Wertheim v Perpetual Trustee Company Limited

Supreme Court of NSW|2021-09-21|Before: Hallen J, Young J, Holland J, Kirby P, Tamberlin J

Background Facts

It is next convenient to set out some other facts that are not in dispute. To the extent that any of them are identified as being in dispute, the facts stated should be regarded as the findings of the Court.
The deceased was born in October 1934. At the time of his death, he was almost 85 years old. For many years prior to his retirement, he had worked as an automotive engineer.
The deceased married Jennifer Stevens in February 1958, at Hertfordshire, in the United Kingdom. There were four children of that marriage, namely David, who was born January 1959, who is now aged 62; Jodi, who was born in January 1961, who is now aged 60; Heidi-anne Trudi (known, within the family, as "Kriz"), who was born in December 1965, who is now aged 55; and Becci-Anne, who was born January 1970, who is now aged 51 years. (Only Becci-Anne and Jodi were cross-examined.)
The deceased and Jennifer separated in about January 1983. A divorce order in respect of the marriage was made in about October 1986, with the decree absolute being made in November 1986. At about this time, the deceased and Jennifer had a family law property settlement and they entered into a Deed of Property Settlement under the Family Law Act 1975 (Cth). The Deed relevantly provided for Jennifer to pay the deceased $28,000 and, in return, he was required to transfer his interest in the former matrimonial home at Wahroonga, to her. (There was other property referred to in the Deed, including a Halvorsen cruiser and old speed boat which passed to the deceased.)

The deceased's last Will

In his Will, the subject of the grant of Probate, the deceased appointed the Defendant as the sole executor and trustee. He gave the Plaintiff a pecuniary legacy of $20,000 and a right of residence in the Hornsby Unit, subject to her paying "home expenses" (rates, taxes, insurance, outgoings). The right of residence was also conditional upon her being in a de facto relationship with the deceased at the date of death. The period of residence was limited, effectively, to a period of two years from the date of the deceased's death. The Plaintiff has continued to live in the Hornsby Unit, although she has stated that she does not wish to continue to do so.
The Will also provided for certain chattels to be distributed amongst his four children and for the Plaintiff to receive the balance of the chattels. The residue of the estate was shared equally between the four children.

The nature and value of the deceased's estate

On 17 August 2021, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is, or may be required, to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to any party, whether those costs have been paid out of the estate of the deceased.
I have taken what follows from the Agreed Schedule, which was marked, without objection, Ex JS1, and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
The deceased's estate at the date of death comprised the Hornsby Unit ($455,000), another unit (unit 3) in the same building as the Hornsby Unit ($540,000), cash ($121,414), shares in public companies ($864,740), managed investments ($1,160,487), a car ($500), personal effects ($1,500) and "other assets" ($20,000). The gross value of the estate, at the date of death, was estimated to be $3,163,642.
The deceased's estate, at the date of the Schedule was also agreed. It was said to comprise the Hornsby Unit ($610,000), unit 3, in the same building as the Hornsby Unit ($500,000), cash ($237,120), shares in public companies ($1,112,158), managed investments ($1,227,655), and "other assets" ($20,051). The gross value of the estate, then, was estimated to be $3,706,985.
The Defendant, as executor, seeks commission, or percentage, for its pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW). It has estimated the quantum of commission at $150,000. It also claims what are described as an "Executor's Additional Service Fee (Internal Legal Fees) ($35,000), and tax and accounting fees ($10,000). It estimates the tax payable, by the estate, for the financial year ending 30 June 2021, to be $25,000. The total of these expenses is estimated to be $220,000.
In addition, the costs and expenses of sale of each of the two Hornsby units are estimated to be $51,200 (being $26,700 in respect of Hornsby Unit and $24,500 in respect of unit 3); there is an amount, for CGT, on unit 3 ($240,000), and some brokerage fees, which will arise on the sale of the listed securities ($3,670). The estimates of these costs and expenses total $294,870.
It follows that the net value of the deceased's estate was estimated to be $3,192,115, without deduction of any costs of the proceedings that may be ordered to be paid out of the estate.

The estimated costs of the proceedings

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendant, as the entity representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally, will be entitled to an order that its costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
The Plaintiff's costs, calculated on the ordinary basis, of the proceedings to the conclusion of the hearing, were estimated to be $68,000 (inclusive of GST). They are estimated to be $80,000, if costs are calculated on the indemnity basis. She has paid $2,314 on account of her costs.
The Defendant's costs, calculated on the indemnity basis, to the conclusion of the hearing, were estimated to be $153,000 (inclusive of GST). The Defendant has paid $16,093 (inclusive of GST) in senior counsel's fees in the matter, leaving $136,907 to be paid. (I am a little surprised at the quantum of the Defendant's costs. I only say this generally because the estimate was not the subject of any challenge, and Ms H Indari, the solicitor, was not called upon, or required, to justify the estimate.)
Assuming, without deciding, that the estimates for the costs and disbursements are accurate, and that the costs of each of the parties, in the event that the Plaintiff is successful, are to be paid out of the estate, the total amount of costs and disbursements of the proceedings, left to be paid out of the estate, will be $204,907.
Accordingly, the value of the deceased's estate, if the estimated costs of each of the parties, and the other liabilities referred to above are deducted, will be $2,987,208. It is a reasonably large estate.
At the commencement of the hearing, the Court asked whether how costs are borne could be determined as part of these reasons, to which each counsel replied that they could not as there may be documents that are relevant: Tcpt, 20 September 2021, p 05(35-41).
The Court encouraged the parties to agree on her, and its, costs, respectively, calculated on the ordinary basis for the Plaintiff, and calculated on the indemnity basis for the Defendant. By doing so, the court could make an order, before costs were referred for assessment, to the effect that the party to whom costs are to be paid is to be entitled to a specified gross sum instead of assessed costs: Civil Procedure Act 2005 (NSW) s 98(4)(c). This would avoid any further delay in the administration of the estate. Regrettably, there was no further mention of this matter. Therefore, it will be necessary to relist the matter for the argument about the costs of the proceedings unless the parties are able to agree after these reasons are published.

The testamentary intentions of the deceased

It is next necessary to deal with the evidence of the deceased's testamentary intentions. In this regard, there is both documentary, and other, evidence, spanning many years, going to his testamentary intentions.
The Plaintiff did not suggest that the information contained in some of the documentary evidence, to which reference will be made, was not truly reflective of the instructions given by the deceased, or that what was recorded did not accurately reflect those intentions.
The first Will, in time, made by the deceased, the subject of evidence, was one made by him on 22 July 1988. A copy of the Will is included in the evidence. The sole beneficiaries were the four children of the deceased, in equal shares, upon him, or her, respectively, attaining the age of 25 years.
The second Will in time, the subject of evidence, was one dated 11 February 1998. Again, in the 1998 Will, the deceased left the whole of his estate to his four children equally.
There is a copy of a File Note, dated 8 January 1998, which was prepared by Ms Gythree Langdon, an officer of the Defendant, following a conference with the deceased on 7 January 1998. The following passage appears in the File Note (with minor spelling amendments): "File Note Will for Mr Adrian Raymond Garfield Armytage. Attended upon Mr Armytage on Wednesday 7th January 1998 at 11.00 to take instructions from him for the revision of his Will. Mr Armytage advised that he did not want any substantial changes to his Will except to advise that all his children have changed their addresses and all have now attained 25 years of ages. His daughter Becci anne Armytage is due to be married soon and would also be changing her name, but he was not too sure about this. Mr Armytage is to supply me with his childrens' addresses. In all other respects his Will remains unchanged. During me confirming both personal and asset details from Mr Armytage, Mr Armytage informed me that he has a partner, Carol Wertheim. They have been in the relationship for about 2 years. Ms Wertheim has recently moved in with Mr Armytage as her former matrimonial home is being sold, following a divorce from her previous husband. Settlement is being negotiated and I understand from Mr Armytage that as soon as she receives her share of the settlement monies, she will be purchasing a property. At this stage, Mr Armytage could not say whether this property would be her principal place of residence or an investment property. I pointed out to Mr Armytage, that in the event that at the time of his death, Ms Wertheim was still residing with him, she may have no alternative accommodation and would most likely claim against his estate for some financial assistance. Mr Armytage advised that whilst at present Carol is not financially dependent upon him, he may consider at some later stage making provision for her, namely a right to reside in his principal place of residence for say a period of 5 years. At this point in time he does not want to make any provision for her. I pointed out to Mr Armytage that should he and Carol decide to marry, unless his Will is expressed to be in contemplation of marriage, his Will will automatically be revoked. Mr Armytage advised that both he and Carol are unlikely to be married as 'marriage spoils things'. I noted that Mr Armytage was previously married in 1958 and divorced in 1986. There was a settlement, which was sealed in the Family Court of Parramatta. Under the deed of settlement, Mr Armytage received $28,000 from his wife in return for his interest in the former matrimonial home. In addition, Mr Armytage received half of the contents of the home and the parties also covenanted to release all rights under the Family Provision Act. Although this deed was approved of in the Family Court at Parramatta, with the cross-vesting legislation, it allows the jurisdiction of the Federal Court, Family Court and the Supreme Court of the states and territories to be vested in each other. The result is that the Family Court can now approved a 'maintenance agreement' on the dissolution of a marriage and at the same time approve a release of rights to family provision under S 31, FPA. Each party under the deed assigned that he or she will not make any application under the FPA at any stage in the future. Therefore, the only possible claim against his estate would be by Ms Carol Wertheim. Details of Mr Armytage's assets were supplied by Maria Viegas, copy of which is attached to the Will Instruction Booklet. I informed Mr Armytage that there will be a cost associated with the revision of his Will and David Rowan White's firm. Draft Will to be prepared. Time spent: 1½ hours."
There is a copy of another File Note, this one dated 9 February 1998, signed by Ms Langdon, which includes: "File Note Record of Telephone Conversation Mr Armytage advised in relation to the letter of advice: 1. He has 5 grandchildren. 2. Whilst he is aware that Carol is entitled to claim against his estate, he does not at this stage want to make any provision for her. They have only been seeing each other for 2½ years and he is not sure how long the relationship would last. He may consider making the provision for her at some later stage. I pointed out to Mr Armytage that if she is living with him (which she has been for the past 6 weeks) that it is more than likely that she would bring a claim against his estate on his death, as she would not have alternate accommodation. He acknowledged this but said that he would have to think about it a little longer. 3. Mr Armytage said his former wife is very vindictive and he does not want her to have anything from his estate. I drew his attention to the family law deed that his former wife and himself signed on 14th October 1986, acknowledging and relinquishing their rights under the Family Provision Act. In relation to his Will, there are 2 amendments: • Clause 4 - Heidi-Anne Trudies Armytage is known as "Kriz" and Becci anne Armytage is known as "Becci". Changes to be made and Will to be engrossed."
The last Will in time is the 2008 Will, the subject of the grant of Probate. I have referred to its contents.
The deceased gave instructions to Ms M Malik, an officer of the Defendant, that the 1998 Will had "left all his assets to his children equally". The typewritten File Note, dated 3 March 2008, prepared by Ms Malik, also revealed that the deceased's instructions, included that: 1. He is "currently in a de facto relationship with [the Plaintiff] and they have been residing together" in his residence for the last 12 years, although the relationship started 15 years ago. "They are not contemplating marriage at all". 2. He has four children by his marriage; the Plaintiff had one child, Emma, who "was not and never had been financially dependent" on him. Nor had Emma ever resided with them. 3. He now wants to make some provision for the Plaintiff "but not a significant amount" as he and the Plaintiff had agreed "to look after themselves, and he does not envisage [the Plaintiff] making a claim for provision against his estate for a greater share". 4. He said that "neither expected the other to make provision" for her, or him, on the death of the other, respectively; they were not financially dependent upon each other and both parties "wanted that upon their deaths, their estates [to pass] to their own children". 5. There was a discussion about the former Act in detail (as it was the legislation that applied) and certain advice was given to the deceased about the Plaintiff's eligibility and that "it is more than likely that the court may award her a greater share of the estate". 6. The deceased was asked: "if he wished to leave her a legacy to assist in purchasing accommodation for her, but he did not wish to do so. He was adamant that they looked after themselves and that neither expected the other to make provision for them (sic) upon death. They were not financially dependant on each other. Also, both wanted upon their deaths, their estates to pass to their own children." 1. Other instructions were given which were subsequently included in the 2008 Will.
A typewritten File Note, dated 12 March 2008, signed by Ms Malik referred to instructions regarding, amongst other things, "all his household furniture, effects and personal items". His instructions in this regard are stated in the 2008 Will.
It is necessary, next, to deal, separately, with conversations other witnesses, being the Plaintiff and each of the deceased's children, had with the deceased. There was no documentary evidence, contemporaneous or otherwise, tendered in evidence, corroborating any of the conversations referred to. There is some dispute about a number of them.
Before doing so, I refer to some principles that I have borne in mind. As was observed by McLelland CJ in Eq in Watson v Foxman & Ors (1995) 49 NSWLR 315, at 318-319: "Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances … Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.
In Webb v Ryan [2012] VSC 377, Whelan J, at [22], referred to the difficulties in assessing evidence of this type, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
In Swansson v Harrison & Ors [2014] VSC 118, Macaulay J at [50] referred to Watson v Foxman and "ordinary human experience" and added: "Such lessons include the recognition that human memory is fallible, and ordinarily the degree of fallibility increases with the passage of time. Self-interest may intervene, even sub-consciously, causing a person to reconstruct a memory in a manner that best accords with his or her cause. As is well known, the perception by two people of the same event, including a conversation, can diverge - so the starting point of recollection is not necessarily common even before memory is overlaid with other influences. In both the initial perception and the re-telling of an event, subtle (or not so subtle) differences may be explained because of varied attention given to matters such as emphasis, sequence, the inclusion or exclusion of a particular detail, and surrounding, contextual facts or circumstances. Each of these influences can reasonably explain why one person's recollection of an event differs markedly from another's well before we are driven to consider the likelihood of deliberate distortion or concoction."
This is not to say that a higher standard of proof, or persuasion, is required when assessing the evidence of conversations with a deceased person.
The credibility of a witness and her, or his, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 3 WLR 640; [1985] 1 Lloyd's Rep 1 at 57 (Robert Goff LJ). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).
A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 at [157] (Kenneth Martin J).
The circumstances of this case, also make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 at [15]-[16]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time."
I shall refer to the evidence of each of the deceased's children first.
David stated that the deceased had said to him, on approximately six occasions, over several years, words to the effect: "Carol and I have come to an agreement what she owns will go to her daughter when she died and I will leave my estate to you and your sisters. We agreed to not claim on each other's will."
When David told the deceased, "You should leave her something as you have been with her a long time", he replied "No, that's what we agreed": Affidavit, David Crispin Armytage, 20 October 2020 at par 11.
The deceased also told David (Affidavit, David Crispin Armytage, 20 October 2020 at par 14): "I am quite happy the way I am living and I want to leave what I have to my children".
As stated, David was not cross-examined. There was no submission made that the Court should refuse to act upon, or that it should disbelieve, his evidence, on the basis that it was inherently improbable or otherwise. I accept his evidence about the conversations.
Kriz recalled one occasion, at the Hornsby Unit, during which an ABC radio program on estates was playing. The deceased said words to the effect of "All my kids are getting it equally, contents will be sold and divided equally". Kriz stated: "What about Carol?" to which the Plaintiff stated, "I'm not getting anything and I don't expect it." The deceased then stated: "That's our deal": Affidavit, Heidi-anne Trudi Armytage, 22 October 2020 at par 17.
Although the Plaintiff stated that she could not remember the event or the conversation (Tcpt, 20 September 2021, p 28(39)-29(07)), Kriz was not cross-examined. There was no submission made that the Court should refuse to act upon, or that it should disbelieve, Kriz's evidence, on the basis that it was inherently improbable, or otherwise. I accept her evidence about this conversation.
According to Becci-Anne, the deceased told her (Affidavit, Becci-Anne Jennifer Armytage, 22 October 2020 at par 22): "Carol and I have discussed my will on a number of occasions, and she agrees, as do I, that she wants her money to go solely to Emma and my money will be divided equally between you David, Heidi and Jodi."
In the same affidavit, at par 25, she recalled a conversation, which took place on 7 December 2019, in which the Plaintiff said that she was "devastated" by the deceased's Will. When Becci-Anne asked why, when she "knew what was in the Will", the Plaintiff replied "Yes, but I thought he would change his mind". The Plaintiff was unable to remember the conversation.
In cross-examination, it was also put that the Plaintiff had said "I knew he wouldn't change his mind", but she "strongly" denied having said that. Finally, it was put that she had said: "I want to have some money to leave to Emma" and she "very, very strongly" denied that: Tcpt, 20 September 2021, p 31(08-47).
In cross-examination, when asked whether she had been present during a conversation between the deceased and the Plaintiff about his Will, Becci-Anne stated (Tcpt, 21 September 2021, p 57(38-47)): "No, it was common. It was common. There were a lot of conversations that were just general, you know. It, it, it was clear to me that Carol understood through general conversations that were had that they, they were leaving them after that time, it was clear that they were, you know, both going to leave their money. Carol was going to leave her money to Emma and dad was going to leave his to his four children. It was kind of - I don't remember any specific conversations except, it, it, it felt like common knowledge, you know, when everything - anything was bought up when dad - when Carol gave Emma money or when dad gave us money it didn't - like, yeah, yeah, it was common knowledge. It felt like everybody knew that."
Becci-Anne was cross-examined. I am satisfied that I should accept her evidence about the conversations. Apart from the fact that each had the ring of truth, the conversations with the deceased referred to were consistent with what he had said to others, including the officers of the Defendant. Furthermore, her evidence was not inherently improbable. I accept her evidence about these conversations.
Jodi recited an occasion (Affidavit, Jodi-Anne Dale, 27 October 2020 at par 5) when the Plaintiff had said: "I love living with your father Jodi because we do not ever have arguments about money like I always had with John (ex-husband). I don't have to answer to spending money, my money is my money. He really is my soulmate your father. I am very blessed to have found him."
There was evidence that a few weeks prior to her 57th birthday, the deceased said to Jodi (Affidavit, Jodi-Anne Dale, 27 October 2020 at par 8 and 10): "'I've just been to see Perpetual about my Will. I want to assure you I've been told it is not possible for your mum to do that. My will is tight and safe. You, your brother and sisters are to inherit all my money and the units, to be equally shared among you. Carol and I have an agreement between us, that when Carol dies Emma is to inherit all that is hers and when I die all of you, my children are to inherit all that is mine. Carol and I both agree with this and we are both very happy with the decision.' The deceased then paused and asked Carol (who was present in the room), 'Aren't we Carol?' to which the Plaintiff replied: 'Yes Adrian'."
(When Jodi was cross-examined, it was pointed out to her that the last Will of the deceased was the 2008 Will and that her 57th birthday occurred in about 2017. She accepted that the deceased might not then have been to visit the Defendant but that he might have telephoned about his Will: Tcpt, 21 September 2021, p 62(40) - 63(02)).
At Jodi's 57th birthday celebration lunch, the deceased confirmed his intentions in the presence of the Plaintiff. The Plaintiff then said (Affidavit, Jodi-Anne Dale, 27 October 2020 at pars 12-13): "I've told Emma I'm going to give her some of my inheritance now, so I can get to see Emma spending it on her new house and buying the things she needs, rather than receiving it all as inheritance when I die. Because it is only Emma that is to inherit from me when I die."
Jodi was cross-examined. I am satisfied that I should accept her evidence. Apart from the fact that it also had the ring of truth, the conversations with the deceased referred to were consistent with what he had said to others, including the officers of the Defendant. Furthermore, her evidence was not inherently improbable. I accept her evidence about these conversations.
In relation to the Plaintiff, she gave evidence that the deceased did not support her, financially, in any way. When she moved in with the deceased, he had made statements to the effect of "I will not support you financially or spend any of my money on you"; "You will never have access to my money in any way" and "We will not buy birthday or Christmas presents for each other": Affidavit, Carol Angela Wertheim, 18 July 2020 at par 18; Tcpt, 20 September 2021, p 24(39-48).
The Plaintiff agreed that, in saying these things, the deceased "was laying out some ground rules for how the relationship would work": Tcpt, 20 September 2021, p 24(35-36). She also agreed that on an occasion at Kriz's home, the deceased had said "When we live together … we're not co-mingling our money and we're not getting married": Tcpt, 20 September 2021, p 24(05-09).
The Plaintiff described the deceased as "extremely mean with his money and… not at all open to discussion on the topic. He would get quite angry if I raised anything contrary to his way of thinking": Affidavit, Carol Angela Wertheim, 18 July 2020 at par 26.
However, the Plaintiff said that she had never spoken to the deceased about his Will. She maintained that the discussions were limited to "while we were living together", which she said meant (Tcpt, 20 September 2021, p 25(44-50)): "That is the way we would conduct our relationship. While we were in a relationship, a de facto relationship with each other, we would actually not spend money on the other person, we would pay for our own trips, our own dinners, our own outings. We would, we would go halves, as I said, of all the household expenses, food, shopping, yes, and basically sort of pay for our own, our own living expenses while we were together, yes. Obviously … if we split up we wouldn't continue to do that."
She acknowledged that, in October 2008, the deceased had told her that he and Becci-Anne were going to draft his Will, but she said that she did not question the deceased about it: Affidavit, Carol Angela Wertheim, 20 November 2020 at par 32.
The Plaintiff also said that when she had first moved in with him there was a discussion that she would not make a claim on his assets. She said that "after being in a relationship with Adrian for 23 years, I expected Adrian to look after me and care what happened to me after he died. The roof that I had over my head was the only one that I had".
The Court asked the Plaintiff about her knowledge of the deceased's testamentary intentions (Tcpt, 20 September 2021, p 41(01-05)): "Q. Are you telling me that you had no conversation with the deceased at any time in which he told you that he intended to leave his estate to his children? A. I did have a conversation with Adrian to that effect when I first moved in with him but that was in 1996 and basically, sort of, after all those years, I really felt that he knew I had nowhere to live and would've looked after me."
The Plaintiff also said that the first time she had become aware of the contents of the deceased's Will was after his death, when Joyce Sivris, an officer of the Defendant, had met with her and had read the Will to her: Affidavit, Carol Angela Wertheim, 18 July 2020 at par 78-79. She stated that she was disappointed by the deceased's Will, given that he had, repeatedly, told her that she was the love of his life. She also stated that she had discussed her financial situation with the deceased many times and he was aware that she could not afford a property without his assistance: Affidavit, Carol Angela Wertheim, 18 July 2020 at par 80-81.
The Plaintiff denied that she had agreed that her money was to go solely to Emma and that his estate was to be divided between his children. She said that she would never have agreed to leave the Hornsby unit: Affidavit, Carol Angela Wertheim, 20 November 2020 at par 57-58. Yet, in response to a question from the Bench, the Plaintiff also said that her Will, which had been made during the deceased's lifetime, left everything to Emma: Tcpt, 20 September 2021, p 41(15-24). (This, of course, is consistent with what the deceased was reported to have said was part of his agreement with the Plaintiff.)
During cross-examination, the Plaintiff gave further evidence about her expectation that the deceased would look after her (Tcpt, 20 September 2021, p 26(01-06), p 27(17-25) and p 28(17-20)). "Q. If you split up, you wouldn't make any claim on his assets, correct? A. When I first moved in with Adrian it was early days. However, after being in a relationship with Adrian for 23 years, I expected Adrian to look after me and care what happened to me after he died. The roof that I had over my head was the only one that I had." ... Q. But he wanted more than that, didn't he? He wanted to leave his own estate to his children, and you knew that, didn't you? A. I did know that, and I, and I, I would hope that he would have. He was a very good father. But I never claimed money from his estate. I would never claim money from his estate, but I did expect him to leave me with a roof over my head. He knew that I was not able to afford a unit and not able to work anymore due to many, many, many conditions. And he had my, he had, he, he loved me and wanted me to be cared for and looked after after he died. That is what, that is what anyone would think. Yes. … Q. But at no stage during the relationship did Adrian ever agree or have any discussion with you that that was your expectation, was it? A. There was no need to have that discussion, because Adrian told me every day that he was always look after me and not to worry."
The last statement had not been included in any of her affidavits.
Having seen, and heard, the Plaintiff's evidence on this topic, and whilst she did maintain, unshakeably, the denial, or non-recollection, of conversations to the contrary, bearing in mind all of the evidence, and perhaps, particularly, the attitude of the deceased, expressed to her from the commencement of the relationship, I find her evidence that her only conversation about what would happen on death was at the commencement of the relationship to be implausible. It is inconsistent with some of the evidence given by the Plaintiff herself, about the character and conduct of the deceased, with all of the other documentary evidence to which reference has been made, with the evidence of the conversations the deceased had with each of his children, and with her own Will, made during the lifetime of the deceased, in which she made provision only for her child, Emma.
Importantly, it is also inconsistent with the way in which the deceased and the Plaintiff conducted their financial arrangements over the whole of their 23 year relationship, and with what may be described as the common experience, for older couples, who have previous families, to want his, or her, assets to go to his, or her, children and not (ultimately) to the child, or children, of a later partner, an experience which the deceased clearly held.
It seems to me that the deceased had done what he could to make it clear, from the commencement of their relationship, that she should not look to him for financial support. Whilst demonstrating a high degree of rigidity, and parsimony, the Plaintiff could not have had any real doubt about the deceased's desire, and firm intention, to leave his entire estate, or the most significant part of it, to his four children.
I am satisfied that where there is a conflict of evidence between the evidence of each of the children and her, about her knowledge of the deceased's testamentary intentions, I should not accept the evidence of the Plaintiff. Whilst she may have hoped that the deceased would change his mind (a statement which I find that she made), and was also likely to have been disappointed by the provision that the deceased actually made for her in his Will, the hope and expectation, in regard to receiving provision from the deceased's estate, was not one that had been promoted by him, or founded upon their financial conduct, at any time, during the relationship.
The corollary was that each of his children, who were, and had been, the sole beneficiaries of each of his Wills, the earliest of which was made over 30 years before his death, repeated in 1998, and only changed when he made his last Will, must have held a reasonable expectation that they would inherit his entire estate, or the most significant part of it. As already stated, the four children have an interest in seeing the deceased's testamentary wishes to benefit them upheld.
Having referred to this evidence, it is equally important to remember that there is no evidence that the deceased ever sought to obtain, or did obtain, from the Plaintiff, at any time, a release of her rights to apply for a family provision order. Had such a release been sought, and given, it would have had effect only if it had been approved by the Court and to the extent that the approval has not been revoked by the Court: s 31(2) and (3) of the former Act, and s 95(1) of the Act.
Nor was there any financial agreement under s 90UB or s 90UC of the Family Law Act made between them. The former section relates to people who are contemplating entering into a de facto relationship with each other and who enter a written agreement with respect to financial matters mentioned in s 90UB(2) in the event of the breakdown of the de facto relationship. The latter section relates to parties to a de facto relationship who, while in that relationship, make a written agreement about any of the matters mentioned in s 90UB(2) in the event of the breakdown of the de facto relationship.
I have referred to the testamentary intentions of the deceased in so much detail for two reasons. The first relates to the importance of freedom of testation.
In Banks v Goodfellow (1870) 5 LR QB 549 at 563, Cockburn CJ observed that "the law of every civilised people concedes to the owner of property the right of determining by his last will, either in whole or in part, to whom the effects which he leaves behind him shall pass". (However, he qualified his statement by noting that a property owner would be under a "moral responsibility of no ordinary importance" to make provision for "those who are the nearest to them in kindred and who in life have been the objects of their affection".)
In Starr v Miller [2021] NSWSC 426, at [603]-[609], I reviewed the authorities in respect of freedom of testation and the Act. I shall not repeat what I wrote, other than to refer to the following observation of Callaway JA (Tadgell and Charles JJA agreeing) in Grey v Harrison [1997] 2 VR 359 at 366 [29]: "... it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s. [59, Succession Act] the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
Yet, it is to be remembered that the Act is to be applied according to its terms and is not confined by notions of reluctance to interfere with freedom of testation. As was stated by Brereton JA (Simpson AJA agreeing) in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [97]: "The statutory family provision jurisdiction is not to be exercised on the footing that it must be approached with great caution because of its intrusion on testamentary freedom. Rather, the statute is to be given full operation according to its terms, notwithstanding that it encroaches on testamentary freedom."
Another reason is the relevance of an understanding, or arrangement, involving the deceased and the applicant in a claim for a family provision order, the real significance of which is found in Steinmetz v Shannon, where Brereton JA wrote, at [112]: "I accept that arrangements and understandings made between a testator and potential beneficiary are not irrelevant in determining what may be proper for the beneficiary's maintenance and advancement. Representations made by testators have always been regarded as relevant to the ascertainment of what is proper provision. Thus it seems to me that a well-established and long-standing understanding between a testator and potential beneficiary, properly informed, could well be relevant in assessing what is proper provision for that beneficiary. But in this case, an expression of acquiescence in a will with which the appellant was confronted at very short notice, which she did not fully comprehend, in circumstances where any sensitive human being would be astute to avoid upsetting a man about to undergo surgery from which he might possibly not emerge, and when she was largely uninformed as to the nature and extent of his estate, was entitled to no weight whatsoever. Even less relevant is the circumstance, referred to and taken into account by his Honour, that there was no evidence that during their relationship the appellant ever discussed with the deceased any desire let alone need for her to move after his death."
(I should mention that an application for special leave to appeal the Court of Appeal decision, made to the High Court, was dismissed upon the basis that "[t]he appeal proposed by the applicant would enjoy insufficient prospects of success to warrant the grant of special leave": Shannon v Steinmetz [2019] HCASL 332 at [1] (Gageler and Keane JJ).)
In Sgro v Thompson [2017] NSWCA 326, White JA (McColl and Payne JA agreeing) considered the meaning of "proper and adequate provision" in the context of an understanding between a deceased and a potential beneficiary. His Honour stated, at 86: "I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances."
In Prior v Kerrison [2017] NSWSC 1295, Rein J wrote at [38]: "I am very mindful of the fact that Brian did not want to extend the scope of his bounty to Marg beyond a life interest in Number 143 and a very small legacy. Although Marg does not accept all of the factual assertions made by Brian in his statutory declaration (see: paragraph 13 of Marg's affidavit), most of the matters there recorded are not in dispute. Those that are in dispute have not been established by independent evidence to be incorrect and I am persuaded that the information he was proceeding upon was materially correct. The Court is required to bear in mind and respect the wishes of a testator, see Salmon v Osmond [2015] NSWCA 42 at [72] per Beazley P, with whom McColl JA and Gleeson JA agreed, but the Court is also required to consider the matters laid down in the Act and determine the matter in accordance with its requirements. Once it is accepted that the provision that he made in the will was inadequate, the options for an alternative provision are limited, although the Act does permit the Court to require provision to be made in "any manner the Court thinks fit": see s 65(2)(f) of the Act. I need to take into account that Marg was a de facto spouse of thirty years with, at the time of the hearing, very little in the way of assets. I also take into account, however, that the relationship with Marg was one of a separation of financial interests and unlike the more common arrangements typical of married couples, no doubt a reflection of the fact that when they started their relationship they had both been married before, and Marg had their own children."
In Spiteri v Vassallo [2020] NSWSC 890, Williams J stated, at 164: "The deceased did have an obligation to make provision for the plaintiff as his de facto spouse after his death. It was the intention of the deceased since approximately August 2016 to make provision for her in the form of a lump sum payment of $200,000. Indeed, this was the shared intention of the deceased and the plaintiff; see [63] - [88] above. I accept the defendant's submission that this shared intention is entitled to significant weight in all the circumstances of this case, which I consider immediately below."
Even more recently, in Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524, Rees J, in reaching her conclusion, at [251], considered "the tenor of their relationship and their dealings with each other since its inception".
Ultimately, it seems to have been accepted by counsel that the arrangement or understanding made between the Plaintiff and the deceased may be considered in determining what may be "proper" for the Plaintiff's maintenance and advancement in life, and that, in the circumstances of this case, and that it may restrain the amplitude of provision to be made for the Plaintiff: Tcpt, 21 September 2021, p 69(29-43).

The Plaintiff's situation in life

There was no dispute that the relationship of the Plaintiff and the deceased was a close and loving one. Whilst living together, the Plaintiff and the deceased shared all household expenses equally including gas, electricity, water, council rates, petrol, phone and internet bills, food and cleaning products.
When the deceased travelled without the Plaintiff, he required her to pay for half of any food or provisions bought for his trips and insisted that the Plaintiff pay in full for her own food and household products.
During the relationship, the deceased had a number of medical complications. The Plaintiff drove the deceased to all of his medical appointments, informed his children, and friends, of his progress after operations and acted as his primary carer whilst he was in hospital or recovering.
There was a dispute about the way in which domestic duties were performed. The Plaintiff asserted that she cleaned the Hornsby unit, washed the deceased's clothes and performed many of the household duties. Typically, each would cook his, or her, own meals, other than in the last few years of the deceased's life, when the Plaintiff would cook dinner for both of them. I do not think that very much turns on the determination of this dispute bearing in mind the duration of the relationship.
The Plaintiff currently receives a disability support pension of $1,462 per month. She also receives an allocated pension of $2,243 per month. Her total income is, therefore, $3,706 per month.
(The balance of the Plaintiff's allocated pension reduces each year by the difference between her investment income, her payments and fees of $5,000-$6,000 per annum. Over the four year period from FY2017-FY2020, the balance of the Plaintiff's Wealth Saver account reduced by approximately $47,684 to $502,045.)
The Plaintiff asserted that she has the following regular monthly expenses: Council Rates $114 Strata Levies $224 Water Rates $ 59 Food $800 Household Supplies/Cleaning Products $300 Gas $ 34 Electricity $ 56 Telephone $ 70 Motor Vehicle $160 Petrol $ 70 Maintenance $ 34 CTP Insurance $ 50 Comprehensive Insurance Clothing and Shoes $100 Medical, Dental and Optical $500 Entertainment $168 Education $ 30 Chemist/Pharmaceutical $500 Cleaning $ 40 Repairs - Furnishings and Appliances $ 40 Gifts $ 20 Hairdressing, Toiletries $ 84

The expenses total $3,454, although the Plaintiff stated that her regular expenses can exceed her income by up to $500, depending on her medical expenses and needs at a given time. (She was not challenged on any of the expenses, which I note include about $400 per month for entertainment, furnishings and appliances, gifts and hairdressing and toiletries.)
The Plaintiff has the following assets: Asset Value St George Retirement Account $ 2,480 St George Maxi Saver Account $ 53,050 Wealth Solutions Retirement Income Account $ 502,045 Motor Vehicle $ 10,000 TOTAL $ 567,575

The Plaintiff suffers from a number of medical conditions including: a. Recurrent sinusitis; b. Renal tubular abnormality; c. Hypertension; d. Anaemia; e. Polymyalgia; f. Mycobacterium kansasii; g. Bronchiectasis; h. Asthma; i. Gastroparesis and gasto-oesophageal disease; j. Hypothyroidism; k. Osteoarthritis and osteoporosis; l. Stage IV prolapsed bowel; m. Chronic fatigue and pain (particularly in her right leg); and n. A failed right hip replacement.
For the last 15 years, the Plaintiff has seen a physiotherapist regularly for treatment for her hip and bronchiectasis. In addition, prior to the COVID-19 pandemic, the Plaintiff used hydrotherapy to treat her right leg and used alternative therapies including vitamins, homeopathic remedies and laser acupuncture.
The Plaintiff regularly takes a variety of medications.
The Plaintiff has regular appointments with an allergy/clinical immunologist, otolaryngologist, orthopaedic surgeon and urogynaecologist.
The Plaintiff stated that the Hornsby unit is in a poor condition and is unsuitable for her to live in. She said that due to her medical conditions, she finds it difficult to walk the three flights of stairs required to access the Hornsby Unit, particularly if she is carrying anything on her. Further, the gas stove is disconnected, the garage is small and the air conditioner does not work adequately. She wishes to purchase a two-bedroom unit, in her own name, in a secure building, with undercover parking, a lift and an indoor heated pool. (The pool would enable the Plaintiff to do her daily exercise without putting undue strain on her right leg. The second bedroom would enable the Plaintiff's daughter to come and stay with the Plaintiff whilst she recovers from any future medical complications.)
The Plaintiff sought provision of $1,555,000 from the deceased's estate, although in his oral submissions, counsel did not suggest that such a lump sum was required. Of that amount, the largest sum was sought for the purpose of purchasing accommodation ($1,250,000), stamp duty payable thereon ($60,000) and an amount for furniture and whitegoods ($13,000). The balance related to what was said to be the cost of hip replacement ($40,000), the costs of membership of a private health fund, calculated at the rate of $590 per month (based upon a life expectancy of 13 years) ($92,000) and a lump sum for contingencies ($100,000).
In regard to the costs of furniture and whitegoods, the Plaintiff stated (Tcpt, 20 September 2021, p 39(32-39)): "I would like to have somewhere to sit, yeah, I'd like to have a computer that worked, I'd like to have a TV that worked. I would like not to have that bed. At the moment I don't have a stove that works because there was a gas leak from the stove which I smelt from the first time I moved into Adrian's unit, that's been disconnected for the last two years so, yes, I would actually like a few things that actually worked. A lot of Adrian's possessions were picked up from the side of the road, he repaired them but they've only got a used by date on them, they don't last forever."
When asked whether she could live with Emma, the Plaintiff stated (Tcpt, 20 September 2021, p 38(03-09)): "No, there is not enough room in the unit for me to do that and also they are a couple and I, I also love my own privacy. I'm an artist, I basically - that is something that's got me through this lockdown, my art. I, I basically would like the room to put my art, my art in and I, I - to fit my art supplies. I then say I would like… (not transcribable)... where she could actually sort of stay if anything happened to me. I don't... (not transcribable)..Steve or Peter and Melinda, I would like my own place. I am an artist."
The Plaintiff was also asked, in cross-examination, whether she could rent as an alternative to home ownership (Tcpt, 20 September 2021, p 38(26-29)): "…I don't really wish to rent somewhere and be thrown out of a rental because the lease wasn't right and have to move all the time at my age. I would actually like a place of my own to actually sort of feel safe in. I don't want to be moving all the time from place to place."
In relation to the lump sum of $100,000, it was submitted that this amount was to cover the difference between her income and regular expenses and any life contingencies.

The situation in life of each of the beneficiaries

The Plaintiff described the deceased as a "wonderful" father: Affidavit, Carol Angela Wertheim, 20 November 2020 at par 44. There was no dispute that each of the children had a close, and loving, relationship with him.
Becci-Anne is currently the owner and occupier of a family day-care business. Her taxable income for the 2019/2020 financial year was $50,040. Due to COVID-19, her work has decreased significantly.
She separated from her husband, Mark Gilbert, in December 2019. However, they have not yet arranged a property settlement. Their finances are still very much entwined as they have not entered into a property settlement.
Mark's taxable income for the 2019/2020 financial year was $328,128, which Becci-Anne accepted as a substantial amount: Tcpt, 21 September 2021, p 55(35-49).
She does not currently receive any Centrelink payments, but did receive JobKeeper between May and July 2020 as a result of her reduced income.
They have the following assets: Asset Value Property at XXX Norman Ave, Thornleigh NSW 2120, owned with Mark $1,400,000 (mortgage of $424,848) Joint Account with Mark XX438 $ 341,155 Joint Account with Mark XX450 $ 27,194 Loan Account with Mark XX700 $ 779,342

During submissions, senior counsel for the Defendant clarified Becci-Anne's financial position as follows (Tcpt, 21 September 2021, p 86(04-12)): "In her affidavit of 2 August 2021 at para 3 she refers to the three bank accounts. The effect of the evidence is that the two accounts that are deposit accounts add up to 368,000 approximately. The mortgage account is 779,000. There is a difference of about $410,000 which is debt. Her net financial position is the value of the property, which is the 1.74 million, less debt of approximately 400,000 which brings is back down to about 1.3, which means that if one makes the assumption that there is a half split between herself and Mark, then her net position would be closer to about 650 rather than the other figures that have been suggested. That's just by way of clarification."
Becci-Anne has a car ($7,000).
She and Mark rent a unit in Manly and they alternate between residences throughout the week. The arrangement they currently have is that they spend half the week each in the Manly unit whilst the other is spending time, with their daughters, at the Thornleigh property and then switch so as to enable the children to remain in the property. They share the rent.
Becci-Anne suffers from s-bend scoliosis and a decreased curve in her cervical spine, which has caused her to reduce her workload to 3 days per week. She sees a chiropractor 2-3 times per week, has therapeutic massage every fortnight and practices yoga twice a week. The approximate cost of these therapies is $95 per week. She also suffers from a frozen shoulder injury and sinus problems, both of which may require surgery in future.
Their daughter, Eve, suffers from severe generalised anxiety disorder, depression and ADHD. She currently sees a psychologist once a week at an out-of-pocket cost of $101 per week and a psychiatrist once a month at an out-of-pocket cost of $200 per week. The monthly cost of Eve's medication is approximately $100.
Becci-Anne said that in view of her separation from Mark, she will require funds to assist in the purchase of accommodation, maintenance, medical expenses and superannuation after her property settlement. Her daughters, who are 21 and 19 years old respectively, and are both students, are living with and are dependent, or at least partly dependent, on them. She has no superannuation or savings for her retirement. She has financial needs which will be dependent upon the property settlement.
David is single with no dependents. He resides in a motor home at Pitt Town Bottoms. He is currently unemployed and his JobKeeper payments ceased in September 2020.
He has the following assets: Asset Value Investment Property $600,000 (mortgage of $113,000 and rented for $550 per week) Investment Property $400,000 (mortgage of $75,000 and rented for $395 per week) Motor Vehicle $ 2,000 Camper $ 40,000 Bank Accounts $ 8,059

David has the following liabilities: Liability Amount Monthly Mortgage Repayments $ 2,700 Debt $ 8,000

David has $400 left to live upon which he spends on rates, insurance, registration and food. He states he hardly has enough to live upon.
It does not appear that he is in a position to significantly save.
David suffers from hypertension and depression for which he takes medication he also has constant back problems and the onset of emphysema.
David has needs including the mortgage debt which needs to be serviced and wishes to retain the provision the deceased left him to fund his retirement.
Kriz is currently unemployed and in receipt of a fortnightly disability support pension of $860.
She has the following assets: Asset Value Savings $ 1,904 Funds $ 54,000 Motor Vehicle $ 4,000

She pays weekly rent of $109. Her other expenses are food, water, physiotherapy, prescriptions, cigarettes and insurance. She only eats one meal a day, as this is all she can afford.
Kriz has bipolar disorder and, as a result of a car accident, her mobility is limited to domestic and daily duties. She is unable to work.
She said that she requires provision to purchase a two-bedroom apartment in the Ryde area, as she currently resides in a housing commission. Kriz has little savings or superannuation and requires funds for future maintenance, living and medical expenses.
Jodi's main source of income is from her work at Christadelphin Aged Care, in Wyoming, where she is a part-time catering assistant and earns $3,029 per month. Previously, Jodi-Anne's yearly income was as follows: Financial Year Income 2012 $15,810 2013 $20,412 2014 $22,634 2015 $25,215 2016 $15,940 2017 N/A 2018 $20,304 2019 $15,967

She currently lives with two of her three sons at a rental property in Gosford and pays rent of $470 per week. Her eldest son, Brandon, has a full-time salaried job in IT and her younger son, Ethan, receives Centrelink payments and works part-time. Jodi and Brandon pay rent and Ethan makes some financial contribution to household expenses: Tcpt, 21 September 2021, p 64(24)-65(06).
Jodi has the following assets: Asset Value Savings $16,130 Superannuation $ 3,202

Jodi has a Westpac MasterCard Credit Card owing $3,718.
Over his lifetime, the deceased made a number of financial gifts to Jodi. She said that she has no financial reserves to fall back upon and relies upon the provision the deceased made for her to help financially, including with her medical needs. She says that she needs provision to buy a home for herself and her family. In the past decade, Jodi and her family have had to relocate three times. She stated that having to repeatedly relocate is emotionally distressing and places a strain on her family.
She has arthritis, deformed fingers and swollen joints in her hands, rendering her unable to do certain tasks.
Jodi stated that she requires a car, as she lives in an unsavoury area and finds waiting for public transport in the dark to be intimidating.

Submissions

The Plaintiff submitted that she and the deceased were in a loving de facto relationship for 23 years. The Plaintiff acknowledged that, early on in their relationship, the deceased told her that he wished to give his estate to his children and that there was no evidence that his desire in this regard changed over the course of their relationship: Tcpt, 21 September 2021, p 66(05-37).
Counsel for the Plaintiff submitted that further provision ought to be made for her on the basis that she had been in a 23 year relationship with the deceased, she only has a capital sum of approximately $550,000 and she has no accommodation: Tcpt, 21 September 2021, p 69(45-50).
Counsel for the Plaintiff submitted that, but for any understanding between the Plaintiff and the deceased, the accepted position applies in this case, that is, that a widow after a long marriage is entitled to security of accommodation and some security of income: Tcpt, 21 September 2021, p 70(17-21). However, as I pointed out during submissions, the legal obligations imposed by a de jure marriage do not, necessarily, apply to a de facto relationship: Tcpt, 21 September 2021, p 73(48-50).
He submitted that adequate provision for the Plaintiff would require her to have independent security of accommodation (potentially in the form of a Crisp order) rather than a tenancy or rent fund: Tcpt, 21 September 2021, p 71(43-46). However, as I pointed out to Counsel for the Plaintiff, the Plaintiff did not own real estate throughout her relationship with the deceased, despite having the financial ability to do so: Tcpt, 21 September 2021, p 71(48)-72(05).
The Defendant submitted that whilst there was no dispute the Plaintiff is eligible to make a claim and lived with the deceased for approximately 23 years, the nature of the relationship was not conventional, but rather one of mutual companionship and convenience without financial or domestic interdependence.
Counsel for the Defendant submitted that the arrangement between the Plaintiff and the deceased of looking after themselves, as well as the mutual acknowledgement that each of the estate would pass to his own children, or her child, should moderate the Plaintiff's claim for provision. In particular, the Plaintiff's claim for accommodation provision was ambitious and beyond what was justified in the circumstances. Whilst the Hornsby Unit is valued at $610,000, the Plaintiff's claim for accommodation provision is effectively double that ($1,000,000-$1,500,000).
In written submissions, the Defendant opposed any provision beyond that provided to the Plaintiff in the Will but accepted that, if any provision were to be ordered, it should be a small lump sum which enabled her to rent should she choose to do so, on the basis that the capital be returned to the deceased's estate. Alternatively, the Defendant submitted that a Crisp order may be appropriate having regard to the basis on which the relationship was premised.
Senior counsel for the Defendant accepted that the Plaintiff required some form of accommodation provision but submitted that the deceased did not want his capital eroded in a way that would significantly alter his ability to leave his estate to his children. As such, a solution that permitted the Plaintiff to acquire accommodation but leave the capital in a form that could be returned to the deceased's children would be adequate and proper: Tcpt, 21 September 2021, p 88(34-41).
During the submissions, the parties were able to agree that the Court should take the range of the purchase price of a one-bedroom home unit in the suburbs in which the Plaintiff wished to live as between $580,000 and $760,000 and that the rental costs of similar accommodation were $520 - $620 per week: Tcpt, 21 September 2021, p 87(13-31) & 91(23-48). As will be read, I have used the mid-point, in relation to the purchase price, of alternative accommodation.

The Statutory Scheme

Next, I shall discuss, relatively briefly, the statutory scheme that is relevant to the facts of the present case. There was really no dispute about the general principles that apply.
The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). In New South Wales, it is a multi-category based eligibility system. There are six categories of persons by, or on whose behalf, an application may be made.
Since eligibility is not disputed the Court must determine whether adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased: s 59(1)(c). It is this mandatory legislative imperative that drives the ultimate result and it is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order: s 59(2). Only then may "the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". In all cases under the Act, what is adequate and proper provision is necessarily fact specific.
Ultimately, it was accepted that inadequate provision for the proper maintenance and advancement in life of the Plaintiff had been made in the deceased's Will. Then, the sole question became what order for provision out of the estate of the deceased the Court thinks ought to be made for the maintenance or advancement in life of the Plaintiff, having regard to the facts known to the Court at the time the order is made.
In Grey v Harrison [1997] 2 VR 359, Callaway JA observed, at 366-367: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
In the Court of Appeal, Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3], wrote that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254, at [126], White J wrote that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297, at [40].
Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were stated in the context of the former Act, they are equally apt in a claim brought pursuant to the Act. Other judges, and I, have repeated them in many cases under the Act.
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ); [1962] HCA 19; McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186 at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at 7.
In Foley v Ellis, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse: "… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act."
Because it was referred to, what is described in the cases as a "Crisp order" is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unrep), except in part, in L G Handler and R Neal, Mason and Handler's Succession Law and Practice in New South Wales (1985, LexisNexis Butterworths) at par [9433]. Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant's benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a "Crisp order" confers a "portable life interest": Court v Hunt (Supreme Court (NSW), Young J, 14 September 1987, unrep), cited with approval by Ipp JA in Milillo v Konnecke [2009] NSWCA 109, at [47]-[48].
In Re Schlink; Keane v Corns [2020] VSC 180 at [79], McMillan J described this type of order as: "… a practical way of crafting relief which provides for the proper maintenance and support of an applicant in a flexible manner, while also preserving the estate for the remaining beneficiaries. The usual circumstance in which a Crisp order may be appropriate in family provision claims is where an applicant for further provision is a surviving spouse or partner of a deceased and the deceased failed to provide adequately for them."
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court re-writing the deceased's will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 at [41] (Debelle J, Nyland and Anderson JJ agreeing); Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 at [67] (Hargrave J).
Section 65(1) of the Act requires a family provision order to specify: 1. the person or persons for whom provision is to be made; 2. the amount and nature of the provision; 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and 4. any conditions, restrictions or limitations imposed by the Court.
The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit": s 65(2) of the Act. If provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest: s 65(3) of the Act.
I make clear that I do not intend what I have described as "principles" to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.
During submissions, I raised with counsel the tentative view that if the Plaintiff were successful, the Court could make an order that she receive, absolutely, a lump sum to supplement the capital that she has, and a loan, interest free to assist in the purchase of accommodation, calculated as a percentage of the net proceeds of sale of the Hornsby Unit, which loan was repayable on the sale of the alternative accommodation purchased by her, or on her death, whichever was earlier: Tcpt, 21 September 2021, p 82(50)-83(13).
In this way, both parties would benefit if the property were sold for a price greater than had been estimated, and each would be detrimentally affected if it sold for less than the estimate. There would also, then, be certainty of price, costs, and expenses, upon which calculations could be made.
McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192 at [96], has raised the concern that "to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs".
Whilst this is undoubtedly true, it seems to me that, in some cases, and at certain times, including when the real estate market is so volatile, to make a specific lump sum order, whether by loan or otherwise, will not be the most appropriate way of determining what is "proper" in all the circumstances of the case. The value of the Hornsby Unit is only estimated, and, ultimately, may prove wildly inaccurate.
Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes, "in any other manner the Court thinks fit", thereby leaving unconstrained the Court's power as to the nature of the order for provision that may be made.
I have made orders for provision based on percentages in several cases, including Koellner v Spicer [2019] NSWSC 1571 and Rakovich v Marszalek [2020] NSWSC 589. Rein J has also made a similar order in Askew v Askew [2015] NSWSC 192.
In response to the proposition, counsel for the Plaintiff, who has vast experience in family provision matters, said (Tcpt, 21 September 2021, p 95(25)-96(08)): "The point I wish to make rather than the amount, and it's only hypothetical. If the purchase price of a unit were say 670, if the stamp duty and legals was 30, that's around about 700,000 she'll need to get herself her own unit. If the estate or the beneficiaries were to loan her 500,000 in the manner envisaged, that would mean that she would have to find, from her 500,000 or so, around 200,000 to make up the difference. That would reduce her capital to around about 300,000 or thereabouts. I can do these figures in a spreadsheet. But that in turn would reduce her income by about 40% per month. … … Her present income would be reduced by about 40%, because she wouldn't have the capital sum. That would mean the difference, I call it the after new purchase monthly expenses versus her income from her various sources, would be around about 2,800 a month or so, leaving a considerable shortfall. … I'm just trying to assist the Court by making a submission that any capital sum that the plaintiff receives, that's aside from shall I say the loan sum, I think we understand the loan sum, any capital sum should I submit take into consideration, amongst other things, the fact that she will have a reduced income. I know she can't expect everything to be the same. But the fact is, her expenses will go on, her income will be reduced, there'll be a shortfall, she will have an ongoing financial shortfall which I submit should be reflected in some part of a capital sum, together with - "
In response to the proposition, senior counsel for the Defendant, who also has considerable experience, said (Tcpt, 21 September 2021, p 84(08-15)): "I don't have any immediate instructions obviously. However, what your Honour has said, from my part, I'm prepared to accept that that is certainly an outcome which accords with how your Honour has described the positions on either side. I accept that. It also has a element at which the figure has some connection with the value of the property which, for good or for bad, has been the place that they lived in for the entire duration of their relationship, in a sense that it had that strong connection to that rather than something that is disconnected from that."
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order made under the Act takes effect, relevantly, as if it were a codicil to the Will: s 72(1)(a) of the Act. As was written by Brereton J (as his Honour then was) in Liprini v Liprini [2008] NSWSC 423 at [14], a family provision order is: "… a unique [one] which in effect is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such."

Determination

Having established eligibility, and that the proceedings were commenced within time, and as there is really no dispute that, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of the Plaintiff, has not been made by the Will of the deceased, it is necessary only to determine what order for provision out of the estate of the deceased the Court thinks ought to be made for the Plaintiff's maintenance or advancement in life.
What is written below should be read as a continuation of what has been written above, and also upon the basis that I have regarded the factual matters, so far as they are relevant, to the circumstances set out below.
I should mention that the acknowledgement by senior counsel for the Defendant, during submissions, concerning the provision made for the Plaintiff in the 2008 Will (Tcpt, 21 September 2020, p 86(36-50)) was appropriately made and demonstrated that the Defendant appreciated that the Court must consider the question of the adequacy of the provision that was made for the Plaintiff's proper maintenance or advancement in life at the date of hearing and not at the date of the 2008 Will.
Of course, by the date of his death, the Plaintiff and the deceased had remained in a de facto relationship for at least another decade (albeit as they had, so far as finances were concerned, for the period before 2008). Once it is accepted that the provision that the deceased made in the Will was inadequate, it must be taken into account that the Plaintiff was a de facto spouse of about 23 years, at the time of the hearing, who has no accommodation.
The real contest between the Plaintiff and the Defendant concerned the nature and quantum of the provision that ought to be made for her pursuant to s 59 of the Act. This demonstrates the conceptual difficulty which arises from reconciling the concept of freedom of testation and the obligation, or duty, to an eligible person.
However, in adopting the approach suggested by the authorities, I am satisfied, having regard to the Plaintiff's financial resources, her age and the medical conditions and disabilities from which she suffers, that she has no earning capacity, that she is not cohabiting with any other person, and that there is no other person liable to support her, that, notwithstanding the arrangement or understanding that she and the deceased shared, additional provision should be made for her.
In addition, I am of the view that whilst the deceased had obligations to his children, it was the Plaintiff who had lived with him, and who had been, later in his life, his primary carer. I have also borne in mind the competing financial claim on the bounty of the deceased of each of his children. I have earlier referred to his, and her, financial resources and needs, respectively.
Of course, I have not forgotten that respect should be given to the judgment of a capable testator as to who should benefit from his estate, if it can be seen that he has duly considered the claims on the estate. In my view, the size of the estate is sufficiently large to satisfy the obligations that he had to each of the eligible persons.
The question of what additional provision for the Plaintiff's maintenance or advancement in life ought to be made, having regard to all the circumstances of the case, is made less difficult by virtue of the discussions during submissions. Whilst neither counsel specifically abandoned the principal submission made in writing, each seemed to accept that what the Court raised was, in broad terms, adequate and proper in all the circumstances.
The question, ultimately, involves an intuitive, or an evaluative, judgment. The measure to be applied is not what has been given to other beneficiaries, but what the Plaintiff needs for her proper maintenance and advancement in life, giving due regard to all the circumstances of the case. It is not a mathematical assessment, or one that is dependent upon only calculating the costs of meeting demonstrated need.
It seems to me that the primary needs of the Plaintiff are firstly, for a modest capital sum, for future contingencies, which she should receive absolutely, in addition to the pecuniary legacy made for her in the deceased's Will, and a lump sum, by way of loan, to assist in the purchase of accommodation. I am not satisfied that the lump sum for accommodation that she wishes to buy should be met, by way of capital provision, absolutely, out of the estate of the deceased or that the estimates she has provided to purchase alternative accommodation should be used to determine the quantum of provision.
I also consider that a life estate, or a Crisp order, is not appropriate in the circumstances of this case. Such an order, amongst other things, would require the Plaintiff to be an effective tenant of the property purchased and would also involve the Defendant in the continued administration of the deceased's estate, perhaps for a long period of time, as it would have responsibility for the upkeep of that accommodation and the payment of outgoings over the period of the Plaintiff's occupation.
Taking all matters into account, I have come to the view that there should be a loan made to the Plaintiff, secured by registered mortgage, or other security, interest free and repayable on the sale of the alternative accommodation or on death, whichever was earlier, on terms satisfactory to the beneficiaries, to assist in the accommodation that she wishes to purchase. The additional provision made for the Plaintiff should be provided out of the net proceeds of sale of the Hornsby Unit, thereby avoiding any substantial continuing involvement of the Plaintiff and the Defendant (or the beneficiaries) in the future, which might exist if a type of life estate, or Crisp order, were made.
(There was no suggestion that the four children of the deceased wished to retain the Hornsby Unit and it appears to have been accepted that it would be sold.)
In making such provision, whilst the deceased's testamentary intentions and wishes, in regard to the additional capital sum would not be adhered to, the loan amount, albeit without interest, would be repayable to the beneficiaries on the sale of the alternative accommodation purchased by the Plaintiff, or within say 2 months of her death, whichever was earlier. Then, the deceased's long held testamentary intention of leaving the bulk of his estate to his four children, will have been carefully considered and given effect to, as will have the terms of the Act.
The provision that will be ordered means, that the Plaintiff, effectively will mean that she receives the benefit and use of the whole of the net proceeds of sale of the Hornsby Unit, in part by way of additional capital, and as to the balance, by way of a secured loan. In addition, the Plaintiff will receive the whole of the capital gain on any accommodation that she purchases, bearing in mind that during the existence of the loan, she will not have to pay any interest on capital. Any property that she purchases in her own name can be devised, subject to the discharge of the registered mortgage, to her daughter, Emma, if that is what she wishes to do.
In the event that the Plaintiff, at some time in the future, is required to move into a retirement village, or nursing home, then the accommodation that she purchases should be sold. If the net proceeds of sale, after deduction of the costs of entry into the retirement village or nursing home is insufficient, then, alternative security to the amount then required, to the satisfaction of the mortgagees, should be provided. In this way, her accommodation needs would be met for the remainder of her life.
As to the competing claims of the four children of the deceased, whilst they would, effectively, be permanently deprived of the capital sum paid to the Plaintiff absolutely, they would receive, in the fullness of time, the capital of the loan amount, albeit without interest. In the meantime, they would equally share in the distribution of the balance of the estate (which should be no less than about $2 million).
In this way, also, the Plaintiff and the four children do not have to keep in contact if they do not wish to until that becomes necessary. The children, if named as the registered mortgagees, would need to be contacted in order for the Plaintiff, or her legal personal representative, to sell the property registered in her name, subject to discharge of the mortgage or the provision of alternative security if she goes into a retirement village or nursing home. Each would be financially independent of the other in the meantime.
Bearing in mind that she currently has a lump sum of slightly more than $550,000 in capital available to her, I am of the view that the additional lump sum that the Plaintiff should receive, by way of provision, should be calculated as a percentage of the net value of the Hornsby Unit. On present estimates, a lump sum of about $80,000 (making her pecuniary legacy $100,000), is, in my view, adequate and proper in all the circumstances. A lump sum of about that amount, subject to the sale price of the Hornsby Unit, should enable her to pay for, at least, the costs of her hip replacement and the purchase price of new furniture and whitegoods. Otherwise, she can use the amount as part of the purchase price of alternative accommodation.
The lump sum, on present estimates, equates to about 14% per cent of the estimated net value of the Hornsby Unit (using a net estimated value of $583,300). The additional lump sum to be paid to the Plaintiff absolutely should be based on that percentage of the net proceeds of sale of the Hornsby Unit, when sold, and should be reflected in the order made.
The whole of the balance of the net proceeds of sale of the Hornsby Unit, should be provided to the Plaintiff, by way of a loan, which amount should be secured by registered mortgage, or other security satisfactory to the beneficiaries, to assist the Plaintiff in the purchase of the accommodation that she wishes to purchase. It should be paid simultaneously with the purchase of that accommodation.
The amount of the loan, on present estimates, equates to about 86% per cent of the estimated net value of the Hornsby Unit. Using a guide of about $700,000, as the purchase price of the alternative accommodation, including stamp duty and legal costs of the purchase, the Plaintiff, on present estimates, will have to contribute something towards the purchase price. She has, or will have, with the additional legacy (if required), resources to do so. Of course, she may be able to purchase alternative accommodation for less than the guide.
As s 65(3) of the Act states that if provision is to be made by payment of an amount of money, the family provision order may specify whether interest is payable on the whole or any part of the amount payable for the period, and, if so, the period during which interest is payable and the rate of the interest, interest should be paid on the lump sum if it is paid within 7 days of completion of the sale of the Hornsby Unit.
No interest is to be paid on the loan amount until the death of the Plaintiff, or completion of the sale of the purchased property; and if not so paid, then, interest on any unpaid part of the loan amount, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act, shall be paid from the date the amount should have been paid until the date of payment in full.
One would hope that the parties can come to some agreement as to the manner in which effect could be given to these reasons in the event that there is a time difference between the sale of the Hornsby Unit and the purchase of accommodation by the Plaintiff. There would appear to be sufficient funds in the estate to meet the situation if it arises. (Perhaps, the parties could agree that the amount of the deposit payable by the Plaintiff could be advanced to her, out of the estate otherwise, in the event that she exchanges contracts to purchase a property before the sale of the Hornsby Unit.)
Naturally, I am prepared to give consideration to a different formulation of the provision that will better suit the parties and residuary beneficiaries, collectively, if they are able to agree.
Subject to the tender of any documents on the question, and any further submissions, my tentative view is that the Plaintiff should have her costs, calculated on the ordinary basis, of the proceedings and that the Defendant should have its costs, calculated on the indemnity basis, of the proceedings, paid out of the estate of the deceased. As stated, if possible, agreement should be reached on the quantum of those costs.
The parties will be given an opportunity to bring in Short Minutes of Order to give effect to these reasons, including as to costs.
The Court: 1. Directs the parties to bring in Short Minutes of Order reflecting these reasons and proposed orders. 2. Orders that if agreement is reached, signed Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date be vacated. 3. Orders in the event that agreement cannot be reached, the proceedings are adjourned until 4:00 p.m. on Thursday, 14 October 2021, for the purpose of dealing with any matters unable to be agreed.

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: 05 October 2021

Family Provision Act 1982(NSW)

Trade Practices Act 1974(Cth)s 52

Civil Procedure Act 2005(NSW)s 98(4)(c), s 98(4)(c).

Family Law Act 1975(Cth)ss 90UB-90UBC

Succession Act 2006(NSW)ss 3, 57-59, 60-61, 63, 65-66, 72, 84, 95

a Mines Ltd [No 4] [2010] WASC 160 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Kay v Archbold [2008] NSWSC 254 Koellner v Spicer [2019] NSWSC 1571 Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep) Liprini v Liprini [2008] NSWSC 423 McKenzie v Topp [2004] VSC 90 Milillo v Konnecke [2009] NSWCA 109 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Prior v Kerrison [2017] NSWSC 1295 Rakovich v Marszalek [2020] NSWSC 589 Re Schlink; Keane v Corns [2020] VSC 180 Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524 Sgro v Thompson [2017] NSWCA 326 Shannon v Steinmetz [2019] HCASL 332 Spiteri v Vassallo [2020] NSWSC 890 Starr v Miller [2021] NSWSC 426 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Sung v Malaxos [2015] NSWSC 186 Swansson v Harrison & Ors [2014] VSC 118 Szypica v O'Beirne [2013] NSWSC 297 Watson v Foxman & Ors (1995) 49 NSWLR 315 Webb v Ryan [2012] VSC 377 Texts Cited: L G Handler and R Neal, Mason and Handler's Succession Law and Practice in New South Wales (1985, LexisNexis Butterworths) Category: Principal judgment Parties: Carol Wertheim (Plaintiff) Perpetual Trustee Company Limited (Defendant) Representation: Counsel: K Morrissey (Plaintiff) M Meek SC (Defendant)

The Claim

HIS HONOUR: These reasons relate to proceedings commenced by Carol Angela Wertheim, who applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) ("the Act"), upon the basis that she is a person who was living in a de facto relationship with Adrian Raymond Garfield Armytage ("the deceased") at the time of his death on 13 October 2019.
The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one made by the Court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (37)