Towill v Towill

The Towill Family of Woolooware

1. The deceased gave birth to the defendant in 1966. He was 58 at the time of the hearing. His father, Allan Towill, and the deceased separated in the late 1970s and were divorced. The deceased received the Woolooware property as part of a family law property settlement with her ex-husband. She also gained sole custody of the defendant, who has had no contact with his father for over 40 years.
2. The plaintiff was born in March 1991 and at the time of the hearing was 33. He lived with the deceased and the defendant at the Woolooware property from 1993 when he was two. He is the only child of his father, the defendant, who in turn, was the only child of the deceased.
3. Not long after the plaintiff's birth, as a result of the defendant's separation and divorce from the plaintiff's mother, the Family Court of Australia made orders giving custody of the plaintiff to the defendant.
4. It is likely that the Family Court was prepared to make orders giving the defendant custody of the plaintiff because the deceased was assisting the defendant to care for the plaintiff. That is indeed what happened. From the time the Family Court orders were made, the plaintiff lived in the same household as his grandmother and had limited contact with his biological mother. The plaintiff did not recount any memories of his biological mother taking any part in his daily upbringing. Such contact with her as he recorded in his evidence was negative in character. She played no part in these proceedings.
5. From his earliest years, the deceased cared for the plaintiff as his mother would have cared for him had his mother been part of his life. Undoubtedly the defendant tried all he could to provide full parental care for the plaintiff. But he also had to earn a living. It is inevitable that as he was a permanent part of her household much of the plaintiff's upbringing, personal development and home life were fostered, supported, and moulded by his grandmother, the deceased.
6. The plaintiff's evidence, which is accepted in this respect, was that the deceased "took on the role of a motherly figure" to him. He recalls her reading books to him regularly and assisting him with his homework as he was growing up. She cooked meals for him on a regular basis, washed and ironed his clothes and did the housework. She did this until about three years before her death, when her health began to deteriorate.
7. The deceased was a registered nurse. She had a demanding full-time job as a respected senior theatre nurse at St George Hospital. When she was not working at the hospital she would attend to the cleaning, washing, and cooking at home for the plaintiff, the defendant and herself. She was reliable, prudent, and frugal throughout her life. Her earnings as a nurse enabled her to pay the outgoings on the Woolooware property and accumulate a substantial bank balance of about $400,000 by the time of her death. She did not retire from nursing until she was in her early 70s.
8. Over the years it was the deceased's regular income which mainly supported the household at the Woolooware property. The defendant contributed to the household financially but both the defendant's and the plaintiff's employment histories were intermittent, in contrast to the deceased who had continuous employment over many years. She paid for utility bills, rates and taxes and she purchased the groceries, provisions, and hardware for the household. Although, as indicated, the defendant did contribute financially to the household as and when he could.
9. The plaintiff benefited at many levels from living in the household at the Woolooware property. Apart from providing a supportive upbringing until the end of his school years, after he left school and was seeking external employment, the deceased did not ask the plaintiff to pay rent or contribute to household outgoings at the Woolooware property.
10. The defendant undertook most of the necessary gardening, handyman and heavier outside tasks around the Woolooware property. The plaintiff says he contributed to some of these, but it is more likely that the defendant was the main provider of garden and handyman assistance to the deceased around the Woolooware property.
11. The defendant was strongly of the view that he provided a loving and caring home for his son, the plaintiff, who he says was treated "like gold". The defendant's evidence is clear that when the plaintiff was a youngster the defendant had high hopes for his future and the household was a happy one. The defendant was able to maintain intermittent employment to help support the upbringing of his son. The defendant says that unfortunately the plaintiff "fell into bad company and formed bad habits" through his teenage years and into his early 20s. The Court accepts this account, but it does not present the full picture. Through no fault of his own, the defendant did not have sufficient personal and financial resources to flexibly manage his son's worsening bad behaviour.

The Plaintiff's Mental Health Declines from 2012

1. The plaintiff has suffered ongoing mental health issues since about 2012, when he was about 21. He has had numerous episodes of psychosis, which he concedes in his own evidence were "possibly drug-related". The Court finds they probably are accounted for by his ingestion of drugs including methamphetamine. He was first admitted to Sutherland Hospital in November 2012 for such a psychotic episode and was discharged the same day.
2. But the episodes continued, probably aggravated by his drugtaking. On 29 January 2014, he was admitted to Sutherland Hospital on an involuntary basis because he had failed to take his prescribed medication and was suffering psychotic episodes. He received treatment from the Sutherland Community Health Service from which he was discharged in December 2014.
3. But he continued to take drugs occasionally, including ICE and THC. He found it to be difficult to give up THC as he says the defendant was also using it at home. The Court does not have to determine whether this contention is correct.
4. The plaintiff was readmitted to the Sutherland Community Health Service in 2015 and was discharged from there in October 2015 and placed in the care of his general practitioner.
5. A major step up in the mental health condition occurred on 1 January 2016, when he was admitted to the Sutherland Mental Health Unit under the Mental Health Act 2007 (NSW), s 22. He was eventually discharged after treatment three weeks later, on 21 January 2016.
6. This involuntary admission was an early sign of the peaking of tension between the plaintiff and the defendant within the Woolooware property household over the years between 2016 and 2019. That it should peak at this time is not objectively surprising. Whatever damage the plaintiff had caused to his own health through taking drugs, it had resulted in him having poor impulse control at the best of times and resulted in his propensity to anger and high-risk activity such as gambling and drugtaking.
7. At the worst of times this damage led to the risk of episodes of florid psychotic behaviour. This was bound to put him in conflict with the other members of the household at the Woolooware property and it did. That conflict occurred between the plaintiff and the defendant, although the deceased must have been gravely disappointed to see breaches of the peace between father and son occurring within her household, which she had always sought to make a harbour for these two men against the storms of life.
8. However, the plaintiff was also unlucky. In January 2017 he was involved in a motor accident when he was working as a courier. He suffered a lower back injury which subsequently recovered. He did not work for up to 2 years whilst he was receiving workers compensation payments. He ultimately settled his claim for $40,000. His time off work, compounding with a lack of purpose, exacerbated his risk-taking behaviour and in turn fed into the tension within the Woolooware property in 2017 and 2018.

The Deceased's Will - 18 September 2018

1. The deceased made a will on 18 September 2018 amidst this conflict. At the time she made a will she was aware of and must have been discomforted by the worst of the plaintiff's behaviour and the heightened tension between the plaintiff and the defendant. But even with that knowledge, the scheme of the will shows that the deceased recognised the plaintiff as a person deserving of her testamentary bounty.
2. After revoking previous wills (clause 1), giving directions as to her funeral and burial (clause 2) and appointing the defendant and Mr Solari as executors (clause 3), the will made a gift of $30,000 to the plaintiff (clause 4). The will then gave the whole of the rest of her estate to the defendant should he survive her by 30 days (clause 5(i)). But the law contained a gift over to the plaintiff or his children if the defendant did not survive her by 30 days (clause 5(ii)). The deceased did not make any statement about the plaintiff or the defendant in or with her will under Succession Act, s 100.
3. Much can be inferred from the text of the will and the known circumstances at the time of its making. The plaintiff was still living at the Woolooware property when the will was executed. The deceased most likely contemplated that he would continue to do so and that after her death the plaintiff and the defendant would live there together, as they had done for so long. It was logical in those known circumstances for her to give the Woolooware property to the defendant and the balance of her cash, on the basis that he would continue to make the Woolooware property available for the plaintiff's accommodation.
4. Despite that assumption the deceased wanted the plaintiff to enjoy something immediately, which accounts for the bequest of $30,000 to him, and importantly through the gift over, she recognised that apart from the defendant the plaintiff was the person who next most prominently deserved her testamentary bounty.

The Deceased's Health Declines - 2020

1. By about 2020, when she was 80, the deceased's health began to decline more rapidly. She needed more assistance from the defendant and the plaintiff at home. She became frail and more susceptible to falls due to arthritis and unsteadiness in her balance.
2. The deceased was hospitalised in 2020 for a period. On her return home she needed to use an oxygen tank to support her breathing. And she was less mobile within the house. This was the period of the pandemic and of social isolation when households were forced to be more self-reliant. This meant that the plaintiff and the defendant needed to do more to support the deceased's welfare.
3. Despite the tensions that existed within the household, the plaintiff stepped up and assisted the deceased in her last few years. The plaintiff made meals and collected the newspapers for her, paid some of the household bills for her, did her laundry for her, helped vacuum and tidy her room, changed her sheets, made her bed, and assisted in cleaning up after her increasing periods of incontinence.
4. The defendant disputed the degree of assistance the plaintiff had provided to the deceased during this late period of the pandemic and her health decline. The defendant stressed the tensions between the plaintiff and the deceased. The defendant is partly right about this, but he failed to give proper credit for what the plaintiff did to help his grandmother during this period.
5. The defendant also said that the plaintiff had been violent towards the deceased. The Court does not accept this. Despite the plaintiff's impulsiveness it was clear to the Court from the content and manner of the plaintiff's evidence that the plaintiff's anger was directed at the defendant, because of the defendant's overt expressions of disappointment in and disapproval of the plaintiff's development in life.
6. The plaintiff tried to maintain a reasonable relationship with the deceased although the Court accepts the picture was not as perfect as the plaintiff paints, and the deceased was disappointed in the plaintiff. An example of this arose from the plaintiff's requests for money in 2022 and 2023. He was asking the defendant for money and the deceased, but the deceased was reluctant to loan him anymore. The deceased had previously loaned him $13,900 to purchase a vehicle so that he could work as a courier. He did not pay all that money back and there were still about $5,500 owing in 2022. The deceased did not want to loan him any more money because of his failure to pay back the earlier sum. She was disappointed in the plaintiff's failure to repay this sum.
7. But this situation should be seen in context. The plaintiff was then homeless and turning to the only people that he thought would be likely to respond to his needs due to their moral obligation given his situation. He was undoubtedly aggravating to them, but he was also desperate.

Further Incidents Involving the Plaintiff - September 2022

1. About nine months before the deceased's death in June 2023, the plaintiff's life began to spiral badly out of control. The plaintiff was involved in a confronting incident with the defendant on 15 September 2022. This incident did not cause the plaintiff's eviction from the Woolooware property, but it set the scene for the plaintiff's eviction in late 2023 after the deceased's death. In September 2022 the plaintiff initiated a threatening argument with the defendant, who called the police, as the defendant had done on previous occasions when the plaintiff had behaved violently. The plaintiff was taken to Sutherland Hospital by the police but was assessed by medical staff as not requiring admission. He was not then detained as an involuntary patient. The Sutherland Hospital medical staff put him in touch with the NSW Department of Housing and a service providing accommodation for the homeless called Link to Home but he returned to the Woolooware property.
2. An ADVO unrelated to the defendant and for the protection of other persons was issued against the plaintiff in January 2023.
3. On 1 February 2023 an interim ADVO was issued against the plaintiff for the protection of the defendant after another incident between them. But this interim ADVO did not require the plaintiff to live at a separate address from the defendant. Rather, it required him not to stalk, harass or intimidate the defendant and not to approach the defendant within 12 hours of drinking alcohol or taking illicit drugs. It is this latter condition which ultimately led to the plaintiff's eviction from the Woolooware property in another incident that occurred in October 2023 after the deceased had died.
4. On 23 May 2023 the interim ADVO came to the Local Court for final hearing. The plaintiff was convicted of offences of common assault and stalk/intimidate with intent to do physical harm in a domestic situation, and he was sentenced and fined $400 and made the subject of a conditional release order under the supervision of the Sutherland Community Corrections Office. The same day, a final ADVO was issued against the plaintiff and operative for a term of two years expiring in May 2025. This court appearance recorded the plaintiff's antecedent criminal history as including convictions for offences of larceny, breach of ADVO, assault, stalk/intimidate a domestic victim and traffic offences.
5. In mid-2023 the plaintiff seemed to abandon such limited labouring and casual work that he had been able to secure up to that point. At the same time, the deceased was becoming weaker, and she died on 30 June 2023. Her loss was traumatic for both the plaintiff and the defendant and heightened tension within the Woolooware property household.
6. This eventually spilled over in another violent incident at the Woolooware property on 18 October 2023. The defendant gave a graphic account in oral evidence of how fearful he was of the plaintiff through the events of this October 2023 incident, in which the plaintiff caused malicious damage to furniture at the Woolooware property and threatened and intimidated the defendant when intoxicated by alcohol. The defendant's evidence about this incident is accepted.
7. The plaintiff did not return to the Woolooware property after this incident. He became homeless and sought temporary accommodation. Apart from an occasion on 15 October this year, when the plaintiff appeared at the Woolooware property contrary to and earlier than arrangements made through the Police, the plaintiff and the defendant have only otherwise seen one another this year in the highly controlled environment of the Court room during this hearing.
8. Until the weeks leading up to the hearing of these proceedings the plaintiff has either been homeless or taking advantage of temporary affordable housing services such as Link to Home. At the time of the hearing of the proceedings the solicitors for the plaintiff, attentive to his welfare and the need for him to present to Court to his best advantage, had arranged for the plaintiff to stay in a hotel. But this was only temporary, and there is no doubt that at the time of the hearing he should be assessed as homeless and in acute need of daily shelter.

The Plaintiff's Employment, Financial Position and Financial Needs

1. The plaintiff's financial and housing situation is precarious. He currently has no assets of value, is unemployed and is reliant on Centrelink payments to meet his ongoing needs, including payments relating to several liabilities.
2. The defendant clearly recognised this. Between January and March this year the defendant paid $29,840 from the estate into the plaintiff's bank account to assist him to meet living expenses, in addition to the $30,000 legacy under the deceased's will, which was paid to the plaintiff in January this year. Whilst clearly well-intentioned, such additional cash payments directly to the plaintiff were never going to be a suitable vehicle for the plaintiff's proper advancement in life. His lack of impulse control and the risk of him relapsing into drugtaking or gambling are so great that funds of that order would always need to be held for him on trust. Indeed, some of the money the plaintiff received in this way was spent on temporary accommodation, and on food, clothing, and entertainment, but some of it was also spent on alcohol and gambling.
3. The plaintiff has worked several jobs since his schooldays, including as a labourer and courier, in 2013-2017, 2019-2020, 2021-2023. He had casual work ending in February 2024 with a labour hire firm, but this had ceased by the time of the hearing.
4. The plaintiff currently receives income of approximately $920 per fortnight in JobSeeker Centrelink payments. This amount can fall to $730, depending on how much he works.
5. Unsurprisingly with his income profile, the plaintiff has few assets. At the time of the hearing his bank account had a credit balance of only $5. His limited personal possessions which are of little or no market value, remain at the Woolooware property.
6. The plaintiff has limited earning capacity at best. His past employment history is poor and any job that he obtains or creates - as he speaks of starting his own small business - is at risk from his own impulsive and self-destructive conduct. Being homeless makes his chances of finding work even more difficult. He has insight into this obstacle to employment. Providing him with secure long-term accommodation is a fundamental platform for his future advancement.
7. Apart from prospective legal fees in these proceedings, the plaintiff has liabilities of over $10,000, which are significant considering his minimal and variable income. His most substantial debt is owed to Centrelink, to recover monies on account of the workers compensation payments made to the plaintiff between 2017 and 2019. He has been able to request a temporary moratorium on this debt, but Centrelink can be expected to collect it in the longer term. The plaintiff also owes other smaller debts.
8. The plaintiff estimates his typical monthly expenses at just over $2,200, but this figure must be highly variable and is dependent upon how much money he has available to him at any time to spend, whether he is in employment and whether he is homeless.
9. The plaintiff has struggled to maintain regular accommodation since leaving the Woolooware property. He did not have a permanent address at the time of the hearing. He had recently been discharged from the mental health facility at the Sutherland Hospital. The plaintiff wants to return to undertake rehabilitation following the completion of these proceedings. Once that is complete, his initial idea was to try and buy a two-bedroom apartment in the Caringbah, Miranda or Cronulla areas should he be successful in these proceedings.
10. Any order for provision made in favour of the plaintiff needs to recognise that the structure of providing a deposit for a property and allowing him to pay it off over time from his earnings is not going to work for him, because his future earnings are likely to be unreliable. He wants to live in the Shire of Cronulla where he grew up. But the market price of these two-bedroom apartments was high contrasted with the available funds in the estate: the samples provided, in the plaintiff's evidence lie in the approximate range of $590,000-$790,000. By the time the plaintiff gave oral evidence he was more flexible and expressed contentment with purchasing a two-bedroom apartment in the St Mary's area. The evidence suggests that such an apartment could be purchased for between about $375,000 and $480,000 and that a range of such two-bedroom apartments would be available for under $500,000.
11. The plaintiff also wants to buy a car and to start his own business. He has plans for such a business: he has a strong interest in undertaking remedial work to rectify deteriorated mortar in bricks. His vehicle of choice to service such a business would be either a Toyota HiAce or a Hyundai iLoad. An opportunity to be independent running his own business may indeed be his best employment option, because of the flexibility it offers.
12. If any award is to be made to the plaintiff would need to be placed with the NSW Trustee if a private trustee cannot be found for him. The Court had some evidence of the charges for the NSW Trustee providing the service, which for award for example of $500,000 would involve an upfront fee of about 2.5% or $12,500 and ongoing annual fees of about $5000. Although in the Court's experience the NSW Trustee's charges can depend on how any benefit lodged with the NSW Trustee is categorised. But if a private trustee cannot be found for any such award there is no option but to pay these charges and the Court has considered them in formulating appropriate relief.
13. These reasons show that an award will be made to the plaintiff. Consideration should be given to structures to try and reduce these ongoing fees for the plaintiff by minimising the funds under management with the NSW Trustee. It may be possible, for example, for a property to be purchased in the name of a private trustee on a trust for a flat management fee which is cheaper than NSW Trustee rates. Such a trust might contain provisions to prevent the plaintiff being able to immediately call for the property to be transferred to him under the rule in Saunders v Vautier (1841) 4 Beav. 115; 49 ER 282, or without the Court's intervention. And then only the balance of cash needs to be managed under the NSW Trustee's cost regime. However, the most secure but economical solution for the plaintiff will need close attention.

The Defendant's Employment, Financial Position and Financial Needs

1. This section of these reasons deals not only with the defendant's assets but also with relevant aspects of the defendant's management of the deceased's estate.
2. The inventory of property for the deceased's estate records cash in her various bank accounts totalling $403,065. After paying the $30,000 bequest under the will to the plaintiff and meeting legal fees and some living expenses he took a transfer into his own bank account of the sum of $311,900 on 22 January 2024. From that sum, he paid the plaintiff $29,840 as a gift, paid his solicitors in relation to these proceedings, purchased a motor vehicle and security shutters for the Woolooware property because of his concerns about the plaintiff. This left him with approximately $213,360.
3. The time of the hearing he had left $90,934. Most of the difference between this $213,360 and the $90,934 remaining in his principal bank account is accounted for by the following expenditure: legal fees for these proceedings, living and household expenses, further payments for security for the Woolooware property, a gift to a friend of $25,000, a gift to another friend of $15,000, and about $50,000 which he cannot reconcile. All that can be said is that this rate of personal expenditure is unsustainable in the long term, as he is rapidly going through the financial resources left to him by his mother.
4. His various accounts and cash resources presently total $115,933.75 and he has a superannuation balance of about $10,000. Apart from some household effects he has little other property.
5. Prior to the death of the deceased, the defendant received a carer's allowance. He previously maintained a lawn mowing business, but the Court accepts that he has not been able to work due to struggles with his own mental health, in part resulting from his dealings with the plaintiff. At the time of the hearing, he was unemployed and not receiving any unemployment benefits but was not yet eligible to receive the aged pension.
6. The defendant says that his monthly expenditure is approximately $2,005. He claimed that this is comprised of food and household supplies, insurance, council rates, motor vehicle expenses including petrol and utilities. But the unexplained discrepancy of $50,000 in his expenditure since the death of his mother probably indicates, as was suggested in cross-examination, that he had underestimated his monthly expenditure and that his "living expenses, [were] more like $5,000 a month", or at least much higher than his estimate.
7. Other than anxiety and depression which presently prevents him from obtaining gainful employment, the defendant is in reasonable physical health for his age of 58. The defendant's likely substantial foreseeable future expenses are likely to be medical expenses and the financial burden of moving into assisted living later in life. The defendant has no financial obligations to a dependent.

Legal Fees

1. The legal fees of the solicitors for the plaintiff including counsel's fees, solicitors' professional fees and disbursements were $132,990 inclusive of GST on the ordinary basis and $149,490 inclusive of GST on the indemnity basis. The solicitors for the plaintiff made a costs agreement with the plaintiff incorporating a 25% "uplift" contingent upon defined success in the proceedings.
2. The legal fees of the solicitors for the defendant including counsel's fees, solicitors' professional fees and disbursements were $92,169 inclusive of GST on the indemnity basis. The bulk of those fees were either prepaid or had been paid on account to the solicitors for the defendant from estate funds.
3. At a pre-trial directions hearing maximum costs orders were made in respect of the legal costs of both parties under UCPR, r 42.4. These cost capping orders were made to attempt to contain legal costs to preserve as much as reasonably possible of this estate for the benefit of the parties. These are reflected in the final orders.
4. The Court managed to reduce the hearing time of two days to one day to save costs. Although the parties had to return to Court for an afternoon to hear the judgment and deal with consequential issues. It is the Court's expectation that the legal professionals on both sides will endeavour to reduce costs to their clients to pass on the economies that have resulted time from the Court's management of the proceedings into a shorter timeframe than was initially envisaged.

Applicable Legal Principles and Some Issues Raised by the Parties

1. The defendant did not take issue that, although a grandchild, the plaintiff was an "eligible person" to make a claim for family provision against the deceased's estate under Succession Act Chapter 6. The concession was appropriately made as this was a clear case of grandchild living in the household of the deceased and being dependent upon her.
2. Another preliminary issue arose from the fact that no notice of these proceedings had been given to the deceased's former husband, Alan. But the Court will dispense with giving notice proceedings to him under Succession Act, s 61(2)(b) on the basis that service of the relevant notice is "unnecessary, unreasonable or impracticable in the circumstances of the case".
3. This is clear for the following reasons. It is uncertain whether Alan Towill is still alive. He took no part in the deceased's life after their divorce and separation in the late 1970s and he took no part in the defendant's life. Other than doing a broad electoral roll search, the parties have few leads as to where he might be found. Such claim as he might have against the deceased is very weak in circumstances where a family law property settlement took place and after that settlement the deceased was the one who financially supported the household in which defendant grew up. This approach is consistent with other authorities decided in similar circumstances: Pletersky v Pletersky [2012] NSWSC 277 and Epov v Epov [2014] NSWSC 1086.
4. As the plaintiff is within the category of eligibility under section 57(1)(e) of the Succession Act, he must also establish, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: Succession Act, s 59(1)(b); Re Fulop Deceased (1987) 8 NSWLR 679; and Petrohilos & Anor v Hunter (1991) 25 NSWLR 343.
5. The issue of "factors warranting" is discussed further below. The defendant's submissions emphasise the limited bequest of $30,000 under the will, being only 7.5% of the deceased's available cash and the plaintiff living in the same household as being insufficient to be "factors warranting". But these submissions overlook the gift over clause in the will and the relationship in loco parentis that the deceased had with the plaintiff.
6. And the defendant submitted, based on cases such as Suzanne Hart v Joan Noelene Van Son [2014] NSWSC 585 at [56] - [57] that this is the case where in the latter stages of the deceased's life the relationship had so deteriorated that any claim to "factors warranting" had expired. This submission depends upon the Court finding a major estrangement between the deceased and the plaintiff from about 2017 over his failure to fully repay a loan from her and because of his aggressive conduct. The Court accepts there was increased tension after this time between the plaintiff and the deceased but does not accept that relations between the plaintiff and the deceased became as poor as the defendant claimed because of these matters.
7. The final questions now relate to whether an order for provision should be made under Succession Act, Chapter 6 in favour of an "eligible person" such as the plaintiff.
8. The test of whether provision should be made in any case is set out in Succession Act, s 59(1)(c):- "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
9. There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:- "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? 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 Co8. The determination of the first stage in the two stage process 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
10. Whether the two-step test operated with the same full vigour in the current legislation was discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125.
11. Some other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides:- "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
12. That then leaves the Court to decide what is appropriate provision in this case. And on that subject Mr Stewart on behalf of the defendant strongly emphasised his competing needs of the defendant which have been described above. He also emphasised the requirement to justify a generation-skipping order in accordance with established authorities such as Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 and Chapple v Wilcox [2014] NSWCA 392. The Court has taken this submission into account as will be seen below. The Court recognises that generally, a grandparent does not have a responsibility to make provision for a grandchild and that such responsibility is not enlivened because a grandparent contributes to a grandchild's education or bestows considerable largesse on the child. Something more than the existence of normal family relations and affections is required. These authorities make clear that conferral of particular care and affection upon a grandchild and the grandchild's legitimate expectations of inheritance may be relevant to determining whether such an obligation exists.

Considering the Grant of Relief

1. The Court must here balance the competing factors and exercise its discretion in accordance with the applicable legal principles. The following considerations are of special importance in the finding of factors warranting and in the Court's grant of final relief.
2. Although the defendant's case can be accepted that the plaintiff's relationship with the deceased was strained in the last five to six years of her life, from the age of two, the relationship between the deceased and the plaintiff was analogous to that of mother and son. There was no other major, close adult female figure in his life. She did everything for him that a mother would do. His own biological mother was completely absent from his life, and he did not look to his biological mother for any moral, emotional, or physical support.
3. This is a particularly powerful factor for the Court to find both factors warranting under the Succession Act and to find that given the plaintiff's present dire circumstances that further provision should be made for him from the deceased's estate because of a near mother - son relationship. And his present straitened circumstances also indicate that "adequate and proper" provision in his case means a substantial award should be made in the plaintiff's favour.
4. Looking at his present needs the call for a substantial award is clear. He is homeless and presently living in temporary accommodation. His psychiatric history makes the Court cautious in inferring that he would ever be able to hold down regular full-time employment. And the defendant has taken the position in these proceedings that the plaintiff should have no expectations of receiving anything from him or from his estate.
5. The Court is conscious of the established legal authorities discussed above that a grandchild has no expectation of receiving a home to live in from a grandparent by way of testamentary bounty. But this case is different because of the exceptionally close relationship akin to that of mother and son between this grandmother and grandson (the plaintiff) in parallel with her own son (the defendant). And in the context of that relationship the plaintiff's need is dire and likely to remain dire unless some intervention takes place.
6. The Court is also conscious that the plaintiff has received $30,000 under the will and almost another $30,000 in cash from the defendant since the deceased's death. The facts show that plaintiff has not managed these funds with any degree of prudence, gambling some of it away and not being able to account for how the rest of it was spent. But receipt of this cash and the entitlements under the will are not a complete answer to the plaintiff's case. The way these funds were given to the plaintiff, without any inbuilt protections against the plaintiff's lack of impulse control and gambling addiction did not address the fundamental issues facing the plaintiff's future. This was especially so because the plaintiff received these funds when he was living through a period of chaotic dislocation in his life. He was disturbed by the death of the deceased and was living an itinerant life; the ADVO having made him homeless. Any funds that are the subject of an order for provision for him in the future must be protected from the risk that he will waste them. Measures to achieve this will be dealt with below.
7. The key impact upon the defendant of making an order for provision of a substantial kind, well beyond the $80,000 contemplated by the defendant, is that the defendant will have to sell the Woolooware property. The defendant does not want to have to move from the Woolooware property, the house with which he is so familiar and comfortable, and which contains so many memories of his mother. But there are several reasons to believe that making an order requiring the sale of the Woolooware property is not an unreasonable outcome in this case.
8. First, the defendant may have to sell the Woolooware property himself anyway. The defendant is in his late 50s, has been unemployed for some time and in the Court's view, he is unlikely ever to be employed in the future. The defendant's personality, manner and habits of life will make future employment very difficult for him. He has tried to operate businesses in the past and failed partly because of the behaviour of the plaintiff but those failures have made restarting such businesses even more difficult for him now in his late 50s. He probably only has a potential earning capacity for another few years. He is not presently on the pension and is living on cash from the estate. The time is likely to come in the medium-term future that the expenses of maintaining, insuring, and meeting utility outgoings for a four-bedroom residential property will deplete his available cash reserves to nil. Whilst he may not see this himself, it is a very likely future scenario in the Court's view.
9. Second, if he stays in the Woolooware property, he will be one person in a four-bedroom house. It might be suggested that he could let out some of the other rooms in the house to earn an income. But having seen him closely when giving evidence, the Court's assessment of his personality makes it unlikely that he could conduct the business of letting out other rooms in a house in which he also lived. Thus, not selling the Woolooware property involves a failure to realise and turn to proper account place in a more usable form for the defendant himself, the benefit of the capital represented by the Woolooware property. In short, not selling the Woolooware property means that some of the capacity of the capital invested in the Woolooware property to benefit the plaintiff and the defendant family will inevitably be wasted.
10. Third, if the Woolooware property is sold, so that there is a division of the proceeds of sale in a fair and proper manner between the defendant and the plaintiff, consistent with an appropriate exercise of jurisdiction under the Succession Act, the defendant will have available to him sufficient funds to purchase a small apartment or townhouse in the Woolooware area and have reasonable amount of cash left over for his own purposes to see him through for many years.
11. But there is a final consideration which points to the sale of the Woolooware property and making a substantial order for provision in the plaintiff's favour. In the Court's opinion, the aggressive and resentful personalities of these two men that the Court saw give evidence so vividly, strongly prompts the Court to the view that they will both be best off staying well away from one another into at least the medium-term future. A wise and just testator could well consider that giving them each secure accommodation distant from one another might well assist in calming their mutual resentments and perhaps might one day also lead to the possibility that the ADVO could be dissolved.
12. To this end the plaintiff is willing to move away from the Woolooware area and to purchase a property in Western Sydney. Examples have been given of various affordable strata home units in the St Mary's area costing a little less than $500,000. This represents something near the further provision that should be made for the plaintiff. The defendant's future accommodation security should be protected, and he should be left with sufficient funds to buy an apartment property in the Woolooware area.
13. Balancing the need to make provision for the plaintiff against the needs of the defendant, the Court will make an order for provision out of the estate of the deceased equivalent to the sale of the Woolooware property and thereafter the division of the net proceeds of sale as to one third to the plaintiff and as to two thirds to the defendant. But for about $25,000 left in cash, the estate including the Woolooware property, has been distributed to the defendant. It is not in issue that the Woolooware property, and if necessary distributed cash, is now capable of being designated as notional estate of the deceased.
14. In the Court's view, the Woolooware property should be so designated because there are insufficient assets in the estate to meet such an order for provision. Before making such a designation, the Court must consider the effects of making a notional estate order. The relevant considerations are provided for in Succession Act, s 87. The same matters which the Court has considered above in relation to finding factors warranting and the making of a substantial order for provision, also show that designating the Woolooware property as notional estate of the deceased would not interfere with reasonable expectations in relation to property and is consistent with the substantial justice and merits of the case.
15. Moreover, the sale of the Woolooware property should be achievable without the parties incurring the expense of appointing trustees for sale. If necessary, the sale can take place under the control of the Court. But the Court expects that the solicitors in this case, who have conducted the proceedings efficiently until today, should also be able to manage the sale of the Woolooware property economically without any further legal apparatus being put in place. They will be given an opportunity to discuss the mechanics of this after these reasons have been delivered. The Court will not direct the timing and mechanics of the sale but expects the parties to organise that between themselves.
16. Upon the sale of the Woolooware property, the Court will order that the net proceeds of the sale after all sale expenses have been deducted can be divided as to one third in favour of the plaintiff and as to two thirds in favour of the defendant. The present valuation of the property clearly indicates a price range of between $2 million and $2.2 million.
17. The defendant submitted that the plaintiff should receive a fixed dollar sum order for provision. The Court is not persuaded by this submission. There are advantages in moulding the order for provision in the form of shares in the Woolooware property for each of the parties. If unexpectedly the sale price of the Woolooware property does not reach the indicated range, then the defendant is not disadvantaged by having to bear the risk of loss associated with the plaintiff receiving a fixed sum. On the other hand, the plaintiff and the defendant will benefit in their respective proportions from any sale price above this range.
18. If the Woolooware property sells and the net proceeds are $2 million after sale costs are deducted, the plaintiff would receive $667,000 and the defendant would receive $1,333,000. This would put the plaintiff within the range of purchasing an apartment in Western Sydney and leave him with some cash to spare to meet his near-term needs. If he wishes to increase the fund of cash available to him from this award in his favour, he has the option of moving to country New South Wales where larger residences can be found more cheaply than in Western Sydney.
19. This division also allows the defendant to purchase a reasonable size apartment or townhouse in the Woolooware area, depending on the quality and location of the residence. It will also leave and leave him with a reasonable fund of cash to spare to meet his future living expenses and future property outgoings for some time until he reaches pensionable age.
20. These reasons earlier indicated that a wise and just testator in this case would contemplate setting up a trust for the plaintiff for securing the funds either with a private voluntary trustee or with the NSW Trustee, so that he could not access the funds too readily for undesirable private discretionary expenditure. The Court will make directions for the setting up of such a trust for that purpose if a private trustee can be found. But finding a private trustee prepared to act to assist the plaintiff on a voluntary basis may be very difficult. The plaintiff's funds after the deduction of any approved legal fees from the proceeds of sale may have to be paid to and managed by the NSW Trustee for the plaintiff's benefit.
21. A major objective of the Court's management of these proceedings has been to reduce costs for the for the benefit of the parties. It is important now for the Court to try and resolve any remaining costs issues between these parties quickly and to minimise the costs of the further administration of the estate of the deceased. There will of course be some administration costs involved in selling the Woolooware property, but these should be able to be contained or even fixed but, in any event, they will be deductible from the sale proceeds. Now that orders have been made dividing the proceeds of the sale of the Woolooware property the logical course should be to divide the sale costs in the same proportion that the Court has divided the proceeds of sale.
22. The Court will otherwise order that the defendant's costs be paid out of the estate or the notional estate of the deceased on the indemnity basis and that the plaintiff's costs be paid out of the estate or the notional estate of the deceased on the ordinary basis. Given the making of cost capping orders in this matter in the past and the need to minimise further estate administration, it will be simpler if the Court now fixes a lump sum order instead of assessed costs in respect of those costs orders.

Conclusions and Orders

1. For these reasons Court makes the following orders and directions: 1. ORDER that an order for provision under Succession Act, s 59 be made out of the estate of the deceased, Robin Kathleen Towill, equivalent to selling 1 Edinburgh Close Woolooware NSW 2230 ("the Woolooware property") under the direction of the Court and awarding one third of the net proceeds of sale of the Woolooware property to the plaintiff by way of further provision out of the estate of the deceased and leaving the other two thirds to the defendant; 2. ORDER that considering the estate is inadequate to meet the order for provision, the Woolooware property is designated as notional estate of the deceased to meet ORDER 1; 3. DIRECT the parties to discuss forthwith and with a view to agreeing upon or otherwise seek further directions from the Court in relation to the timing, method and terms of the sale of the Woolooware property; 4. ORDER that the defendant's costs be paid out of the estate of the deceased or any further designated notional estate of the deceased on the indemnity basis; 5. ORDER that the plaintiff's costs be paid out of the estate or any further designated notional estate of the deceased on the ordinary basis; 6. DIRECT the parties to discuss forthwith with a view to agreeing upon or otherwise immediately seeking further orders from the Court in relation to the following matters, 1. the quantum of costs chargeable by any party in light of the cost capping orders already made by the Court in these proceedings; 2. the fixing of a specified gross sum instead of any assessed costs under Civil Procedure Act 2005 s 98(4)(c); and 3. any other proposals to reduce the administration costs of the estate and to eliminate the incurring of any additional costs in these proceedings; and 1. GRANT liberty to apply.

Additional orders after a short post judgment oral hearing

1. Upon Judgment being given orally the parties were invited to address the Court in relation to the subjects raised in order (6) above and as a result the Court made the following further orders: 1. In satisfaction of ORDER (4) above, the Court FIXES under Civil Procedure Act 2005 (NSW), s 98(4)(c), instead of assessed costs the sum of $89,845.25 for the defendant's legals costs for the proceedings. 2. In satisfaction of ORDER (5) above, the Court FIXES under Civil Procedure Act 2005 (NSW), s 98(4)(c), instead of assessed costs the specified gross sum costs in the sum of $133,000 for the plaintiff's legal costs for the proceedings. 3. DIRECTS that the estate provides an advance of $10,000 from existing estate funds to the solicitors for the plaintiff on account of a future distribution to the plaintiff. 4. The Court makes the following ORDERS to facilitate the sale of the Woolooware property: 5. ORDERS that George Gourlas Lawyers, solicitors for defendant, will be retained to effect all actions necessary to effect the sale and conveyance of the Woolooware property by public auction; 6. ORDERS that within 14 days, George Gourlas lawyers will nominate 2 real estate agents to act as sale agents of the Woolooware property and within a further 7 days, Wyatts Lawyers, solicitors for the plaintiff, will select one of the 2 proposed agents to act upon the sale. 7. DIRECTS that George Gourlas Lawyers will copy Wyatts Lawyers into all communications with the selected agent. 8. DIRECTS that when Wyatt Lawyers receives the net proceeds from the defendant and are proposing payment to the NSW Trustee & Guardian, Wyatts Lawyers should come to the Court to seek approval of the terms on which any payment will be made.

Amendments 31 October 2024 - [5] deleted "2020" and replaced with "2018" 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: 31 October 2024