[2015] NSWCA 297
Soens v Rathborne [2018] NSWSC 302
Warner v Hung
Source
Original judgment source is linked above.
Catchwords
Benz v Armstrong[2015] NSWCA 297
Soens v Rathborne [2018] NSWSC 302
Warner v Hung
Judgment (13 paragraphs)
[1]
Introduction
The plaintiff, Mr Mark Sutcliffe, is the son of Mrs Bernice Sutcliffe, who died on 22 February 2023 at the age of 78 years.
The deceased is survived by her former husband Mr Raymond Sutcliffe, her son Mr Mark Sutcliffe, her daughter Ms Lisa Harper, and her granddaughter, Ms Jasmine Harper. Mr Mark Sutcliffe was born in February 1971 and is presently 54 years old. Ms Lisa Harper was born in October 1972 and is presently 52 years old. Ms Lisa Harper is married to Mr Simon Harper, who was born in May 1958 and is presently 66 years old. Their daughter, Jasmine, was born in March 2014 and is presently 10 years old.
In these reasons, I will refer to those persons by their first names in order to avoid confusion that would otherwise arise from the surnames that they share. No disrespect is intended.
The deceased left a typewritten document prepared by Fortis Law Group, marked with certain hand-written changes and described as her last will and testament, which she signed on 3 April 2015 together with a separate document recording her intentions underlying the provisions of her will. Simon witnessed the deceased's signature on both documents.
The document described as the deceased's last will and testament appointed Lisa as her trustee and executor, and gave her estate to Lisa to hold on trust to pay any debts, taxes, funeral and testamentary expenses, and to pay gifts totalling $31,000 to seven named friends of the deceased (Sandra Dunn, David Dunn, Sarah Dunn, Samantha Dunn, Garry Lawson, Elise Filewood and Leo Filewood), to pay a gift of $10,000 to Raymond, to pay a gift of $100,000 to Jasmine, to give any motor vehicle driven by the deceased at the time of her death to two named friends of the deceased, and to give the rest and residue to Lisa (as to 60 per cent) and Mark (as to 40 per cent).
In the supplementary document explaining her will, the deceased urged her friends to do something "fun" with the gifts that she had left each of them, and explained to her friends to whom she bequeathed her car that she wanted them to "experience a little bit of luxury in your life" because they "must be so tired of driving old bombs". In relation to the gift to Raymond, from whom the deceased had separated in the mid to late-1990s, the deceased wrote that he deserved more "for your lifetime of care and company but this should take you on a nice holiday or buy a travelscoot for you". [1] In relation to the gift of $100,000 to Jasmine, the deceased stated that it was intended "to be invested for her future when I won't be here to help her. By the time that earns compound interest, it should be a nice little nest egg for her". The document then stated:
"The rest of my estate, which includes my cash, in NAB, my shares and annuities handled by Virtue & Partners and of course, my lovely home in Dural, I leave to my darling children, Lisa Harper & Mark Sutcliffe. It is to be divided 60/40 in Lisa's favour. This is not because I love you less Mark. It's because you loved me less. You didn't include me in your life at all and you were never there for me. If either of my children would like to live in the home, rather than sell it, they can negotiate it between themselves."
At the time that the deceased signed the will and the supplementary explanatory document on 3 April 2015, the deceased was living in a property at 10 Joyce Place, Dural, which she had purchased at about the time that she and Raymond separated (the Dural property). As referred to in more detail below, the deceased sold the Dural property in March 2017 and contributed the proceeds to the purchase of another property at 26 Fuggles Road, Kenthurst, which the deceased purchased together with Lisa and Simon as joint tenants in November 2016 (the Kenthurst property).
The deceased was living in the Kenthurst property, together with Lisa, Simon and Jasmine, at the time of her death. Her interest in the property passed to Lisa and Simon by right of survivorship, and does not form part of her estate. Based on a kerbside valuation undertaken on 11 January 2025, Mark estimates the present value of the Kenthurst property as approximately $4,100,000.
The will signed by the deceased on 3 April 2015 was invalid by reason of not having been witnessed by two persons: Succession Act 2006 (NSW), s 6.
On 23 August 2024, the Court made a grant of probate in respect of the 3 April 2015 will in favour of Lisa, who is named in the will as the deceased's executor and trustee. I accept the submission made by counsel appearing for Mark that it is appropriate to proceed on the basis that the grant was made relying on s 8 of the Succession Act. That section provides that a document purporting to state the testamentary intentions of a deceased person forms the deceased person's will if the Court is satisfied that the person intended it to form his or her will. Lisa and Simon have given evidence in these proceedings about the circumstances in which the deceased instructed Fortis Law Group to prepare her last will, and made handwritten amendments to the will before signing it in Simon's presence immediately before departing on an overseas holiday with Lisa, Simon and Jasmine on 3 April 2015. That evidence supports the conclusion that, at the time she signed it, the deceased intended it to form her will. There is no evidence to the contrary.
According to the inventory of property attached to the grant of probate, the value of the deceased's estate as at the date of her death was $359,493, comprising cash in the amount of $353,556 held in an account with National Australia Bank and shares in IAG Limited with an estimated value of $5,937. There were no liabilities.
The deceased also had superannuation benefits with BT Panorama Superannuation with an estimated value of $285,209, and superannuation benefits with UniSuper with an estimated value of $40,147. The superannuation benefits did not form part of the estate. The trustees of the two superannuation funds paid those monies to Lisa and Mark in accordance with the deceased's binding death benefit nomination completed in February 2019 (in the case of BT Panorama Superannuation) and the deceased's preferred beneficiary nomination (in the case of UniSuper). Lisa received a payment of $127,685 on 14 August 2023 and a further payment of $32,001 on 9 October 2023 from BT Panorama, totalling $159,686 and representing approximately 55 per cent of the deceased's total superannuation benefits with BT Panorama. Mark received from BT Panorama a gross sum of $130,652, which was reduced to $111,058 after deduction of tax, on 5 October 2023. This represented approximately 45 per cent of the deceased's total superannuation benefits with BT Panorama. UniSuper determined that the total death benefit payable was $42,324. That benefit was paid to Lisa and Mark in equal shares. On 2 November 2023, Mark received a gross sum of $21,162 from UniSuper, which was reduced to $17,656 after deduction of tax. Lisa was classified as being interdependent with the deceased and it is not clear from the evidence whether Lisa was liable to pay tax in respect of the gross sum of $21,162 paid to her by UniSuper or on the $159,686 which she received from BT Panorama. Mark initially objected to the superannuation benefits being paid while he was contemplating making the claim that is now the subject of these proceedings, but he gave evidence that he ultimately decided that those payments to Lisa and to himself should go ahead based on legal advice that he received at the time.
Mark commenced these proceedings on 30 October 2023, claiming that the deceased's will did not make adequate provision for his proper maintenance, education and advancement in life. Lisa received a grant of probate on 23 August 2024, as I have already mentioned. Ms Lynne Phillips, solicitor, acted for Lisa in relation to the application for probate. Mr Mark Popplewell, solicitor, of Neo Law acted for Lisa in these proceedings until 19 June 2024, when he filed a notice of ceasing to act. Lisa has acted for herself since that time, in her capacity as executor after the grant of probate on 23 August 2024.
On 23 September 2024, the IAG shares forming part of the deceased's estate were sold and the sale proceeds were deposited in the bank account that Lisa established for the estate.
Lisa caused a notice of intended distribution of the estate to be published on 25 September 2024, notwithstanding that these proceedings were yet to be resolved.
On 26 September 2024, the solicitors then acting for Mark in these proceedings wrote to Lisa noting that Ms Phillips had informed them the previous day that probate had been granted on 23 August 2024, and that Ms Phillips was no longer acting in relation to the estate. The letter continued:
"Our office has, on 27 June 2023 and 16 July 2024, sent correspondence to you and/or your solicitor requesting that you refrain from disposing of any estate assets until our client's claim against the estate has been finalised. To date, you have failed or refused to provide our client with such an undertaking.
We require your immediate response to the following:
1. Have you gathered the estate funds held by the National Australia Bank?
2. Have you dealt with the IAG shares in any way?
3. Please provide a copy of the Grant of Probate.
4. Please provide an outline of the estate liabilities."
Lisa did not respond to that letter, although she did provide a copy of it to Ms Phillips.
Lisa tendered an email that she received from Ms Phillips on 26 September 2024, in which Ms Phillips states (emphasis added):
"If that is the case, then I see no reason that you cant pay the gifts out now and the residue in accordance with the Will.
You will have to do a reconciliation which sets out the assets received and the payments made, you need to list the amount you paid me from the estates assets and any other costs you have paid , then list the gifts as per the Will recognised by the Court and then calculate the residue and account to your brother via his solicitors' trust account for the balance due to him.
I then presume any claim would be made against the remainder of the residue.
Alternatively, you may need to seek further litigation legal advice regarding this."
The evidence does not disclose the basis on which this advice was given. It is clear from the terms of the email itself that Ms Phillips was aware of, at least, a possible claim against the estate. However, it is not clear what circumstances Ms Phillips was referring to when she wrote "[i]f that is the case".
Lisa did pay out of estate funds on 26 September 2024 three of the seven gifts to the friends of the deceased referred to at [5] above.
On 25 October 2024, without having responded to the letter that she received from Mark's solicitors on 26 September 2024, Lisa paid out of the estate the remaining legacies to the deceased's friends named in the will, the gift of $10,000 to Raymond, and the gift of $100,000 to Jasmine. Those payments, together with the payments made on 25 September 2024, total $141,000.
Lisa has not yet distributed the residue of the estate, which the will provides is payable to herself (as to 60 per cent) and Mark (as to 40 per cent).
At the time of the hearing, the residue was $171,426, being the funds held in the estate bank account after payment of the gifts referred to above, after payment of legal fees to Neo Law totalling $41,758 (including GST), and after deduction of bank fees and charges.
Mark seeks an order for provision in the form of a lump sum of $300,000, in lieu of 40 per cent of the residue of the deceased's estate to which he is entitled under the will. This provision is sought in addition to the payments totalling $151,814 (gross) that have already been made to Mark out of the deceased's superannuation funds. [2] It is submitted on behalf of Mark that the proposed lump sum provision should be paid out of the residue of the estate (approximately $171,426), and that the balance should be paid out of the total sum of $141,000 which Lisa distributed to Jasmine and other beneficiaries whilst on notice of these proceedings. Mark submits that Lisa is liable to repay that sum of $141,000 to the estate, so that it is to be treated as part of the actual estate rather than notional estate. Mark seeks a notional estate order in respect of all or part of the deceased's superannuation funds received by Lisa totalling $180,848 [3] to the extent necessary to put the estate in sufficient funds to meet any costs orders made in these proceedings. Mark does not seek a notional estate order in relation to the deceased's interest in the Kenthurst property.
The evidence establishes that all potential eligible persons and all beneficiaries named in the deceased's will dated 3 April 2015 have been notified of these proceedings. Only Lisa and Jasmine have put forward evidence of their circumstances as competing claimants. Lisa has adduced evidence of Simon's financial circumstances, which are relevant to her claim and to Jasmine's claim.
[2]
Consideration and determination
As a child of the deceased, Mark is an eligible person who may apply for a family provision order: Succession Act, s 57(1)(c).
The Court may make a family provision order in favour of Mark if it is satisfied at the time of considering the application that the deceased's will has not made adequate provision for Mark's proper maintenance, education or advancement in life. If so satisfied, the Court exercises an evaluative discretion whether to make any provision order in favour of Mark and, if so, to determine the nature and amount of the provision that the Court thinks ought to be made for his maintenance, education or advancement in life having regard to all of the facts known to the Court at the time the order is made: Succession Act, s 59; Megerditchian v Khatchadourian [2020] NSWCA 229 at [52] (Payne JA, Macfarlan JA and Emmett AJA agreeing).
The Court's approach to evaluating whether adequate provision has not been made was described by Meagher JA, with the agreement of Ward P and Kirk JA, in Scott v Scott [2022] NSWCA 182 at [12]-[16]:
"12. The question posed by s 59(1)(c) is whether "adequate provision for the proper maintenance, education or advancement in life" of the claimant "has not been made by the will of the deceased person". In Singer v Berghouse at 210, the plurality (Mason CJ, Deane and McHugh JJ) described this question as being "strictly one of fact, notwithstanding that it involves the exercise of value judgments", and continued:
The evaluative character of the decision stems from the fact that the Court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life.
13. Earlier at 209-210, in a passage cited with approval by Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [75], the plurality said of the equivalent jurisdictional question in s 9(2) of the Family Provision Act 1982 (NSW):
The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co. [1938] AC 463 at 476.). The determination of the first stage … calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
14. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19, Dixon CJ said of the words "adequate" and "proper" which he noted "must always be relative":
The "proper" maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is "adequate" must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.
15. In the present context, two further matters should be emphasised. First, as White JA said in Sgro v Thompson [2017] NSWCA 326 at [71], in addressing the jurisdictional question:
An applicant's financial needs and the financial needs of other persons with claims on a deceased's testamentary bounty are important, and often highly important considerations, but as Basten JA said in Chan v Chan [2016] NSWCA 222 at [22]: '…[I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs.'
16. Secondly, also in Sgro v Thompson at [6], Payne JA agreed with White JA that while the Court's assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application, "that does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate". The authorities cited in support of that principle include Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], in which White J (as his Honour then was) said:
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. (emphasis added)"
Section 60(2) of the Succession Act sets out matters to which the Court may have regard for the purpose of determining whether it is satisfied that adequate provision has not been made for the proper maintenance, education or advancement in life of the claimant, as well as in deciding whether to make any order for provision and, if so, the nature and amount of the provision to be made. Relevantly to the present case, those matters include:
1. the nature and duration of the applicant's relationship with the deceased and any financial or non-financial contribution made by the applicant to the deceased's welfare or to the deceased's estate (s 60(2)(a) and (h));
2. any provision that the deceased made for the applicant during the deceased's lifetime or from the deceased's estate (s 60(2)(i));
3. the nature and extent of any obligations or responsibilities owed by the deceased to the applicant, and to each other beneficiary (s 60(2)(b));
4. the nature and extent of the deceased's estate (s 60(2)(c));
5. the age of the applicant (s 60(2)(g));
6. the financial resources, earning capacity, and financial needs of the applicant and each beneficiary, and any person with whom the applicant or any beneficiary cohabits (s 60(2)(d)-(e));
7. whether any other person is liable to support the applicant (s 60(2)(l));
8. any evidence of the deceased's testamentary intentions, including evidence of statements made by the deceased (s 60(2)(j)); and
9. the character and conduct of the applicant, before and after the date of the death of the deceased person (s 60(2)(m)).
The following observations of Hallen J in Camernik v Reholc [2012] NSWSC 1537 concerning the application of these principles to family provision claims by an adult child of a deceased person have been referred to with approval in the Court of Appeal: [4]
"'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.
(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.
(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 …
(e) There is no need for an applicant adult child to show some special need or some special claim.
(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. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. 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.
(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim.' (Citations omitted.)"
[3]
Mark's relationship with the deceased (ss 60(2)(a) and (h))
As I have already mentioned, Mark is the son of the deceased and her former husband, Raymond. Mark lived at home with the deceased and Raymond until their separation when Mark was about 27 years old. Mark moved out of the family home at that time. For the following 15 or 16 years until mid-2014, Mark lived in Newtown and Elizabeth Bay and the deceased lived at the Dural property. According to Mark's evidence, he spoke with the deceased weekly, and visited her at Dural every second or third week.
The supplementary document that the deceased prepared to explain her will dated 3 April 2015 records her feelings about her relationship with Mark at that time. The deceased felt that Mark had "loved her less", in that he had not included her in his life at all, and had never been there for her. [5]
As I refer to below, Lisa's unchallenged evidence is that the deceased had been requiring support and assistance due to serious medical conditions and falls since about 2011. Mark does not claim to have provided the deceased with such assistance and support, as opposed to telephoning her and visiting her, during that period from 2011 until April 2015 when the deceased made her will, or during any subsequent period of the deceased's life, as discussed in more detail below.
There is no evidence about Mark's relationship with the deceased during the period from mid-2014 until 2020, although it was mentioned at the hearing that Mark had lived in London for a period of time in about 2015. It is not clear when Mark returned to Australia, but there was clearly some contact between Mark and the deceased during the period from 2015 to 2020 because the deceased gave Mark $50,000 to assist him in purchasing his home in 2017, as referred to later in these reasons.
Mark gave evidence that he visited the deceased at Kenthurst every Friday during the period from April 2020 until the end of 2020 in order to support the deceased during the COVID-19 pandemic. According to Mark's evidence, the deceased was not permitted to leave the house during 2020.
Mark also gave evidence that, during the 2021 COVID-19 pandemic lockdown in New South Wales, he was restricted to telephone contact with the deceased, and that Lisa controlled who entered the Kenthurst home and prevented the deceased from leaving the home during that period. According to Mark's evidence, Lisa strictly controlled any outings that the deceased made from the home during this period, and that the deceased felt lonely and missed her freedom and independence. Mark considers that the deceased's health deteriorated during this period due to lack of physical activity and reduced contact with the outside world.
Lisa challenged Mark about this during cross-examination, asserting that the deceased had been on numerous outings during 2020 and 2021. Mark acknowledged that it was possible that the deceased had been on outings in 2020 that he had not been aware of, but he adhered to his evidence that the deceased was not able to leave the Kenthurst property during 2021. I accept Mark's evidence in relation to 2020 and 2021, which is entirely consistent with Lisa's own affidavit evidence to which I refer at [51] below.
Mark lost his driver licence for a period of six months during 2022. He visited the deceased only once during that time, but spoke with her on the phone on a weekly basis. Lisa was prepared to pick Mark up from the train station so that he could visit the deceased but, according to Mark's evidence, the deceased told him not to make the trip while his licence was suspended. Mark chose to accept the deceased's suggestion, and did not visit for the remainder of that six-month period, in circumstances where he had been unable to visit her the previous year due to the COVID-19 pandemic.
Mark did not usually take the deceased out when he visited her. Mark gave evidence that he took the deceased out for a meal only on birthdays and Mother's Day. In the last three years of the deceased's life, this needs to be understood in the context of the restrictions on the deceased's outings due to the COVID-19 pandemic and her deteriorating health. However, there is no evidence that Mark took the deceased on outings prior to the pandemic. The sentiments expressed by the deceased in the supplementary document that she prepared to explain her will in April 2015 suggest that he did not.
Mark gave evidence describing his relationship with the deceased as a strong relationship throughout the duration of his adult life. They had their "ups and downs", but continued to support one another.
Mark does not claim to have provided any financial support to the deceased during her lifetime, or to have contributed to the assets comprising the deceased's estate.
Lisa acknowledges that the deceased loved Mark, but said that there were times that "she didn't quite like him" because she was frustrated that she had not seen him for a while. When pressed for details in cross-examination, Lisa acknowledged that her mother's frustration may have related in part to a period in which Mark was living in London in about 2015, but said that she was also referring to the period of six months in 2022 during which Mark lost his driver licence and came to visit the deceased at the Kenthurst property only once. Lisa described the relationship between Mark and the deceased as "close but distant".
There is no dispute that Lisa had a very close and loving relationship with the deceased.
After her parents separated, Lisa moved into the Dural property where she lived together with the deceased until Lisa moved into a property that she purchased at 5 Condino Way, Castle Hill. Lisa was about 37 years old at that time. Lisa and the deceased had enjoyed a number of holidays together during those years, including to India, Thailand, Borneo and New Zealand.
Lisa continued to spend a lot of time with the deceased after moving into her Castle Hill property, including taking her out to dinner and on holidays.
There is no dispute that Lisa provided the deceased with a very high level of care and assistance, particularly during the last six years of the deceased's life when they lived together at the Kenthurst property.
From about 2011, the deceased began to have falls and to suffer from heart problems and other medical issues requiring major surgery. Lisa accompanied and supported the deceased when she needed to go to medical appointments or to be admitted into hospital. This was particularly challenging for Lisa in the period after her daughter Jasmine was born in March 2014. As I have already mentioned, Mark does not claim to have provided care and assistance of this nature to the deceased.
Lisa gave evidence that she did not return to the workforce after the end of her maternity leave in 2015 because she had been made redundant from her human resources role with a large corporation, and it was not feasible for her to work in addition to caring for Jasmine and assisting the deceased. Lisa had been earning a total remuneration package of approximately $150,000 per annum prior to her maternity leave and redundancy.
Lisa's unchallenged evidence is that she began looking at ways in which she could support the deceased full-time in about October 2016, after the deceased began having an increasing number of falls. The deceased asked Lisa to promise never to put her in a nursing home. The solution they settled upon was to sell the deceased's Dural property together with Lisa's Castle Hill property and an investment property that Lisa owned in Woolloomooloo in order to buy the Kenthurst property together. As I have mentioned earlier in these reasons, Lisa, Simon and the deceased purchased the Kenthurst property as joint tenants in November 2016. Lisa's unchallenged evidence is that she and Simon and the deceased each received separate legal advice about the nature of a joint tenancy, including the right of survivorship, before proceeding with that purchase. The deceased contributed approximately $1,371,250 from the sale proceeds of the Dural property to the purchase of the Kenthurst property, while Lisa and Simon contributed approximately $1,384,638 from the sale proceeds of Lisa's Castle Hill and Woolloomooloo properties. They moved into the Kenthurst property in early 2017, when Jasmine was three years old. Lisa estimates that she and Simon spent an additional $150,000 on repairs and improvements to the Kenthurst property in the years after they moved in.
Lisa and Simon have both given evidence to the effect that, after moving into the Kenthurst property together with the deceased, Lisa did all of the housework and shopping for the household, Simon maintained the garden and grounds of the five-acre property, and Lisa and Simon together prepared all of the meals. Simon paid most of their household and living expenses, and Lisa and the deceased each contributed to those expenses occasionally.
According to Lisa's evidence, the deceased's medical needs increased in the years after they moved into the Kenthurst property, and she and Simon rarely took trips away due to concern for the deceased's welfare. Lisa and Simon continued to take the deceased to her medical appointments, and to accompany her during any hospital admissions. This was particularly challenging during the COVID-19 pandemic lockdowns in 2020 and 2021. According to Lisa's affidavit sworn on 21 February 2024, the deceased's specialists had advised the deceased in about February 2020 that, given her heart and lung problems, she would not survive if she contracted COVID-19. The deceased had previously loved going out, and Lisa had taken her out whenever she could. The deceased's mood was up and down during the lockdowns, and she complained to Lisa that she hated being stuck in the house. Lisa had to explain to the deceased that they could not go to the country because it was against the rules. The deceased was unable to join Lisa even on short shopping trips within the Kenthurst area because the deceased found it difficult to breathe while wearing a mask. Lisa gave evidence that Mark was prepared to visit the Kenthurst property during this time on the basis that his elderly mother needed care, but Lisa told him that this was against the rules because he lived 30km away. The deceased then told Mark not to visit because Lisa was her carer, and she did not want Mark to be charged for breaking any rules, even though she did not understand the rules.
Lisa's evidence concerning the lockdown period is consistent with Mark's evidence to which I have referred at [35]-[37] above.
Lisa gave evidence that once the COVID-19 restrictions eased, the deceased was able to go out to lunch regularly with Lisa or one of her friends when she felt well enough to do so. I infer that this was in late 2021 and 2022.
By November 2022, the deceased was having frequent falls - sometimes several times per day - and Lisa felt that she needed to check on her every 15 or 20 minutes. Lisa was assisting the deceased to get in and out of bed, showering her, and attending to her personal care needs.
The deceased contracted COVID-19 in December 2022. Lisa took her to Norwest hospital, but she was discharged after only one night because the hospital advised that they were not equipped for COVID-19 patients. Lisa cared for the deceased at home, although she had another hospital admission in mid-December 2022 following a serious fall. It appears that the deceased may never have fully recovered from COVID-19 before she passed away on 22 February 2023.
On the basis of all of the evidence summarised at [31]-[55] above, I find that Mark had a close relationship with the deceased in the sense that they felt love and affection for another. Mark maintained contact with the deceased, but that contact was often less frequent than the deceased would have liked. Moreover, the contact was limited to telephone calls and visits to the deceased. Mark rarely took the deceased out, and did not involve her in the activities of his own life, which would have enhanced her sense of social connection as she aged. By April 2015, this caused the deceased to feel that Mark "loved me less", as she wrote the in the supplementary document which she prepared at the same time as her will. Mark's visits to the deceased as her health deteriorated during the years after 2015 were not particularly frequent. Mark visited weekly only during the period from April to December 2020 when he was not in full-time employment. I accept that the COVID-19 pandemic restrictions, and Lisa's understandable insistence on strictly adhering to those restrictions, precluded Mark from visiting during 2021. In 2022, when he could have visited regularly, Mark chose not to visit for a period of six months merely because his elderly mother told him that he need not take the trouble to do so while his licence was suspended. Mark did not shoulder any of the burden of caring for the deceased. He appears to have been content for Lisa to bear that responsibility alone with the support of her husband.
Through his counsel, Mark expressly acknowledged the close relationship between Lisa and the deceased, and the care that Lisa had provided for her. In closing submissions, counsel said:
"The defendant clearly had a close relationship with the deceased. She lived with her for a substantial period of time. She had a very intimate connection in terms of being there, taking her to appointments, assisting her with all these falls. It's no doubt that the deceased and the plaintiff owe a great deal of gratitude and thanks to the defendant for the sacrifices she's made for the deceased."
As counsel acknowledged, that is a matter which must be taken into account in determining whether inadequate provision has been made for Mark and, if so, whether any provision should now be ordered in his favour.
[4]
Provision that the deceased made for Mark during her lifetime and in her will (s 60(2)(i))
In 2017, the deceased paid Mark the sum of $50,000 to assist him with the purchase of the property that he now owns in Mascot. Mark received additional assistance from Raymond in the sum of $50,000 at the same time.
In 2020, the deceased paid Mark the sum of $10,000 in order to help him pay down his credit card shortly after he lost his job as a result of the COVID-19 pandemic.
As referred to earlier in these reasons, [6] Mark received a total sum of $128,714 (after tax) from the deceased's superannuation funds in accordance with nominations that she made prior to her death. In addition to those benefits, the deceased bequeathed to Mark 40 per cent of the residue of her estate, after payment of specific gifts totalling $141,000 to other beneficiaries named in her will. At the time of the death of the deceased, the residue of the estate after payment of funeral and testamentary expenses and the gifts totalling $141,000 would have been approximately $200,000. [7] Mark's 40 per cent share of that residue would have been approximately $80,000, and Lisa's 60 per cent share would have been approximately $120,000, if the residue had been paid in accordance with the will without any estate funds being spent on legal costs in connection with Mark's claim that is now the subject of these proceedings. At the time of the hearing, the residue of the estate is approximately $171,426 after payment of the $141,000 legacies and after payment of legal expenses and bank fees and charges. If that residue were to be distributed in accordance with the will, Mark's 40 per cent share would amount to approximately $68,570 and Lisa's 60 per cent share would be approximately $102,856.
[5]
The deceased's obligations to Mark and to each beneficiary (s 60(2)(b))
The nature of the deceased's obligations to her two adult children are described in the passage from the judgment of Hallen J in Camernik v Reholc which I have set out at [30] above. In circumstances where neither Mark nor Lisa have fallen on hard times, and neither of them have acute financial needs that they are unable to meet from their own resources, the community would expect the deceased to make some provision for her only grandchild, who lived with the deceased for most of her young life. The deceased has no moral obligation to her former husband to whom she bequeathed $10,000 or to the friends to whom she bequeathed between $3,000 and $5,000 each, but her reasons for those gifts are set out the supplementary document that she prepared at the same time as making her will in April 2015.
[6]
The nature and extent of the deceased's estate (s 60(2)(c))
As I have already stated, the value of the deceased's estate as at the date of her death was $359,493. There were no liabilities. By the time of the hearing, the funds comprising the estate had been reduced to $171,426 as a result of Lisa's payment of the legacies totalling $141,000 in accordance with the deceased's will, legal costs, and bank fees and charges. The deceased's interest in the Kenthurst property and her superannuation benefits do not form part of the estate. Mark seeks a notional estate order in relation to the superannuation benefits paid to Lisa to the extent necessary to meet any order for provision made in his favour in these proceedings, or to meet any costs order. [8]
[7]
Mark's present circumstances (s 60(2)(d)-(e), (g) and (l))
As I have already mentioned, Mark is presently 54 years of age. He is generally in good health.
Mark works as a live entertainment producer. His most recent employed position was with Melbourne Symphony Orchestra, where he earned a salary of $170,000 per annum, which gave him a net income of $9,120 per month.
Mark established a consulting business to undertake additional projects outside his full-time employment. The business specialises in creating, producing and programming commercial concerts in the subsidised Arts industry. Mark incorporated the business as Make My Mark Pty Ltd in December 2021. Mark is the sole director and shareholder of that company.
At the time these proceedings were commenced in October 2023, Mark was earning a net salary of $1,162 per month from the business in addition to his monthly salary of $9,120 per month from his full-time employment with Melbourne Symphony Orchestra.
Mark resigned from his employment on 8 November 2023 in order to work full-time in his business, effectively becoming self-employed. His notice period with Melbourne Symphony Orchestra expired on 3 January 2024, following which he travelled to Europe in order to meet with producers in London to explore potential work opportunities for Make My Mark.
Mark gave evidence that has made two director's loans to Make My Mark totalling $25,000 in order to maintain its cash flow during the first quarter of 2024. He funded those loans from his savings. As I understand the evidence, Mark's savings comprised the monies paid to him out of the deceased's superannuation funds in October and November 2023, as referred to at [12] above.
Make My Mark has been Mark's sole source of income since January 2024. According to Mark's evidence, the company has paid him a gross salary of $2,000 per month during the period from January 2024 to March 2024, which increased to $6,000 per month in April 2024 and $10,000 per month in July 2024.
The business paid Mark a gross salary of about $81,000 during the 2024 calendar year, averaging $6,750 gross per month. However, $60,000 of that gross salary was paid during the period from July to December 2024, averaging $10,000 gross per month for that six-month period (or $7,225 after tax). As counsel for Mark acknowledged in closing submissions, it is fair to say that the revenue of the business and the salary that it pays to Mark has been increasing over the course of the 12 months since Mark first began to run the business on a full-time basis. Mark has given evidence of his ambitions to grow the business. He has pursued that objective with some confidence, travelling to Europe in January 2024 and again in January 2025 to meet with producers about potential work opportunities. Make My Mark paid for both trips. There is necessarily some uncertainty surrounding the future performance and revenue of the business, and Mark's future salary, given the relatively short period for which Mark has been devoted to it full-time, the ordinary vicissitudes of small business ventures, and the nature of the particular industry in which Make My Mark operates. According to Mark's evidence, contracts with Arts organisations are "generally short-term and inconsistent".
Mark did not tender any valuation of Make My Mark or of his shares in the company. Nor did he tender any financial statements, management accounts or tax returns for the company. However, Lisa tendered the company's bank statements. Lisa's extensive cross-examination of Mark did not identify any salary payments recorded in the company's bank statements that were inconsistent with his evidence that I have summarised above. Lisa put to Mark that the bank statements showed a "huge discrepancy" between what the company earns and the salary that Mark is paid. Mark agreed, later explaining that the fees paid to the company relate to specific concerts or productions, and that the company is required to pay the artists performing at those concerts or productions out of the fees that it has received from its client. The bank statements do not indicate that the company is accumulating significant earnings that are not being used to pay Mark's salary and other expenses of the business. The balance of the company's bank account as at 1 December 2024 was $51,260.
Mark intends to continue working until at least the age of 65 years.
Mark owns his home in Gardeners Road, Mascot, the value of which has been appraised as between $740,000 and $790,000. As referred to earlier in these reasons, the deceased and Raymond each gave Mark $50,000 to assist him to purchase that home in 2017. Mark's other assets comprise furniture and other personal effects with an estimated value of $50,000, a motor vehicle with an estimated value of $40,000 and cash of $61,773 (as at 31 December 2024). Mark has a superannuation fund of $329,601 which he will be able to access in 2036 at the age of 65.
Mark has loans from St George Bank totalling $637,763 which are secured against his Mascot property, and a credit card liability of approximately $200.
Taking all of these matters into account, Mark estimates that his net asset position is $313,799. I note that this is after receiving the sum of $111,058 in October 2023 and the sum of $17,656 in November 2023 from the deceased's superannuation funds held with BT Panorama and UniSuper referred to at [12] above.
According to Mark's evidence, his monthly expenses are $7,647, including $4,344 for mortgage repayments, $367 for strata levies, $750 for groceries, $750 for entertainment, $425 for insurances, and $200 for travel. Those monthly expenses slightly exceed his present net monthly income of $7,225 earned from Make My Mark. Lisa cross-examined Mark about some of his personal expenses, putting to him that they were unreasonably high for his level of income. Mark disagreed with Lisa's assessment, characterising his travel and fine dining expenses - to the extent that they are paid from his personal funds rather than by his company - as ordinary living expenses. I note that the business records of Make My Mark which were tendered in these proceedings show that Make My Mark has been paying compulsory superannuation contributions for Mark plus additional contributions by way of salary sacrifice in the amount of $500 per month during 2024.
Mark has given evidence that his immediate need is to pay down the mortgage secured against his Mascot property, as this represents his biggest living expense. The amount owing under his mortgage is higher than it would have been but for a period of unemployment in 2020 during the COVID-19 pandemic, which affected the live entertainment industry. Mark paused his mortgage repayments for a time during that period, and paid interest only for a time after that. He resumed making principal and interest payments when he secured full-time employment with Melbourne Symphony Orchestra.
Mark is in a long-term relationship that began in 2017, but he does not live together with his partner, Mr Jarther Taylor. Mark and Jarther gave evidence that they have separate residences, and live apart with the exception of five or six nights per month when Mark stays overnight at Jarther's home. Their finances are entirely separate, and they split all expenses, including travel and entertainment, with the exception of special occasions such as birthday outings. Mark and Jarther adhered to that evidence in cross-examination. Mark's bank statements, which Lisa tendered and on which she cross-examined him extensively, contain many entries that are consistent with Mark and Jarther reimbursing one another for shared expenses incurred on holidays, for theatre and concert tickets, and when dining out.
In his affidavit affirmed on 31 December 2024, Jarther gave evidence that, from the start of their relationship, he and Mark had agreed that they would keep their assets separate, and that they would not be financially responsible for one another. Jarther resolved to never again enter into a financially interdependent relationship after a previous relationship ended in costly family law proceedings in 2013 in which he had to defend himself against what he considered to be spurious claims by his former partner. Jarther deposed that, based on discussions they have had during their relationship, he has no expectation that Mark will provide for him financially, and he takes the view that he has no financial responsibility for Mark. These aspects of Jarther's evidence were not challenged in cross-examination.
On the basis of all of the evidence summarised at [64]-[80] above, I find that Mark is in good health and has the capacity to continue working and earning an income in the industry that he has chosen. There is presently no reason to think that he will not be able to continue working for a further 12 years until the age of 65, as he intends to do. As Mark is now effectively self-employed, his income fluctuates. However, the limited evidence adduced in these proceedings in relation to Make My Mark, its financial performance to date and its future prospects, does not establish that Mark is presently facing, or is likely to face, financial hardship due to fluctuating income. Mark did not tender any tax returns, financial statements, or management accounts of Make My Mark. Nor did he tender any evidence valuing his shares in Make My Mark. Any uncertainty resulting from those gaps in the evidence is not to be resolved in Mark's favour: Blendell v Blendell [2020] NSWCA 154 at [28] (Meagher JA, Gleeson and Leeming JJA agreeing).
Mark has the security of his own home which he purchased in 2017 with the benefit of financial assistance from the deceased and his father totalling $100,000.
Mark has no dependents. He and his partner live separately and keep their financial affairs entirely separate. They have agreed that they no obligations to support one another financially. I accept the submission made on behalf of Mark that Jarther's financial position is not relevant to the consideration of Mark's financial circumstances in these proceedings.
Whilst there is a slight discrepancy between Mark's present monthly income and monthly expenses, Mark has the capacity to bridge that gap by reducing discretionary expenditure (such as travel and fine dining) until such time as he grows the business sufficiently to increase his salary and to pay dividends. Mark's ability to make additional superannuation contributions suggests that it is not every month that his expenditure exceeds his income, and I so find.
Mark's mortgage repayments are his biggest monthly expense. He would have greater financial security if he could reduce the debt secured by the mortgage, as this would make him less vulnerable to interest rate fluctuations, and would also reduce his monthly expenses which would give him the capacity to accumulate some savings. The evidence suggests that the payments that Mark received from the deceased's superannuation funds in October and November 2023 have been significantly or wholly depleted by the director's loans paid to Make My Mark and by his payment of legal fees that he has incurred in connection with these proceedings.
[8]
Lisa's present circumstances (s 60(2)(d) and (e))
Lisa is 52 years old. In her affidavit sworn on 21 February 2024, Lisa gave evidence that she has suffered from stress and anxiety since the death of the deceased, and that she is being actively monitored for cancer due to lumps discovered on her body. That is the extent of the evidence concerning Lisa's health.
Lisa works as a school teacher on a casual basis. As I have mentioned earlier in these reasons, Lisa took time out of the workforce after the end of her maternity leave in 2015 in order to continue caring for her daughter and to provide the increasing level of support and assistance required by the deceased. The deceased's needs were such that Lisa did not consider it feasible to return to employment in the corporate sector, even after Jasmine began attending preschool three days per week in 2017. Lisa began doing some casual school teaching work in about July 2020, but she had limited capacity to work due to the deceased's care needs, and she ceased taking on any casual work in about November 2022 for that reason. Lisa resumed casual teaching work after the deceased passed away. The evidence is silent as to whether she now intends to increase her casual teaching work, or undertake other work. In her affidavit sworn on 22 April 2024, Lisa deposed that her taxable income for the year ended 30 June 2023 was $9,955. There is no updated evidence of her earning capacity.
Lisa owns the Kenthurst property as joint tenant with her husband, Simon. Lisa and Simon have each given evidence estimating that the total value of the Kenthurst property is $3,000,000. However, the evidence does not disclose any basis for that estimate. As I have mentioned earlier in these reasons, Mark has adduced evidence of a kerbside valuation of the Kenthurst property which, after considering comparable sales, estimates the total value of the property as $4,100,000. I prefer that estimate, which has some basis. It is an estimate only. There is no mortgage secured against the Kenthurst property.
Lisa's other assets comprise a motor vehicle that she owns jointly with Simon with a total value of about $28,000, Macquarie Bank shares with a value of $40,281, cash of about $107,000 in a bank account that Lisa maintains for investment funds, further cash of about $120,000 that Lisa deposited in that investment account after receiving the payments from the deceased's superannuation funds referred to at [12] above, and Lisa's own superannuation funds of approximately $309,000 (as at 30 June 2023). As explained at [12] above, the payments made to Lisa out of the deceased's two superannuation funds totalled approximately $180,848. Lisa gave evidence in cross-examination that she had spent some of that money on expenses and on a family holiday, and that she has retained the $120,000 which she deposited in her investment account.
Simon is 65 years old. He has been retired since being made redundant in 2017. His only source of income is from his investments, including his retirement savings. Simon has cash of $190,000, UK pension entitlements with an estimated value of £658,581 (approximately AU$1,310,576 [9] ), a self-managed superannuation fund with an estimated value of $345,672, and a BT Panorama superannuation account with an estimated value of $721,800. Simon also owns the Kenthurst property and a motor vehicle jointly with Lisa.
Neither Lisa nor Simon have disclosed any credit card debts or other liabilities.
Lisa and Simon provide financial support for one another. Since 2017, Simon has paid for all or most of their joint expenses. Lisa contributes to those payments from time to time when she has income from her casual teaching work.
In summary, the evidence to which I have referred above discloses that Lisa has no liabilities and assets with a total estimated value of $2,640,281, [10] including the sum of $120,000 that she has retained from the payments that she received out of the deceased's superannuation funds. For the reasons I have explained above, Lisa earned little income up to and including the 2023 financial year. Her expenses have been met by Simon, who supports her financially and whose assets referred to above have a total estimated value of approximately $4,632,048. Simon funds his and his family's living expenses from income earned from those assets. The combined net asset position of Lisa and Simon is approximately $7,272,329.
I accept the submission made on behalf of Mark that Lisa and Simon's ownership of the whole of the Kenthurst property is a benefit that the deceased conferred on them during her lifetime by purchasing the Kenthurst property, for which the deceased contributed approximately half of the purchase price, as a joint tenant with Lisa and Simon, in circumstances where it was highly likely that Lisa and Simon would survive the deceased, in which case they would become the joint owners of the property by right of survivorship. However, at the same time, the deceased received the benefit of having all or most of her living expenses met by Lisa and Simon, the very high level of care that Lisa provided at no cost to the deceased, and the comfort of being able to remain in her own home for the rest of her life without having to move into nursing home accommodation. The evidence does not provide sufficient information to value these countervailing benefits, but I do not think that it is relevant to do so. It would be very difficult in my opinion to place a monetary value on the security, comfort and quality of life that the arrangement provided for the deceased during her most vulnerable stage of life.
Jasmine is presently 10 years old and is dependent on Lisa and Simon. She attends public school. Simon has made regular contributions to an account that he established for Jasmine when she was born in 2014. That account now has a balance of approximately $12,000. The $100,000 legacy provided for Jasmine in the deceased's will that Lisa paid out of the deceased's estate in 2024 is held in Commonwealth Bank of Australia account that Lisa and Simon have established as trustees for Jasmine. According to Simon's evidence, that account currently has a balance of approximately $103,000.
[9]
The deceased's testamentary intentions (s 60(2)(j))
The deceased's last will dated 3 April 2015 and her supplementary explanatory document provide some evidence of testamentary intentions. To the extent that counsel for Mark submitted that the deceased's will was prepared on a basis that is wrong in fact, or that the reasons which she recorded in 2015 for leaving a lesser share of the residue of her estate to Mark were unreasonable or irresponsible, I reject that submission. The will was prepared in circumstances that changed about two years after it was made when the deceased sold the Dural property that she had bequeathed to Lisa (as to 60 per cent) and Mark (as to 40 per cent) as part of the residue or her estate, and purchased the Kenthurst property under a joint tenancy that would result in her interest in that property passing to Lisa and Simon by right of survivorship and therefore not forming part of her estate. That change in circumstances, which meant that Mark did not stand to inherit any interest in the deceased's real property, is relevant to my assessment of the whole of the evidence of the deceased's testamentary intentions at the time of her death, including the different conversations that Mark and Lisa say the deceased had with them about her wishes.
As I have mentioned earlier in these reasons, Lisa gave evidence that the deceased had serious medical conditions in early 2020, and that her specialists had called an informal end of life meeting on about 20 February 2020 and suggested that she get her affairs in order, advising that she would not survive if she contracted the COVID-19 virus.
Mark gave evidence that he did not know about those end-of-life discussions, but the deceased did begin to discuss her testamentary wishes with him at that time. According to Mark's evidence, the deceased had several conversations with him during 2020 and 2021 in which she told him that she wanted to change her will. Mark recalls "various conversations" in which the deceased said words to the following effect:
"My will needs to be amended. I want Lisa to have my share of the house. I know it is not an equitable distribution, but I do not want to disrupt your sister's life or the routine and schooling of Jasmine. If your sister had to sell the house to pay out your share, it would disrupt their life and I don't want to do that. I want your sister to keep my share of the house, so I want you to have my remaining financial assets."
Mark gave evidence that the deceased had intended to visit her solicitor to update her will but, whenever she mentioned this, "it always ended up being too difficult to organise" due to the COVID-19 restrictions and because the deceased was concerned that she would be unable to climb the stairs to her solicitor's office in Pennant Hills.
In his affidavit sworn on 30 October 2023, Mark deposed that the deceased had a further discussion with him about her desire to change her will during a period in which she was hospitalised in November 2022. In cross-examination, after being shown contemporaneous text messages exchanged between himself and Lisa during that period, Mark acknowledged that he had not visited the deceased in hospital or spoken with her on the phone during either of her two relatively short hospital admissions in November 2022, and that he must have been mistaken in saying that they had discussed the deceased's will at those times. He attributed the mistake to the fact that he had a number of discussions with the deceased about her testamentary wishes over a period of time.
In his affidavit sworn on 30 October 2023, Mark also gave evidence that the deceased had a further discussion with him about her intention to change her will during a subsequent hospital admission in December 2022. The text messages exchanged between Mark and Lisa during that hospital admission record that Mark did visit the deceased on that occasion, and that the deceased was confused (according to Mark) or delirious (according to Lisa). In cross-examination, Mark acknowledged that the deceased was delirious, but maintained that she had discussed her will with Mark during his visit with her in hospital.
In his affidavit affirmed on 31 December 2024, Jarther gave evidence that Mark had mentioned to him at least three times while the deceased was alive that she had discussed with Mark her intentions that, upon her death, her cash and superannuation was to go to Mark as Lisa had received the house. Mark also mentioned more than once that the deceased had said that she intended to change her will to that effect. Jarther also deposed that he recalled Mark telling him after the deceased died that he had discussed the estate with Lisa, and that she had agreed that Mark was to receive "the leftover cash and superannuation". Lisa did not challenge these aspects of Jarther's evidence in cross-examination.
In his affidavits sworn on 17 July 2023 and 26 April 2024, Raymond gave evidence that he visited the deceased at the Kenthurst property in or about January 2023 and had a private conversation with her in person, during which the deceased told him that she knew that Lisa had received all the sale proceeds of her Dural property, and that she wanted Mark to receive any remaining money that she had left. The deceased said to him words to the effect: "I have given Lisa this house already. I will make sure Mark receives what money I have left." Raymond gave evidence that he believes the deceased intended to update her will, but that she was too ill to attend to it. In his affidavit sworn on 26 April 2024, Raymond deposed that the deceased told him that it was her intention to change her will so that Mark would receive what money she had left. In cross-examination, Raymond firmly adhered to his evidence that this conversation took place, although he acknowledged that he may have been mistaken about the precise timing of it. Raymond described the circumstances of the conversation in detail, saying that he and the deceased were sitting alone together in the Kenthurst property, while Lisa was in the kitchen, and Jasmine was playing in the garden together with Raymond's wife, Maxine. Simon was not present. Raymond gave evidence that he remembers the conversation because it was the only time that the deceased had discussed her will with him, and it surprised him that she spoke to him about it. Lisa contends that Raymond did not visit the Kenthurst property for a considerable period of time prior to the deceased's death. However, Simon gave evidence in cross-examination that he recalled Raymond visiting the deceased at the Kenthurst property about six months before she died.
According to Mark's evidence, the deceased again discussed changing her will during the last conversation that he had with her on 20 February 2023. Mark had recently returned from an overseas trip, and they spoke by telephone. The deceased expressed exasperation with her health and with feeling tired. She raised the subject of changing her will. She mentioned wanting to give some money to her two best friends Sandra Dunn and Garry Lawson to benefit their lives and help them to travel, but said that she thought that Sarah or Samantha Dunn probably didn't need money. It will be recalled that the deceased's will made on 3 April 2015 provides for a gift of $5,000 to each of Sandra Dunn, David Dunn, Sarah Dunn, Samantha Dunn, and Garry Lawson. Mark told the deceased that, when she was feeling better, he would arrange an appointment with a solicitor who could come to see her at the house, or that they could arrange a Zoom meeting which Lisa could help her to join, so that the deceased would not have to go anywhere. This never eventuated, as the deceased had a fall the following day from which she never regained consciousness before she passed away on 22 February 2023.
On 24 February 2023, Mark went to the Kenthurst property to see Lisa before they met together with the funeral director to prepare the service for the deceased. Mark gave evidence that, on this occasion, Lisa gave him a copy of the deceased's will dated 3 April 2015, together with the supplementary explanatory document and a document setting out a summary of the deceased's financial assets, including superannuation. It was the first time that he had seen the will, and he had not previously had any information about the deceased's financial assets.
According to Mark's evidence, during that initial conversation on 24 February 2023 and other conversations in the following days, he and Lisa discussed the deceased's intentions and Lisa acknowledged that the deceased's wish was for the financial assets to go to Mark. Lisa said, "I do not care about the money".
Mark's evidence about his conversations with Lisa on 24 February 2023 and the following days is consistent with what Lisa told a representative of UniSuper on 27 February 2023 when she made a telephone call to initiate the process of claiming the benefits payable by the fund following the death of the deceased. A recording of that telephone conversation was tendered in evidence, and was played in open court during the hearing of these proceedings. Lisa does not dispute that she is the person who made the call, and that the recording received into evidence records the whole of the conversation on 27 February 2023.
The following exchange occurred between Lisa and the UniSuper representative during that call, after the UniSuper representative informed Lisa that, because Simon had also been living together with the deceased, he could apply to be considered as an eligible beneficiary (emphasis added):
Lisa:
"But, umm ,technically, he doesn't get anything - it just goes to Mark and myself, yeah."
UniSuper Representative:
"Well he could potentially apply but, for example … if he's happy for it to go all to you …"
Lisa:
"Yeah, umm, at the end of the day my brother gets most of the money. Umm, we just have to, umm, figure out how to split it up between us, sort of thing."
The UniSuper Representative advised that, if Simon was content not to be considered as an eligible beneficiary, he should send an email to UniSuper confirming this. The conversation then continued (emphasis added):
UniSuper Representative:
"Now, with the nominations that we have, they're non-binding, so we would need to look at something like umm discussing a umm percentage between yourself and your brother.
You mentioned that your brother was getting …"
Lisa:
"Yeah, I inherited the house because we were tenants in common when we purchased the house."
UniSuper Representative:
"Okay"
Lisa:
"And my brother will get quite a bit of the money, but not all of it."
UniSuper Representative:
"Okay, so have yourself and your brother discussed a potential split of the benefit …"
Lisa:
"… we've started to, but she only died a couple of days ago, so I think it will be a long-term process that we go through"
UniSuper Representative:
"Yep. No that's okay, let's just … Just so you know that it's something that we consider as well… "
The call concluded with the UniSuper representative requesting that Lisa and Mark provide information about any split of the benefit that they might agree upon, before providing Lisa with detailed instructions about the documents and information that she and Mark would need to provide to UniSuper in support of their applications for payment of the benefits. Lisa also sought some information from the UniSuper representative about the tax that might be payable on the benefits.
Lisa's tone of voice during the whole of this conversation with the UniSuper representative was calm and relaxed, devoid of any hint of the angry sarcasm that I observed in her tone of voice throughout most of the hearing, including during her cross-examination of Mark.
The deceased's funeral was held on 3 March 2023.
Mark gave evidence that he had several conversations with Lisa after the funeral with a view to advancing the administration of the estate. During one of those conversations, Lisa told Mark that she intended to keep the superannuation benefits that she was entitled to in accordance with nominations made by the deceased prior to her death. Mark questioned how that honoured the deceased's wishes, but Lisa was firm in her stance. According to Mark's evidence, Lisa eventually told him that she also intended to keep any asset to which she was entitled under the deceased's will made on 3 April 2015. Mark ultimately engaged lawyers after several attempts to discuss and resolve the situation with Lisa directly.
Contemporaneous text messages show that lawyers became involved in the negotiations on behalf of Mark towards the end of April 2023. Those messages corroborate Mark's evidence that Lisa refused to discuss the situation with him directly at that time.
Lisa does not claim to have been present during any conversation that the deceased had with Mark, or with Raymond, about her will. In cross-examination, Lisa said that she "generally gave them their space to have a conversation". Lisa nevertheless disputes that the deceased told Mark and Raymond that she wanted to change her will to leave her financial assets, or most of her financial assets, to Mark because she had left the Kenthurst property to Lisa. In cross-examination, Lisa asserted that the deceased would have said that to Mark "[o]nly if she's being bullied and pressured into it".
Lisa's denial of Mark's evidence of the intentions that the deceased expressed to him appears to be based on Lisa's evidence of the following conversations that she claims occurred between herself and the deceased.
In her affidavit sworn on 21 February 2024, Lisa deposed that the deceased said to her in about 2018 that she had spoken with Mark, that Mark knew that he was not getting the house, but that he "keeps demanding I leave him my money".
In his affidavit sworn on 29 April 2024 in reply to Lisa's affidavit, Mark gave evidence denying that he had ever demanded money from the deceased. Mark deposed that he and the deceased had never discussed money until she initiated the conversations with him about her wishes concerning her will.
Lisa also deposed that she had a conversation with the deceased in about 2020 in which the deceased told her that she had spoken with Raymond about their wills. According to Lisa's evidence, the deceased said to her:
"Your dad is leaving his house and super to Maxine.
He wants me to leave more to Mark in my will.
We both know that Mark wants money. I want to be fair, and I do not want to leave any trouble for you with Mark, but I don't think he really deserves any more and I don't know that changing my will to give him more money will stop him causing trouble.
I think your dad just wants everything to be simple for him if I go first. Both your dad and I have given Mark money over the years, but your dad doesn't think that will be enough for Mark. I am feeling pressured by both of them."
Raymond gave evidence denying that he had ever discussed his will with the deceased. He did not consider that there was any need to do so, given that they had been divorced for so many years. He was surprised when the deceased discussed her will with him on the occasion referred to at [103] above.
Lisa gave evidence that the deceased kept a "sealed envelope" containing her testamentary documents - being her will dated 3 April 2015 and her supplementary documents explaining the reasons for her will - next to her chair in the lounge room at the Kenthurst property. According to Lisa's evidence, she saw the deceased reading through the testamentary documents at the Kenthurst property on several occasions in about 2018, 2020 and 2022. In about January 2023, the deceased said to Lisa that she did not think there was any need to update her will. Lisa asked her why she did not want to give Mark more money, and the deceased said to her: "He did nothing to earn it. He doesn't deserve it." The deceased told her that she would explain her wishes to Mark, and told her that she had also discussed her wishes with her friends, Joe and Garry. Joe and Garry were not called to give evidence in these proceedings.
Lisa also gave evidence that the deceased told her during a conversation towards the end of 2022 that she believed Mark only thought about himself, and that she sometimes wondered whether Mark only visited her and Raymond to "check on his inheritance". According to Lisa's evidence, the deceased also said to her from time to time that "no matter how much I give Mark, it never seems to be enough".
In her affidavit sworn on 21 February 2024, prepared at a time when she was represented by a solicitor in these proceedings, Lisa gave evidence confirming that she showed Mark the deceased's testamentary documents - being the will dated 3 April 2015 and the supplementary explanatory document - after the deceased passed away. Lisa did not give any evidence of any conversations that she had with Mark at or about that time concerning the deceased's wishes. Lisa did not respond to Mark's evidence that he and Lisa discussed the deceased's intentions at that time and Lisa had acknowledged that the deceased's wish was for the financial assets to go to Mark. [11] Nor did Lisa respond to that aspect of Mark's evidence in her subsequent affidavit sworn on 19 January 2025.
It is very difficult to reconcile Lisa's evidence to which I have referred at [115]-[122] above with her failure to reply to Mark's evidence in her 29 April 2024 or 19 January 2025 affidavit. During her opening submissions on the first day of the hearing, Lisa said: "I'm sure the deceased did have conversations with the plaintiff, as did I. When I was being screamed at and under duress, I'm sure I actually said, 'Take the lot, take the money, I don't care about it.' My mum was the same. She was bullied, she was pestered …". Prior to her opening address, Lisa had not given any evidence of any conversation between herself and Mark concerning the deceased's will or "the money". Nor had she given any evidence of any occasion on which she alleged that Mark at "screamed at" her or subjected her to "duress".
In cross-examination, Lisa was asked about the occasion when she gave Mark a copy of the deceased's testamentary documents on 24 February 2024. It was put to Lisa that Mark said to her on that occasion that the deceased had told him that "I would receive what is left from the financial assets and you would get the home". Lisa answered: "No, I do not believe that was the case." That answer, which indicates that the subject was not even discussed, is inconsistent with Lisa's allegation that Mark "screamed at" her about his claimed entitlement to the financial assets on that occasion. As I have already stated, Lisa did not identify in her affidavits any other conversations that she recalls having with Mark in the period after the death of the deceased concerning the deceased's will. It was only later during her cross-examination that Lisa gave evidence, in response to a question asked by me, that by the time she telephoned UniSuper on 27 February 2024, Mark was "telling me that he wanted all the money, and he insisted on having it". The recording of that telephone conversation provides objective evidence that Lisa told the UniSuper representative that she and Mark had only just started to discuss how to "split" the money and that they would be engaged in a "long process" to work that out. [12] That is inconsistent with Lisa's evidence in cross-examination that Mark had already adopted an immovable position that he insisted on having all of the money.
Lisa tendered voluminous records of text messages that she and Mark had exchanged over several years, including at the time of and in the weeks and months after the death of the deceased on 22 February 2023. The text messages record a series of cooperative and considerate messages between them during the period on and from 24 February 2023 when they were arranging the funeral, and messages that they sent one another in the days after the funeral service on 3 March 2023 exchanging photos and recordings that they had put together for the service, and passing on to one another messages of love and support that each of them had received from the deceased's friends.
Lisa and Mark exchanged the following text messages on 9 March 2023:
Lisa:
"Hi Mark,
We need to have a chat. Let me know when is convenient.
Hope Melbourne is going well.
Lisa x"
Mark:
"Just saw your email. It seems like there is a wait anyway which suits me fine. Can we discuss when I'm back? My only goal is to have it sorted by August. Thanks x"
Lisa:
"No problem. Should take until July, nothing we can do in meantime. X"
The next message between them was sent by Lisa on 17 March 2023, telling Mark that she had been in hospital overnight, but was now home resting. Mark replied: "Hope you're Ok X"
On 17 April 2023, Lisa sent Mark a photograph of Jasmine playing table tennis. Later that same day, Mark sent a message to Lisa asking if she had received his email. Lisa replied: "No".
On 21 April 2023, Mark and Lisa exchanged the following messages:
Mark:
"Hi Lisa. After we spoke earlier in the week I went and met with a lawyer on Wed. They have prepared a letter that should be ready to send to your lawyer today. Before we go down this path it would be good to know if you have changed your mind in anyway about your claim on the money. Happy to talk about it further. It would be great to come to an agreement without involving lawyers. Let me know if you want to chat today. I should be free from 11am."
Lisa:
"Hi Mark,
We are at the movies so will not have phones on. I will not be in a position to talk with you until I get a copy of the letter."
Mark:
"If you want to chat before the letter is sent you can call me at anytime today. If you don't want to chat I will just have the letter sent. The choice is entirely yours. I just want have the chance to resolve it before we start involving lawyers."
Lisa did not reply to Mark's last message on 21 April 2023.
Mark sent the following further message to Lisa on 2 June 2023:
"Hi Lisa. Just checking in. I haven't heard from you or your lawyer and wanted to know where things are at. Still keen to resolve everything without lawyers. Happy to chat at any time. Speak soon."
Lisa did not respond to that message.
Neither the content nor the tone of the text messages gives any indication of any tension between Lisa and Mark at those times concerning the deceased's estate, or any other matter, during the period from before the deceased's death on 22 February 2023 until about 17 April 2023. I infer from the content of the messages on 17 and 21 April 2023 and 2 June 2023 that Mark formulated a position concerning how he believed the estate should be distributed and communicated that to Lisa on 17 April 2023. They had a discussion about that at some time between 17 and 21 April 2023, and Mark sought to have further discussions thereafter in the hope of reaching an agreement between themselves without involving lawyers. Lisa declined to engage in those discussions, and Mark then caused his solicitor to communicate with Lisa at some time between 21 April and 2 June 2023. The text messages provide contemporaneous evidence of communications between Lisa and Mark that, in my view, render it most improbable that Mark was insisting by 27 February 2023 that all of the money in the deceased's estate should be paid to him, as Lisa claims. The tone of the text messages is inconsistent with Lisa's claim made in her submissions to this Court that Mark had screamed at her and subjected her to duress in making that demand. I am referring in particular to the affectionate tone of the messages in the period prior to 17 April 2023 and the courteous tone of Mark's messages thereafter.
It is even more difficult to reconcile Lisa's evidence to which I have referred at [115]-[122] above with the objective evidence of her conversation with the representative of UniSuper on 27 February 2024 referred to at [107]-[111] above. In cross-examination, before the recording of the conversation was played, Lisa initially denied ever having said to any person (other than Ms Phillips, who she describes as her probate lawyer) words to the effect that she (Lisa) was to get the house and that most of the money was to go to Mark.
After being reminded of her obligation to tell the truth under oath, Lisa was asked again whether she had ever said to any person other than Ms Phillips that she was to inherit the house and that her brother was to get most of the money. Lisa answered: "On 27 February I had a phone conversation with the superannuation company, UniSuper, and it was before I gained legal advice, and, yes, I did say, 'I've got the house, and my brother wants as much money as he can get.'" It emerged a short time later in cross-examination that Lisa had listened to the audio recording of the telephone conversation in the week prior to the hearing. Yet Lisa's answer misstated the substance of what she said to the UniSuper representative in a way that is unfavourable to Mark and favourable to Lisa's defence of Mark's claim in these proceedings. The terms of the conversation are set out at [108]-[109] above. Lisa did not say to the UniSuper representative that Mark "wants as much money as he can get". Rather, Lisa, told the UniSuper representative twice that Mark "gets" or "will get" most of the money, or "quite a bit" of the money.
When the actual terms of the conversation were put to Lisa in cross-examination, both before and after the recording was played in open court, Lisa sought to explain what she had said in two ways: (1) she had not received legal advice prior to this conversation; and (2) she was only referring to the UniSuper money which was only the subject of a non-binding preferred beneficiary nomination, and she was "happy to be negotiable on that". I reject both of those explanations. In my opinion, it is plain from the terms of the relevant part of the conversation that Lisa was speaking about the whole of her mother's estate when she said to the UniSuper representative that: "I inherited the house because we were tenants in common when we purchased the house … and my brother will get quite a bit of the money, but not all of it." Lisa would have had no reason to mention the house at all if she was only speaking about her and Mark's respective entitlements to the UniSuper money. The conversation is contemporaneous evidence of Lisa's understanding at the time that the deceased's estate would or should be divided as between her and Mark in such a way that most of the money went to Mark. Irrespective of whether she had received legal advice at that time, the contemporaneous evidence of her state of mind is inconsistent with her evidence of the conversations that she claims to have had with the deceased which are referred to at [115]-[122] above. The relaxed tone of voice in which she conveyed her understanding to the UniSuper representative (as referred to at [111] above) is wholly inconsistent with her allegation made for the first time in opening submissions that Mark had "screamed at" her and subjected her to "duress" in relation to his claims on the deceased's financial assets.
I treat with some caution the evidence given by each of Mark and Lisa about conversations that they say they had with the deceased concerning her wishes. The deceased is obviously unable to respond to that evidence. Mark has an interest in giving evidence that will support his claim, and Lisa, who is a residuary beneficiary, has an interest in giving evidence that will support her defence of the estate against the claim.
I reject Mark's evidence of the conversation that he deposed to having had with the deceased while she was in hospital during November 2022. Mark readily acknowledged in cross-examination that he must have been mistaken about that conversation because it could not have occurred having regard to the timing of events as revealed by contemporaneous text messages between himself and Lisa which were shown to him in cross-examination.
I place no weight on the conversation that Mark deposed to having had with the deceased in hospital in December 2022 at a time when, as Mark acknowledged in cross-examination, the deceased was confused and delirious.
Mark adhered to his evidence of his recollection of the gist of what the deceased said to him on several occasions throughout 2020 and 2021. The gist is that the Kenthurst property was to go to Lisa, and so the deceased wanted Mark to have her remaining financial assets. [13] I accept that evidence for the following reasons.
First, Mark readily made appropriate concessions in cross-examination, including the two concessions to which I have referred immediately above. I regard him as a credible witness.
Second, it is inherently probable that the change in the deceased's circumstances to which I have referred at [96] above caused her to reconsider her wishes insofar as her financial assets were concerned.
Third, Mark's evidence of the gist of what the deceased said to him is broadly consistent with Raymond's evidence of what the deceased said to him in the conversation that he clearly recalls, but which he readily acknowledged in cross-examination might have occurred earlier than January 2023. I accept Raymond's evidence about that conversation. It is Raymond's unchallenged evidence that he had a good marriage with the deceased for some 29 years before they separated, and that he had maintained a strong friendship with her after their separation until the end of her life. All in all, he described it as a very good relationship over 60 years. Having checked his phone records, Raymond gave evidence that he spoke with the deceased no less than eleven times during the last twelve months of her life. There is no evidence about Raymond's relationship with either Lisa or Mark which suggests that Raymond would have any interest in giving evidence in these proceedings other than for the purpose of testifying as to his genuine recollection of what the deceased told him about her wishes. Like Mark, Raymond readily made concessions during cross-examination where it was appropriate for him to do so. Based on Simon's evidence, it is likely that Raymond's conversation with the deceased occurred in about mid-2022.
Fourth, Mark's evidence of the gist of what the deceased told him is also corroborated by Jarther's evidence concerning what Mark said to him about his conversations with the deceased. I accept Jarther's evidence, subject to one qualification. The qualification is that I do not feel actual persuasion that Mark said to Jarther during the deceased's lifetime that the deceased had told Mark that her superannuation would go to him. Mark does not give evidence about the deceased specifically discussing her superannuation with him during her lifetime. The deceased's superannuation became a subject of discussion between Lisa and Mark immediately following her death, and it is likely that Jarther has confused what Mark told him about those discussions with what Mark said to him about his discussions with the deceased.
Fifth, there is no evidence of any material change in Mark's circumstances, or in the relationship between Mark and the deceased, during the period between 2015 and the death of the deceased on 21 February 2023. Mark maintained love and affection for the deceased, and she for him. Mark continued to stay in contact with the deceased through telephone calls and visits, although the frequency of those visits varied. As I have already observed, Mark did not take the deceased on outings, did not include her in his life activities, and did not participate in her care. It is inherently probable that the deceased nevertheless wanted to make some provision for Mark, as she had intended when she wrote her will in April 2015. It is also inherently probable that the deceased did not want any provision in Mark's favour to disturb Lisa's ownership of the Kenthurst property, given all that Lisa had done for her, and that she saw the solution as being to adjust in favour of Mark the distribution of the money left in her estate that would otherwise be distributed to Lisa (as to 60 per cent) and to Mark (as to 40 per cent) in accordance with her will.
I do not feel actual persuasion [14] that, in her discussions with Mark, the deceased was referring to the funds that she had earmarked to be given to named beneficiaries in amounts totalling $141,000. According to Mark's evidence, the deceased was conscious of those gifts at the very end of her life when he had his last conversation with her. Although the deceased was contemplating changing some of the smaller gifts, the evidence does not persuade me that she had come to any decision about that. There is no evidence to suggest that the deceased had changed her mind about wanting to leave a $100,000 nest egg for Jasmine.
Nor do I feel actual persuasion that the deceased was referring to her superannuation funds in her discussions with Mark about her financial assets or the money left in her estate. In February 2019, the deceased had issued a binding death benefit nomination to the trustee of the BT Panorama Superannuation fund in which most of the deceased's superannuation funds were held. I infer that she did so conscious of the change in her circumstances to which I have referred at [96] above, which meant that Mark no longer stood to inherit any of her interest in real property.
For those reasons, I find that the money that the deceased told Mark she wanted to give to him after her death during their conversations in and after 2020, and that she told Raymond she wanted to give to Mark during their conversation in about mid-2022, was the money that would be left in her estate after payment of the legacies totalling $141,000 for which she had provided in her will. At the time of the death of the deceased, that would have amounted to approximately $200,000 after funeral and testamentary expenses. [15]
I find that Mark and Lisa discussed the deceased's superannuation funds in the days after her death. During those initial discussions, Lisa was content for Mark to receive a greater share of some of those superannuation monies that had been stipulated in the death benefit nominations signed by the deceased. Lisa told Mark so, but changed her mind a short time later.
For all of the reasons at [124]-[150] above, I do not feel actual persuasion that the conversations which Lisa says she had with the deceased occurred. I reject Lisa's evidence denying that the deceased wanted Mark to get more of the money from her estate, and denying that she was aware that this was what the deceased wanted. I find that Lisa was aware of this, as reflected in the tone and substance of her conversation with the UniSuper representative on 27 February 2024, and that Lisa had no objection to this at the time. I find that Lisa had no objection because it was entirely consistent with her own understanding of the deceased's wishes during the last two or three years of the deceased's life.
For all of those reasons, I reject Lisa's submission that the deceased was confident that her will dated 3 April 2015 reflected her wishes at the end of her life. I also reject Lisa's submissions that Mark "wanted and demanded everything", and that Mark bullied and put pressure on the deceased to change her will.
[10]
Mark's character and conduct (s 60(2)(m))
In her opening submissions made on the first day of the hearing, Lisa submitted:
"The plaintiff has a very poor character as evidenced by his behaviour throughout this process and the lack of respect for the deceased's wishes. As for me, I have been subjected to a combination of extortion, bullying and threatening and abuse from his lawyer, Mr Fox. I have brought this to the attention of the authorities, who are currently investigating the situation. Mr Fox has brought the entire legal process into disrepute, including his obligations to the court. Surely, it is not normal to threaten the executor's house, try to freeze their assets …"
There is a factual dispute between Mark and Lisa in relation to the deceased's wishes. A party pursuing a claim under Chapter 3 of the Succession Act does not exhibit poor character merely by putting forward evidence about what they say were the wishes of the deceased, and by formulating a claim for provision in a manner that is consistent with their contentions as to the deceased's wishes. That is so, irrespective of how vehemently the executor of the deceased's estate disputes the claimant's contentions and resists their claim. In any event, I have determined the factual dispute in these proceedings concerning the deceased's wishes in favour of Mark for the reasons explained above.
The documentary evidence tendered included many letters and emails from Mark's solicitor to Lisa in relation to the deceased's estate and these proceedings. Not one of those letters or emails was bullying, threatening, or abusive, in tone or in substance. The communications simply informed Lisa in a courteous tone of the contentions advanced on behalf of Mark and, where applicable, informed her of the next steps that Mark proposed to take in relation to these proceedings. Some of the communications requested information from Lisa, either in relation to the estate itself or in relation to her next steps in the proceedings. There is no evidence capable of supporting Lisa's allegation of "extortion".
Lisa gave evidence during cross-examination that she had not responded to a single communication received from Mark's solicitor "because he's a bully and he's been threatening me for two years". When asked to identify the alleged "bullying", Lisa answered: "He was bullying me because he was demanding 100% of the estate, or my house, or suing me." Lisa confirmed that she maintained her allegation that Mark's solicitor was "bullying" her by making these claims, notwithstanding that she understood that the solicitor was acting in a representative capacity for Mark. When it was put to her that it was inappropriate for a representative of an estate to refuse to respond to any correspondence from the solicitor acting for a claimant on the estate, Lisa answered: "I am not a legal representative and I'm not aware of what the conduct should be".
It emerged during cross-examination that Lisa regards Mark's claims in these proceedings as a "threat" to her home. Lisa gave evidence that she feared for her personal safety because Mark "was suing the estate and trying to take our house away from us". It was put to Lisa that: "A threat to sue or having proceedings on foot, you would accept, isn't a personal threat of violence against someone, is it?" Lisa answered: "When they're threatening your house, absolutely".
There is no evidence that Mark engaged in any conduct that could reasonably be perceived as a personal threat to the safety of Lisa, or to any member of Lisa's family.
[11]
Conclusion
In the events which have happened, the deceased's will dated 3 April 2015 would leave Mark with $68,570. Considering all of the matters referred to above, I have determined that this is not adequate provision for Mark's proper maintenance, education and advancement in life. The deceased's will does not leave Mark with a fund that would be sufficient to materially enhance his financial security by enabling him to repay part of the debt secured by his mortgage so as to reduce his monthly expenses and his vulnerability to any increase in interest rates, as well as to set aside a fund for contingencies.
In coming to the conclusion that the provision made for Mark in the deceased's will is inadequate, I have taken into account the shortcomings in the evidence relating to Make My Mark to which I referred at [81] above. Mark disclosed the existence of the company in his first affidavit sworn in these proceedings. I do not consider that the shortcomings are the result of any evidence being deliberately withheld. I reject Lisa's submissions that there has been material non-disclosure by Mark which goes to the heart of his claim in these proceedings, and that Mark has made a deliberate and calculated attempt to confuse the Court about his financial position. Those submissions are unsustainable in circumstances where Lisa made no request for financial statements or other records of Make My Mark prior to 14 January 2025, when she sought leave to issue a subpoena to Make My Mark just weeks before the commencement of the final hearing. That application was determined by the Equity Duty Judge during the vacation period, and leave was refused insofar as the proposed subpoena would have required Make My Mark to produce financial statements. As I have mentioned at [72] above, the company's bank statements were tendered in evidence and were interrogated during Lisa's cross-examination of Mark. Uncertainties resulting from the shortcomings in the evidence have not been resolved in Mark's favour. Despite the shortcomings, the evidence provided a sufficient basis for me to assess the adequacy or otherwise of the provision made for Mark in the deceased's will. I have determined that the provision is not adequate for Mark's proper maintenance, education and advancement in life for the reasons articulated immediately above.
In my opinion, Mark's financial security would be materially enhanced if he were to receive the whole of the residue of the estate, being a sum of approximately $171,426. That would enable to him, for example, to reduce his mortgage debt by approximately 20 per cent, and to set aside a fund of a little over $40,000 for contingencies and as a buffer against any fluctuations in his month-to-month income. A 20 per cent reduction in Mark's mortgage debt would result in a corresponding reduction in the amount of his monthly mortgage repayments, which would enable to him to set aside savings on a regular basis without making any changes to his lifestyle and living expenses. In my opinion, that would be adequate provision for the proper maintenance, education and advancement in life of the deceased's 54 year old son who has the security of owning his home which he purchased with financial assistance from his parents, who has already received the benefit of $128,714 paid to him from the deceased's superannuation funds (after tax), who is in good health and who has good earning capacity but little savings and no contingency fund, and who loved and maintained contact with the deceased throughout his life but who played no role in caring for her as she aged and her health deteriorated, being content to leave it to his sister to make all of the sacrifices necessary to support and care for their mother. In coming to that conclusion, I have taken into account that Mark has already paid approximately $57,000 of the total legal costs of approximately $105,000 that he has incurred in these proceedings, and that there is a risk that no costs order will be made in his favour, or that the deceased's estate will not have sufficient funds to meet any costs order in his favour. I have taken into account that, if those risks eventuate, that would reduce the extent to which Mark is able to pay down the principal debt owing under his mortgage or the size of the contingency fund that he is able to set aside. However, that will be a consequence of Mark's decision to incur legal fees in these proceedings equivalent to almost one third of the value of the deceased's estate at the time of her death. Moreover, as Lisa submitted, the amount of the debt owing under Mark's mortgage is partly attributable to his choice to apply the monies paid to him out of the deceased's superannuation funds to developing the business of Make My Mark rather than paying down his mortgage. That is a choice which inherently carries a level of risk, but also creates the potential for Mark to reap significant rewards in the future as the sole shareholder of Make My Mark. There is no evidence of any change in circumstances since Mark made that choice which undermines his prospects of achieving those potential rewards.
I reject the submissions made on behalf of Mark that adequate provision would be a lump sum in the order of $300,000, because this would allow him to establish a contingency fund of $63,000 and pay his mortgage debt down to about $330,000, which he would be able to pay out of his superannuation on retirement if he has been unable to repay it during the next 12 years of his intended working life. In all the circumstances of this case, which I have summarised immediately above and described in far greater detail earlier in these reasons, I do not consider that the community would expect the deceased to put Mark in sufficient funds that he would be able to retire at the age of 65 with the security of an unencumbered home on the assumption that he will not make any repayments of the principal debt secured by his mortgage during the balance of his working life.
The burden of a provision for Mark in the amount of the whole residue of the estate, being approximately $171,426 at the time of the hearing, would fall on Lisa as the other residuary beneficiary. Both the amount of the provision, and the burden falling on Lisa rather than on the beneficiaries to whom the deceased bequeathed specific monetary gifts totalling $141,000, would be consistent with what I have found the deceased intended at the time of her death.
An order for further provision in favour of Mark requiring the whole of the residue of the estate to be paid to him will have little financial impact on Lisa, given her strong net asset position to which the deceased contributed by funding half of the purchase price of the Kenthurst property and by entering into the joint tenancy arrangement with Lisa and Simon so that her interest in that property would pass to them upon her death.
For those reasons, I have determined that there should be an order that provision be made out the deceased's estate for the proper maintenance, education and advancement in life of Mark by payment in one lump sum of the whole of the residue of the estate, being approximately $171,426 at the time of the hearing, in lieu of the 40 per cent of the residue of the estate provided for in the deceased's will dated 3 April 2015.
As referred to at [13]-[24] above, Lisa paid the legacies totalling $141,000 to the beneficiaries in accordance with the deceased's will during the period from 25 September to 25 October 2024, at a time when she was on notice of Mark's claim. Lisa was actively defending these proceedings, which Mark had commenced on 30 October 2023.
As was submitted on behalf of Mark, Lisa's notice of Mark's claim at the time of those payments deprives her of any protection to which she would otherwise be entitled under s 93 of the Succession Act in respect of those payments which were made 30 days after publication of her notice of intended distribution on 25 September 2024. By making those payments with knowledge of Mark's claim, Lisa exposed herself to personal liability to repay to the estate an amount equivalent to those payments, plus interest, if the estate is inadequate to meet any provision that the Court orders in favour of Mark in determining these proceedings: D'Albora v D'Albora [1999] NSWSC 468 at [60]ff (Macready M); Ernst v Mowbray [2004] NSWSC 1140 at [57]-[65] (Young CJ in Eq, as his Honour then was); Soens v Rathborne [2018] NSWSC 302 at [44]-[49] (Hallen J); Benz v Armstrong [2022] NSWSC 534 at [295]-[296] (Ward CJ in Eq, as her Honour then was, referring to such an order as "one available course"). However, the deceased's estate is not inadequate to meet the provision that I have determined is to be ordered in favour of Mark. Even if the estate had been inadequate, I would not have been inclined to make such an order in circumstances where the legacies that Lisa paid out of the estate with notice of Mark's claim were paid to the beneficiaries on whom I have held that the burden of the provision in favour of Mark shall not fall, consistently with what I have found to be the deceased's intentions at the time of her death.
As the deceased's estate has sufficient funds to pay the provision that I have ordered in favour of Mark, the Court has no power to make a notional estate order, except potentially for the purpose of any costs orders that might be made: Succession Act, s 88.
The parties informed the Court that they wish to be heard in relation to the costs of the proceedings after Mark's claim for provision is determined. Reference was made to offers passing between the parties, the substance of which were not disclosed to the Court. I will hear the parties separately in relation to costs, including any application for a notional estate order ancillary to any costs order sought by Mark. As I have mentioned earlier in these reasons, Lisa's legal costs have already been paid out the estate. Lisa has not incurred any legal costs since 19 June 2024 when her solicitor ceased acting in these proceedings.
Assuming that the deceased's death benefit nominations, or her failure to change them, constitute a relevant property transaction for the purpose of the notional estate provisions in Chapter 3 of the Succession Act (without deciding that question at this stage), my preliminary view is that two matters weigh heavily against making a notional estate order of the kind sought by Mark which would be directed solely against property of Lisa on the basis she received payments from the deceased's superannuation payments as a result of those nominations. First, it seems to me to be strongly arguable that this would interfere with Lisa's reasonable expectations and would be contrary to the substantial justice and merits of this case, in which I have found that Mark agreed that the superannuation payments to Lisa and to himself should go ahead in October and November 2023: Succession Act, s 87. Second, if an order were made designating property of Lisa as notional estate on the basis of her receipt of superannuation funds, but no such order was made in respect of any property of Mark, this would result in any costs order that might be made in favour of Mark being borne by Lisa personally rather than by the estate. That would be an unusual exercise of the costs discretion under s 99 of the Succession Act and s 98 of the Civil Procedure Act 2005 (NSW) unless there were circumstances warranting an order for costs against Lisa personally, as opposed to an order of the kind that is commonly made in favour of successful claimants in family provision cases for Mark's costs to be paid out of the estate on the ordinary basis. I express my preliminary views so that the parties have an opportunity to address those issues in the event that Mark seeks an order for costs and maintains his application for a notional estate order affecting Lisa in the terms articulated at the hearing.
For the avoidance of doubt, my deferral of the question of costs in order to allow the parties to be heard about any offers to compromise the proceedings that may be relevant to the exercise of the costs discretion does not permit either party to adduce fresh evidence other than evidence of the terms of any such offers and the reasonableness or otherwise of the offeree's failure to accept the offer. Nor does it permit Mark to amend his claim for a notional estate order.
[12]
Orders
For all of the foregoing reasons, the orders of the Court are as follows:
1. Order pursuant to s 59 of the Succession Act 2006 (NSW)) that provision be made of the estate of the late Bernice Sutcliffe (the deceased) for the proper maintenance, education and advancement in life of the plaintiff by payment of the whole of the residue of the estate to the plaintiff in a lump sum, in lieu of the 40 per cent of the residue provided for in the deceased's will dated 3 April 2015.
2. Reserve for further consideration all questions of costs, including whether a notional estate order should be made in respect of any property of the defendant, who received the deceased's superannuation funds held with BT Panorama Superannuation and UniSuper, in order that the estate is sufficient for the making of any costs order in these proceedings.
I will hear the parties in relation to the matters reserved if any party wishes to seek any order in relation to costs.
[13]
Endnotes
The supplementary document referred to the gift to Raymond as $5,000, but the deceased had amended the amount of the gift in the will to $10,000 before signing the will.
See [12] above.
Comprising the total sum of $159,686 that Lisa received from BT Panorama Superannuation plus the sum of $21,162 that Lisa received from UniSuper, as referred to at [12] above.
Smith v Johnson [2015] NSWCA 297 at [62] (Sackville AJA, Macfarlan JA and Ward JA, as her Honour then was, agreeing).
See [6] above.
See [4]-[24] above.
$359,492, less the gifts totalling $141,000 and allowing approximately $18,000 for funeral and testamentary expenses: see [11] above.
See [4]-[24] and [61] above.
Applying a conversion rate of £1 = AU$1.99.
Lisa's interest in the Kenthurst property ($2,050,000, being 50 per cent of the $4,100,000 kerbside valuation), Lisa's interest in the car ($14,000), shares ($40,281), cash ($227,000), and superannuation ($309,000).
See [106] above.
See [108]-[109] above.
See [98] above.
Evidence Act 1995 (NSW), s 140; Warner v Hung; In the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liquidation) (No. 2) [2011] FCA 1123 at [48]; John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94] (Hammerschlag J, as his Honour then was); Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 at [45]-[47] (Gleeson JA, Bell CJ and Stern JA agreeing).
See [61] above.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 February 2025