompted the following exchange:

Regarding Michael’s role more broadly in relation to these proceedings, Wendy sought to rely on an affidavit provided by Michael. However this was opposed, and the affidavit not admitted into evidence, as Michael was not made available for cross-examination. Whilst counsel for Wendy submitted from the bar table that Michael was not available for “medical reasons” and that he was “about to have heart surgery” (TR P2 L45-48), no satisfactory medical or other documentary evidence was put forward to support this (TR P5 L24-P8 L44).
Later during cross-examination, when asked to describe her relationship with Michael, Wendy said “We’re friends. We always have been, because we don’t want to ‑ when we separated, we didn’t want to upset our daughter, so he had her every second weekend, and we both looked after her” (TR P72 L1). I accept, again, that these answers in relation to Michael are inconsistent with Wendy’s earlier responses that she “doesn’t really like the man”.
During cross-examination, Wendy was taken to a title search of X Coramba Close, Port Macquarie (the Coramba Close property), for which herself and Michael were listed as joint tenants. The context for this was that in her affidavit dated 27 May 2026, Wendy had disclosed that this property, being the former matrimonial home of Wendy and Michael, was the subject of an informal property settlement in or about 2001. Wendy says that at the time it was agreed Michael would pay her $65,000 for her right, title and interest in the home. Michael paid her that money, and it was Wendy’s understanding that Michael was to attend to the transfer of the property into his sole name. During cross-examination, Wendy was steadfast that the house “doesn’t belong to” her and that “if Michael dies, that has to go to my daughter and granddaughter. It’s not my house. I’ve been paid out” (TR P59 L45-46). Wendy again provided no documentary evidence to support that agreement. No submissions were made regarding Wendy’s credibility on this evidence, but I will further discuss the significance of the cross-examination of the Coramba Close property at [185].
In her September affidavit, Wendy listed 18 repairs that needed to be done in relation to the Buller Street unit, furniture and car. For instance, in replacing an oven and recarpeting the house. The defendant criticised these submissions as lacking independent, objective support. For example, whilst proposed replacements from Harvey Norman were annexed to Wendy’s affidavits, the evidence of the defects was not provided. I accept that this documentary evidence was not robust and provided little objective support for Wendy’s case.
A notable inconsistency was that Wendy asserted that she had a need for financial provision regarding the condition of her home, one of those being recarpeting. During cross-examination, however, Wendy stated that an $800 transaction from Michael was for new carpet (TR P69 L28-34). I accept this as another example of Wendy’s inconsistencies.
Consequently, I accept that Wendy’s answers are highly inconsistent and thus unreliable. Wendy often appeared to exaggerate responses and rarely made appropriate concessions in the face of such inconsistencies. I accept that Wendy was likely answering in ways she thought would advance her case, at that moment, with little regard to what she previously said. I find Wendy to be an unimpressive witness, with a poor recollection for detail. I am therefore satisfied that Wendy’s evidence should be treated with extreme caution. I will not accept the evidence of Wendy unless it was corroborated by documentary evidence, evidence of other witnesses, or is otherwise consistent with the inherent probabilities of life as they bear upon the events.

Such an exchange demonstrated a tendency to be contrary, in relation to Ashleigh’s initial denial of her father’s alcohol problem.
During cross-examination, Ashleigh was taken documents in relation to a property in Mountain Creek, Queensland, for which her husband, Steven, was on the title (the Mountain Creek Property) (TR P96-103). Ashleigh said she had no knowledge of Steven’s ownership of that property.
Ashleigh did not attempt to provide justifications for her husband’s name being on the title. She was clear agreeing that it was her husband’s signature on the relevant mortgage document (TR P100 L8-19) but repeated that she was not aware that her husband owned that property (TR P96 L20-39; P100 L37-P101 L8).
Wendy deposes having a conversation with Steven in 2019 in Queensland in which Wendy, Steven, the deceased, Ashleigh, and Ashleigh’s newborn son were all present. Wendy recalls Steven mentioning owning another townhouse that he was not able to sell, and so he instead rented it out.
Given Ashleigh’s consistent and unflinching answers on this issue, I accept that Ashleigh did not know about the Mountain Creek Property. I also do not think Ashleigh’s evidence is inconsistent with Wendy’s. Wendy does not recall any engagement from Ashleigh in this conversation, nor is there any documentary or other evidence to suggest that Ashleigh must know about the property.
More broadly, I do not think Ashleigh’s answers regarding her lack of knowledge about the Mountain Creek Property are to her discredit.
In her affidavit, Ashleigh deposed that her family does “not have any savings and live week to week”, and that her husband and herself “are under enormous financial strain and pressure”. This proposition was challenged during cross-examination.
Ashleigh put her family’s weekly expenses as $3,394. During cross-examination, further questions were asked of Ashleigh’s family’s weekly expenditure, in particular, the $692 a week allocated for “House maintenance”.
Ashleigh accepted that this figure was based on past expenses (TR P95 L14-15), and that past construction expenses for her home has included building a gym and a swimming pool, as well as other fixes such as water damage, plumbing, and repaving the driveway (TR P94-95). Wendy submitted such works are not works done by somebody that’s living from week to week (TR P111 L39-41). I would add to this that I do not accept that, in estimating weekly “Home maintenance” costs, it was proper for Ashleigh to use as a basis for the estimate the costs paid in the past for building the extra room and the swimming pool. As much was conceded by counsel for the defendant (see [139] below).
The defendant made the following submission regarding Ashleigh’s calculation of costs regarding her past home repairs (TR P112 L10-16):

The defendant has filed two affidavits in these proceedings, dated 6 June 2025 and (the 2025 affidavit) 12 June 2026 (the 2026 affidavit). Each affidavit sets out the nature and estimated value of the deceased’s estate at those times.
In the 2025 affidavit, the gross distributable estate was estimated to be $1,158,344.93 (excluding the costs of the proceedings). The Buller Street unit at that time was valued at $750,000. There was also $213,976.56 of cash in bank accounts, the yacht was valued at $145,000.00, and there were two motor vehicles valued at $25,000 (the Mazda CX-5) and $40,000 respectively (the Mazda MX-5).
In the 2026 affidavit, the estimated value of the assets of the estate totalled $1,152,001.58 (as calculated, as a total was not provided). The assets were valued as follows:
The Buller Street unit valued at $880,000;
The yacht valued at $80,000;
One motor vehicle (the Mazda MX-5) valued at $38,736.00, the other value (the Mazda CX-5) unknown; and
Balance of monies held in trust account was $153,265.58 (noting $62,886.70 worth of expenses had already been paid).
In his affidavit, James estimated the value of the Mazda MX-5, which was in his possession, as $32,000. I do not accept this lower valuation given its basis was not disclosed and propose to just note there is some uncertainty in the vehicle’s value.
The value of the yacht at $80,000 was provided pursuant to a market appraisal by PM Valuations dated 10 June 2026 (the Valuation Report). The value of the yacht was a central point of contention during the hearing.
Firstly, Wendy pointed to the Marine Bind Boat Insurance policy for the yacht as taken out by the defendant and issued on 24 November 2025. It will be noted that this insurance policy for the yacht indicated that the “sum insured” was for $150,000 (TR P108 L37-38).
Secondly, Wendy criticised the assumptions underpinning the Valuation Report. Access was not provided to the boat, and so the valuation was completed from information supplied to the valuers from James and the Marine Bind Boat Insurance quote. The valuation assumes the boat has not been maintained since at least prior to December 2023 (Valuation Report p.1), and that the vehicle has spent a substantial time with the motors not being started (Valuation Report p.6). Wendy submitted this report is an undervaluation as the engine and the boat have been serviced (TR P79 L40-43). Wendy also criticises the further assumptions that have been made. For example, a list of possible repairs and maintenance were provided, and the Valuation Report assumed half of those repairs would be required. Wendy criticised this approach as “just nonsense” (TR P110 L40-46).
Thirdly, Wendy put forward comparable sale figures of other boats which were $169,000 and $210,000 (Exhibit 9).
Wendy also submitted that the $80,000 valuation figure arises “as a result of deliberate neglect and lack of maintenance” (TR P108 L41-43). Wendy also pointed to an apparent agreement between James and Ashleigh that James will take the yacht when dividing the estate.
To the extent it was submitted, I do not think it is necessary or appropriate to find that there has been any substantial mistreatment (or neglect) of the yacht. The steps taken by the administrator regarding maintaining the yacht, including servicing it and obtaining insurance, appear to be appropriate and proper measures in the circumstances.
However, I do accept that $80,000 appears to be an undervaluation of the yacht. I find this having regard to the terms of the insurance policy of November 2025 with an insurance sum of $150,000, combined with the defendants earlier estimated value of $145,000, decreasing to an estimated value of $80,000 more recently. In making this observation, I have regard to the uncertainties and variability in relation to market valuations and noting that the sum a yacht is insured for is not the same as its estimated market value. I also find the estimate of $80,000 to be an undervaluation accepting that the Valuation Report did not appear to include accurate assumptions in relation to the level of servicing that had been completed on the yacht.
However, I do not accept that the value of the boat is likely to be as high as the comparative valuations counsel for Wendy presented of $169,000 and $210,000. The Valuation Report noted that there are “current slow market conditions”, and that the seller asking for $169,000 has had only an offer of $130,000 in the last 7 months, which was rejected. I was not taken to why this reasoning should no longer hold true.
I therefore consider the value of the yacht to be higher than $80,000, however on the evidence before the Court I am unable to estimate how much higher. I do accept the central conclusion of the Valuation Report that the yacht will have decreased in value to some extent from $150,000 in 2025, perhaps due to limited use, potential need for repairs and slow market conditions.
Whilst I am of the view that the value of the yacht is greater than $80,000, as I am unsure of how much greater, I consider the estimated 2026 net distributable estate, for the purposes of this application, to be a minimum of $1,152,001.58.
Noting that it is uncontested that, without more, Wendy has at least a conditional right of occupation in the Buller Street unit, a useful figure to consider is the 2026 net distributable estate, less the value of the Buller Street unit. This is the value of the balance of monies held in trust account, the minimum yacht value, and known motor vehicle values, and is around $272,001.58.
The parties in their evidence had not set out their estimates for their costs up to and including the two-day hearing. At the conclusion of the hearing, I made an order for the parties to provide my chambers by email estimates of their costs up until and including the two-day hearing and, in relation to the executor, any other anticipated costs in relation to the administration of the estate.
Wendy’s costs were estimated at $104,835.00 on an indemnity basis and $99,500.00 on the ordinary basis.
The defendant’s unpaid costs up until and including the two-day hearing were estimated at $60,743.00.
The further costs and disbursements for the administration of the estate were estimated at $12,087.

I accept, and note it was not disputed, that Wendy and the deceased were in a de facto relationship for approximately 11 years. Also not disputed was the nature of the relationship between Wendy and deceased, that they “got on very well and were in a very loving relationship” for at least the first few years. I accept that this involved Wendy and the deceased going out together to clubs, going dancing, sailing on the deceased’s yacht and travelling together.
The evidence of Wendy was that the deceased could be controlling, would not let her go out with friends, and that he would isolate her from her family and did not like her having relationships with her friends. Wendy deposed that in the early stages of their relationship the deceased did not want Wendy to work. The deceased wanted Wendy to be with him to either sail or else be with him in at the Buller Street unit. The deceased kept saying that he wanted her to be with him at all times, and so she left her job to be with the deceased. Wendy said that her relationship with her friends was affected as he would be unpleasant and aggressive in front of them and after a while, her family would not visit her at the Buller Street unit. Wendy notes that the deceased “was not so aggressive” when he was not drinking overproof rum. Wendy also recounts an incident in 2019 when her brother was dying of lung cancer and Wendy wanted to assist her sister-in-law, however the deceased was demanding of her attention. Wendy says the deceased was cruel to her.
Ashleigh deposes that “both my father and Wendy clearly had a problem with alcohol” and recounts the nature of the deceased and Wendy’s relationship as one filled with arguing. James similarly recounts “constant arguing” to the extent that he and his wife would seek alternative accommodation for their visits. James recalls the deceased complaining of Wendy drinking excessively. James and Ashleigh also both recall that the deceased could be physically and verbally aggressive (TR P88 L20-37; P91 L49-P92 L25). I again note the clear evidence contained in the deceased’s Death Certificate that the deceased had suffered heart problems that were “alcohol related”.
I am of the view Wendy’s account of the deceased, and the relationship between the deceased and Wendy, is consistent with that of James and Ashleigh. In this, I accept that the nature of the relationship between the deceased and Wendy was likely to have been loving at times, but also characterised by heavy drinking of alcohol, probably from both sides, as well as arguments and controlling behaviour on the part of the deceased.
As outlined at [91], Wendy deposes she contributed half of food, utilities and home care items, and did all of the cooking and cleaning. Wendy deposes she drove the deceased to all his medical appointments. Wendy recollects that she did “everything” for the deceased from 2017 to 2023, though clarified that, at least regarding toileting and showering the deceased, this was only after his lung operation (see [96]).
The defendant rejects the level of care the deceased needed and the level of care Wendy provided (TR 119 L30-32). For instance, Ashleigh and James both recount the deceased complaining that Wendy was “lazy”, did not want to work or contribute to household duties, and refused to cook.
I accept that Wendy may not have done “everything” for the deceased from 2017 to 2023. I accept the submissions of the defendant that the deceased was able to do things such as visit Ashleigh in Queensland and go to the Settler’s Inn by himself. I find it likely that Wendy was exaggerating the level of care she provided the deceased.
However, I also accept, as a matter of inherent probabilities of life, that Wendy likely contributed to the everyday running of the household between herself and the deceased during their relationship. As Ashleigh and James had minimal physical presence in the home of the deceased and Wendy, I do not view their evidence as holding much weight regarding Wendy’s household contributions.
It is accepted that post-operatively, after the lung cancer intervention, the deceased needed significant help, and that Wendy did help him in those circumstances. I also accept that, having regard to the inherent probabilities of life and common knowledge, that following his stroke and heart problems in 2017, that there would also have been some period of need and dependency on the part of the deceased, and that Wendy was the person likely to have provided any care that the deceased required.
I thus accept that Wendy contributed to the everyday running of the household in the typical ways a partner might be expected to, notwithstanding the “rancorous” nature of the household (TR P122 L39-44). I also accept that Wendy provided more care as the deceased became unwell, particularly after 2022.

Wendy deposes she is unemployed. She says she has been out of the workforce so long looking after the deceased that she does not like her chances or opportunities to gain employment. Nevertheless, in relation to income, Wendy says she is on JobSeeker, which provides a monthly net income of $1,982.90. Wendy also stated she received $200 a fortnight towards groceries from her daughter Bianca, who lives with her. Wendy’s bank documents demonstrate that Bianca frequently pays money towards board, bills and groceries, with roughly fortnightly contributions of about $290.
Wendy says she struggles to afford the rates and levies at the Buller Street unit. She says she also has to make sacrifices to pay for fuel and groceries. Wendy states her monthly expenditure is $2009.
As at 27 May 2026, Wendy says she has only $92.12 in her bank accounts. This is supported by documentary evidence.
I do not accept that Wendy’s income prospects are as dire as she proposes. Wendy’s bank statements show that whilst her closing balances remain low, roughly $15,000-$20,000 is moving through her account each quarter. Wendy appears to deflate the value of the contributions by Bianca towards board, groceries and bills, and did not mention the contributions of Aaron when he lived at the Buller Street unit towards board and groceries. Wendy also did not disclose the contributions by Michael to things such as petrol and carpet repairs. Whilst I do accept Wendy has limited savings, Wendy does appear to be making ends meet, albeit it on a month-to-month basis. This is consistent with Wendy’s disclosures on income and expenditure: Wendy’s monthly expenditure totals to be $2009, and her monthly income from Centrelink is $1,982.90, and a further amount of roughly $550 from Bianca. In accepting this, I also accept that at age 64, Wendy’s income prospects are likely diminishing, as any employment she gained would likely not be for very long.
The defendant submits that Wendy failed to make a full and frank disclosure of all her material, personal and financial circumstances (per Gail Patricia Stone v Michael John Stone [2019] NSWSC 233 (Stone v Stone) [58]-[66]). In particular, the defendant refers to Wendy’s failure to disclose her ownership of the Coramba Close property and her statement that she has no superannuation.
Given the circumstances leading to Wendy saying that she has no superannuation (see [80]-[87]), in particular, her work history and acceptance that she did earn superannuation, I accept the submissions of the defendant that Wendy’s answer is unsatisfactory. I am of the view there is evidence that Wendy should have some balance of superannuation. It is not clear what efforts Wendy undertook to recover this, given her apparent limited understanding of her entitlements. Given the lack of documentary evidence, and the general unreliability of Wendy as a witness, I do not accept that Wendy has no superannuation. I am of the view it is more likely Wendy may have some superannuation and has not taken the appropriate steps to recover it.
Whilst Wendy is to be criticised in a general sense for not making a thorough attempt at investigating her superannuation entitlements, I am of the view this does not go towards a failure to fully and frankly disclose Wendy’s circumstances. Wendy disclosed the information that was known to her at the time of the hearing, and the relevant information for me to make the finding that she should have some balance of superannuation.
Regarding the Coramba Close property, I am of the view Wendy has made sufficient disclosure about the existence of this house and likely does not hold the beneficial interest in it. Wendy was (unusually) consistent between her affidavit evidence and during cross-examination that the property was subject to an informal property settlement. In Wendy’s expenditure there is no money towards upkeep or bills of the Coramba Close property. The fact that Wendy put on a further affidavit when she discovered her apparent interest in the house, unprompted, supports that in this regard Wendy took active steps towards full and frank disclosure. In this, I do not consider Wendy to have perpetrated “deliberate falsehoods” (per Blendell at [28]).
I thus do not view the Coramba Close property as an asset of Wendy.
I am satisfied that I have, at least in a broad outline, a picture concerning Wendy’s financial situation (Stone v Stone, see also Collings v Vakas [2006] NSWSC 393 at [67], and Blendell at [29]). However, given the incomplete nature of the disclosure, where there is uncertainty left by imprecise or inaccurate evidence, I do not propose to resolve that uncertainty in Wendy’s favour (per Blendell at [28]).

Ashleigh was 35 years old at the time of the hearing. Ashleigh and Steven have two children, aged 6 and 3. Their eldest son is said to have ADHD, which I have assumed is a reference to Attention Deficit Hyperactivity Disorder.
Ashleigh has been working 3 days a week as a casual schoolteacher. Ashleigh says she is currently off work as she is undergoing treatment for PTSD (which I have assumed is a reference to Post Traumatic Stress Disorder) from a work-related incident.
Steven is on a disability pension from being discharged from the Defence Force in 2014 due to injury. Steven’s injuries mean he is unable to work again. Steven receives $2,396.82 fortnightly. Ashleigh’s weekly income from teaching is $1,100.00. Ashleigh also receives $305.18 fortnightly from a carers allowance for Steven as well as family tax benefits. In combination, this is a fortnightly income of $4,902.
Regarding assets, Ashleigh has disclosed that she and Steven own a property in Columbus Drive Queensland valued at $1,200,000. They also own two cars and a boat, with a total estimated value of $13,000. They have a combined superannuation of $133,805.62 and depose to have no savings. Their liabilities of HECS and mortgage are $462,936.75.
For the reasons discussed at [78]-[81], I accept that the Steven’s Mountain Creek Property is not a joint asset of Ashleigh and Steven. However, I do acknowledge that Steven (solely) owns another asset, not otherwise acknowledged in Ashleigh’s affidavit evidence, and that its value is not in evidence.
Ashleigh estimated her family’s weekly expenses as $3,394. I accept the submission of the defendant that I should disregard the costs of home repairs (“Home Maintenance”), leaving Ashleigh with a weekly expenditure of $2,702 (see [139]). I also accept the submission that it is probably an exaggeration that Ashleigh does “not have any savings and lives week to week” (TR P111 L28-31). In this, Ashleigh and Steven’s assets include a house valued at $1,200,000 (albeit with a mortgage) including a gym and a swimming pool; the couple owns a boat. Having regard to Ashleigh’s assets and priorities in life, it appears Ashleigh is making ends meet.

Wendy submits that the Summons was filed in time at the Registry, on 16 December 2024 (PWS pg2 [2](i)). In the alternative, Wendy seeks an order that she be permitted to make the application out of time (PWS pg2 [2](v)).
The defendant confirmed that the filing out of time “was no longer an issue” in the sense that he “accepts either of those options” (TR P1 L28-30). However, I do not understand accepting either of the defendant’s options to be consent from the defendant for the application to be made out of time – rather, the defendant has agreed that either the application was not made out of time, or that the Court could “otherwise order” as to the time for bringing the application (DWS [5]). I thus consider it necessary to still address this issue. Noting the defendant’s lack of opposition, however, I will only briefly address the application being made out of time.
The above chronology makes clear that the Summons was not filed in the Court’s registry until 29 January 2025, notwithstanding that it first received a copy of the Summons, indicating an intention to file, as early as 16 December 2024. The addition of the waiver application appears to have complicated the issues and to have created a delay in the filing of the Summons.
The Act is clear when it has stated at s 58(3) that an “application is taken to be made on the day it is filed in the Court’s registry”. Given this, I am of the view that Wendy’s application for a family provision order was made later than 12 months after the date of the deceased’s death, as it was not filed in the Court’s registry until 29 January 2025.
However, I accept the submissions of both Wendy and the defendant on this issue. Wendy noted that the defendant was provided with notice of the intention to make a claim and a copy of the Summons within time; that any delay has been minimal; and that there had been no prejudice in fact or alleged (PWS pg2 [2](vi)-(vii)). I accept that the Summons was received by the Registry as early as 16 December 2024, and that, had it not been for the associated complication of the Waiver application, that the Summons would have filed within time. I thus consider that Wendy has shown sufficient cause as to why the application was made late, and accordingly, I propose to “otherwise order” that sufficient cause has been shown for the application to be made out of time.

I do note that there is no dispute that the deceased knew and approved the content of the Will. I accept the evidence of the defendant that he would have taken the deceased through the Will and explained it to him appropriately. I therefore accept that the Will reflects the deceased’s testamentary intentions at that time (s 60(2)(j)).
It will be recalled (per [37] above) that the Court in Slack v Rogan at [127] stated that if a deceased was capable of giving due consideration as to who should benefit from their estate, and did so, then considerable weight should be given to the testator’s testamentary wishes. In that case, the Court considered that the deceased was in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than a court would be, not least because a court is called on to determine that question months or years after the deceased’s death.
Wendy submits that the “sole reason” for the deceased updating his will was to make provision for her (TR P107 L14-20). I do not accept in terms Wendy’s account on how the 2019 will came about. As suggested during cross-examination, Wendy’s written account is confusing; for instance, when she wrote “the deceased told me he went to Cox Lawyers for a Will to be prepared” it appears to suggest the deceased informed Wendy of this after he had in fact gone to the lawyers, whilst orally Wendy said she drove the deceased to the appointment (TR P37 L30-P38 L2). However, I do accept that a central reason for the deceased updating his will appears to be to make provision for Wendy, given a comparison between the 1998 Will and the Will. I accept the submission of Wendy that the 1998 Will predated her relationship with the deceased and provided for distribution to the adult beneficiaries primarily, whereas the substantive change of the 2019 Will was to provide for Wendy (TR P107 L16-20). In this way, I am of the view that the deceased considered Wendy’s claim on the estate by including her in the Will, and for that reason I propose to give the terms of the will considerable weight.

It has long been the case that clauses that are a restraint on marriage in general have been questioned by Courts. For instance, the Court (per Gibson J) in Re Hartman [1960] Tas SR 16 (a will construction case) held that a condition requiring a beneficiary to not remarry or become a de facto wife for her to receive a property, was void, as it showed “a clear intention to restrain the plaintiff altogether both from marriage and from sharing the bed and board of a man in an illicit relationship, and so to promote a celibate and chaste mode of living”.
In White v Barton (1980) 144 CLR 431, a will that gave a wife a $5,200 annuity during her lifetime, or until her remarriage, was considered insufficient provision. Justice Mason, as his Honour then was, noted (in the majority) that “community attitudes have so altered that it is now generally accepted that a widow should be maintained for life, rather than during widowhood” (444). Similarly, Stephen J noted that courts should be encouraged to view with disfavour, at least in the case of substantial estates, that restriction upon remarriage which an annuity confined to widowhood involves. It is evident from the date of these cases that these community standards are not novel.
I have already set out the broad principles a Court will have regard to when considering a claim for family provision by a widow (or de facto) (see [42]-[49]). Of the cases therein referred to, it will be recalled that in Steinmetz, Brereton JA cautioned against provision which did not afford widows independence and self-reliance. Brereton JA criticised the provision that left a widow reliant on quarterly payments by the children of the deceased husband’s first marriage as “not only rigid and paternalistic, but demeaning and controlling” (Steinmetz [144]).
Specific criticism has been made of wills which impose conditions of upkeep on former matrimonial homes where there is limited ability for the plaintiff to pay these. For instance, in Harris v Mills [2009] NSWSC 339, McLaughlin AsJ assessed a will which permitted the plaintiff to have a right of residence only where insurance of the property was maintained, all outgoings were paid, and the property was in no less a state of repair than it was at the time of the death of the deceased. Such provision was criticised as leaving the plaintiff with “no security of accommodation”, particularly where he had limited income as he was aged in his ninth decade ([42]-[43]).
Similarly, in Dighton v Norwood [2024] NSWSC 318, Pike J noted the deceased was “obviously desirous” of the plaintiff remaining at the matrimonial home for as long as she wished. However, when the plaintiff did not have sufficient income to pay for the outgoings on the home, such a stipulation in the will was not considered adequate provision. This was true even though the plaintiff could draw on her superannuation or raise funds against the security of the property in question ([138]-[139]).

The circumstances of the applicant and the beneficiaries should be considered in the context of the nature and extent of the deceased’s estate (s 60(2)(c)). The 2026 net distributable estate, less the value of the Buller Street unit, is around $272,001.58. There is thus not a great deal available to be divided.
I consider the size of the net distributable estate, less the value of the Buller Street unit, militates against the making of any lump sum order for Wendy.
Of course, before there is to be any distribution of the residue of the estate, the estate will be required to account for any cost liability. The authorities suggest a Court should exercise caution when considering the impact of potential costs orders on the amount available in an estate to be divided and distributed (see [54]-[60]). In taking such a cautious approach, I note that at this stage, potential costs liabilities cannot be known for certain. However, there is $12,087 of unpaid costs and disbursements for the administration of the estate. It may also be observed that the defendant is the executor and thus is likely to have his remaining unpaid costs paid out of the estate on an indemnity basis (approximately $60,743.00) (per Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.25). I further observe that if Wendy, as successful applicant, were also to receive an order for her costs to be paid out of the estate on the ordinary basis (approximately $99,500.00), then the costs to be paid out of the estate would total to $172,330.00, and the amount remaining in residue would be around $99,671.58 (if the yacht were to sell for its minimum value): see UCPR r 42.1.
There is only $153,265.58 of cash in the estate; the remaining value of the estate is made up of tangible personal property, being the yacht (at an estimated minimum $80,000) and the two motor vehicles (one at an estimated $38,736), and the Buller Street Unit. In order to pay $172,330.00 out of the estate, the yacht or the motor vehicles would need to be sold. So much increases administration costs of the estate as associated with any sales, and increases time and uncertainty. This is particularly pertinent noting the current slow market conditions for yacht sales (Valuation Report).
A lump sum order for $110,000 of provision for Wendy, as proposed by Wendy, would, in all likelihood, require the sale of all of the tangible personal property of the estate. A lump sum of such a magnitude could be provision of the entirety of the residue of the estate, if not exceed that.
To the extent I am able to have regard to this issue, I am of the view that consideration of the impact of potential costs orders on the residue of the estate is consistent with other factors (such as the competing claims and uncertainty as to Wendy’s actual financial circumstances) that already militate against making any order for a lump sum for Wendy.

It will be seen that the provision I have set out above does not include provision for a lump sum of $110,000, or for any lump sum at all. For the reasons set out above, I am of the view that I ought not make such an order.
Whilst the deceased’s intentions appeared in the will as a conditional right of occupation, I am of the view that provision regarding accommodation for Wendy, being to make it “secure” rather than conditional, is consistent with the broader testamentary intentions expressed by the deceased. This is also consistent with the other beneficiaries’ understanding of what was expected.
I have not forgotten Wendy’s potentially precarious financial position. If there had been greater reserves in the residuary estate I would have allowed for some provision to supplement Wendy’s income and for contingencies, notwithstanding the uncertainties of her financial circumstances. However, I consider the size of the estate does not allow for this.
I do note that Wendy, notwithstanding the limits of her income, appears to have managed to get by, at the very least with the assistance of her daughter, who is living in the spare room and paying some rent and the like.
Given the features of the provision I have set out above, if Wendy finds herself in a situation where she cannot make ends meet, and perhaps her daughter no longer rents the spare room, it will be open to Wendy to request that the defendant sell the Buller Street unit and for Wendy move to a smaller and cheaper unit, where remaining proceeds may be invested and any income or profits may be used to supplement Wendy’s income and be available for contingencies.
Given Wendy’s limited savings, this form of order provides an additional option for financial management for flexibility, which I consider is required so as to avoid a circumstance where Wendy may lose her home if she is unable to pay outgoings. It is also consistent with the testamentary intentions of the deceased, to provide secure accommodation for Wendy, as balanced against the interests of his children.
Wendy does not seek to have Buller Street unit absolutely, but rather, a life interest. This is consistent with the deceased’s testamentary intentions to also provide for James and Ashleigh, which will be met when the Buller Street unit (or any substitute property and remaining proceeds) is eventually returned to the estate.
For the reasons set out above, the Court is satisfied that:
Adequate provision for the proper maintenance, education or advancement in life of Wendy was not made by the Will of the deceased; and
The appropriate order for further provision would be for Wendy to be provided with a portable life estate in the Buller Street unit.

Staal v Cox

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

JUDGMENT

Introduction

Background

The Will

Hearing details

Issues and summary of conclusion

Legal Principles

Statutory Framework

Legal principles - Generally

Legal principles – Widows

Legal principles – Buffer for “contingencies”

Legal principles – Duty to disclose financial position

Legal principles – Consideration of potential costs orders

Qualifications on “Principles”

Evidence and credit

Affidavits and other evidence

Legal principles – fact finding and witness credibility

Legal principles – Inferences that should be drawn from the failure to call witnesses and evidence (Jones v Dunkel and Blatch v Archer)

Factual background and witness credibility and reliability

Wendy

The defendant

James

Ashleigh

Witness unavailability

Further facts and circumstances

The Will

Value of the estate

Wendy’s circumstances

Nature of relationship between Wendy and the deceased

Financial circumstances

Other circumstances

James’ circumstances

Ashleigh’s circumstances

Consideration

The Law

Chronology

Consideration

Issue 2: Has adequate provision for the proper maintenance, education or advancement in life of Wendy not been made by the will of the deceased (s 59(1)(c))?

Nature of relationship between Wendy and deceased (ss 60(2)(a) and (h))

Testamentary intentions (s 60(2)(j))

Competing claims (ss 60(2)(d) and (f))

Proper provision regarding accommodation

Legal principles

Consideration

Issue 3: If such provision has not been made, what, if any, order does the Court think ought to be made for the maintenance, education or advancement in life of Wendy, having regard to the facts known to the Court at the time the order is made (s 59(2))?

Consideration

Wendy’s financial circumstances (ss 60(2)(d), (g), (e) and (k))

Beneficiaries’ circumstances (ss 60(2)(b) and (d))

Nature and extent of deceased’s estate (s 60(2)(c))

Testamentary intentions (s 60(2)(j))

Wendy’s character and conduct (s 60(2)(m))

Conclusion

Costs

Legal Principles

ORDERS

Parties

Legislation Cited (4)

Cases Cited (115)