Stockwell v Beaumont;; O'Donnell v Beaumont

The Act

1. Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person". Section 58(2) requires an application for a family provision order to "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".
2. Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. For the purposes of these proceedings, the relevant provisions are: "59(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. 59(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. … 60(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. 60(2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (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."
3. In West v Mann [2013] NSWSC 1852 at [9]-[11] I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.
4. By reference to the language of the Act, the questions and issues which the Court must take into account are: 1. Is the person who has applied to the Court for a "family provision order" (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1) (a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation. 2. If the answer to question (1) is "yes", has the application been filed in the Court's Registry not later than 12 months after the deceased's death (ss 58(2) and (3))? 3. If the answer to question (2) is "no", has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court's Registry (ss 58(2) and (3))? 4. If the answer to question (2) is "yes" or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the "applicant") is an eligible person (s 59(1)(a) and, in the case of certain persons, s 59(1)(b))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that "the person in whose favour the order is to be made" is not the person who has brought the application (in which case, the latter must also be an eligible person). 5. If the answer to question (4) is "yes", what provision has been made for the proper maintenance, education or advancement in life of the applicant by the deceased's will or by the operation of the intestacy laws (the "Provision")? 6. Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant? 7. If the answer to question (6) is "yes" (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court's discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the "Discretion") is enlivened. 8. Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the "Proposed Provision")? This is an evaluative judgment which arises from the word "ought" and requires examination of the applicant's needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) ("the nature of any such order": s 60(1)(b)). 9. Having answered question (8), should the Court exercise the Discretion to make an order for the "Proposed Provision"? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) ("whether to make a family provision order": s 60(1)(b)). 10. Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. 11. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "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". The Discretion is otherwise unconfined, which means that in answering question (8) the Court is otherwise constrained only by the need to act judicially, that is to say "not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ. The Court must act rationally and exercise the Discretion for the purpose for which it was conferred.
5. Having identified what I consider to be the correct approach under the Act to an application of this kind, I will next set out the facts. The dispotive facts were not relevantly in dispute.

The estate and other property

1. The various figures which follow take into account the information provided by Samantha in her updating affidavit affirmed 3 December 2019.
2. The sworn value of Graham's estate for probate was $1,638,570, including the Property then valued at $1,250,000, and $366,000 in cash. With the exception of a legacy of $10,000 and a motor vehicle to Graham's granddaughter, Rachel, the estate was left to Samantha under the Will.
3. By the time of the hearing the sole asset of significant value was the Property, in which Samantha was living with her children. This was sold on 2 December 2019 for $1,450,000 (after a $10,000 allowance for termite damage). After disbursements this left net proceeds of $1,423,179.72. Samantha and her children have subsequently relocated to Queensland.
4. Since the grant of Probate, the estate has made distributions of $238,966 to Samantha, the majority of which was used to pay off Samantha's credit card debts. Those distributions also included a $20,000 repayment of a loan made to Samantha by Adam, a further repayment of a personal loan of $25,000 made to Samantha by Mr James Elliott, the payout of two motor vehicle leases - one of $30,000 and another of $19,496, and relocation expenses of $13,369.
5. In addition to the distributions made to Samantha, money has been paid out of the estate to pay rates and other outgoings relating to the Property ($26,179), and also to pay for renovations and repairs at the Property ($131,056 - I have included in this an amount of $22,139 which is to be reimbursed to Samantha's friend Mr John Avgenicos who provided a loan to fund some of the repairs but which has not yet been repaid).
6. Margaret, in particular, submits that Samantha was not entitled to pay out the cash in the way she did and that she should account for those amounts and the interest the estate is said to have foregone (said to be approximately $50,000 at Supreme Court rates). Given the view to which the Court has come, it is not necessary to pursue that aspect further, save to say that the Court has taken into account in favour of Samantha the cash amounts she paid out of the estate for her own benefit rounded to $193,000. The payments for rates, outgoings and the renovations and repairs enure for the benefit of the estate.
7. Samantha's updating affidavit affirmed on 3 December 2019 stated that the net distributable value of the estate at that date, allowing for the sale of the Property and distributions and disbursements of the kind I have identified in the preceding paragraphs, is $1,318,102.

Legal costs

1. The parties' legal costs up to and including the hearing (but not including the most recent relisting) were $86,000 on the ordinary basis for Nina, $97,000 on the ordinary basis for Margaret and $57,583 on the indemnity basis for Samantha (for the period when she had legal representation). Based on the figure propounded by Samantha set out in the preceding paragraph, after allowing for legal costs (assuming them to be payable from the estate), the current net distributable estate for the purposes of these proceedings is $1,077,500 (rounded).

Nina

1. Nina was born in September 1968 in Melbourne and is the second child of Graham and Joanna. At the time of the hearing Nina was 50 years of age.
2. Nina lived with her parents until about 1986 or 1987. During this time the family lived in various places including Melbourne, Townsville, Melbourne again and finally Sydney from 1976 onwards. Nina deposed that up until 1982 her family had been close. She had a loving and caring relationship with her father as a child.
3. In 1984 Nina graduated with her School Certificate and attended Metropolitan Business College, obtaining a secretarial certificate.
4. Nina moved out of her parents' home in 1986 or 1987 when she was 17 years old. She commenced working at Prime Appointments Pty Ltd as a secretary some time in1987.
5. Nina maintained regular contact with both her parents after their separation and divorce and often visited Graham and Margaret at their home, first at their home at Carlingford (the "Carlingford Property") and later at the Property. They also met at restaurants. Nina's mother Joanna also had many family occasions at her house to which she invited Graham.
6. In 1987 Nina commenced work as a secretary for the foreign exchange desk at Macquarie Bank Limited. In that year Nina went on holidays with Graham and Margaret to Thredbo and Graham paid for all expenses. In the same year Graham, Margaret, Nina and her then boyfriend Daniel (Danny) Compagnon also holidayed together in Surfers Paradise for several weeks.
7. Nina married Danny in 1988. Graham gave Nina away and contributed $2,000 to $3,000 to the cost of the wedding. Graham and Margaret also gave the newlyweds a Johnson Brothers dinner set.
8. In 1989 Nina and Danny moved to Cairns to begin a new life. Nina left full time employment. Danny started a tree lopping and garden mowing business.
9. In 1989 Nina attended Graham's marriage to Margaret. During her time in Cairns, Nina's evidence was that she spoke to Graham approximately once a week by telephone and occasionally corresponded by letter.
10. Nina and Danny's first child Nicholas was born in June 1990. They returned to Sydney in August 1990 and moved into the Carlingford Property while Graham and Margaret had a vacation in Europe. Nina also cared for her grandmother Daisy for this period. Daisy, Graham's mother, resided with Graham and his family at the Carlingford Property from about 1979 until her death in 1992. When Graham and Margaret returned from Europe, Nina and Danny moved into a house in a neighbouring suburb to Graham and Margaret and visited them once or twice a week.
11. There was in evidence before me an undated, unexecuted copy will which I infer was prepared by Graham without legal assistance between September 1989 (when Margaret and Graham married) and 1992 (when Daisy died) (the "First Will"). I draw that inference because it refers to Margaret as his wife and leaves a legacy to Daisy. The First Will in effect gives a life estate in the Carlingford Property to Daisy and thereafter to be sold with the proceeds to be divided between Margaret, Adam, Nina and Samantha. The residue of the estate was to be divided equally between Daisy, Margaret, Adam, Nina and Samantha.
12. In February 1992, Nina and Danny's second son Louis was born.
13. After some domestic incidents relating to Danny's drinking and drug taking, Nina separated from Danny in August 1993 and moved with her children to Townsville. During her time in Townsville Nina kept in touch with Graham by phone once or twice a week.
14. In 1994 Nina completed a Certificate in Horticulture at Townsville TAFE. In that same year Graham and Margaret visited her in Townsville for a holiday.
15. In 1994 Nina commenced a relationship with Matthew Finegan. Together they had a son, Patrick, who was aged 21 years at the time of the hearing.
16. Between 1995 and May 1996 Nina completed a retail sales course and commenced working at a jewellery shop in Townsville.
17. Between 1993 and 1996 Nina deposed that she kept in regular weekly contact with Graham by phone but was unable to return to Sydney due to lack of funds and the demands of raising two toddlers.
18. In 1996 Nina and Matthew moved to Kilkivan, a small rural town in Queensland and went into partnership with Matthew's parents, starting a cattle and olive farm.
19. In December 1997 Nina and Matthew bought a house in Cinnabar, near Kilkivan, Queensland.
20. In January 1998 Nina and Matthew's son Patrick was born.
21. Nina visited Sydney on several occasions during 1998 including for Samantha's wedding, Matthew's brother's wedding and Christmas. On each occasion she visited Graham. Graham did not visit Nina as he told her she lived too far away.
22. Between 1999 and 2000 Graham was diagnosed with bowel cancer. Joanna advised Nina of the diagnosis and Nina spoke with her father at this time after his radiation treatment.
23. Nina and Matthew separated in 2002. Samantha also separated from her husband in the same year and the sisters travelled overseas for three weeks. Graham gave Nina $500 towards the trip.
24. In December 2002 Nina moved to Toowoomba and commenced a Bachelor of Nursing degree. She continued to phone Graham about once a week. Once Graham's treatment had finished, he showed no further symptoms of cancer.
25. Between 2003 and 2006, Nina continued studying for her Bachelor of Nursing degree whilst working part time and caring for her three children as a single mother. During this time Nina deposed she had long telephone conversations with her father, some calls lasting from two to five hours. If Nina did not call him weekly Graham would become irritated and say "Who are you?". Also between 2003 and 2006 Nina drove 11 hours to Sydney on several occasions during her mid semester breaks and at Christmas to visit her parents. Nina would spend time with both parents. Nina's evidence was that Graham did not like it if she spent time with or stayed with Joanna at these times and she would feel pressured to stay with Graham.
26. There was in evidence before me an unsigned copy will prepared by Graham dated 5 January 2004 (the "Second Will"). This appointed Samantha executor (or Nina in her stead) and, in effect, left his estate (including the Property) equally between Samantha and Nina.
27. In December 2006 Joanna organised a 40th birthday party for Adam, Nina's brother who had lived overseas for many years. Adam and Graham had had a difficult relationship for many years and they had drifted apart. Joanna had encouraged Adam to reconcile with his father and Adam initiated phone contact with Graham before returning to Australia for his 40th birthday. The 40th birthday celebration was to be held at Joanna's house and Joanna had also organised a family dinner the evening before. Graham had been invited to both the party and the family dinner.
28. On the evening of the family dinner Graham did not turn up. Joanna rang Graham in front of Nina and Adam and asked Graham if he was coming to the family dinner. After the phone call Joanna told Nina and Adam: "Your father said he can't be bothered and won't be coming to the party tomorrow either."
29. Adam was sitting next to his mother during the phone call. Nina says that Adam had tears in his eyes and was very upset and disappointed. Joanna and Nina were both upset and angry at Graham's conduct.
30. Contact between Nina and Graham ceased after this incident and, save for one short encounter in 2014, Nina did not speak to her father again during his lifetime. Graham also made no effort to contact Nina.
31. Between 2007 and 2012 Joanna told Nina on several occasions that Graham did not want anything to do with her or Adam and that Graham had written her out of his will. Nina deposes her mother knew this because Samantha had discussed it with her. This is consistent with the Will, which was made on 1 October 2007. The Will includes in its final clause (N): "I do not wish to leave any bequests to my son Adam Stockwell or my daughter Nina Stockwell as they have treated me with total contempt over the years and deserve nothing from me".
32. From 2007 onwards Nina enquired about her father's wellbeing through her mother.
33. In January 2007 Nina commenced full time employment with Queensland Health as a registered nurse in Toowoomba.
34. In about 2008 Nina travelled to Amsterdam and stayed with Adam who was living there at the time. Since 2008 there has been little contact between Nina and Adam and Nina describes their relationship as estranged.
35. In 2012 Nina completed a post graduate degree in intensive care nursing.
36. In 2014 Nina moved to the southern highlands in New South Wales and also commenced a relationship with Paul Alexander. Despite being close to Sydney, Nina did not make any attempt to call or visit Graham. Nina and Paul moved to Tasmania in October 2016. Nina and Paul remain a couple.
37. Nina attended her niece's birthday party in 2014 at Samantha's house in Killara. Graham was present at this party and Nina said hello but her father only responded hello and then turned away and avoided her for the rest of the evening.
38. On 3 November 2014 Nina received a text message from Samantha advising her that Graham had throat cancer. Nina replied that she was thinking of him and asked Samantha to give Graham her love.
39. Between 3 November 2014 and 19 April 2017 Nina had no contact with her siblings and was not aware of her father's deteriorating health. Nina and Graham's estrangement continued during this period.
40. In April 2017, approximately two weeks before Graham died, Joanna contacted Nina to say that she had visited Graham in hospital and he discussed wanting to go home to die. Joanna told Nina that the doctors indicated Graham could live up to three months.
41. Graham died on 19 April 2017. Samantha rang Nina to tell her of his death and they spoke for some time. Samantha also told Nina she had moved into Graham's house two weeks before he died. Samantha told Nina there would be no funeral, only a wake and that she was meeting with the funeral director and would advise Nina accordingly.
42. When Nina did not hear from Samantha she organised flights to Sydney with Paul between 23 to 26 April 2017 and advised Samantha. She then was told by Samantha that the wake would be held the day after Nina and Paul returned home.
43. Nina and Paul drove to the Property on 24 April 2017 and spent four to five hours with Samantha. During this time Samantha asked Nina if she would like to take anything from the house; she also gave Nina the Will. It was then that Nina became aware she had not been included and that Samantha was the only beneficiary.
44. Nina deposed that she suffers anxiety brought on by her father's death and a stressful working environment as an intensive care nurse. Nina took bereavement leave for about 10 days after her father died. She returned to work on 16 May 2017 at Launceston General Hospital as a specialist intensive nurse but had to leave that day as she was distressed and crying. Her manager suggested Nina seek counselling through the Employee Assistance Program and Nina commenced seeing a psychologist weekly for three weeks. Upon the psychologist's suggestion Nina resigned from work on 1 June 2017. Nina has now obtained a tourism qualification and works in a winery.

Nina and Paul's assets and financial situation

1. There was no dispute about Nina's financial circumstances.
2. Nina and her partner Paul co-own a house in South Launceston which they purchased in 2016. The home is encumbered by a mortgage of approximately $200,000. Nina and Paul have already spent $61,105 repairing and renovating the home. Nina deposed that the home is in need of further urgent repairs and renovation which is estimated will cost $115,510.
3. Nina's assets are $284,363 comprising savings of $37,314, an offset account of $113,248 against her and Paul's home in Launceston, superannuation of $129,301 and a Mazda van worth $4,500. Nina's only liability was a credit card debt of $230.24. Paul's assets totalled $200,040 comprising savings of $5,245, an offset account of $22,331 and superannuation of approximately $172,000. His only liability was a $1,251 credit card debt. Nina and Paul's joint assets totalled $354,233 comprising their property worth $310,000, household contents of $6,000, shares in public companies of $23,083, a joint expenses account of $1,150 and a 2016 Polo TSI vehicle valued at $14,000. Their joint liabilities comprise of their mortgage totalling $202,348. Nina's total net assets, including joint assets with Paul, are $360,355. Paul and Nina's combined net assets are $634,807.
4. Nina was unemployed from 1 June 2017 until 3 January 2019. She currently works on a casual basis at a winery and earns an average gross wage of $450 per week or $1,800 per month. Paul works as a bus driver for a tour company. This work is seasonal. In the financial year ending 30 June 2018 Paul earned a gross salary of $64,596. Nina's affidavit of 4 February 2019 deposed to a net household yearly expenditure of $68,347 which is more than what Nina and Paul earn in a year after taking taxation into account. Both Nina and Paul have used their savings accounts to top up their weekly expenditure.

Nina's witnesses - Joanna Bridson

1. As I have already set out, Joanna was Graham's second wife and is the mother of his three children, Adam, Nina and Samantha. Graham's first wife was a woman named Beth, to whom he had been married between 1960 and 1962.
2. There was a property settlement between Graham and Joanna around the time shortly before Graham married Margaret, the circumstances of which were the subject of this evidence from Joanna (T85:31-T86:6): "Q. Is it right to say that to some extent the property settlement between you and Mr Stockwell was a difficult affair and affidavits were sworn by both-- A. It was very, it was very difficult. We'd made agreement before I left. He, he, he - I couldn't continue to live in the house in the manner that he was living and so we agreed and we valued everything and made an agreement and I, I agreed to either buy him out or he would buy me out and he said, "No, I'll buy you out" and then on the day that I moved out he laughed and said, basically, "Sucker. See you in court" and then I just ignored all of that. I was in such a stressful state at that time, there was not a lot I could do about it. Q. Sorry, he was quite bitter regarding the finances in your property settlement? A. Yes. I - yes, he, he was very insecure, I think is the word I would use. Q. Just following on, I guess, from that time when he left. The assets that you both left with, was, was the proportion that you took away roughly half each? A. No, nowhere near. Q. Okay. Can you explain to me why it wasn't half? A. Because he took so long to settle and I was ill and stressed over the, was it three years or however long, because he didn't even approach settlement until he realised that he needed to get married to Margaret and so it was necessary to get a settlement and I just said I will settle for the original value when, when we first - when I first left the house."
3. Joanna was cross-examined by Samantha. In relation to Nina's claim, Joanna confirmed Nina's difficult relationship with Graham and the reasons why she discontinued contact after the telephone call in relation to Adam's 40th birthday party.

Nina's claim for provision

1. Nina sought provision in the sum of $350,000 (excluding legal costs), made up of $200,000 to discharge her mortgage, a further sum of $115,000 to carry out repairs and renovations to their home and a sum of $35,000 for contingencies. It was said this would provide Nina with a mortgage free renovated home and allow Nina to pursue other study or job opportunities and allow her to have a modest but comfortable lifestyle.
2. Nina's counsel submitted that Nina has demonstrable need. Counsel submitted that Nina and Paul's household income of $86,196 gross was modest, they are both now in their fifties and needed to be saving toward their retirement.
3. As referred to above at paragraphs [4], [38] and [53], Graham made three wills. In both the First Will and the Second Will Graham made provision for Nina. In the Will there was no provision for Nina. The Will was made several months after the incident referred to at paragraph [55] above which resulted in Nina's estrangement from her father. Nina's counsel submitted that this followed a pattern of Graham falling out with one or more of his children and, as a result, disinheriting them.
4. Whilst Nina did not have a relationship with Graham for eleven years before his death in 2017, up until late 2006 she had had a close and loving relationship with him. Nina's contact with Graham was usually via long telephone calls as she lived interstate for most of her adult life before their estrangement, she was raising three children, often as a single mother, and also studied and worked full time.
5. Nina's counsel argued that Nina's claim for $350,000 was a modest amount which would not only provide Nina with financial security but would also ensure that Samantha was left with the vast majority of the estate.

Margaret

1. Margaret was born in October 1956 in Shannon, County Clare, Ireland and at the time of the hearing was aged 62 years.
2. Margaret is the third wife of Graham and they were married for 10 years.
3. Margaret completed a secretarial course in Ireland in 1976 and then travelled from 1977 and worked in various places including London, Switzerland and Miami. She then worked on a cruise ship between 1979 to 1981.
4. In 1982 Margaret moved to Australia with a friend where they lived in Bondi.
5. Margaret first met Graham in 1985 when she was 29 years of age and Graham was 47. Margaret was working as a waitress at a restaurant in Kings Cross, called Pinocchio's. Graham was a regular customer and Margaret would serve him and his friends when they came to the restaurant.
6. In September 1985 Graham approached Margaret at Pinocchio's and asked her to go out with him, to which she agreed. At the time Graham had separated from Joanna.
7. When Margaret commenced dating Graham he was in partnership with Joanna and a friend Andre, in a business called Chillblast which manufactured and sold ice cream for the Norgen Vaaz brand.
8. Margaret and Graham's relationship developed quickly and within three months Graham asked Margaret to move in with him. Margaret moved into the Carlingford Property in late 1985 or early 1986. Margaret deposes that she gave $200 per week to Graham towards the running of the house and groceries from the time she moved in until the couple separated, but that they otherwise kept their finances separately. They never had joint bank accounts.
9. As I have already noted, Graham's mother Daisy was also living at the Carlingford Property. Margaret, along with Graham, helped to assist Daisy and do her weekly shopping. Daisy was also offered meals which Margaret and Graham had cooked. They would also take her on outings to the RSL and on trips to Narooma to visit her sister.
10. In 1987 Graham proposed to Margaret.
11. In 1988 Margaret resigned from her waitressing job at Pinocchio's and began a job at Il Vicolo, a restaurant in Ryde that was closer to the Carlingford Property.
12. Margaret and Graham married on 8 September 1989 in the garden of the Carlingford Property. All of Graham's children attended the wedding and Margaret's family also attended travelling from Ireland, the United Kingdom and the United States.
13. During their courtship and marriage Margaret and Graham shared many experiences together, including weekends away on Graham's motor bike, skiing trips, going to the movies, entertaining and listening to music. They also travelled extensively overseas during their time together including to America, Bali, Hong Kong, Japan, England and Ireland and many European countries.
14. Margaret deposed that she and Graham tried to have a family of their own. Margaret had initial fertility tests however Graham did not want to have any more children and due to the pressure this put on their relationship Margaret did not pursue the matter. In Mr Brown's cross-examination of Joanna, she confirmed that Graham had told her (Joanna) that he did not want any more children (T85:12-18): "Q. Do you have any insight as to why the relationship between my client and the deceased broke down? A. No, I, I don't. He did raise the issue of children and not wanting children. To be honest, I felt that really they didn't have anything in common when Margaret married Graham. I think after marriage she would've found him not the easiest person to, to be with and I have no knowledge of the inside relationships of their marriage or the actual reason that it broke down."
15. In about 1990 or 1991 Graham retired from Chillblast.
16. In 1992 Margaret commenced employment with Westpac Bank in Parramatta.
17. Also in 1992, Daisy died. Graham was depressed and upset for about 6 months after his mother's death.
18. In 1993 Nina moved to Townsville and Graham and Margaret visited her there. They also had two holidays in Surfers Paradise with Nina and another holiday in Surfers Paradise with Samantha.
19. In 1993 Graham and Margaret discussed selling the Carlingford Property and moving into a smaller property that did not need as much upkeep. The Carlingford Property had a swimming pool and a large garden and following Daisy's death there was no need of a granny flat. They started looking at various areas to live including closer to the city around Rozelle and Balmain, but ruled these areas out as prices were too high and the properties were too small. Graham particularly liked a place in Blacktown but Margaret did not want to live there as she did not like the area and it would be difficult for her to commute to work. In the meantime they listed the Carlingford Property for sale in early 1994 and it was sold within a month. They had six weeks to find a property.
20. Around this time Margaret arrived home from work to find Graham very excited about a property he had viewed that day at Cherrybrook. He and Margaret viewed it the next day and both agreed they would be happy to live there.
21. Graham purchased the Property in 1994 for $350,000 unencumbered by a mortgage. Margaret acknowledged that she did not make any financial contribution to the purchase price of the Property. Graham made all the arrangements and Margaret's affidavit evidence was: "45. At the time the Cherrybrook property was purchased, Graham did not discuss how the title of the house would be held. This was completed when I was at work. As we had been married for nearly 5 years, I assumed Graham put the property in my name as well, though he did not give me any opportunity to be part of the buying of the property."
22. Graham purchased the Property in his own name and lived there until his death. Margaret had some savings which, with the high interest rates of that time, grew to become the deposit on the unit that she eventually bought in Ryde. If she had any surplus she contributed it to their joint holidays or towards visits to Ireland to see her family.
23. Margaret claims that the first time she realised she was not on the title of the Property was after a visit from Adam's then partner, Cathy, in about August 1994. Cathy asked if they had purchased the Property together to which Graham replied "I bought the house". Cathy then asked "So it is only in your name" to which Graham replied "Yes".
24. After Cathy left Margaret confronted Graham and asked why he had not included her on the title deeds. Margaret says Graham responded: "Graham: I have left you over $300,000 in my will. If anything happens to me you will be well provided for. I said: It is most upsetting that I am your wife and you thought it was okay to exclude me."
25. Margaret said that after this conversation the relationship was strained.
26. I interpose that there is no evidence Graham ever made a will leaving Margaret "over $300,000", at least in terms. The First Will, the copy of which that was in evidence was unsigned and undated but obviously made between 1989 and 1992 had, in effect, made provision for Margaret in equal shares with all three of Graham's children and included a life estate to Daisy in the Carlingford Property. There is no evidence which would enable the Court to determine the value of Margaret's legacy under the First Will. After their divorce Graham prepared the Second Will in 2004 and left his entire estate in equal shares to Nina and Samantha. Given the passage of time, and the absence of a specific legacy to Margaret for $300,000 or any other amount in the First Will, I am not satisfied that Margaret's recollection is to be relied upon that Graham ever mentioned a specific figure. On the other hand, I accept that it is highly likely Graham would have told Margaret he had left her a substantial legacy as his wife and find accordingly.
27. After moving into the Property, Margaret and Graham continued to have friends and family over for dinner parties and barbeques.
28. Margaret deposes that, during the time before and during their marriage, she enjoyed a good relationship with all of Graham's children. Margaret and Graham often entertained at home and had barbeques and dinner parties which the children attended. Christmas was often held at their home and Joanna would be invited so that Graham's children would have both parents present. Joanna, under cross-examination by Mr Brown of Counsel, agreed that Margaret had a good relationship with her children (T:84:50-T85:6): "Q. Are you able to provide any observations of how Margaret interacted with your three children during the course of your marriage? A. Margaret was always amenable. She was always positive with my children. It was a hard act to follow. We'd been married a long time. They were living in my house and his house, so it was probably quite difficult for her in those years to, to replace that and she was always very welcoming from my understanding, from what I got from my children at that time."
29. Margaret and Graham also attended functions at the various children's homes and baby sat Adam's daughter Rachel on many occasions. Graham's children also lived with the couple at different periods during their marriage. Adam lived with them for six months in 1993. When Nina and her then husband returned to Sydney in August 1990 they moved into the Carlingford Property for three months while Graham and Margaret had a vacation in Europe. Nina also lived with them for two months in 1992 and Samantha for a short period before travelling to Europe in 1990.
30. In 1994 Margaret commenced working for Optus Communications in North Sydney.
31. In 1996 Margaret's car lease was about to expire and she discussed with Graham whether she should buy out the car or purchase another car. They decided the buyout price was too high and Graham agreed to lend Margaret $15,000 to purchase a car. Margaret agreed to pay Graham $100 per week to pay off the loan. At the time of their separation in 1997 Margaret still owed Graham $8,000.
32. Margaret's evidence is that from about 1996 Graham started to become reclusive, spending most of the day on his computer and not wanting to go out to socialise. Margaret found herself visiting friends on her own and she became lonely in the marriage. Margaret discussed her unhappiness with Graham.
33. Things came to a head in August 1997 when Graham and Margaret had an argument in the car on the way to the shops to purchase new bedroom furniture. The following conversation occurred: "Me: I'm not happy and I can't see how you could be either. Graham said: I am happy. I said: I want to separate. Graham became verbally abusive, he said to me words to the effect: Graham: You are a terrible wife. I only bought the house to keep you happy. I would have bought the house in Blacktown if I thought our marriage was going to break down. I could have saved myself some money. I said: You didn't even consider putting my name on the deed of the house. I am your wife. Graham said: I left you $300,000.00. All this is your fault."
34. I repeat my observations in paragraph [109] above in relation to the assertion of a $300,000 legacy.
35. Margaret brought up the topic of separation a couple of days after this conversation. After some discussion Graham agreed to take the dogs and told Margaret she could keep the car and that she did not have to repay him the $8,000 she still owed.
36. Margaret decided she would buy her own apartment but needed extra time to be able to do this. She asked Graham if she could stay at the Property for a further four months until Christmas while she searched for a property. Graham agreed.
37. Margaret found an apartment in Ryde which she purchased at the end of 1997. She moved into the apartment between Christmas 1997 and January 1998.
38. On 24 October 1999 Margaret and Graham divorced after 10 years of marriage. Margaret says that, except for Graham forgiving her car loan (an amount of $8,000) she did not receive a property settlement. Samantha contends that Graham gave Margaret $22,342.54 as a divorce settlement. In support of that Samantha tendered a printout of computerised accounts which I accept were maintained by Graham. This shows an outgoing on 1 September 1997 of $22,342.54 marked "divorce settlement". As is apparent from the preceding paragraph, this is about the time Margaret was moving out and I find that she did receive that amount which bore the character of a divorce settlement. It follows that I do not accept Margaret's evidence that she did not receive anything other than the forgiveness of the car loan.

Why did Margaret not obtain a family law property settlement?

1. As set out in paragraphs [107] and [116] above, Margaret claimed that during their marriage Graham had promised that she would be looked after in his will. I accept that he did so, although I do not accept that he specified $300,000 for the reasons set out in paragraph [109] above. This promise, along with Margaret feeling fragile at the time of their separation and not wanting to further upset Graham, are the reasons why Margaret says she did not press for a property settlement at the time of their divorce.
2. Samantha cross-examined Margaret on this point (T119:14-34; T120:10-42): "Q. Is there any reason why you didn't pursue a property settlement? A. The reason I didn't pursue it at the time was because when I first talked about separation and told Graham I wanted to separate, he got very verbally abusive. I felt very intimidated at the time and I didn't want to go through that again. He also promised me that he had left me $300,000 in his will. I fully expected that to be honoured, given I didn't take a property settlement at the time. Q. At what point of time in your marriage did he say that he had left you $300,000? A. On two occasions we had that conversation. The first one was when we moved into the - or shortly after we moved into our property at Cherrybrook, Cathy who is Adams ex-girlfriend, came to visit to see the house and she asked outright "Graham, who purchased the house? Was it both of you or was it you?" and Graham said "I've purchased the house. It's in my name." That was the first that I knew that he hadn't put my name on the deeds of the house as well. So I had the conversation afterwards when Cathy had left as to why I hadn't been consulted or why Graham didn't feel he needed to discuss that with me beforehand, and he got quite upset about it and he said that he had left me 300,000 and that I would be well looked after in the event of anything happening to him. … Q. I take it that once you had in fact divorced him, did you still expect that somehow that promise would hold good? A. I expected to be acknowledged in his will, yes, definitely. Q. Why? A. Because I didn't get a property settlement when I left the marriage. Q. Had you sought legal advice? A. No. Q. You said there was a second occasion when he asked you or made some promise to you about the 300,000, which Mr Brown has reminded me of. Would you please tell us about that occasion. A. That was when we were having the conversation when I told Graham I wanted to leave, and he got very upset and quite abusive, and blamed me for everything that had gone wrong in our marriage. I told him I didn't feel there was any trust there and I reminded him again of the house that was purchased when we were husband and wife, that he didn't feel the need to put my name on the deeds of that house when I was his wife at the time, and he again said to me that he had left me over $300,000. Q. But you said a moment ago that you said to him there was no trust there, so on what basis did you trust him to maintain the promise that he'd apparently made? A. I expected to be acknowledged when he, when he passed away or if anything happened to him. Q. You may have had that expectation, but what was your basis for trusting him at that point that he would in fact hold good to that? A. Because I walked away with nothing from the home. Q. And again you didn't seek legal advice? A. No."

Margaret's financial position

1. Margaret is a single woman of 62 years of age at the hearing. She lives in her own home in Shannon, County Clare, Ireland. In her affidavit filed 19 February 2019 Margaret set out her assets and liabilities in both Euro and Australian dollars. For the purposes of this judgment monetary amounts will be in Australian dollars.
2. Margaret's net fortnightly income at the time of hearing was $2,909.66 and her fortnightly expenditure $3,945.53 (including an amount of $657.60 for her mortgage repayments). Her evidence was she used her credit card to make up the difference. She gave evidence that if she had to balance her budget she would probably have to forego her holidays during the year including an annual trip to the United States.
3. Her assets totalled $282,548.45, the majority of which was represented by her home which was valued at $238,500, a mobile home valued at $15,900, cash at bank of approximately $4,500, and jewellery, furniture, personal items and a motor vehicle totalling approximately $22,000. Margaret and her five siblings were also in the process of selling their mother's home in County Clare, Ireland, which had been left jointly to the six children on their mother's death. The value of the home was $230,550 which would equate to approximately $38,425 for each sibling, excluding sales and other costs such as tax.
4. Margaret's' liabilities were approximately $99,000 comprising two mortgages totalling approximately $87,000 and credit card debt of approximately $12,000. Her net financial position was $183,584 excluding the approximately $38,425 she may have received or is to receive from her mother's estate.
5. In relation to superannuation entitlements Margaret has an amount of $39,371.62 in a transition to retirement fund with AMP Australia which she cannot access until she retires. She also has a superannuation account in Ireland valued at $190,766 which she also cannot access until retirement at 66. Under her current contract of employment she must retire at the age of 66. Once she turns 68 she will be entitled to a government pension in Ireland which is currently $365.70 per week.
6. Margaret has high blood pressure, which is controlled by medication. She also requires dental implants.

Margaret's claim for provision

1. In her affidavit filed 15 February 2019 Margaret claimed the following: 1. An amount of $87,109.14 to pay out her mortgages; 2. $12,065 to pay out her credit card debt; 3. Provision for a second hand motor vehicle of around $11,925; 4. Provision for 8 dental implants of approximately $19,080; and 5. Provision for a sum to put aside for future contingencies.
2. On the final day of the hearing Margaret's Counsel gave a range for what he submitted would be adequate provision (T310:18-28): "BROWN: … your Honour asked me I think on day one, what we sought, and it was a figure of 300,000. As I always do, I try to say there's of course a range, and HIS HONOUR: I understand that but I just want to know whether at the end of the evidence you still adhere to the 300,000. BROWN: I do, but can I say this? $100,000 discharges my client's mortgage and so I have to accept I think that if your Honour is satisfied of all the other factors, and I haven't dealt with those yet, factors warranting and the like, that the range is somewhat between 100 and 300,000."

Samantha

1. Samantha was born in October 1970 and at the time of the hearing was 48 years of age. The preponderance of the evidence, which I accept, is that she generally enjoyed a good and close relationship with Graham throughout her life. She was the only child of Graham's who had not fallen out with him by the time of his death, and spent all special occasions such as birthdays and Christmas' with him as is demonstrated by the many photos and Facebook entries exhibited in her evidence. Samantha was the only child who lived in Sydney; Nina had lived interstate for most of her adult life and Adam had lived overseas for most of his adult life.
2. During her secondary school years, Samantha was, notwithstanding a high IQ, diagnosed with low self-esteem and a reactive personality type. After Graham and Joanna separated, Samantha lived with her mother due to the proximity of her mother's apartment to the Sydney CBD and her friends.
3. Her school years included a year on student exchange in the United States. On returning to Australia from exchange, Joanna asked Samantha to move out of her home. At that stage Samantha was 17 years of age and working as a data entry clerk for the Macquarie Bank.
4. There then followed some years of casual employment and heavy drug use. For example, Samantha admits that she attended Graham and Margaret's wedding in 1989 at the Carlingford Property while under the influence of drugs.
5. Samantha moved to Queensland and attempted to complete year 12 in a local school. However, she was unsuccessful. She moved back to Sydney and then undertook a long overseas trip. This included spending time together with Graham in London.
6. Sometime after returning from that trip, Samantha commenced a bridging course at university, which was itself then interrupted by working in a café owned by Joanna. In 1995 Samantha returned to studying and took up a TAFE course to complete her HSC, while obtaining part time employment as a bank teller. She remained in regular phone contact with Graham.
7. Samantha subsequently commenced studying a Bachelor of Business degree while living with her boyfriend, and later first husband, Terry. She continued to work part time and later commenced studying a Diploma of Financial Planning as part of her Bachelor of Business degree.
8. In April 1998 Samantha married Terry. She was given away by Graham. Graham subsequently lent Samantha and Terry $100,000, which they applied to purchasing their first home together. Samantha continued her studies while working.
9. After Margaret and Graham had divorced, Samantha's evidence is that she became Graham's "closest friend". She adduced evidence of Graham listing her as his next of kin on important documents such as his passport.
10. In mid-2000 Graham told Samantha that he had been diagnosed with bowel cancer. Over the next several months he underwent chemotherapy, radiation and surgery. Samantha visited as often as she could. In that year she completed her diploma and degree and enrolled in a certified financial planning programme. She continued to work as a financial planner while visiting Graham every two to three weeks.
11. According to Samantha, towards the beginning of 2001 Graham told her that he was changing his will to leave everything to her.
12. In April 2002 Samantha separated from Terry. The $100,000 loan which Graham had made to Samantha and Terry was ultimately repaid to Graham when Samantha and Terry sold their home. In October 2002 Samantha established her own financial planning business.
13. In September 2004 Samantha met Jeff, who was to become her second husband. They began co-habiting and had their first child, Alex, who was born in August 2005. In December 2006, Samantha's second son, William, was born. Her third child, Grace, was 0 years old at the time of the hearing.
14. Samantha's evidence was that between 2008 and 2014 she continued to maintain a close relationship with Graham and gave him regular assistance. Her evidence was this included taking him to medical appointments, shopping, assisting sometimes with his personal care, occasionally mowing his lawn, cleaning his house and buying groceries for him. Given that she was, at the same time, raising three small children, I have taken into account the possibility of some degree of exaggeration on her part. However, even allowing for that possibility, the other parties have presented no evidence which would detract from the basic truth of the proposition that she provided Graham with assistance and was his first point (and for many of those years, only point) of contact with his family.
15. In November 2014 Graham was diagnosed with advanced oesophageal cancer. Samantha ceased work in order to be able to look after Graham. This is corroborated by her tax returns, which show a taxable income of $180,960 in 2014 and only $5,356 in 2015. During 2015 Samantha continued to care for Graham, including Graham spending a period of several weeks living at Samantha and Jeff's home.
16. After surgery and various treatments, from mid-2015 Graham's health improved somewhat. In August 2015 Samantha commenced managing a large restaurant in Manly that Jeff had acquired a year earlier. However, at this time Samantha's marriage to Jeff was failing. Samantha had exhausted her personal savings when she stopped work to care for Graham.
17. In mid-2015 Graham lent Samantha about $36,000 to help her with car repayments. In September 2015 Samantha and Jeff separated, but continued to live under the same roof. In December 2015 Samantha purchased the restaurant from Jeff. She began working seven days a week in the restaurant while Jeff cared for their children.
18. In April 2016 Samantha leased a three bedroom apartment for $850 a week in Seaforth while Jeff rented an apartment in Manly. By private agreement, Samantha had 50% custody of the children.
19. Throughout 2016 Samantha's financial circumstances and mental health deteriorated. Jeff was not paying any child support. The restaurant continued to run at a loss.
20. From February 2017 Graham's health continued to deteriorate. Samantha's evidence was that she was suffering extreme financial distress, her rent was in arrears, and Jeff was not paying regular or significant child support. She eventually decided that it would be in everyone's interest if she relocated her family to the Property so that she could care for Graham. She agreed with Jeff that she would move to the Property with their children Grace and Will, whereas their son Alex would stay with Jeff until he finished year 6. Caring for Graham meant that Samantha was unable to properly attend to the affairs of the restaurant. Graham's health continued to deteriorate and 26 March 2017 was the last day she worked at the restaurant. By early April, Samantha and her children were living at the Property while she was nursing Graham at home, including what became palliative care. Graham died on 19 April 2017.

Samantha's financial, health and other circumstances

1. At the time of the hearing, Samantha had $58,674.68 in assets (mostly comprised of her car valued at $41,850 and including almost no cash) and superannuation of $87,917. She had been attempting to sell her car to pay down debt and provide further funds. Jeff owed her $59,014.50 in child support, but last made a payment of only $110.15 in October 2018. According to Samantha, Jeff claims he does not have the capacity to pay child support and that he is on the verge on bankruptcy.
2. Samantha's liabilities comprised credit card and ATO debt totalling $39,097.73.
3. Samantha's net monthly income was $3,262.04, comprised entirely of various government allowances and payments. Her monthly expenses are $7,201.00, leaving a monthly deficit of $3,938. She has been meeting that deficit with payments from the estate, using her credit card and selling unwanted household and personal items.
4. At the time of the hearing, her children were 13, 12 and 9, being in years 8, 7 and 3 respectively. Samantha is their sole carer.
5. Samantha has had a complex medical history, including difficult pregnancies. In 2018 she was diagnosed with depression and anxiety, which she attributed to a number of factors including these proceedings, her years of caring for Graham (including at the end of his life and witnessing his death), caring for her children who themselves have behavioural and emotional issues, her very poor financial situation, her inability to find employment, her separation and divorce from Jeff, the failure of her company and her inability to borrow money due to the poor credit history relating to her failed business and unemployed status.
6. Samantha suffers from chronic digestive issues, including having had colon surgery in 2011. She requires annual colonoscopies and her gall bladder was removed in 2015. She has had several episodes of kidney stones requiring hospitalisation and suffers from unstable thyroid hormones. She had a total thyroidectomy in 2011 and has difficulty in maintaining an appropriate hormone balance necessary for normal functioning. She has episodes of anxiety, decreased mental function and extreme lethargy.
7. Her son Will suffers from oppositional conduct defiant disorder and is being treated by a psychologist. He has also been referred to a psychiatrist for other mental health issues. Her son, Alex, also suffers from oppositional conduct defiant disorder and is being treated by a psychologist.

Samantha's witnesses - Paul and Doreen Howitt

1. Samantha called as witnesses Paul Howitt and Doreen Howitt who had been close friends of Graham and Joanna when they were still married and who also knew Margaret before and after she married Graham.

Doreen Howitt

1. Doreen gave evidence by telephone. In her affidavit Doreen deposed the following.
2. Doreen had met Graham and Joanna in 1978 when she worked for them at their company Chillblast. At the time she met Graham and Joanna she was married to another man. The couples were friends outside of work as their children attended the same primary school. Doreen left Chillblast in 1980 to run her own business. Her marriage broke down in 1983 and in early 1984 Graham introduced Doreen to Paul who was a friend of Graham's. They became engaged at the end of 1984.
3. Graham and Paul both had a love of motorbikes and the two couples would often go away on biking weekends. The two couples would also drive their motorbikes to Pinocchio's restaurant in Kings Cross every Thursday night and have dinner there. Margaret was working as a waitress at Pinocchio's at that time and Doreen recalls meeting her for the first time in 1985.
4. Graham and Joanna were witnesses at Doreen and Paul's wedding in May 1986. Later that year, Graham and Joanna's marriage broke down.
5. Doreen recalls that Margaret moved into the Carlingford Property with Graham sometime in 1987. Doreen and Paul attended their wedding in 1989. Doreen recalls that Graham told her and Paul that Margaret came into the marriage without any monetary contributions and the house belonged solely to him. Doreen also deposed that Graham told her that Margaret kept all her wages for herself and did not contribute towards the day to day expenses of the home.
6. When Graham and Margaret divorced in September 1999 Graham told Doreen and Paul that he had given Margaret "the car and $20,000 and she was happy with that arrangement".
7. Doreen and Paul kept in touch with Graham over the years. In 2002 they attended Graham's 65th birthday party which was organised by Samantha. They lost touch after 2002 and did not see Graham again although they occasionally spoke to him on the phone, up to six months before his death. Doreen deposed that in some of their telephone conversations Graham told her, among other things, that Samantha had been looking after him and had moved in.
8. Mr Hill cross-examined Doreen in relation to her knowledge of Graham's will (T179:33-T180:4): "Q. Have you been told what the contents of his will are? A. Sort of. Q. What have you been told? A. Well told that he - because Samantha had looked after him he's left her the house. That's all I really know. Q. Who told you that? A. Well Samantha told me that. Q. Thank you very much-- A. And - and - she also said that Nina and Adam would get a share as well. Q. What did she say about a share, what did she say about that? A. I don't recall. I didn't - I can't remember. Q. But you recall that she said-- A. I recall her mentioning Nina and Adam as getting a share as well. Q. And Samantha said that to you? A. Yeah, not - not necessarily a share of the house, but I think a share of the estate."

Paul Howitt

1. Paul's evidence was essentially in the same terms as his wife Doreen and was also given by telephone. The only difference was that Paul, unlike Doreen, deposed that "Graham at no stage of our relationship discussed the contents of his will with us".

John Avgenicos

1. John Avgenicos is Samantha's current boyfriend. The closeness of their relationship and the extent to which the Court should take into account John's capacity to assist Samantha were very much put in issue by the plaintiffs.
2. John and Samantha met on 4 March 2017 at a party. Approximately two weeks before meeting Samantha, John had separated from his de facto partner of seven and a half years and property settlement proceedings were still being finalised at the time of the hearing.
3. John has two adult sons from his first marriage and has no children with his recent de facto partner.
4. Subpoenas were issued for John's financial records to determine if John was assisting Samantha financially and to determine if she was dependent on John.
5. On the first day of the hearing, 4 March 2019, Samantha had filed a motion to set aside the subpoena in relation to John's financial records. The Court declined to set aside the subpoena but limited access to the material only to the plaintiff's legal advisors for the purposes of the proceedings.
6. John lives in his own home in Lane Cove and works in Rhodes as an IT Manager.
7. In his affidavit of 27 February 2019, John deposed that he and Samantha had been "casually dating, intermittently since June 2017". However in his earlier affidavit of 18 June 2018 John recorded the assistance he gave to Samantha and Graham in the weeks before and after Graham's death on 19 April 2017. It seems clear that some sort of relationship had commenced soon after their meeting in March 2017.
8. John also deposed in his affidavit of 27 February 2019 that he did not live with Samantha, was not in a de facto relationship with her and had no plans to cohabit with Samantha. During his cross-examination, John assented to my suggestion that his relationship with Samantha could be described as "friends with benefits".
9. Mr Hill drew attention to the fact that Samantha had in November 2018 appointed John as a director of her company Moneywatch Pty Ltd. However, there is no suggestion that company is trading.
10. John's evidence was that he does not support Samantha financially but would do things such as make dinner for Samantha and the children when he came over to her place and on those occasions he would purchase food from the supermarket on his way to Samantha's house. John would also occasionally take the family out for dinner.
11. Subpoenaed bank records and credit card statements showed that John frequently purchased both petrol and groceries in the Cherrybrook area. The statements showed a frequency of purchases in the Cherrybrook area of approximately twice a week which is consistent with John's testimony that he visited Samantha at her home once or twice a week and would contribute by bringing food and wine. Most of the purchases of groceries were under $100. The only exception was during the Christmas and New Year period of 2018 and 2019 when John made large purchases for a camping trip he went on with Samantha and her children and his children. The majority of John's purchases occur outside of the Cherrybrook area, including places close to his apartment in Lane Cove and his place of employment, situated at Rhodes.
12. John has also paid for Samantha for several holidays. In June 2017 John paid for Samantha to travel to Vietnam with him on a holiday which he had planned before they had met.
13. One matter which emerged during the final relisting was that John had advanced funds to Samantha for work to be done on the Property. Some of this was yet to be repaid to him. Mr Brown submitted that this was another sign of the closeness of the relationship between Samantha and John. Samantha denied this and said that the amounts were advanced by John as short term loans on his credit card in the time between her decision to sell the Property in September and the settlement in December.
14. John and Samantha are clearly in a romantic relationship. However, I accept their evidence that they are not cohabiting and that their relationship does not have the permanent character of mutual support that would warrant the Court taking the possibility of John supporting Samantha into account for the purposes of exercising the Court's discretion. I am satisfied that John's contributions do not amount to support for Samantha, rather his bank statements indicate he purchases groceries and wine when he visits Samantha's home and will pay for dinners. John also appears to pay the majority of the costs of holidays that he has taken Samantha and her children on, which is generous and reflective of the reality that if he wishes to take Samantha on holidays then her children must come as well. There is no evidence that John pays any of Samantha's utilities, loans or credit card debts or that Samantha was dependent on him at the time of the hearing.

Rachel Cresswell

1. Rachel Cresswell is the daughter of Adam, the granddaughter of Graham and Joanna and the niece of Nina and Samantha. Rachel also knew Margaret when she was married to Graham.
2. It is clear from her affidavit that she had, and continues to have, a very close relationship with her aunt Samantha and has at various times lived with her. Rachel was also close to Graham, as is evidenced by the fact she was the only other beneficiary in his will besides Samantha.
3. Rachel's evidence was generally corroborative of Samantha's. It is not necessary to recite its detail.

Nina

1. Because Nina is Graham's daughter, she is an eligible person under s 57 of the Act. The summons was filed less than 12 months after Graham's death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [18] above are all answered "yes".
2. The Provision referred to in the question posed in sub-paragraph [18(5)] above is nil.

Margaret

1. Because Margaret is Graham's former spouse, she is an eligible person under s 57 of the Act. The summons was filed less than 12 months after Graham's death. It follows that the questions set out in sub-paragraphs (1) and (2) of paragraph [18] above are all answered "yes". The Provision referred to in the question posed in sub-paragraph [18(5)] above is nil.
2. Because she is Graham's former spouse, the answer to the question set out in sub-paragraph (4) of paragraph [18] above also requires consideration of the requirement in s 59(1)(b) of the Act, whether the Court is satisfied that "having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application".
3. The parties agreed that the leading authority on the question of "factors warranting" is the decision of the Court of Appeal in Lodin v Lodin [2017] NSWCA 327. The relevant statements of principle are to be found in the judgment of Sackville AJA (with whom Basten and White JJA agreed) (citations omitted): "114. Consistently with the analysis in Re Fulop, the starting point for applying of s 59(1)(b) of the Succession Act is that an eligible person such as a former spouse or grandchild of the deceased is not normally regarded as a natural object of testamentary recognition by the deceased [58]. In order to satisfy s 59(1)(b) an applicant must therefore establish that there are circumstances that justify regarding him or her as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of a familial (or, in the case of a former spouse, a previous familial) relationship. The factors relied on must be such as to demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant. … 119. As McLelland J pointed out in Re Fulop, a finding that a claimant has shown that there are factors warranting the application, thus satisfying s 59(1)(b) of the Succession Act, does not necessarily mean that the claimant's application for a family provision order must succeed. Even though the claimant can be regarded as a natural object of the deceased's testamentary recognition, there may be many reasons why the application fails. For example, the estate may be relatively small and there may be other eligible persons whose needs are greater than the claimant's or whose relationship with the deceased was closer and more mutually supportive. In deciding whether to make a family provision order the Court, depending on the circumstances, may take into account matters specified in s 60(2) of the Succession Act that have little or no bearing on the question posed by s 59(1)(b). Claim by a former spouse 120. The question arises as to the approach that should be taken in deciding whether the former spouse of a deceased person satisfies s 59(1)(b) of the Succession Act by establishing that there are factors warranting the making of the application. The issue was given close attention in Dijkhuijs, which involved an application under the FP Act for family provision by the former wife of a deceased testator. Dijkhuijs 121. The following propositions can be derived from Dijkhuijs (bearing in mind that it was decided under the FP Act): (i) The legislative history cannot determine the meaning of the legislation. The broad language used by Parliament to achieve novel reforms must be given its "full effect". Thus although the second reading speech referred specifically to the case of a divorced wife whose former husband died before any property settlement could be finalised, the legislation cannot be confined to such cases. (ii) The former spouse need not demonstrate that there are "special factors" which warrant making the application. The legislation requires only that in all the circumstances of the case there are factors warranting the making of the application. (iii) While in most cases a final property settlement in the Family Court will be seen as terminating any moral claim of a former spouse to provision from the estate of the deceased, that policy must accommodate itself to the reforming provisions of the legislation. These expressly contemplate that a former spouse may be entitled to make a claim for family provision. Thus the public policy in favour of the finality of property settlements has to compete "in all the circumstances of the case" with the claims of the former spouse. Paramountcy should not always be given to the policy of a "clean break" over other factors having regard to the statutory instruction to take account of all the circumstances. (iv) The facts of each relationship are unique and the circumstances which may give rise to a family provision claim will vary from case to case. There are dangers in attempting to limit the cases which may warrant the making of an application to "preconceived classes or categories". (v) One factor which is obviously relevant and which may in a particular case warrant the making of the application is the past relationship of the parties. 122. Four observations should be made about Dijkhuijs. First, Kirby P emphasised that s 33(2) of the FP Act (limiting the former spouses' entitlement to costs out of the estate if the application failed) constituted "an obstacle likely to inhibit the bringing of meritless claims".[71] As has been seen, the Succession Act contains no equivalent to s 33(2) of the FP Act, although it is not likely that a person bringing a meritless claim would be awarded costs out of the estate. Given the similarity in language between s 9(1) of the FP Act and s 59(1)(b) of the Succession Act, the absence of an equivalent costs provision in the Succession Act does not provide a sound basis for departing from the approach endorsed by Dijkhuijs. 123. Secondly, Dijkhuijs held that a number of limitations that the trial Judge had read into s 9(1) of the FP Act were not supported by the statutory language. However, the judgments do not suggest that a former wife will satisfy s 59(1)(b) of the Succession Act as a matter of course or simply by relying on the fact of the previous relationship with the deceased. Nor do the judgments suggest that the fact that the former spouse has unmet financial needs at the date of the deceased's death or the hearing is a basis, of itself, for finding that there are factors warranting the making of a family provision application. 124. Thirdly, the facts of Dijkhuijs were different from those of the present case. The claimant had been married to the deceased for 24 years and there were three children of the marriage. The deceased died less than two years after the Family Court made an order for the division of the property. During that period the deceased received a superannuation payment very much greater than the value attributed to his entitlement in the Family Court proceedings. This "windfall" (as it was described) came about because the deceased benefited from a very large increase in his salary very shortly after the Family Court proceedings were concluded. Because of the multiplier used to calculate entitlements to superannuation, the deceased's payout turned out to be much larger than had been assumed in the proceedings. 125. Fourthly, the Court in Dijkhuijs did not decide that the former wife (the applicant in the case) had established that there were factors warranting the making of the application. Because the Court held that the trial Judge erred in his approach to that question, the proceedings were remitted for rehearing. The files of the Supreme Court proceedings do not reveal the outcome of the former wife's claim beyond recording that the proceedings were stood over generally with liberty to apply. Some propositions 126. It follows from Dijkhuijs that care must be taken not to impose rigid constraints on the circumstances that might constitute factors warranting a former spouse of the deceased making an application for family provision from the estate. Nonetheless it is difficult to see how a former spouse could satisfy s 59(1)(b) of the Succession Act simply by relying on the existence of the marriage and the fact that he or she now has unmet financial needs. The reason is that these factors alone do not demonstrate that the deceased had a social, domestic or moral obligation to make testamentary provision for the former spouse. The position is unlikely to be different even if the estate is relatively large. Something more is ordinarily needed for the claimant to show that he or she was a natural object of testamentary recognition. 127. What more a claimant must show cannot be defined with precision since all the circumstances have to be taken into account. Some cases may be comparatively straightforward. An example commonly given is where the claimant and the deceased, although divorced, had not reached a financial settlement prior to the deceased's death. Other cases, such as Dijkhuijs, may involve a considerably more difficult evaluative judgment. 128. One matter of significance is whether the claimant and deceased finalised their financial relationship at the time of the divorce or subsequently, whether by agreement or by means of court orders (as occurred in the present case after contested hearings). As Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse. 129. Another significant matter is likely to be the nature of the relationship between the claimant and the deceased. In particular, it may be very important to determine whether there were (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant. In this respect considerable care needs to be taken to prevent a family provision claim becoming a forum for litigating questions of matrimonial fault long since removed from family law. Nonetheless the conduct of the deceased may be relevant to the question posed by s 59(1)(b) of the Succession Act if, for example, physical or sexual abuse during the marriage (or later) has caused the claimant to suffer a physical or psychological disability impairing his or her capacity to earn an adequate income."
4. The following are the factors which the Court is satisfied warrant the making of Margaret's application: 1. It was a ten year marriage in which there was no doubt love and mutual support were provided by each of the partners to the other, and including a contribution of $200 per week to living expenses by Margaret. 2. There was no final family law property settlement. 3. The Court finds that at the time of their divorce Graham forgave Margaret a loan in relation to her car and gave her $22,342.54 as a settlement. After a ten year marriage and even where she had not contributed to the purchase of the Property, this is likely to be considerably less than she would have received in a family law settlement. The Court is therefore also satisfied that Margaret accepted that amount on the basis of assurances from Graham that he would make a substantial provision for her in his will (although for the reasons set out in paragraph [109] above I do not accept her evidence, of which she is herself clearly convinced, that he mentioned a figure of $300,000).
5. In reaching this conclusion, I have not overlooked Doreen's evidence that Graham had told Doreen that Margaret was "happy" with the arrangement of being given the car and the payment. This is the untestable hearsay evidence of a deceased person. I regard it as less persuasive than Margaret's direct evidence of why she did not seek a property settlement, including the promise of a legacy in Graham's will. In the ordinary course, that is a probable explanation for the objective fact that at the time Margaret accepted an amount likely to be considerably less than what she would receive after a ten year marriage had she sought a family law property settlement.

Has adequate provision not been made for Nina and Margaret?

1. It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [18(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for Nina and Margaret is not adequate for their respective proper maintenance, education or advancement in life. If that question is answered "yes" in relation to either or both of them, then the Court's discretion to make a family provision order is enlivened in relation to whichever of them the question is answered in the affirmative.
2. In Verzar v Verzar [2014] NSWCA 45; (2014) 12 ASTLR 523 ("Verzar"), Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry: "39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty."
3. In addition to the passage from Verzar quoted in the preceding paragraph [33] above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children. "154. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 156. As Allsop P said in Andrew v Andrew, at [16]: "If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court." 157. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 158 The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 159. In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149."
4. I also respectfully adopt what was said by Ward CJ in Eq in Grant v Roberts, Smith v Smith, Roberts v Smith, Curtis v Smith [2019] NSWSC 843: "166. Second, as to the position of claims by adult children of the deceased, each application for provision must be dealt with by the Court on its merits on the evidence before the Court. 167. It has been asserted, in a number of cases in the past (both in applications for provision under the previous legislation and under the currently applicable provisions of the Succession Act), that it cannot generally be said that a parent has an obligation to provide an adult child with a home (see Fiorentini v O'Neill [1998] NSWCA 79 (at 7); see also Delaney v Jones [2008] NSWSC 229). It has, however, also been recognised that there are circumstances in which there may be a moral obligation on the part of a parent, in particular circumstances, to make provision for an adult child (see Taylor v Farrugia [2009] NSWSC 801 at [57]). 168. As the Court of Appeal in Steinmetz v Shannon [2019] NSWCA 114 (Steinmetz v Shannon) has recently made clear, guidelines (of the kind that have been expressed in various cases relating to claims by widows, or adult children, or grandchildren) cannot be elevated to inflexible rules and are always subject to the consideration of the particular circumstances of each case, including the size of the estate, any competing claims, the applicant's conduct and the applicant's relationship with the deceased (see White JA at [37];Brereton JA at [106]). 169. There is, and should be, no predisposition for or against the making of orders for provision for adult children (just as there is, and should be, no predisposition for or against the making of orders for the deceased's spouse). To approach the matter with such a predisposition would, if nothing else, be inconsistent with the observations of the Court of Appeal (in Steinmetz v Shannon and elsewhere) and inconsistent with the recognition in numerous cases that, in the circumstances of the particular case there at hand, there had been inadequate provision for an adult child (and the making of orders for provision out of the estate for an adult child in the particular circumstances of that case) (see, for example, Stern v Sekers; Sekers v Sekers [2010] NSWSC 59). 170. Each case must be determined on its merits, whether the applicant for provision be an adult child, surviving spouse, or other dependant; I do not read the observations of the Court of Appeal in Sgro v Thompson as suggesting otherwise (and, as I say, the Court of Appeal in Steinmetz v Shannon makes this clear). As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380 (at [131]), in a passage that has been endorsed by Hallen J in Sreckovic v Sreckovic [2018] NSWSC 1597 (Sreckovic) (at [154]): "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]."
5. Most recently, in Olsen v Olsen & Ors [2019] NSWCA 278, White JA (with whom Meagher JA and Emmett AJA agreed) said: "75. Under the heading "The Testator's Judgment" the primary judge referred to what I said in Friend v Brien [2014] NSWSC 613 at [62], Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] and Sgro v Thompson at [80]-[88]. I said that where it can be seen that a testator has duly considered the claims on his estate, respect should be given to the judgment of a capable testator who will have been in a better position than is a court to determine such claims so that considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the testator was placed. In this case, as the primary judge recognised, the testator knew nothing about the appellant's circumstances. 76. The principle I sought to express in those cases, and to which I adhere, was not applicable to the present case. It was not a general plea for primacy of freedom of testamentary disposition. There may be some tension between the views of Meagher JA (with whom Macfarlan JA and Simpson AJA agreed) in Squire v Squire [2019] NSWCA 90 at [10] and the views of Brereton JA (with whom Simpson AJA also agreed at [151]) in Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161 at [96]-[97]. In Squire v Squire (decided after the hearing of the appeal in Steinmetz v Shannon) Meagher JA said (at [10]) of the power to make a family provision order: "This discretionary power is to be used sparingly and with regard to the deceased's freedom of testamentary disposition, as 'it was never meant that the Court should re-write the will of a testator': Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19 (Dixon CJ); Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [10] (Gleeson CJ)." 77. In contrast, in Steinmetz v Shannon Brereton JA said: "The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom. Testamentary freedom is constrained by the operation of the statutory jurisdiction, insofar as testators are obliged to make provision for those eligible persons for whom according to community standards they are expected to provide." 78. I adhere to the views I expressed in Steinmetz v Shannon at [49]-[56]."
6. What White JA said in those paragraphs of Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161 ("Steinmetz") was: "49. His Honour concluded that the deceased did not abuse his "right of freedom of testamentary disposition" (Judgment [41]). 50. Insofar as the primary judge claims support for the approach that he took from what I said in Slack v Rogan (at [127]) and repeated in Sgro v Thompson (at [80-[88]), his Honour erred. In Slack v Rogan, in a passage quoted by the primary judge (Judgment [11]), I said: "In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed." 51. I did not say that wherever it can be seen that the deceased was capable of giving due consideration as to the adequacy of the provision in the will for a claimant and did so, that that was determinative of a claim for provision. 52. Section 59 of the Succession Act does interfere with the freedom of testamentary disposition, and if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life, provision must be made. I agree with Brereton JA (at [96]) that s 59 is to be applied according to its terms, and I agree that the application of the section is "... not confined by notions of reluctance to interfere with freedom of testation." But although the application of the Act is not confined by such notions, they can be material to the application of the Act as Bergin CJ in Eq said in Ford v Simes [2009] NSWCA 351 (with the approval of Tobias JA and Handley AJA) (at [71]-[72]) and as I said in Sgro v Thompson (with the approval of McColl and Payne JJA) (at [86]). 53. Like Brereton JA, I would endorse the observation of Young J (as his Honour then was) in Stewart v McDougall quoted by Brereton JA (at [96]). 54. The issue is how freedom of testamentary disposition is to be factored into an assessment of whether the provision made by the testator is adequate for the proper maintenance, education or advancement in life of a claimant. The determination of the adequacy of the provision is a matter for the court and it is to be determined as at the time the court is considering the application rather than as at the time the testator made a will or at his or her death. This alone may provide a reason for interference. 55. Independently of that, the court will interfere with the freedom of disposition if it concludes that adequate provision has not been made for the applicant's proper maintenance, education or advancement in life. But in making that assessment the court has to take into account a wide range of matters that are not confined to the parties' present financial circumstances, but can range over the relationships between the deceased and his or her family where the true facts can hardly be ascertained by a court years after the events. This may constrain the making of a family provision order under s 59. 56. To say that a Court's ability to interfere may be constrained by freedom of testamentary disposition is merely to say that such freedom is one of the matters factored into the assessment called for by s 59. It is factored in by a recognition that in appropriate cases, deference should be given to the testator's better position in making an assessment as to what provision for proper maintenance and advancement in life is adequate."
7. Like White and Brereton JJA in Steinmetz at [44] and [109] respectively I am respectfully of the view that to the extent it is necessary to do so, applying a concept or standard of "moral duty" is to be preferred to "community standards".
8. Applying the principles just set out, the Court is satisfied that the nil provision for each of Nina and Margaret is not adequate for their respective proper maintenance, education or advancement in life. The question posed in sub-paragraph [18(6)] above is answered "Yes". The reasons for this conclusion are set out in the following paragraphs.
9. Two preliminary observations should be made.
10. First, it is helpful to recall at the outset that the Court must look at the situation as it is at the time it is considering the question. The starting point is the size of the available estate. As I have set out in paragraph [12] above, after allowing for legal costs that is $1,077,500. For the purposes of the statutory analysis it is also necessary to add back in the $193,000 which Samantha has advanced herself out of the estate for her own benefit. This gives a figure of $1,270,500.
11. Second, both in relation to the jurisdictional question and in relation to provision, neither Nina nor Margaret suggested that Samantha was not entitled to the greatest share of the estate. Their point was, however, that they each had a moral claim which the estate was large enough for some provision to be made for them, even when allowing for Samantha's strong, competing claim. I agree.
12. At the time of hearing, Nina was 50 years old. Her circumstances are set out in paragraphs [72] to [75] above. While she and Paul have some years of working life left, they still have a significant mortgage, their respective incomes are not substantial and they are having to use savings to make ends meet. Insofar as there was any estrangement between her and Graham, the Court is satisfied that was attributable to Graham rather than anything that reflects adversely on Nina. Before the events set out in paragraph [55] above, she had a good relationship with her father. As an adult daughter who, if not having fallen on hard times, is in a far from secure financial position for now and the future, I am satisfied that the size of the estate is such that for Graham to have left her nothing was not adequate provision, even after allowing for Samantha's very strong moral claim and Margaret's claim.
13. At the time of the hearing, Margaret was 62 years old. Her circumstances are set out in paragraphs [124] to [129] above. The basis of her moral claim is the same matters as comprise the factors warranting her application set out in paragraph [191] above. Margaret is four or so years away from retirement and still does not own her own home free of a mortgage. Nor is there anything about her behaviour towards Graham either during their marriage or after their divorce which could be said to be adverse to her claim. In those circumstances I am satisfied that the size of the estate is such that for Graham to have left her nothing was not adequate provision, even after allowing for Samantha's very strong moral claim and Nina's claim.

What provision ought to be made for Nina and Margaret?

1. I will consider this question by reference to the various matters identified in s 60(2) of the Act.

s 60(2)(a) - Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. Nina's relationship with Graham is set out in paragraphs [28] to [67] above.
2. Margaret's relationship with Graham is set out in paragraphs [88] to [121] above. For present purposes I note that Margaret and Graham divorced nearly 20 years ago and Margaret has returned to Ireland to make her life there.

s 60(2)(b) - The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any 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

1. In relation to Nina, I repeat what I have said in paragraph [204] above.
2. In relation to Margaret, I repeat what I have said in paragraph [205] above.
3. In relation to Samantha, I am of the view that Graham owed a considerable moral obligation to her for her many years of care and support, especially during his earlier cancer and his final illness. I particularly take into account the fact that Samantha's decision to stop work and care for Graham at various times is in part responsible for the difficult financial circumstances in which she finds herself. I accept her evidence that she had to expend her savings, and was unable to attend fully to her restaurant business, because of her decision to care for Graham.

s 60(2)(c) - The nature and extent of the deceased person's estate

1. For present purposes the estate can be taken to have been reduced to cash in the sum of $1,270,500, including the amount which Samantha has already applied to her own benefit.

s 60(2)(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 had been made for a family provision order or of any beneficiary of the deceased person's estate

1. In relation to Nina, this is set out in paragraphs [72] to [75] above.
2. In relation to Margaret, this is set out in paragraphs [124] to [128] above.
3. In relation to Samantha, this is set out in paragraphs [152] to [155] above.
4. Margaret is the closest to retirement age, followed by Nina. I accept Samantha's evidence that, conformably with her primary obligation as the sole parent of three children, she wishes to return to the workforce and that, as her children grow older, she will return to full time employment. However, I also accept her submission that, without retraining, it is highly unlikely she will return to the high level of earning which she has enjoyed in the past as a financial planner. I consider I am able to take judicial notice that the financial planning industry has undergone very significant change in the last few years. She has been out of that industry for some time. Given her age, psychological health issues and parenting obligations, I am satisfied that while she remains capable of earning an income and intends to do so in the future, the evidence does not permit me to draw any conclusion about what her future income is likely to be. I am, however, satisfied that it is unlikely to be as much as she earned at the peak of her previous career.
5. Insofar as assets are concerned, both Nina and Margaret own their own homes, albeit subject to mortgages. Samantha has no real property and has three school aged children to house and feed.

s 60(2)(e) - If the applicants cohabiting with another person - the financial circumstances of the other person

1. For the reasons set out in paragraphs [174] to [182] above, the Court is satisfied that Samantha is not cohabiting with John.

s 60(2)(f) - Any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application is being 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 may reasonably be anticipated

1. Nina suffers from anxiety. Margaret has high blood pressure which is controlled by medication and requires dental implants.
2. Samantha's physical and mental circumstances are set out in paragraphs [156] to [158] above. For the purposes of the exercise of the Court's discretion, I give these matters only minimal weight. I had the advantage of observing Samantha as she conducted these proceedings over several days, as well as noting the thoroughness and high quality of her written submissions. While she has undoubtedly suffered misfortune and hardship, she struck me as a highly intelligent and capable woman whose capacity to represent herself in the challenging and unfamiliar environment of court proceedings did not appear to be impaired by any physical or psychological difficulties.

s 60(2)(g) - the age of the applicant when the application is being considered

1. At the time of the hearing, Nina was 50 years old, Margaret was 60 years old and Samantha was 48 years old.

s 60(2)(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

1. Nina made no contribution to the acquisition, conservation and improvement of the assets which comprised the estate, including the Property. Until the estrangement, which the Court is satisfied was of Graham's making, Nina did have a good relationship with Graham and stayed in contact with him. It is no criticism of her that in the last years of Graham's life she did not have any occasion to contribute to Graham's welfare.
2. Insofar as Margaret is concerned, she accepts that she made no contribution towards the acquisition of the Property. However, there can be no doubt that during the course of the marriage she contributed to Graham's welfare, not least through her weekly financial contribution, but as Graham's wife in what appears for many years to have been a happy marriage.

s 60(2)(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

1. In 1987 Graham paid for Nina to have a ski trip to Thredbo, in 1988 he made a $2,000 to $3,000 contribution towards her wedding and in 2002 he made a $500 contribution towards an overseas trip.
2. For the reasons set out in paragraph [121] above, the Court is satisfied that Margaret was forgiven an $8,000 loan in relation to her car and received $22,342.54 when she separated from Graham.
3. With one small exception, Graham left the entirety of his estate to Samantha. During his lifetime Graham forgave a debt Samantha owed him of about $26,000 in September 2016. In addition, Graham gave Samantha: 1. $1,000 for her 18th birthday; 2. $3,000 towards her wedding in 1988; 3. $500 towards her second wedding in 2009; and 4. $15,000 in April 2017.

s 60(2)(j) - Any evidence that the testamentary intention of the deceased person including evidence of statements made by the deceased person

1. In my respectful view, the best evidence of Graham's testamentary intentions are the Will, both as to leaving the entirety of his estate to Samantha and offering his reasons as to why he left nothing to Adam and Nina. By reference to the evidence adduced in these proceedings, the Court does not accept that the reason given by Graham in the Will for not benefiting Nina is accurate, fair or reasonable. I give some, but not dispositive, weight to Graham's freedom of testation, but respectfully agree with White JA (see paragraph [198] above) that freedom is subject to the Act.

s 60(2)(k) -Whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death

1. Neither Nina nor Margaret was being maintained by Graham before his death.

s 60(2)(l) - Whether any other person is liable to support the applicant?

1. Nina's financial circumstances with Paul are set out in paragraphs [72] to [75] above. In exercising the Court's discretion, I have taken into account that, as Nina's husband, Paul has an obligation to support her, as well as his capacity to do so by reference to the evidence of his occupation, income and assets.
2. It does not appear that any other person is liable to support Margaret, who has lived alone since her return to Ireland.

s 60(2)(m) - The character and conduct of the applicant before and after the date of the death of the deceased person

1. Until, respectively, estrangement or divorce, Nina and Margaret appear to have had positive and appropriate relationships as daughter and wife with Graham. There is nothing about the character or conduct of either of them which the Court considers to be materially adverse to either of their applications.

s 60(2)(n) - Conduct of any other person before and after the date of the deceased person

1. The fundamental strength of Samantha's moral claim arises from her close and supportive relationship with Graham over many years, including the care she provided to him during his illnesses, in particular his final illness. Much of this was undertaken to her personal and financial cost.

s 60(2)(o) - Any relevant Aboriginal or Torres Strait Islander customary law

1. This consideration is irrelevant.

s 60(2)(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

1. A matter which I consider particularly relevant is that unlike Nina and Margaret, Samantha owns no real estate and still has a number of years of parental responsibility ahead of her, including for at least two children who have their own psychological difficulties. Housing, feeding and caring for her children is obviously a considerable priority, which would also impact upon her earning capacity in the short to medium future.

Overall consideration

1. I have carefully considered all of the above factors and how they impact upon the relative strengths of the claims of each of Nina, Margaret and Samantha to the estate. As I set out in paragraph [203] above, I accept the submissions made on behalf Nina and Margaret that, while Samantha is clearly entitled to the majority of the estate, their respective moral claims on the estate and the size of the estate permit of their claims being recognised.
2. However, that same consideration of the size of the estate, when coupled with what the Court is satisfied is both Samantha's greater moral claim and a greater need when compared to that of Nina and Margaret, means that it would not be an appropriate exercise of the Court's discretion to make provision in the full amounts each of them claims.
3. Weighing all of the foregoing matters in the balance, the Court concludes that it is appropriate that each of Nina and Margaret should be given provision sufficient to discharge their mortgages so as assure the security of their accommodation. For Margaret there should also be a small additional provision to allow for expenses and contingencies. There is no further discretionary reason why provision should not be ordered.
4. This means that the Court will order provision for Nina from the estate of $200,000 and for Margaret of $150,000. The answer to question [18(8)] above is therefore $200,000 (Nina) and $150,000 (Margaret).
5. Subject to hearing the parties as to any special costs orders that may be sought, the Court will order that the estate pays Nina's and Margaret's costs on the ordinary basis and Samantha's costs on the indemnity basis.

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: 17 December 2019