Wheatley v Lakshmanan

Background

1. The deceased died in February 2017 aged 65. The deceased was survived by her two children, Alexis (who was born in 1977) and Erin (who was born in 1980). Alexis is married to Frank Maurizi who was born in 1970. Alexis and Frank have no children but wish to do so (Alexis believes that to do so it will probably involve in vitro fertilisation) or to adopt or foster a child. Erin is married to Jesse Boyle. They presently live in the United States of America and have one child who was born in 2020.
2. The deceased's husband died on 1 January 2010. There is evidence that the marriage between the deceased and her husband (the father of Alexis and Erin) was troubled. Erin has described the marriage as "physically, emotionally and financially abusive" (see Erin's affidavit sworn 8 May 2018 at [8]); and in 2011, in proceedings involving the estate of their late father (brought by their stepmother) both Alexis and Erin gave evidence to that effect (as indeed did the deceased). In that earlier proceeding (the 2010 proceeding), Erin deposed that it took around 15 years for her father to "admit fault for the psychological trauma he caused my sister [Alexis] in childhood, and for which she still undergoes counselling. … she suffers terribly as a result of this" (see Erin's affidavit in the 2010 proceeding sworn 3 May 2011 at [24], being a document contained in Ex A). Erin also gave evidence in the 2010 proceeding that she suffered from chronic fatigue syndrome which was substantially worsened by the breakdown of the parents' marriage (see Erin's affidavit sworn 3 May 2011 at [25]) and in this proceeding gave evidence of an abusive domestic relationship between her parents (see at [80] of Erin's affidavit sworn 8 May 2019).
3. The deceased and her husband separated in 1988 and were divorced not long after that. The deceased never remarried and was not in a de facto relationship at the time of her death.

Dover Heights Property

1. Prior to the deceased's marriage, the deceased had acquired (with financial assistance from her parents who made a gift of the deposit to the Wheatley Family Trust and lent the whole of the remaining balance (see Ex 4, p 1-2)) a property at Dover Heights (the Dover Heights Property) where she lived until her marriage. After their marriage, the deceased and her husband lived first at Lugarno and then at what became their family home at Strathfield (the Dover Heights Property being rented out during that period).
2. After the separation and divorce in 1988 of their parents, Alexis and Erin lived with the deceased at the family home in Strathfield until about 1998 when they moved to the Dover Heights Property (the daughters both by then being at university). The deceased remained living at, and was the sole registered proprietor of, the Dover Heights Property until her death.
3. The Strathfield Property was sold at some stage for about $1 million.
4. The deceased and her two daughters lived at the Dover Heights Property until Alexis left home, at the age of 27, at or around the time of her marriage to her husband, Frank Maurizi, which took place in May 2007. Erin lived at the Dover Heights Property until she moved to the United States of America for work in about 2008.

Properties at The Entrance and Torrens Avenue

1. The Entrance Road Property and the Torrens Avenue Property, to which I have referred above, were commercial properties purchased during the life of the deceased's parents (together with a property at Newport that does not relevantly feature in this proceeding). It was said in submissions that the acquisitions of the respective properties were funded from the two shoe shop businesses that had been operated by the deceased's parents. At some stage there were separate loans secured over each of those properties. The Entrance Road Property was held in the name of Wheatley Investments; the Torrens Avenue Property in the name of Yonan.

The 1988 Will

1. In 1988, the deceased made a Will leaving her estate equally to her two daughters. (The next Will that is in evidence is one that was made in 2005 - see below.)

Discussions regarding the deceased's testamentary intentions in 1998

1. Both parties give evidence of conversations with the deceased at or about the time of the move to the Dover Heights Property (in 1998) as to the deceased's testamentary intentions.
2. Alexis deposes that, in a conversation with the deceased shortly after the move to the Dover Heights Property in 1998, her mother asked whether she (Alexis) would prefer to receive as her inheritance the Dover Heights Property or the investment properties (i.e., The Entrance Road Property and the Torrens Avenue Property). Alexis has deposed that she said she was content if the Dover Heights Property went to her sister (Erin) and she received the investment properties (see at [24] of Alexis' affidavit sworn 24 January 2018). Alexis has further deposed that the deceased repeated that representation on other occasions over the years (see at [73], [79] and [86] of Alexis' affidavit sworn 25 January 2018).
3. Erin, on the other hand, gives evidence of a conversation in mid-1998 at the Strathfield house (i.e., before the move to the Dover Heights Property) in which she says that the deceased promised the Dover Heights Property to her, together with the Torrens Ave Property, and said that she would leave Alexis The Entrance Road Property (see at [27] of Erin's affidavit sworn 8 May 2018). Erin says that the issue was again raised in a conversation after the sale of the Strathfield property (see at [30]) and on other occasions (see at [34]).
4. Pausing here, Alexis emphasises that (on Erin's account of the conversation with the deceased as to this testamentary distribution) the deceased "justified" the distribution of assets on the ground that Alexis had asked for and was to be given an advance on her inheritance, which Alexis submits indicates a recognition that the proposed testamentary distribution was not an equal distribution and called for some justification. Alexis notes that her (i.e., Alexis') account of the conversation in 1998 is corroborated by Ms Josephine Sattler, the deceased's cousin (see at [6] of Ms Sattler's affidavit affirmed 14 May 2018). Ms Sattler was cross-examined on that conversation and was confident of her recollection (see below). Ms Sattler recalled the conversation as occurring on the back balcony of the Dover Heights Property on Boxing Day one year, shortly after the yacht race (T 149.19-31).

Share trading moneys

1. Erin's evidence is that the deceased told her in about 1998 that she had given Alexis some of her inheritance at that time so that Alexis could trade shares full-time. Erin has deposed (in her affidavit sworn 8 May 2018 at [30]) that, later that year or in early 1999, the deceased had a conversation with Alexis and her, in which words to the following effect were said: Dianne: Erin, now that the house has been sold, I'm going to give Alexis part of her inheritance now like we discussed. As you know, you'll get more financial benefit later on. … Dianne: Alexi, as we discussed I want to be clear that you have the choice between a large deposit on a home now or the money for trading shares. I'd like to see you have a house, but you're twenty-one and it's your decision. You can use the rental income from the home to pay for the mortgage and get a job, while still living with us. Or, I can give you the money for trading shares and you can be self-employed. Either way, you understand that you're receiving this part of your inheritance now and you'll have Westpac [i.e., The Entrance Road Property] when I'm gone. Erin will have Dover Heights and [the] DOCS [property]. [i.e., the Torrens Avenue Property] Alexis: Thanks Mum. I've wanted to invest more shares but didn't have savings. I know I can grow the value over time much quicker than a house would appreciate in value. So I really do want the money now. I understand then Erin and I will each have one commercial property, even if you need to sell Newport. Dianne: Ok, then I'll give you the money for trading shares. You can trade through the [Wheatley Family] Trust since I know you don't want anything in your name directly. I don't want you to trade anything risky, please just start with blue chip stocks. If you lose the money, it won't be replaced from Erin's inheritance share. Alexis: I know. I have a few companies including BHP and TAB that I'm ready to invest in now. Can I set up an account at Hartley Poynton so I can get started?
2. There are bank records of one of the deceased's companies, Doiho Pty Ltd (Doiho), which record that amounts totalling $145,061.47 were paid to stockbrokers in February 1999. Erin says that it is likely that (contrary to Alexis' evidence) none of that money represented the re-investment of proceeds of sale of earlier transactions (noting that the first three cheques were drawn in quick succession on 1 February, 3 February and 6 February 1999; and it being said that, no doubt, the cheques had to clear before the trades could begin).

Companies controlled by the deceased

1. From 23 January 1998 to 23 July 2007, Alexis was a director and secretary of various companies which were owned or indirectly controlled by the deceased (Wheatley Investments, Yonan and Doiho). Alexis was removed as a director of those companies in 2007 at around the time of her marriage to Frank. There was a suggestion in Erin's affidavit evidence that this was because Alexis had commenced business as a financial planner but in cross-examination (see T 195.45-50) Erin was not sure of any such causal connection. There is also some doubt as to when Alexis commenced full-time employment (Erin contending that this was in 2006 and relying on unsigned tax returns found in the deceased's papers at the Dover Heights Property after her death) which do not disclose any significant taxable income for Alexis in the period 2001 to 2006; Alexis contenting it was in around 2009. Pausing here, Alexis objected to the admission into evidence of these unsigned tax records and I do not here rely upon them. I simply note Alexis' concession that, for the period prior to commencement of full-time employment, the only person to whom she would have looked for financial support was the deceased (see T 120.7-49, 121.1-49, 128.47-50).

The 2005 Will

1. In 2005, the deceased executed a Will which, in substance, provided for: Erin to receive the Dover Heights Property and the deceased's interest in Yonan "including but not limited to" the Torrens Avenue Property "to do with as she sees fit"; Alexis to receive the deceased's interest in Wheatley Investments, including The Entrance Road Property; and for the two daughters to share the residue. Alexis was to receive the deceased's interest in Doiho under this Will.
2. Alexis says that the likely catalyst for the making of the 2005 Will was her engagement in that year to Frank, noting that Erin gives evidence of conversations in which Erin was critical of Frank and that the deceased was critical of both Frank and Alexis, accusing them of being untrustworthy and simply after her money (see Erin's affidavit sworn 8 May 2018 at [47]). Alexis says that, whether or not the deceased was as critical of Frank and herself as the conversations deposed to by Erin would suggest, there is no suggestion that Frank (or Alexis herself) did anything that was dishonest, unfair, unreasonable or would otherwise have given any reasonable person a basis for concluding that he (or she) was not to be trusted; that there is a factual dispute as to the suggestion that Alexis treated the deceased as a "piggy bank"; and that the emails exchanged between Alexis and the deceased suggest a less critical attitude on the deceased's part than the conversations to which Erin deposes suggest (referring, by way of example, to the emails at exhibited at Ex AW1, AW2, AW3 and AW4 to Alexis' affidavit sworn 17 August 2018). Further, Alexis refers to the guarantees that she gave to assist the deceased and to her making the deceased the beneficiary of a life insurance policy, as matters pointing to her financial assistance to the deceased (see below).
3. Alexis points out that the Will executed by the deceased in March 2005 suffered from a number of drafting defects -- seeking to leave the deceased's interest in Yonan (which was in fact held by Wheatley Investments) to Erin and purporting to leave to Alexis the deceased's interest in Wheatley Investments (not apparently recognising that this carried with it the interest in Yonan and, through Yonan, the Torrens Avenue Property).

Guarantees provided by Alexis

1. Alexis gives evidence of her assistance to the deceased over the years in relation to the deceased's business interests, referring in particular to a guarantee given by Alexis of a line of credit provided by the Commonwealth Bank of Australia (CBA) to Yonan in the sum of $120,000 in 2004 and a loan from Challenger Managed Investments Pty Ltd to Wheatley Investments in 2006 in the sum of $500,000 (see at [26]-[29] of Alexis' affidavit sworn 24 January 2018). Alexis also guaranteed a loan to Yonan and Doiho from about 1998 until late November 2013 (see at [30] of Alexis' affidavit sworn 24 January 2018).
2. In cross-examination, Alexis said that, had she known that the deceased was not going to leave her the Torrens Avenue Property, she would not have provided a guarantee in respect of that commercial property (see T 109.29-48) and that the risk of that guarantee (discharged when the loan was refinanced in 2013) was a great stress to her.

The March 2007 Will

1. The deceased executed a Will on 9 March 2007 which was in materially the same terms concerning the gifts to Erin and Alexis as was the 2005 Will.
2. The copy of the 9 March 2007 Will in evidence contains handwritten amendments, including the word "unencumbered" in cl 4 and adding reference to cl 5 to the deceased's estate, as opposed simply to the Torrens Avenue Property, in the clause by which the deceased "instruct[s] [her] executor to take out a mortgage over any real property in [her] estate for the purpose of discharging any mortgage at the date of [her] death over the real property situate at […] The Entrance Road".
3. Alexis says that the 2007 Will only cured the defects of the 2005 Will by creating fresh ones (purporting to be a direct gift of The Entrance Road Property, while in effect giving the balance of the estate to Erin). It is noted that the March 2007 Will was made shortly before Alexis' marriage in May 2007.

Alexis' marriage in 2007

1. As noted above, Alexis was married in May 2007. It is not disputed that there was some tension between Alexis and the deceased at around the time of Alexis' marriage. Alexis accepts that her relationship with the deceased was fractured from then until 2008. The cause of this is a matter of some dispute as between Alexis and Erin.
2. Alexis says that the tension arose from her father being permitted to attend her wedding, perhaps together with a friend of his in relation to whom there was an allegation of some sexual assault upon Erin. However, Alexis says that she did not know the name of the person alleged to have assaulted Erin (see [41]-[50] of Alexis' affidavit sworn 24 January 2018) and says that this was conveyed to her only by the deceased. (Alexis, somewhat tellingly, says that she and Erin were not on speaking terms at the time - see T 56.26-30.)
3. Erin, on the other hand, gives evidence as to additional reasons for the deceased being upset with Alexis at this time (those being as to the deceased not being involved in the wedding preparations; the deceased being asked to pay for the honeymoon; the deceased not being acknowledged in the speeches at the wedding; and as to issues as to the gifts provided to Alexis and Frank by the deceased and the daughters' father respectively (see at [58]-[59] of Erin's affidavit sworn 8 May 2018 and T 198.7-43)).

The deceased's last Will dated 25 August 2008

1. The deceased's last Will (probate of which was granted to Erin on 29 August 2017) was dated 25 August 2008.
2. The 2008 Will repeated the structure of the 2007 Will, but provided an alternative executor should Erin not have survived the deceased. It provided that the gift of The Entrance Road Property was to be unencumbered (and made some other minor changes that are not here relevant).
3. The Will was prepared by a solicitor, Mr Joe Ryan (whose file in regard to the preparation of the Will was obtained and made available to both parties and relevant extracts from which, including Mr Ryan's notes, are annexed to the affidavit of Alexis' solicitor - see Ms Money's affidavit sworn 23 October 2019 at [2]-[3]). Erin's evidence is that she accompanied the deceased to Mr Ryan's office although she was present only for part of the discussion on that occasion.
4. Clause 4 of the Will, which is the subject of the application for construction, provides: 4. I GIVE DEVISE AND BEQUEATH the property situate at …The Entrance Road, The Entrance in the State aforesaid, unencumbered, to my daughter VITTORIA ALEXIS WHEATLEY for her sole benefit absolutely, to be placed into a trust or superannuation fund of her choice.
5. Clause 5 of the Will provides: 5. I INSTRUCT my executor to take out a mortgage over any real property in my estate for the purposes of discharging any mortgage at the date of my death over the real property situate at … The Entrance Road, The Entrance in the State aforesaid.
6. The deceased gave the rest and residue of her estate to Erin (see cl 6).
7. Clause 9 of the Will provides that: I DECLARE that my trustee shall have the following powers: (a) To apply for the maintenance education advancement or benefit of any beneficiary under the age of twenty-three years as she shall think fit the whole or any part of the capital or income of that part of my estate to which that beneficiary is entitled or may in future be entitled and on becoming absolutely entitled my trustee shall bring into account any payments received under this clause and to pay same to the guardian or guardians of such beneficiary without being responsible to see to its application. (b) To sell lease exchange or otherwise dispose of assets in my estate on such terms as my trustee considers expedient as though she was the absolute beneficial owner and to retain any investment made by me prior to my death in the same form for any period without being responsible for loss.

Insurance policy

1. On 16 April 2010, Alexis took out a life insurance policy over herself in the sum of $600,000 making the deceased the beneficiary for the purpose she says that there would be a financial benefit to her mother which would enable her to pay out at least one of the company loans should Alexis predecease her (see at [39] of Alexis' affidavit sworn 24 January 2018).

2010 proceedings in relation to late father's estate

1. As noted above, the deceased's ex-husband died on 1 January 2010. His second wife brought proceedings in this Court in 2010 (2010/368014) (the 2010 proceeding) claiming further provision out of the estate. Those proceedings are relevant for at least two reasons: first, having regard to various of the matters to which Alexis and Erin deposed in affidavits read in those proceedings; and second, because this provides some context to statements later made by the deceased foreshadowing potential challenges to her own Will (in that the deceased had obviously by then had the experience of seeing her late husband's testamentary dispositions having been the subject of challenge by way of his widow's claim for provision).

2011 instructions to Kells for draft will

1. In 2011, as adverted to above, the deceased approached a firm of solicitors (Kells) for advice in relation to her Will. A draft will was prepared (which the defendants say can be assumed to record the deceased's instructions at that time), which provided for Erin to receive the Dover Heights Property and the Torrens Avenue Property.
2. Kells' letter of advice dated 11 July 2011 foreshadowed the possibility of a contest over the Will, including if Erin was a surviving joint tenant in respect of the Dover Heights Property. For Alexis, it is said that it is reasonable to infer from that letter that specific advice had been sought as to the manner in which the deceased's estate might be made immune from challenge. (That may or may not be the case. It is conceivable that this was simply advice proffered by experienced estate lawyers. In any event, little turns on this.)
3. Alexis emphasises that neither in that draft will nor in the Kells' letter of advice is there any mention that she (Alexis) had been advanced a portion of her inheritance. It is submitted (and there is some force to this) that, had there been instructions given of an advancement, it would be probable that Kells would have either included a provision or statement in the draft will recording the advance, or advised the deceased that she was entitled to make a s 100 statement explaining the provisions of her Will. Alexis submits that the likelihood is that the absence of such reference is because the deceased never advised Kells that she had made such an advancement (and it is submitted that this is because the deceased never considered that the share trading losses incurred by Alexis trading on the account of Wheatley Investments were an advance).

Refinancing of loans secured over investment properties

1. On 12 September 2013, Alexis made arrangements for the investment loans to both Wheatley Investments and Yonan (totalling $1,118,000) to be refinanced. Alexis says that the restructuring provided a financial benefit to the deceased for which the deceased expressed gratitude to Alexis (see Alexis' affidavit sworn 24 January 2018 at [32]-[34]).
2. By letter dated 28 July 2013, (see at Ex 10 p 265ff) Alexis wrote to the deceased on the letterhead of Alexis' financial planning company, Wheatley Management Pty Ltd (Wheatley Management) in relation to the investment loans, including that: As the loan term extends until you are 92, we have discussed the sale of the properties over time in order to discharge the loans.
3. Pausing here, the defendants submit that the suggestion that the investment properties might be sold over time to discharge the loans is inconsistent with the deceased having promised to leave both those properties to Alexis. In cross-examination, when asked what properties were there being referred to, Alexis' position was that there were only three properties to which this could have referred (the Dover Heights Property and the two investment properties).
4. Alexis accepted that she understood it was the deceased's wish to remain in the Dover Heights Property for the rest of her life - T 54.42-44; but insisted that Alexis would have discussed with the deceased the possibility that the bank might force the sale of the Dover Heights Property if the loan was not repaid, saying that it was a requirement of the bank that she provide such an explanation (see at T 53.46-50, 54.23-43). Alexis seemed to cavil with the proposition that this was financial planning advice. However, as noted, the letter was on Wheatley Management letterhead.
5. The effect of the refinancing was that the investment properties were then no longer encumbered by the mortgage and, instead, the Dover Heights Property was security for those loans.

Emails recording the deceased's testamentary intentions

1. In a series of emails to Erin with the subject line "keep this", the deceased expressed her testamentary intentions to Erin.
2. By email on 23 January 2015, the deceased wrote to Erin that: My home and the situ of it holds special value to you and me - Alexis does not share this value and would prefer harbour Side - the value of assets bequeathed to her would enable sizeable deposit with income … … Alexis and her husband have paid off their unit yrs ago and since then have not saved or invested for their future (in property) - with no children to support and no mortgage to maintain Alexis' inheritance will be more than sufficient to enhance her life style [sic] and provide a "stepping stone" to go further …
3. The 23 January 2015 email also included the following: Again I will try to separate the two companies so that Alexis will inherit the Wheatley Investments with holdings of property at 173-175 The Entrance Rd only and you will inherit Yonan company with holdings at 26 Torrens ave- as in previous wills you will also inherit my home at 26 Wentworth St Dover Heights - I will be endeavouring to put shares of this into your name - at present I am unable to do this as all properties/companies held under this mortgage … Your inheritance would enable you to have a home in aust that you love and income for support.
4. The defendants submit that this reiterates the deceased's long held intention to bequeath to Erin both the Torrens Avenue Property and the Dover Heights Property, and significance is attached to the fact that the deceased had evidently told four other persons of her wishes (being "Bid/Kelly/Trevor/Marg") and that she requested Erin to keep the email "for future - if problems arise".
5. It is submitted for the defendants that those concluding words indicate that the deceased had given considerable thought to her testamentary wishes, including the possibility that Alexis would challenge her Will (and that caution is hence justified before disturbing the deceased's views, particularly when they have been consistently held over an extended period).
6. Further, in an email of 24 January 2015 at 12.39am, the deceased expressed to Erin that she would "also be putting a clause (will) that anyone contesting shall be disinherited" and that "[a]ny lawyer contesting [her] wishes [were] not to receive any monies from [her] estate". At 12.47am, the deceased sent a further email clarifying that she intended to insert a clause in her will that "ALL costs incurred shall be borne by the person contesting".

Proposed change to shareholding in Yonan and the separation of the companies

1. On 18 November 2015, the deceased sent an email to Erin noting efforts to change the shareholding in Yonan "so that it will be one share each for us". (Thus, Erin says, the deceased here reiterated her testamentary scheme.)
2. On 15 May 2016, the deceased sent an email noting that her accountant (Mr George Koletti) had still not "transferred shares" and foreshadowed seeing him to ascertain the problem.
3. On 17 February 2017, the deceased sent an email to Erin that she was shortly to "hear back from [a] specialist lawyer as to the separating of companies".

Draft (unsent) email dated 17 February 2017 on deceased's computer

1. As noted above, on the deceased's computer was a draft (unsent) email dated 17 February 2017 to a solicitor, Ms Penelope Robinson, which stated: Assets - 3 House Shares in Yonan Pty Ltd Shares in Wheatley Investments Pty Ltd 1) house and contents to Erin (Regina Erin Lakshmanan) Shares in Yonan to Erin 2) shares in Wheatley to Alexis (Vittoria Alexis Wheatley) All debts - personal and properties to be taken over by Erin's share Personal monies in bank after funeral/ death costs / personal debts are paid - to be divided equally Erin is executor - in event of her predeceasing me then joint executors Alexis and Kelly Zambelli If either Alexis or Erin deceased then their respective shares to go to their children in trust until age of 25 yrs or accessible for education/ health / living expenses Property at [the Dover Heights Property] be kept intact. In event that either predecease me without having children then all holdings go to survivor. Added notes for 2nd page of will - to be used in the event of dispute It is my wish that Erin has this home in Australia always Both will have sufficient income from properties debt free It may take a number of yrs for Erin to be debt free and will need (Yonan) ownership shares to pay for this whereas Alexis would have no debt immediately and can enjoy her inheritance. Further, if she chooses - can use inheritance to cover ongoing mortgage costs of another home in an area of preference and still maintain an asset.
2. The defendants place no little emphasis on this email. It is said that not only does this email reiterate the deceased's consistent view but it also records part of the deceased's reasoning for it. It is said that the concluding paragraphs of the email disclose that the deceased had given careful thought (free of rancour) about her daughters' respective positions.
3. The defendants further say that this email corroborates Jesse's evidence of what the deceased told him in September 2016 (see at [7] of Mr Boyle's affidavit sworn 10 January 2019), namely that: I want your family and Erin to hold on to its Australian roots. I want to give Erin my home [at Dover Heights] so that she has a base in Australia and can keep coming back.
4. Jesse has deposed (at [7] of his 10 January 2019 affidavit) that the deceased also said: I know that maintaining an older house of that nature will be expensive, so I want to leave one of the commercial properties to provide income to support that effort. I want the house to be a place for Erin and your family to call home, and to not have to worry about the financial aspects around it. The other investment property would go to Alexis.

Commencement of the proceeding

1. As noted above, the deceased died in late February 2017.
2. By letter dated 5 September 2017, Alexis' solicitors communicated their position that, on the proper construction of the Will, the executor (Erin) was obliged to use her powers to give effect to the gift of The Entrance Road Property held by Wheatley Investments, referring to the decision of Pembroke J in Ireland v Retallack (2011) 6 ASTLR 585; [2011] NSWSC 846 (Ireland v Retallack). The defendants' solicitor responded the same day, contending that Ireland v Retallack was distinguishable on the basis that it involved a will containing an express clause conveying to the executors directions to reduce into possession an asset not owned by the testator; and, as such a clause did not exist in the deceased's Will, the gift accordingly failed.
3. The defendants' solicitors in that communication advised that their client (Erin) did not intend to transfer The Entrance Road Property into Alexis' name "particularly having regard to what you say about her intention to make a family provision claim".
4. The present proceeding was commenced by summons filed 20 February 2018. Pursuant to a direction by Hallen J made on 14 September 2018, Alexis' lawyers confirmed that she would be pursuing a claim for provision even if the Will was rectified.
5. In an email dated 5 December 2018 to her accountant, Mr John Dymond, Alexis stated: My sister has clearly been left the house in Mum's will. It's my objective to secure the remainder (and hopefully force her to take the company loans which are secured on the houses). In cross-examination, Alexis disputed that this statement reflected her thinking at the time (see at T 43.12-44); but, if so, it leaves unexplained why Alexis would have expressed that view.
6. I note that Mr Nikolopoulos has deposed that Alexis said to him words to the effect that "I'm not going to rest until I get half of everything of mum's estate" (see at [18] of Mr Nikolopoulos' affidavit sworn 27 September 2018). Alexis in cross-examination said she did not remember saying this and did not think she would have (T 108.19-30) even though I note that a very similar intention was expressed in her own email to Mr Dymond. Mr Nikolopoulos also said that Alexis said that she did not care about her mother's wishes and that she desired half the estate (see again at [18] of Mr Nikolopoulos' affidavit sworn 27 September 2018). (Tellingly, Alexis said she is not on good terms with Mr Nikolopoulos "because of what he said. I don't think is true" - T 107.45-46.)

Subsequent events

1. On about 16 August 2019, Alexis received a notice of termination of her corporate and individual authorised representative status with her licensee, AMP Financial Planning Pty Ltd (which it is said has significantly changed her business).
2. On 17 June 2021, both Wheatley Wealth Management Pty Ltd (of which Alexis is the sole director and shareholder) (Wheatley Wealth Management) and Alexis were terminated as authorised representatives of AMP Financial Planning.
3. Wheatley Wealth Management was approved by ASIC for an Australian Financial Services licence (AFSL) on 12 August 2021 and a credit licence on 29 September 2021. At the time of the hearing, Alexis was still in the process of setting up the new business; her evidence being that agreements with financial broker providers were then currently being established and could take two months or more to finalise.
4. In relation to her teaching work, Alexis has been advised that she is required now to complete a Masters of Financial Planning, or to be studying it, in order to continue with her TAFE teaching. As at October 2019, Alexis estimated that it would take four to five years to complete that course. Over the past three years she had only completed four subjects out of the sixteen required to complete the degree. Based on current fee levels the estimated total cost in completing another twelve units to obtain the Master's degree is $53,040.

Issue as to authenticity of emails

1. I note that there has been an issue raised in Alexis' affidavit evidence as to the authenticity of the email communications that Erin has put into evidence (to which I refer in due course) but no evidence was adduced to support Alexis' contention that the emails found on the deceased's computer (or, indeed, those sent by the deceased) were not authentic.

Procedural history of the litigation

1. As adverted to above, a joint opinion was obtained from a tax expert, Mr Vale, as to the consequences of a transfer of the real estate from Wheatley Investments to the executor or directly to Alexis; or of the sale and disposal of the proceeds of sale of The Entrance Road Property. Advice was sought from Mr Vale as to a number of potential options.
2. As also referred to above, there were some offers made to settle this proceeding (reference being made by Alexis' Counsel to offers put on behalf of the defendants on 26 March 2019 and 21 May 2019 - see, for example, at T 10.13-20).
3. The matter was listed for hearing before Robb J to commence in November 2019 (with an estimate of five days). That hearing was vacated in circumstances where, shortly before the hearing was due to commence, the parties reached an agreement (based on certain assumptions as to the tax liabilities and, on Alexis' part, as to the amount she would receive from the settlement - see T 7.14-22). Unfortunately, after the hearing was vacated, the joint expert produced a calculation based on the actual settlement figure, which I am told was very different from the assumptions on which settlement had been agreed (see T 7.26-39), and there was then an application to set aside the settlement agreement (which was ultimately resolved by that agreement being set aside aside). Hence the proceeding was, in effect, revived.
4. Alexis then retained another expert tax lawyer, Mr Nicholas Gangemi of Sparke Helmore, to give evidence. Mr Gangemi's advice was that, when sold by Wheatley Investments a capital gains tax liability arose (which the company has in fact paid) but that, when money is paid out of Wheatley Investments in respect of the proceeds of sale (whether to the estate or to Alexis), it will be treated as a dividend and taxable in the hands of the recipient at the recipient's marginal rate (see T 7-8). A ruling from the Australian Taxation Office (ATO) which was to that effect was obtained. An objection to that ruling was disallowed.
5. Hence the delay in the matter proceeding to hearing (and the not inconsiderable costs incurred from the vacation of the first hearing dates).

Advice regarding income tax in relation to the gift in clause 4

1. The advice that has now been received is that, in effectuating any gift pursuant to cl 4, whether by transfer of the property in specie from the company to either the estate or Alexis (no longer possible because of the sale) or by the transmission of the proceeds of sale (whether to the estate or directly to Alexis), the approach that will be taken by the ATO is that the moneys received will be treated as income in the year of receipt and subject to income tax at the appropriate marginal rates.
2. In his report of 3 December 2020 (being annexure F to his affidavit sworn 9 December 2020) Mr Nicholas Gangemi has provided advice to Alexis' solicitor as to the likely treatment of such payment by the ATO. That advice, in summary, is as follows.
3. First, the estate will be deemed to be a trust by virtue of the definition of trustee in s 6(1) of the Income Tax Assessment Act 1936 (Cth) (Income Tax Assessment Act). Mr Gangemi was of the opinion that the payment of any amount by Wheatley Investments to the executor of the estate would be a dividend assessable under s 44 of the Income Tax Assessment Act, and, if the moneys were paid to the executor in circumstances where Alexis was then entitled to receive those moneys pursuant to the gift in cl 4, Alexis would be subject to income tax.
4. Second, in the event that the company remitted the moneys to the executor but in circumstances where no particular beneficiary was eligible to receive those moneys then the trustee would be taxed and at the highest marginal rate under s 99A of the Income Tax Assessment Act.
5. Third, Mr Gangemi identified the circumstances in which the ATO would be likely to treat Alexis as liable to pay the tax as opposed to the estate (see Mr Gangemi's report of 3 December at [3.16]). Mr Gangemi concluded that the payment of the money out of the company, either to the estate or to Alexis directly would be treated as a payment of a dividend, if not under ordinary principles then under division 7A of the Income Tax Assessment Act. (Mr Gangemi had initially expressed the view that there were good arguments to the effect that were the moneys paid to Alexis directly by way of some form of notional estate order they would not constitute a deemed dividend. However, a ruling was sought on this issue and the ATO ruled that the moneys would be treated as a deemed dividend and an appeal against that ruling was dismissed.)

The deceased's estate

1. The executor (Erin) has sworn an affidavit dated 3 April 2018 and updating affidavits (sworn 21 October 2019, 28 October 2019 and 18 October 2021) as to the assets of the estate.
2. In summary, in her affidavit sworn 18 October 2021, Erin has estimated the total value of the deceased's assets as between $10,395,866 and $10,595,866, and the total value of current known liabilities as $1,095,978. Thus, Erin estimates the net distributable estate to be approximately $9,299,888 to $9,499,888, subject to the payment of the future costs of the present proceeding, accounting fees (in respect of which further loans from the estate may be necessary), and other ongoing estate administration expenses.
3. The estate's principal assets are the Dover Heights Property and the shares in Wheatley Investments, which in turn owns the shares in Yonan (and, as noted, Yonan is the company which continues to own the Torrens Avenue Property). Erin's estimate attributes a value to the Dover Heights Property of approximately $7,250,000 (based on a market appraisal of between $7 million and $7.5 million carried out by Mr Brad Pillinger of Pillinger Real Estate as at 11 October 2021). The value of the Torrens Avenue Property is estimated at between $1.8 million and $2 million (and, as noted, the sale of this property is estimated to result in a capital gains tax liability of around $408,664).
4. The estate's liabilities include a mortgage secured over the Dover Heights Property securing some $900,978, of which $295,464 is the balance of the loan Wheatley Investments borrowed to fund the acquisition of The Entrance Road Property, and $320,606 is the balance of the loan to fund the acquisition of the Torrens Avenue Property.
5. The Entrance Road Property was sold, with Alexis' consent, at auction on 31 October 2019 for the sum of $1.56 million. The sale completed on 12 December 2019. After deducting the usual costs of sale, the sum of $1,496,437.46 was paid into a controlled moneys account in the name of the defendants' solicitors. The balance as at 28 October 2021 was $1,473,581.27.
6. Wheatley Investments has paid the capital gains tax and income tax on the capital gain arising from the sale of The Entrance Road Property (said in oral submissions to be $26,000 (see at T 251.14-16) but elsewhere suggested to be around $260,000, so this may be a typographical error; in any event, this amount has already been paid). As noted above, distribution of the remaining sum to Alexis would require her to pay income tax and the Medicare levy assessed against that sum; and it is accepted by both parties that the net receipt by Alexis would be in the order of $820,000 (see at T 8.20-27) (it is calculated by the defendants that Alexis would receive, approximately, $821,791; but as noted above, Mr Gangemi points out that this figure is slightly lower at $821,499.00) (see at annexure D to Mr Gangemi's affidavit sworn 18 October 2021).

Issues

1. The issues which arise in the proceeding may be summarised as follows.
2. First, the proper construction of cl 4 of the Will, in circumstances where The Entrance Road Property was not owned by the deceased at the date of her death (or the date of the making of the Will) but, rather, by Wheatley Investments.
3. Second, if necessary, rectification of cl 4 of the Will such as to make effective the gift of The Entrance Road Property to Alexis.
4. Third, ancillary relief in relation to the determination of the effect of the gift of The Entrance Road Property in relation to rental income in respect of The Entrance Road Property from the date of death.
5. Fourth, determination of the appropriate manner of performance of the gift under cl 4 of the Will (having regard, as I understand it, to the tax consequences of such a gift).
6. Fifth, Alexis' claim for a family provision order pursuant to s 59 of the Succession Act (whether alone, if the gift under cl 4 fails, or as a top-up, if the gift under cl 4 is effective); and further, and if necessary, orders pursuant to s 59 of the Succession Act to cure any defects or deficiencies in the gift in cl 4 of the Will.

Evidence

1. Before turning to the issues for determination it is convenient at this point to identify the evidence relied upon and the submissions made as to credit.
2. Each of Alexis and Erin has made a number of affidavits in the proceeding. In the plaintiff's case, evidence was also adduced from her husband, Frank (being an affidavit sworn 15 October 2019, and two further affidavits sworn 30 October 2019 and 20 October 2021 respectively); Ms Penelope Robinson, the conveyancer who the deceased had apparently consulted prior to her death (being an affidavit sworn 12 February 2018 deposing to a conversation with the deceased regarding the Torrens Avenue Property); Ms Shirley Malcolm, who died shortly before the hearing and whose affidavit was read pursuant to s 64 of the Evidence Act 2005 (NSW) (being an affidavit sworn 12 May 2018 deposing to conversations with the deceased in which the deceased expressed her intention to bequeathe both the Torrens Avenue and Entrance Road properties to Alexis); Ms Josephine Sattler, the deceased's cousin (being an affidavit sworn 14 May 2018 and a further affidavit sworn 11 October 2018), Ms Kelly Sattler, Ms Josephine Sattler's daughter (being an affidavit dated 11 October 2018 in which Ms Kelly Sattler deposed to a conversation in which the deceased expressed that she wanted the will to be "fair to both girls" at [3]); expert evidence from Dr Peter Young, a consultant psychologist (being an affidavit sworn 26 October 2021, annexing a medical report prepared following a Telehealth Assessment of Alexis); and affidavits from the solicitors (Ms Money and Mr Andrew Gill) and from the tax expert (Mr Gangemi).
3. In the defendants' case, evidence was adduced from Erin's husband, Jesse Boyle (being affidavits sworn on 10 January 2019, 28 October 2019, and 19 October 2021), Ms Margaret Cole, a close friend of the deceased of more than a decade (being an affidavit sworn 17 August 2018 deposing to conversations with the deceased as to her misgivings with respect to Alexis and her husband Frank); Mr Trever Cole, the deceased's cousin (being an affidavit sworn 17 August 2018 deposing to conversations with the deceased in which she expressed her intention to leave Alexis nothing in her Will); Mr Nikolopoulos, Erin's former boyfriend (being an affidavit sworn 27 September 2018 deposing to various conversations with the deceased regarding her testamentary intentions); and the defendants' solicitor (Ms Asheetha Jelliffe).

Alexis' credit

1. The defendants contend that Alexis' evidence should not be accepted where there is an evidentiary contest, submitting that the most charitable view of her evidence is that her recollection is unreliable, such that her assertions of long ago events cannot be accepted as sound (reference here being made to the well-recognised fallibility of human memory as articulated by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319). The defendants submit that such considerations are particularly apt where the relationship between the sisters has, for the most part, been characterised by antipathy. In that regard, it is said that Alexis' denial that she dislikes Erin (but thought there "is something very wrong with [her] sister" - see at T 66.44-48 - a view Alexis said she had held for a long time and which was shared by her father and grandmother - T 67.4-7) was untrue; but that, in any event, that Alexis' obvious antipathy to Erin has coloured her evidence.
2. The defendants submit, further, that Alexis has on occasions deliberately exaggerated matters to assist her claim. In this regard, the defendants point to the following matters.
3. First, that Alexis' affidavit evidence records in detail the alleged promises the deceased made to her about the deceased's testamentary wishes (see [23], [31]; [72]-[80] of her first affidavit sworn 24 January 2018), and the circumstances in which they occurred (such as during the course of their inspecting the investment properties and their last meal); and that Alexis asserted that Frank overheard some of those conversations (see at [80]). However, it is noted that Alexis' oral evidence was far less precise; that Alexis professed to remember only the first conversation in any detail, and could not remember anything about the other three or four exchanges that had occurred over the last couple of decades; and that Alexis was not certain if the deceased reiterated the promise before she married. The defendants say that, contrary to Alexis' affidavit evidence, Alexis: stated that Frank had never heard the deceased make the promise (see at T 48.10-15); could not remember if the promises were made at the time of inspecting properties, or the context of any of the conversations (other than the topic of children) (see at T 48.17-35); and accepted that she had no independent recollection of the contents of [79], [80] and [86] of her first affidavit (see at T 48.39-41).

My observations

1. In the witness box, Alexis was quietly spoken; often incapable of remembering or recalling things to which she had deposed; and clearly stressed (being visibly upset on more than one occasion). Alexis explained the differences between her recollection at the hearing and that at the time she had sworn her earlier affidavits as being due to the fact that her anxiety and depression was "just not as bad as it shows".
2. The starkest difference was in Alexis' evidence as to the nature of her relationship with her parents, as deposed to in her affidavit evidence in this proceeding, and that to which Alexis deposed in the 2010 proceeding involving her stepmother's family provision claim, as well as that which she must have recounted in some fashion to Dr Young (being allegations of emotional abuse). In the witness box, Alexis' description of the emotional abuse she says she suffered at the hands of the deceased amounted to a feeling of abandonment, at the time of and following, her parents' separation and divorce (see T 68.3-13; T 77.9-26, for example).
3. I accept that there were inconsistencies in Alexis' evidence (such as her account of her inability to work as compared to her explanation in her application for an AFSL with ASIC). However, whether exaggerated or not, there is ample support for the conclusion that Alexis suffers from anxiety and depression.
4. I considered Alexis to be genuinely trying to give truthful evidence. However, her evidence was not wholly reliable and was, in my opinion, coloured by her perspective of the family dynamics.
5. One aspect of Alexis' evidence that to my mind illustrates the antipathy between Alexis and Erin (and which I consider has coloured the former's evidence) is the allegation by Alexis that, in effect, Erin forged Alexis' signature as witness on a general power of attorney dated 12 September 2007 (see her second affidavit sworn 17 August 2018 at [70]) based on the assumption that Alexis had not seen it before the deceased's death and would have been "shocked and concerned" if she had known such a document existed. Alexis acknowledged that it looked like her signature but she did not recall signing it (see T 62.1-2). Her shock and concern was to the effect that she queried why the deceased did not tell her this existed when the deceased was alive and (probably more of a complaint than shock or concern as such) why her mother did not make her the attorney under the power of attorney (see at T 62.4-27).

Frank

1. Frank gave evidence and was cross-examined. Frank is a project manager working on technology projects and in software development. Frank was somewhat didactic in his evidence (see his description of his experience at T 160; and as to his account of womens' level of superannuation T 163.37-43 and in general as to womens' views as to their wish to contribute in that regard at 164.11-17).
2. Frank's evidence as to the extent of Alexis' work (T 162) was inconsistent with hers but he was candid in his assessment that her business was doing very poorly (T 164.33-38).
3. I make no adverse criticism of Frank's evidence.

Josephine Sattler

1. Ms Sattler was cross-examined as to her account of conversations with the deceased about her testamentary intentions. Her evidence corroborated the account that the deceased was angry with Alexis when she changed her Will in 2008 following Alexis' wedding (T 149.45-50, 150.1-2). At T 150.4-12, Mrs Sattler said the deceased was in the process of changing her Will and had been to see her accountant George (Koletti) and solicitor (Penny Robinson). Ms Sattler said the deceased wanted to make a Will and have "everything fair" (T 149.49). (Of course, that rather begs the question of what the deceased thought was fair - the unsent, draft email suggests that the deceased was certainly not contemplating a 50/50 distribution.)
2. Ms Sattler was somewhat garrulous as a witness, very open about the fact that she had had discussions with her daughter (Kelly) and about the "sadness of" the situation (see at T 153.45-48) and it was clear that Ms Sattler considered that the deceased's final testamentary distribution was not fair to Alexis. It was apparent from Ms Sattler's evidence that she was close to the deceased and I accept that the deceased may well have complained to her on occasion about Erin's conduct and in particular her concern in relation to a surety Erin had given to support her husband's business in Chicago (though, ironically, that supports the evidence that the deceased wanted to remain in the Dover Heights Property for the rest of her life and hence would not have wished for it to be sold in her lifetime).
3. I accept Ms Sattler was a genuine witness. Nevertheless, her views as to what the deceased (or, for that matter, what she and her daughter) thought fair are ultimately of little assistance.

Erin

1. Erin gave her evidence in a matter-of-fact way (via AVL from Chicago). Erin was cross-examined in particular (as to credit) as to statements in an application for life insurance some of which she accepted were (unintentionally) wrong; and, briefly, as to statements in a tax return lodged in the United States (briefly, because I had difficulty seeing the relevance of it if I was not in a position to determine what the US position should be in relation to such disclosure).
2. Erin made appropriate concessions (so, for example, at T 204.32-38, after reference was made to her affidavit at [208] where she deposed to her mother's concern at leaving her with too much debt, Erin quite openly acknowledged that "I do understand that mum … wanted … me to assume the mortgage on the Westpac property [i.e., The Entrance Road Property]" and said that part of what she had said in her affidavit in that regard should be struck out (though maintaining that her mother had expressed concern about her having too much debt on the Dover Heights Property, and maintaining the reference to the circumstances in which Alexis had made a claim on her mother's estate) (T 204.40-50, 205.1-7)). Erin did not seem to me to overstate her case or embellish her evidence. Erin's recollection of events was certainly clearer than that of Alexis.
3. Erin gave a plausible explanation as to why she had relied upon particular valuations not others in respect of the Dover Heights Property (see T 205-210).
4. I accept Erin's evidence as to her intention to return to Australia and her wish to live in the Dover Heights Property, which is consistent with the deceased's own emails (and with Alexis' account of her mother's testamentary intentions going back some years). I regarded Erin as a credible witness.

Issues for determination

1. Turning then to the issues for determination, I address those as follows.

Alexis' submissions as to the construction issue

1. Alexis says (and I have no difficulty accepting) that there can be little doubt that the 2008 Will was poorly drafted as an instrument for effecting the manifest intentions of the deceased. Alexis refers to the evidence of conversations in which the deceased is alleged to have said that she had "problems" or had to do things in regard to her Wills; and to the evidence that the deceased spoke of seeking to "separate" the companies. It is said (and I accept, though it is clear that this did not happen) that this may well have involved transferring the shares in Yonan from Wheatley Investments to the deceased personally. Reference is made to the Kells' draft Will and it is said that it appears that the assumption that the companies had been so separated lay behind that draft Will. It is noted that nothing in the Kells' letter suggests that Kells was shown the 2008 Will, and it is submitted that, had that occurred, Kells would most probably have advised as to the difficulties with it.
2. Alexis maintains (and I accept) that it was the clear intention of the deceased to leave The Entrance Road Property to herself; and, by reference to it being unencumbered, that the deceased meant at least unencumbered by any mortgage securing loans to Wheatley Investments or other entities. (As noted above, there was no such mortgage encumbering the title at the date of death.)
3. It is noted for Alexis that the primary duty in construing a Will, as stated by Griffith CJ in Nicol v Chant (1909) 7 CLR 569; [1909] HCA 4 at 577, is to discover the meaning of the language of the testator as applied to the circumstances existing at the date of the Will and to give effect to the intention so discovered unless some authoritative rule of law or construction requires a different conclusion (reference also here being made to the summary of principles in Phillips v McCabe [2016] SASC 27 at [14]-[18] per Gray J and to the observation of Powell J in Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep) to similar effect, namely that "[o]ne's task is, first, if it be possible, to ascertain, what was the basic scheme which the deceased had conceived for dealing with his estate, and, then, so to construe the will as, if it be possible, to give effect to the scheme so revealed".
4. Insofar as extrinsic evidence is admissible to assist in the interpretation of a Will if the language of the Will or part of it is meaningless or ambiguous on its face or in light of surrounding circumstances (see s 32 of the Succession Act), Alexis argues that, to the extent that the Will raises a question as to what the executor ought do in regard to the gift of The Entrance Road Property, it is ambiguous and hence evidence of the intention of the testator is both relevant and admissible. (I have some doubt as to whether there is any relevant ambiguity, in that the difficulty is not what the deceased intended to pass to Alexis but, rather, that the deceased did not herself beneficially own the property. However, nothing ultimately turns on whether there is any such ambiguity because it is accepted by Erin that the deceased's intention was to leave The Entrance Road Property to Alexis.)

The defendants' submissions as to the construction issue

1. The defendants acknowledge that there are cases where the strictness of the conclusion that a specific gift of a thing that the testator has never had (or intends to purchase but does not) is void has been avoided by the conclusion that the Will armed the executor with the powers to make the intended disposition effective (referring to Re O'Callaghan (at 254; 256); Re Bowcock; and Ireland v Retallack).
2. The defendants note that Gowans J found sufficient power in two clauses of the Will before him: first, a power to sell, convert and get in the estate; and second, a direction to manage all of the affairs of the deceased's estate as if his trustees were the absolute beneficial owner thereof. His Honour discerned an implication that the trustee was required to use the shares owned by the deceased to cause the company's property to be transferred to the deceased's widow, as the will contemplated. The defendants say that in the present case the critical question is therefore whether the Will in the present case contained any such direction (here referring to Estate of Tunchon at [109]).
3. The defendants submit that the Will does not confer on the executor authority to manage the affairs of the estate as if she were the absolute and beneficial owner (cf Re O'Callaghan). Rather, it is said that cl 9 of the deceased's Will is not so broad, conferring powers only on "my trustee", not the executor; and that neither sub-cll 9(a) nor 9(b) authorises Erin to exercise rights or powers qua shareholder. It is noted that sub-cl 9(a) is not engaged where the beneficiaries are all over the age of twenty-three years; and sub-cl 9(b) is concerned only with the disposition of assets rather than the exercise of rights. The defendants say that (contrary to [48] of Alexis' written submissions dated 2 November 2021), the power of disposition can be used only in respect to the deceased's assets, not those of Wheatley Investments.
4. The defendants argue that none of the subsequent authorities (principally, Ireland v Retallack; Re Cobcroft; and Garbett v Bear [2015] NSWSC 1524 per Rein J) supports the proposition that the limited powers conferred by cl 9 require Erin to convey The Entrance Road Property to Alexis.
5. Insofar as Young AJA, in Re Cobcroft, considered that the reasoning in Hendry meant that a gift of realty typically passed with it ownership of the shares in the relevant company (at [24]), the defendants say that there are three difficulties with that analysis. First, that the High Court did not so conclude. Second, that the subject matter of the dispute in Hendry was a partnership, not shares in a company. Third, that there is no reason to think that the deceased intended the shares in Wheatley Investments to pass to Alexis.

Determination as to the construction issue

1. The difficulty I have with the construction argument put forward by Alexis is that there is no express provision in the Will directing the executor to exercise powers available to the deceased, as shareholder of Wheatley Investments, to cause the transfer of The Entrance Road Property to Alexis (or to the estate such that it would then be available to satisfy the gift to Alexis); and while the powers conferred by cl 9(b) (albeit on the "trustee" in respect of "assets in the estate") and cl 5 are in broad terms, they nevertheless do not readily contemplate the exercise of powers of management of a company (Wheatley Investments) in which the deceased owned shares.
2. True it is that, in a (perhaps convoluted) way, the deceased as sole shareholder of Wheatley Investments could have executed control over the company in the sense that the deceased could have caused the removal of the second director (Erin) and replaced her with a director who would accede to the deceased's wish that The Entrance Road Property be transferred (either into the deceased's own name or directly to Alexis) but the deceased did not do so.
3. Therefore, it is difficult to see that, by reason of the fact that Erin is in the position (as executor) of shareholder of Wheatley Investments, the deceased has relevantly "armed" Erin with the power to get in the asset not owned by the testator (The Entrance Road Property) to be dealt with by way of testamentary disposition as the deceased had intended.
4. There is force in the submission by the defendants that the Will should not be construed in a fashion that would or might place the directors of Wheatley Investments in a position where their statutory duties as directors are in conflict with the deceased's intentions. Further, there is force to the submission made by the defendants that Alexis' submissions conflate ownership with management or day-to-day conduct of the company.
5. Thus, I do not consider that cl 4 of the Will constitutes an effective gift of the real property situated at The Entrance Road. It is not necessary in those circumstances to delve into the question of whether the line of authority relied on in Ireland v Retallack was correctly decided.
6. Nor do I consider that there is a basis to say that the gift can be construed as a gift of shares (by reference to the principle in Hendry). The terminology of cl 4 makes clear that what is intended is a gift of the property named therein. The deceased's earlier Wills make clear that the deceased understood there was a distinction between real property and shares (as did the correspondence in which the deceased, before her death, was contemplating "separating the companies").

Rectification of the Will

1. The second issue raised (in the event that, as I have concluded, on the true construction of the deceased's Will it did not have the effect of imposing upon Erin (as executor) a duty to transfer The Entrance Road Property to Alexis) is as to whether there should be an order for rectification of the Will pursuant to s 27 of the Succession Act, so as to insert into the Will words imposing upon the executor the duty of using her status as sole shareholder of Wheatley Investments, and the powers conferred upon her under the constitution of Wheatley Investments, to ensure such a gift is made (see prayer 3 of the further amended summons).
2. Section 27 of the Succession Act provides that: (1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because: (a) a clerical error was made, or (b) the will does not give effect to the testator's instructions. (2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator. (3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if: (a) the Court considers it necessary, and (b) the final distribution of the estate has not been made.

Alexis' submissions as to rectification

1. Reference is made to the authorities which set out the relevant principles governing the application of s 27 and its predecessor (s 29A of the Wills, Probate and Administration Act 1898 (NSW)), namely, Singh v Singh (2018) 17 ASTLR 317; [2018] NSWCA 30 per Gleeson JA at [195], (his Honour there referring to the decision of Hallen AsJ, as his Honour then was, in Lockrey v Ferris (2011) 8 ASTLR 529; [2011] NSWSC 179 (Lockrey v Ferris) at [73])). Relevantly, s 27 requires identification as to: the testator's actual intentions in regard to the dispositions in respect of which rectification is sought; whether the Will is expressed so that it fails to carry out those intentions; and whether the Will is expressed as it is in consequence of either a clerical error or a failure on the part of someone to whom the testator gave instructions in connection with the Will, to comply with those instructions (see Singh v Singh at [195]).
2. For Alexis, it is submitted in effect that those circumstances (clerical error or failure to comply with the testator's instructions by another person) are not exhaustive. It is submitted that in the present case if, as properly construed, the Will does not give effect to the deceased's intentions then this is because of the absence of appropriate directions under the Will to the executor (i.e., Alexis says that, in that event, the gift does not take effect for extraneous reasons). This submission is put on the basis that, whether the deceased referred to The Entrance Road Property as hers when giving instructions to Mr Ryan or whether the deceased told Mr Ryan that it was held within a company, it was the deceased's instruction to make a gift of that property to Alexis. It is contended that if the Will does not give effect to that instruction because of the absence of appropriate directions to the executor, then it can be rectified pursuant to s 27 of the Succession Act.
3. Alexis accepts that the application for rectification ought to have been brought within 12 months of the date of death (being February 2017) and hence the application is out of time. However, it is noted that in Lockrey v Ferris (at [62]-[63]) Hallen AsJ held that there is no longer an obligation to show sufficient cause for making the application out of time and that it may be extended at any time, if it is considered necessary and the final distribution of the estate has not been made.

The defendants' submissions as to rectification

1. The defendants note that rectification cannot be ordered unless there is clear evidence of what the testator's intentions were at the time of making the will (citing Rawack v Spicer [2002] NSWSC 849 (Rawack v Spicer) at [26]-[28] per Campbell J, as his Honour then was; Lockrey v Ferris at [86]-[87] per Hallen AsJ, as his Honour then was); and that the standard of proof required in the rectification of a will is "clear and convincing proof" on the balance of probabilities (Rawack v Spicer at [30]-[31]). Reference is made to the approach identified in Vescio v Bannister (2010) 3 ASTLR 619; [2010] NSWSC 1274 (Vescio v Bannister) by Barrett J, as his Honour then was, where s 27(1)(b) is said to be enlivened (see from [12]-[15]); in effect, that one must first ascertain the testator's intentions, and construe the will as executed and compare its effect, according to its proper construction, with those "instructions" which necessarily involves the making of findings about the "intentions" of the testator.
2. The defendants say that rectification is not available in the present case because: there is no evidence of any intention on the deceased's part to confer on the executor of her estate the power referred to in prayer 3 of the further amended summons; there is no evidence that the deceased gave instructions to her then solicitor to give effect to any such intention; and there is thus no discrepancy of the kind referred to in Vescio v Bannister at [14]; and no suggestion that the deceased's solicitor made any clerical error.
3. It is submitted that, where the testator never had an intention relevant to the situation which actually occurred, rectification is not available (reference being made by way of example to Re Estate of Dippert [2001] NSWSC 167 per Young J, as his Honour then was). For that reason, it is said that s 27 of the Succession Act cannot be enlivened.
4. The defendants filed further submissions on 17 November 2021, opposing relief being granted pursuant to s 81 of the Trustee Act. In summary, they submit that no order should be made where the terms of the order have not been formulated; and, in any event, they say that s 81 is unavailable because Alexis does not seek an order in relation to trust property, for the benefit of the trust, and there is, relevantly, no transaction.

Submissions in response as to rectification by Alexis

1. In response to the defendants' submissions of 17 November 2021 in regard to the possibility of an order under s 81 of the Trustee Act, Alexis accepts that an order can only be made in circumstances where it has been properly formulated within the constraints discussed in the authorities in the respondents' submissions (which constraints address in turn the requirements within s 81).
2. Alexis says that she did not intend in closing submissions to suggest that an order be made at large conferring power upon the executor to take whatever steps were needed in order to effect the gift of The Entrance Road Property. Rather, Alexis' primary position is that Erin as executor has the necessary power as executor of the estate, coupled with the specific powers conferred under the Will, together with those powers as a matter of general law possessed by her as executor to effect a transfer to the plaintiff of the proceeds of sale of The Entrance Road Property. Alexis' submission in that regard is that, if the effectuation of that gift requires the exercise of some power not presently held by the executor, then that gift ought not to fail simply because of the absence of power; rather, it is said that Alexis ought be given the opportunity of formulating an appropriate order that might be made under s 81 so that the gift could be completed.
3. Alexis confirms that she does not at this stage propound an order. It is said that Alexis' concern is merely to see that the claims for relief, based upon the construction of the Will, are not dismissed simply on the basis that there is an absence of power. It is noted that prayer 8 of the relief claimed sought such further or other orders as the Court deems fit; and it is submitted that claims for further or other orders can be appropriately dealt with by way of the consideration of whether or not an ancillary relief ought be given in order to give effect to the terms of a primary judgment.
4. Alexis envisages that, if it were to be concluded that there was a defect of power that may be able to be corrected by an order under s 81, Alexis would be given the opportunity of formulating such an order and at that point, of course, the defendant would likewise be given the opportunity of submitting as to whether or not it ought be made.
5. As to whether s 81 is enlivened, Alexis submits that this question can only be properly answered when the specific context of a proposed order is identified. Insofar as the suggestion is that the only relevant property of the Trust, for the purposes of any such order, would be shares in Wheatley Investments (and that Erin is the only beneficiary of any Trust of those shares as the residuary beneficiary, and that therefore the order would not be directed to the more expedient administration for Erin's benefit), Alexis submits that this over-simplifies the matter. It is noted that the estate is not yet presently fully administered. On the assumption that the executor is obliged to use her powers as shareholder of Wheatley Investments to fulfil the testator's intention in regard to The Entrance Road Property or its proceeds, it is submitted that those shares are not presently held for the sole purpose of transmission to Erin as a residuary beneficiary. Alexis maintains that s 81 can apply in regard to a legal representatives' powers, and in regard to the administration of an estate, to ensure its proper administration in the interests of the beneficiaries as a whole, which she says includes her interests under the Will.

Determination as to the rectification issue

1. I am not satisfied that rectification should be ordered of the Will in circumstances where I am not persuaded that there is clear evidence that the deceased's intentions were for the executor to be armed with the power to cause Wheatley Investments to transfer The Entrance Road Property to Alexis (as opposed to the very clear evidence of intention on the part of the deceased that The Entrance Road Property should pass to Erin). I note that clear evidence of the testator's intentions is required in this regard.
2. I cannot conclude that there was a "clerical error" on the part of the drafter of the Will (seemingly, Mr Ryan or someone from his office) nor is there evidence from which I can conclude that Mr Ryan failed to comply with the deceased's instructions. On the evidence (such as it is) I can only infer that either the deceased did not make clear, or Mr Ryan did not understand, that The Entrance Road Property was held in the name of a company (Wheatley Investments). It seems highly unlikely that the deceased (as a lay person) would have thought to give instructions to Mr Ryan to incorporate in the Will a direction to the effect that it is now contended should have been made in order to enable the deceased's intentions to be carried out. In my opinion, the position is that there is not established to be an intention on the part of the deceased that relates to the situation which has now occurred.
3. Nor do I consider that s 81 of the Trustee Act is of assistance. Apart from anything else, it is accepted that no order has been formulated and that it is not appropriate to make an order that is, in effect, at large pursuant to s 81 of the Trustee Act. I accept the submission from the defendants that what is here sought is not an order in relation to trust property for the benefit of the relevant trust; rather, it is an order sought in relation to the administration of the estate but for the benefit of a beneficiary other than that to whom the relevant property (the shares) was left.

Claim to rents since date of death

1. As to the claim for rent since the date of death on one view this falls away with the conclusion as to the first issue. However, Alexis maintains that even if the gift fails it does apply.
2. As noted, The Entrance Road Property is a commercial property. Since the date of the deceased's death, substantial rent has been received by Wheatley Investments.
3. Section 34 of the Succession Act (which effectively replaces s 36B of the Conveyancing Act 1919 (NSW) (Conveyancing Act)) applies in relation to Wills where the testator died on or after 1 March 2008 and provides: Income on Contingent, Future or Deferred Dispositions 34. A contingent, future or deferred disposition of property, whether specific or residuary, includes any intermediate income of the property that has not been disposed of by will.

Alexis' submissions as to the claim for rent

1. Alexis says that the gift of The Entrance Road Property must have been intended to carry with it the fruits of that property from the date of death, and that there ought to be a declaration that the gift to Alexis under cl 4 of the Will includes the rent that has been received by Wheatley Investments since the date of the deceased's death. Alexis says that, by virtue of s 34 of the Succession Act, a disposition of property, whether specific or residuary, includes any intermediate income of the property that has not been disposed of by the will.
2. Alexis points out that, had the deceased owned The Entrance Road Property in her own name at the date of her death, Alexis would have been entitled to the income derived from that property (such as the net rent) from the date of death until transfer of the property to her, or its sale and provision of the net sale proceeds to her.
3. Alexis submits that, as a matter of construction, the gift in cl 4 is treated as a gift of real estate. By reference to the authorities referred to above (where a gift is not defeated by the fact that the testator did not own the real estate at the date of death in circumstances where the testator or her executor had power to get in and/or dispose of the property) Alexis says that there is no reason to treat the gift in cl 4 as anything other than a disposition of The Entrance Road Property. It is noted that the opening words of s 34 of the Succession Act refer to "a contingent, future or deferred disposition of property" and that this is said to be capable of including a gift such as the gift in cl 4. In consequence, it is submitted that the gift ought be treated as including the intermediate income, being the rents derived from the property from the date of the deceased's death.
4. Alternatively, even if it were to be held that s 34 did not apply (because cl 4 did not effect a disposition of The Entrance Road Property) Alexis says that it would be presumed that the deceased did not intend to "sever" the rent from the property that was being gifted. It is noted that the property was a commercial property tenanted at the time of death and that the value of the property lay in its capacity to generate an income stream. Alexis submits that there could be little doubt that the deceased's intention, discerned from the terms of the Will, must have been that the deceased intended the gift of the property to include the intermediate income derived from that property.

The defendants' submissions as to the claim for rent

1. As to the claim by Alexis to the rent derived from The Entrance Road Property (being prayer 5 of the further amended summons) the defendants make reference to Re William MacPherson [1913] SALR 207 where Way CJ cited with approval the statement of principle from Bridges MJ, Hayes & Jarman's Concise Forms of Wills with Practical Notes (13th ed, 1910, Sweet and Maxwell) that "[a] specific bequest, if vested in possession, and if the subject matter is income bearing, entitles the legatee to the income from the testator's death, and also all accretions which arise after the death".
2. Reference is also made, by way of example, to O'Brien at [38]-[40] per Campbell J, as his Honour then was, and Verzar v Verzar [2013] NSWCA 170 per Gleeson JA. In O'Brien, Campbell J said (at [38]): 38. Income arising after the date of death on property which is left as an unconditional and immediate gift by a specific legacy or devise goes to the specific legatee or devisee … the right to the intermediate income arises from the fact that, once an executor assents to a specific legacy or devise, the assent relates back to the date of the deceased's death …
3. As to the reference in the above passage to the assent of the executor, it is noted that in In re De Sommery; Colenenbier v De Sommery [1912] 2 Ch 622, Parker J explained (at 628) that the executors' assent operated to change their status to trustees of the specified property, with the consequence that the costs related to that trust property and not the estate generally and that in Scott v Scott [1912] P 241, CA, Cozens-Hardy MR reasoned that the act of assent operated to pass property from the executor to the legatee, with the result that the legatee thereafter had title to the chattel.
4. The defendants say that the above principle cannot be enlivened if the gift under cl 4 fails. It is noted that the principle expounded in cases such Re O'Callaghan and Ireland v Retallack proceeds on the proposition that the representative must exercise powers (personal to him or her) to bring about the outcome expressed in the will. It is said that, in the former case, Gowans J reasoned that the gift did not fail not by reference to proprietary rights but because the executor was bound to exercise the (there sufficiently broad) testamentary powers conferred on him (see at 256). It is said that, if cl 4 fails, there is nothing on which those powers can relevantly operate; and, as such, possession (and property) in The Entrance Road Property remained vested throughout in Wheatley Investments.

Determination as to the claim for rents

1. I have concluded that the gift under cl 4 of the Will fails. There is no argument that, had there been a devise of real property held in the deceased's name at the date of death, then the rents received in respect of that property from the date of death would (once the executor assented to the legacy) be moneys to which Alexis would have been entitled (albeit that account might need to be made for expenses properly incurred in relation to that property in the period of time from date of death).
2. The difficulty is that The Entrance Road Property has at all times vested in Wheatley Investments and I accept that there has been no assent by the executor so as to change the status on which the executor has held the property to that of trustee for Alexis. Wheatley Investments had no obligation to account to the estate for the rents earned from the date of death. Moreover, I accept the submission that Erin has not acted unreasonably as executor in defending the estate's interests in this regard.

Alexis' Family Provision Claim

1. Alexis' family provision claim, as adverted to above, is put on a number of bases.
2. First, (which is not my conclusion) in the event that the gift under cl 4 of the Will is upheld, Alexis contends that this gift is still insufficient in light of appropriate considerations of what would be proper provision for her from the deceased's estate.
3. Second, in the event that the gift in cl 4 fails (which I consider it has), then it is submitted that it necessarily follows that there has been in effect an unintentional disinheritance of Alexis. In those circumstances, Alexis makes a claim for a sum that would restore to her the value of the gift under cl 4 (the proceeds of sale of The Entrance Road Property) plus the additional amount for rent income for the period from the deceased's death.
4. Third, in the event that the gift in cl 4 is upheld in principle but there are impediments to its implementation, then Alexis invokes s 36B(1) of the Conveyancing Act, and seeks orders for the amendment of the Will and further ancillary orders pursuant to s 66 of the Succession Act to implement the gift. It is noted that s 36B provides that: 36B Contingent and future interests to carry the intermediate income Where under an instrument other than a will coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 property stands limited to a person for a contingent or future interest, or stands limited to trustees upon trust for a person whose interest is contingent or executory, such interest shall, subject to the statutory provisions relating to accumulations, carry the intermediate income of that property from the time when the instrument comes into operation, except so far as such income or any part thereof may be otherwise expressly disposed of.
5. Last, it is noted that the gift in cl 4 was to be payable to a trust or superannuation fund of Alexis' choice. It is submitted that this limitation is an inconvenient limitation that reduces the value of the gift to Alexis and that a proper provision for Alexis would have been a gift to her without those limitations. Alexis seeks amendment of the Will to remove those limitations. (I see no difficulty in that submission.)

Alexis' submissions as to the family provision claim

1. In summary, Alexis submits that she should obtain an order for provision pursuant to s 59 of the Succession Act in order to modify the provision which she receives under the last Will of the deceased so that it is a legacy and is payable to Alexis, rather than being payable to a trust or superannuation fund; and says that the amount provided should be between $1.8 million and $2.1 million.
2. Alexis submits that, in circumstances where there is a large estate, proper and adequate provision would allow Alexis substantially to contribute to the purchase of replacement accommodation, would provide a form of financial independence for her and would provide her with a fund against contingencies and to act as a form of superannuation. It is noted (see below) that Alexis has limited assets of her own and is substantially dependent upon her husband's assets, in particular, his ownership of the one bedroom unit in which they currently reside. It is said that Alexis made substantial contributions to the accumulation of the deceased's estate (including guaranteeing loans and negotiating leases of realty owned by the deceased's companies); that there was a close and loving relationship between Alexis and the deceased (albeit acknowledging that there were difficult times in the relationship during the period between 2007 and 2008 following Alexis' wedding); and that Alexis' financial circumstances are uncertain in relation to her employment and income earning ability, she has minimal superannuation; and suffers from health issues and possible further costs such as costs in relation to IVF.
3. Alexis submits that, while Erin puts forward her financial circumstances as a competing claimant, given the size of the estate Erin's circumstances are such that she will be very comfortably well off if the provision Alexis seeks is made; and therefore it is submitted that in those circumstances Erin is not effectively a competing claimant and the amount of provision for Alexis should not be diminished due to Erin's circumstances. Alexis says that her circumstances are poor compared to those of Erin, not only in terms of assets owned by each of them, but in terms of their income and future earning capacity. Alexis accepts that her income may increase to a moderate amount due to obtaining tail fees from previous clients (T 93.26-50, 94.1-30) but it is said that she will still have the difficulties in generating income which she has experienced to date due to her mental health issues.

The defendants' submissions as to the family provision claim

1. The defendants point to Alexis' qualifications and to the summary of her skills which are summarised in her own published documents (see Ex 10 at p 381 (being a screenshot of Wheatley Wealth Management's website that states that Alexis "draws on 20 years of investment experience and in-depth knowledge of intergenerational wealth challenges" and lists her qualifications) and p 397 (being a screenshot of the same website that outlines Alexis' expertise in estate planning)) as going to Alexis' capacity to earn income in the future. The defendants say that the best evidence of Alexis' intentions is that which was set out in her application dated 28 June 2021 to ASIC for an AFSL, in which Alexis stated that she expected to spend more than three days a week discharging her duties; and that she anticipated that her business would grow. The application stated an expectation that there would be no business growth in the first year as new statements of advice were prepared but that "[i]n the subsequent years there will be an addition of approximately 3 new client groups each year with fees averaging $5,000 per month". The defendants point out that the business already has sixty clients, drawn from 20 families.
2. The defendants say that Alexis' financial needs are modest, noting that Alexis has the considerable support of her husband, Frank. It is noted that Alexis already has accommodation. In cross-examination, Alexis was taken to the evidence that she had given in the 2010 proceeding (brought by her stepmother) (being the transcript of the second day of those proceedings, on 6 December 2011) to the effect that she required a two-bedroom apartment (even if she were to have a child) (see at T 130.19-50 in which Alexis conceded that she had made representations to that effect in the earlier proceedings). Alexis, however, gave evidence that, with the advent of the COVID-19 pandemic, things had changed and that things were "just a bit more difficult", noting that Frank was working from home (but that it might be a bit easier if he was back at work full-time) (see T 130.37-41).
3. The defendants submit that, if Alexis receives the proceeds of sale of The Entrance Road Property, then there should be no family provision order in her favour; but that, if she does not, Alexis would be entitled to a family provision order, albeit in a modest amount. It is noted that Alexis and Frank presently have net assets of $1,745,752; and that Frank has significant cash reserves ($550,623) and that both are qualified professionals with significant earning capacity.

General principles

1. There is no dispute that Alexis is a child of the deceased and thus an "eligible person" by reason of s 57(1)(c) of the Succession Act; and that she commenced her claim within time. In order to enliven the power to make an order for provision there must be a finding that adequate provision for the proper maintenance, education and advancement in life of Alexis was not made by the deceased in her Will (s 59(1)(c) of the Succession Act) (see Steiner v Strang (2019) 19 ASTLR 330; [2019] NSWCA 143 (Steiner v Strang) at [76] per Macfarlan JA). If the provision for Alexis was not adequate for her proper maintenance, education and advancement in life, then it is necessary to consider whether it is appropriate to make a family provision order (s 59(2) of the Succession Act) and if so in what amount.
2. Section 59(1)(c) of the Succession Act does not prescribe specific circumstances that do, or do not, constitute adequate provision for the proper maintenance, education and advancement in life of a claimant; nor are the words "maintenance", "support" and "advancement" defined in the Succession Act, but it is recognised that the concept of advancement can extend (in appropriate circumstances) to the provision of a sum of money to enable improvement of a person's prospects in life (see Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [115] per Callinan and Heydon JJ). The question is not just whether the provision is "adequate" but whether adequate provision for the "proper" maintenance, support and advancement of the plaintiff has been made, which requires consideration of all of the circumstances of the case (see McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at 571-572 per Dixon CJ and Williams J). The word "adequate" is said to connote something different from the word "proper"; the former being concerned with quantum and the latter prescribing a standard; a more subjective criteria (see, for example, Sgro v Thompson [2017] NSWCA 326 at [74] per White JA).
3. The nature and content of what is adequate provision for the proper maintenance, education and advancement in life of a claimant is assessed on a case-by-case basis by reference to all of the facts. It is a flexible concept with the measure being conformity with what is considered to be right and proper according to what is considered to be the moral duty of the deceased or contemporary accepted community standards (see Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 at 19 per Dixon CJ; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59). There is some variance as to whether the formulation of "moral duty" is to be preferred to that of community accepted standards (see for example Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [44] per White JA and [109] per Brereton JA, which preferred the former; and Squire v Squire [2019] NSWCA 90 (Squire v Squire) at [10] per Meagher JA, which applied the latter). In a number of cases reference is made to the multi-faceted evaluative judgment that is here required.

Section 60(2) factors

1. Section 60(2) of the Succession Act identifies (non-exhaustively) various matters to which the Court may have regard when considering whether to make a family provision order, and the nature of any such order; and it is convenient here to address those factors in the context of the facts and circumstances of the present case.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;

1. The evidence as to the relationship between Alexis and the deceased has been broadly described above. The deceased was responsible for much of Alexis' upbringing (following the deceased's separation and divorce from her husband). Alexis lived with the deceased until shortly before Alexis' marriage and remained in regular contact with the deceased (albeit with a period of some difficulty following Alexis' wedding as noted above).
2. There is some conflict between Alexis' evidence regarding her relationship with the deceased and the evidence of Erin on that topic. Alexis notes that Erin's evidence is predominantly indirect evidence, recounting a number of conversations which she says that she had with the deceased. Alexis says that her relationship with Erin was a difficult one and that, from before the time that Alexis left home in 2007 and afterwards, the two had very little contact.
3. Alexis deposes to having ongoing contact with her mother, even during what Alexis describes as the "difficult times" in their relationship between her wedding and about the end of 2008, during which Alexis says that she continued to speak to the deceased on the telephone on at least a weekly basis and also visited her. After this, it is said that they would speak on the phone at least twice a week (sometimes more often) and that Alexis would see the deceased about once every two to three weeks. Alexis says that she and the deceased would also go on holidays together and spend time out together socially.
4. There is some dispute as to whether or not Alexis sought extra moneys from her mother at the time of her wedding in regard to the honeymoon (Alexis denies so doing) but Alexis says that, even if she had, this is the only incident identified of her asking for money after the share trading matter. Alexis accepts that she received financial support during her school years, and while she was living at home with her mother; and (as noted already) has admitted to causing the deceased's company loss in regard to share trading. Alexis says that she received some gifts from the deceased, including valuable jewellery. However, Alexis maintains that her treatment was no different, and if anything less generous, than that accorded to Erin (referring to Erin's accounts of the generosity of the deceased towards her - see at [38]; [73]-[76]; [95]; [104]; [105]; [114]; [146]-[154] of her affidavit sworn 8 May 2018). Alexis says that no criticism is intended of the generosity extended to Erin but that there is no basis on the evidence to conclude that Alexis was inclined to treat the deceased as a "piggy bank", when indeed Erin had been provided for handsomely by the deceased (which included making Erin a supplementary card holder of the deceased's Platinum and Black American Express Cards, which she was instructed to use "whenever [she] need[ed] to" see at [67] and [90] of Erin's affidavit sworn 8 May 2018).

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. I have referred above to the authorities in which the general principles in respect of claims by adult children have been considered and in which, in general, it has been recognised that there may be circumstances in which a parent has an ongoing obligation to provide for and support his or her child after the child reaches adulthood. In this regard, it is noted that any such moral obligation would be owed equally to both Alexis and Erin, the extent of such support being dependent on the particular circumstances and position in life of each. Subject to those general principles, the defendants submit that the deceased owed no obligations to Alexis (and, presumably, Erin would accept that the same applies to herself).

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. The nature and extent of the deceased's estate have been set out earlier. It is accepted that it is a large estate. The Dover Heights Property is the most valuable asset in the estate.
2. Erin annexed to her updating executor's affidavit the appraisal of Mr Pillinger of 11 October 2021, giving an estimated value of $7 million to $7.5 million. Insofar as Mr Pillinger relied upon a sale at Wallangra Road, Alexis says that that property is back from the cliff line, does not have ocean views and is not comparable.
3. It is noted by Alexis that Erin received, but did not tender, the appraisal of Mr Serrao from Raine & Horne of 28 September 2021 giving an estimate of $8 million to $9 million. Mr Serrao stated that he had recently sold another property in the same street in Dover Heights for $8 million and that the deceased's property was a superior property. Further appraisals have been obtained also suggesting a range closer to $10 million. Alexis contends that it should be found that the value of the property is likely to be within the range of $9 million to $10 million.
4. Pausing here, there is little material difference between the competing valuations or appraisals in the sense that, on any view of things, the Dover Heights Property is a very valuable property; and on whichever valuation be correct its inclusion in estate assets means that this is a large estate.
5. That said, the defendants say (and I accept) that the size of the deceased's estate does not permit one to ignore the critical issue of what, if anything, is required to make adequate provision for the applicant's proper maintenance and advancement in life (the defendants invoking as apt, notwithstanding the different wording of the Western Australian legislation, the reasoning of Buss P in Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215 at [223]-[224]).
6. Further, the defendants emphasise that the estate has little by way of cash resources; its assets being principally realty (the Dover Heights Property) and (directly and indirectly) an interest in land-rich companies (Wheatley Investments and Yonan). Erin points out that the realisation of the equity in The Entrance Road Property has given rise to, and will incur, significant tax liabilities; and says that the same will be the case with the Torrens Avenue Property if it is required to be sold. The relevance of this is that it is in relation to the evidence that the deceased intended that the Torrens Avenue Property serve as a source of income for Erin, to assist in defraying her expenses; and hence it is submitted for the defendants that the deceased's intention will be defeated if that property has to be sold in order to satisfy a family provision order. (In addition, it is submitted that such a sale has no attraction where much of the value of that property will pass, not to any family member, but to the ATO.)

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

1. As noted above, Alexis is a financial planner. Alexis says that her personal financial circumstances are parlous. It is noted that, excluding her superannuation (which is only $40,831) Alexis' liabilities exceed her assets by $10,459.72. Alexis' annual income (see [79]-[81] of her revised submissions) in 2020 to 2021 from all sources was $49,106.30.
2. Alexis has deposed to the impact upon her earning capacity and career of her anxiety and depressive condition (see [13]-[28] of her affidavit sworn 15 October 2019) a condition that has afflicted Alexis since adolescence and the breakup of her parents' marriage. It is said that this has been an ongoing affliction for Alexis with intervals in which she was little affected and then substantial periods in which she was. It is submitted that Alexis' evidence is supported by other evidence (including Erin's own testimony in the proceeding before Macready AsJ).
3. Alexis' evidence is that her anxiety and depression impact significantly on her ability to work; that she finds it a struggle to concentrate for more than 30 minutes at a time and struggles to control her anger at particular times, when she is feeling particularly stressed (at least once or twice a month); that she is very anxious about her work and feels that her memory is affected by her condition (such that she has made some significant errors, which fortunately she has been able to remedy). Alexis says that she struggles to deal with clients in a conference which lasts more than half an hour at a time; that she suffers from headaches which can last for up to one week; and that she needs to take medication so that she can sleep.
4. It is noted that a significant part of Alexis' income has more recently been from her teaching work; the income from her financial planning business having decreased due to changes imposed by her licensee (AMP Financial Planning Pty Ltd) and her ill-health (such as the requirement to engage a paraplanner to write statements of advice which Alexis had previously written herself, which has caused an increased cost to her business of about $16,500); and her representation status with AMP Financial Planning now having been terminated.

(e) if the applicant is cohabiting with another person, the financial circumstances of the other person

1. Alexis lives with her husband, Frank, who is a project manager (see his qualifications and experience to the end of 2015 as recorded in Ex 8). By reference to Frank's tax returns, it is noted that Frank's income in recent years has been substantial: in the 2019 financial year, $279,821; in the 2020 financial year, $233,137; and in the 2021 financial year, $183,700; and that he has a substantial superannuation portfolio (in the order of $720,000 - see T 161.16-22).
2. Frank was previously employed by Hallis on a contract basis to perform work for AMP under a contract that had been due to end on 30 August 2019 but was extended up to 31 December 2019. Frank was out of work for four and a half months from 28 February 2021 through to 12 July 2021.
3. Frank commenced a contract with Manpower Services (Australia) Pty Ltd (Manpower), with whom he was currently employed at the time of the hearing as a casual employee on 13 July 2021. It is noted that Frank does not have security of tenure - the contract with Manpower can be terminated by either party on one hour's notice (cl 3.1) but there is a non-binding indication that the assignment may last for approximately nine months, or until terminated, whichever occurs first. Frank has been told that the contract would be reviewed after about six months with continuation being funding dependent. Alexis notes that it cannot be assumed that he will not have periods of unemployment between contracts. Frank does not receive annual leave, sick leave or any other leave entitlements. Frank's rate of pay under the contract is $1,136.37 per day, exclusive of superannuation, consisting of a base rate of $909.10 per day plus a casual loading of 25% ($227.27) which replaces permanent employee entitlements.
4. Alexis notes that Frank's income, after tax, for the 30 June 2021 financial year was $110,357, which was lower than his income for the previous financial year which was $137,627 after tax.
5. Frank owns the one bedroom Millers Point unit in which the couple live. It is worth between $1.2 million and $1.4 million (as per market appraisals of Travis Reeve and Adrian Wilson). Frank's other assets total $135,668.21 including bank accounts ($26,716.41), shares ($62,003.39) and a 2005 Mercedes Benz C200 ($2,500.00). Frank's liabilities total $290,674.84 including a mortgage over his unit, currently $284,284.58. Frank's net assets are accordingly $1,044,993.37-$1,244,993.37, together with his superannuation which is valued at $723,395.28.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. It is noted that Dr Young concluded that Alexis was suffering from a persistent depressive disorder and opined that Alexis required ongoing treatment supervised by a psychiatrist including the use of psychotropic medications and ongoing psychological therapy and that there was a risk of further deterioration in her condition over time affecting capacity for employment and social interaction (see annexure B to Dr Young's affidavit sworn 26 October 2021).
2. In Alexis' report dated 30 September 2021, Dr Young, consultant psychiatrist, says: [Alexis] has suffered from ongoing psychological symptoms of depression and anxiety and describes ongoing persistence in terms of major depressive disorder present for at least the past two years. This meets diagnostic criteria in DSM5 for Persistent Depressive Disorder. … Given the poor treatment response as well as the continuing perpetual stressors Ms Wheatley's prognosis can be considered at best guarded and she is likely to require ongoing treatment and support in the foreseeable future. … Long term prognosis is generally poor. Ms Wheatley is likely to continue to suffer significant symptoms and associated impairment in the foreseeable future. ... As a result of her symptoms, Ms Wheatley suffers from difficulty concentrating and anxiety impairing decision-making capacity. ... As a result of her ongoing symptoms Ms Wheatley has diminished capacity to work and study, unable to concentrate sufficiently to apply herself to the complexities of her work role and she experiences anxiety which inhibits her ability to give advice and make financial decisions. As a result … Ms Wheatley is partly unfit to work and study. … Ms Wheatley reports depressive symptoms and limiting her capacity to undertake social interaction. She describes having becoming increasingly withdrawn and she experiences irritability in interpersonal interactions. … Ms Wheatley requires ongoing treatment supervised by a psychiatrist including the use of psychotropic medications and to require concurrent ongoing psychological therapy. … There is a significant risk of further deterioration of her condition over time affecting capacity for employment and social interaction.

(g) the age of the applicant when the application is being considered

1. As at the date of the hearing, Alexis was aged 44.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. Apart from the support given by Alexis to the deceased in relation to her business interests, Alexis says that she also supported the deceased in relation to a dispute which she had with the Newport property; and Alexis says that leading up to, and following, the death of the deceased, Alexis exerted substantial efforts to obtain a new lease with Westpac of The Entrance Road Property and assisted in relation to the Torrens Avenue Property.
2. The defendants say that the only contribution of significance by Alexis to the deceased's estate was her advice to the deceased to alter the structure of the loans so that they were secured over the Dover Heights Property and not the investment properties (which permitted a saving of interest as calculated in Alexis' letter of advice, being there said to be a somewhat surprising total saving of $1,676,970 over the term of the new loan). The defendants say that these benefits were secured by Alexis simply by doing the work she was accustomed to perform; noting that while some fees were waived by Alexis other fees (together with commission) were charged for the provision of these services (see Ex 10 at p 269-270).
3. In this context, the defendants submit that if her submission that the deceased gifted moneys to Alexis to allow her to trade shares (see below) is not accepted then it must be the case that Alexis' activities in this respect diminished the deceased's resources (i.e., was a negative contribution to the deceased's estate).

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. The defendants submit that Alexis has received significant benefits already (not only those referred to by Alexis at [64]-[71] of her first affidavit sworn 24 January 2018 but also benefits in the form of an early inheritance in the provision of moneys for share trading and ongoing support after she left university and until she commenced employment in the 2005/2006 financial year).
2. As to the provision of moneys for share trading, I have referred above to the conversation to which Erin deposes in that regard and to the timing of the first three transactions in the Doiho bank records. It is noted that Alexis was unable to recall in the witness box some aspects of the conversation which she records at 8 of her second affidavit (being a conversation in which Alexis alleges the deceased had provided Alexis with $70,000 on the basis that she had been "trading shares for several years … [and she had] some spare funds in the Trust that [Alexis] could use … as play money"; but see T 113.12-49, 114.1-27).
3. The defendants submit that Alexis' position is improbable in this respect. It is noted that, on Alexis' evidence, the sharp market correction in March 2000 caused loss to Doiho and caused her to be devastated with herself, out of guilt for the deceased. It is noted that, although she could not recall what happened Alexis accepted the possibility that, because of that guilt, she stopped trading. However, the defendants point out that Alexis continued to trade shares through Doiho, pointing to the trust's tax returns which record that it continued to trade (and incurred modest losses) thereafter.
4. The defendants say that, contrary to Alexis' recollection, Doiho was not merely (over a course of years) closing out shares (itself said to be an unlikely event in respect of a lengthy period). It is noted that the trustee's profit and loss statement for the 2003/2004 and 2004/2005 years record the purchase of large amounts of stock ($57,614 in the first year and $111,896 in the second).
5. The defendants say that Alexis' evidence does not explain why she caused Doiho to continue to trade shares if she experienced profound guilt from March 2000. It is said that the most obvious explanation is that the moneys used to invest belonged in truth to Alexis.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. Alexis says that there can be no doubt that the deceased intended from 2005 to leave Alexis The Entrance Road Property by a gift under her Will noting that in 2007 the deceased made clear, by amendments to the 2005 Will, that this was to be unencumbered gift, which intention was reiterated in the 2008 Will.
2. The affidavit of Ms Michaela Money sworn 23 October 2019 deposes to the efforts that have been undertaken to both interview Mr Ryan and locate documents, including notes relevant to the preparation of the wills (see at [8]-[9] of that affidavit). There is a page of notes but it sheds no real light on the matter. Solicitors who had taken instructions from Mr Ryan stated that he had no recall of the matter or the circumstances and no longer practises as a solicitor.
3. It is noted that Erin in her affidavit sworn 8 May 2018 deposes to numerous conversations in which she asserts that she was told by the deceased of the deceased's intention to leave The Entrance Road Property to Alexis (for example at [27]; [168] and [266] - the last conversation being one that it is said again demonstrates the misconception underlying the 2005 Will). It is said that this is self-evident from the terms of the last three Wills.
4. Alexis contends that the reason behind the differential treatment of the deceased's daughters is most likely to be for reasons of the kind set out in the emails of 23 January 2015 (see above), namely that Erin had striven to further herself and had a desire to be given the Dover Heights Property and an income for support; and because of the loyalty the deceased mother had perceived she had shown. However, Alexis says that the deceased nevertheless considered that the gift she was leaving Alexis (being the unencumbered value of The Entrance Road Property, which was $2.1 million at April 2017, shortly after the date of her death (see at [5] of Erin's affidavit sworn 21 October 2019) would enable a sizeable deposit towards a harbour side home.
5. In summary, the defendants submit that the deceased held the view, over about 12 years, about the appropriateness of the structure stipulated in the 2008 Will; regularly turned her mind to the issue of will-making over that period; and was not influenced by irrational views of Alexis and Frank (as to the last, it is said that the relevant period was more than sufficient to let passions subside).

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

1. There is no suggestion that Alexis was being maintained by the deceased prior to the deceased's death.

(l) whether any other person is liable to support the applicant

1. Alexis is married and hence there would be the usual moral obligations of her spouse to support her. There is no suggestion that Frank does not intend to do so, although I note evidence to the effect that Alexis and Frank were experiencing marital difficulties in around 2017 (see the affidavit of Margaret Cole sworn 17 August 2018 at [8], and the affidavit of Trever Cole sworn 17 August 2018 at [9]). (That said, it is quite pertinently noted in Alexis' submissions that this relies upon the continuation of the marriage for such support.)

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. In this context, complaint is made by the defendants that this litigation has been made more complex and more costly by Alexis' fixed belief that she is entitled to receive all but the Dover Heights Property.
2. Further, the defendants point to the fact that Alexis has made serious allegations against Erin, countenancing the suggestion that her signature on the deceased's power of attorney, and the certification of Erin's passport and drivers licence might have been forged and that Erin has fabricated certain emails (see at T 63-65). It is noted that Alexis' evidence was that she thinks it probable that Erin altered the emails (see T 66.34-42), despite not having sought the opinion of an expert.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. No submissions were made expressly referable to this factor.

(o) any relevant Aboriginal or Torres Strait Islander customary law;

1. This factor is not here relevant.

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

1. The defendants (in supplementary submissions filed on 3 November 2021) raise the incidence of the costs of the proceeding, and their effect on the parties, as a factor relevant to the determination of the family provision claim (and refers in this context to what was said in Poche v Poche [2020] NSWSC 835 (Poche) at [264]-[271] per Henry J).
2. It is noted that Ms Money, Alexis' solicitor, has estimated her client's costs to the end of what was then understood to be a six-day hearing to be $626,963 (see Ms Money's affidavit sworn 26 October 2021 at [2]). Before the trial that was vacated in October 2019, Ms Money estimated the costs (to the end of a five-day trial) to be $389,122 (see Ms Money's affidavit sworn 29 October 2019 at [2]). The defendants note that the updating affidavits and the opinions obtained from Mr Gangemi, together with whatever else has maintained what was a fully prepared case as at October 2019, have thus generated costs in the order of $225,000. It is noted that this figure of itself far exceeds the benchmarks referred to in the authorities in this area (see, for example, Wilson v Porada (No 2) [2017] NSWSC 1362 (Wilson v Porada) at [33]-[47] in which Slattery J opined that a standard family provision proceeding may be expected to incur costs of the order of $70,000 to $80,000, or approximately $120,000 to $140,000 in a more complex proceeding involving a four day hearing).
3. The defendants point to the fact that, from 26 March 2019, the defendants have made open offers to settle these proceedings on the basis (inter alia) that Alexis receive (net of expenses and taxes) the proceeds of sale of The Entrance Road Property. Relevantly, it is noted that on 21 May 2019 the defendants' solicitor communicated the following open offer: (a) pursuant to paragraph 6(c) of the further amended summons, our client, as executrix of the estate and director of Wheatley Investments Pty Ltd, does all things necessary to sell The Entrance Road Property and transfer the sale proceeds, less the costs, imposts and expenses associated with the sale, to your client (and in this regard, any tax payable by Wheatley Investments Pty Ltd and the estate arising from the sale and the receipt of the sale proceeds is treated as a cost, impost and/or expense to be deducted from the sale proceeds before the balance is paid to your client). Having regard to Mr Greg Vale's reports, the tax payable by Wheatley Investments Pty Ltd is anticipated to be about $262,441; (b) the Summons, as amended, be otherwise dismissed; and (c) there be no order as to costs of the proceedings to the intent that each party bear her own costs of the proceedings.

Determination of the family provision claim

1. As to the family provision claim made by Alexis, I have referred above to the principles relevant to claims of the kind. It is not disputed that adequacy of provision is determined at time of application. Given the failure of the cl 4 gift, there has been no provision made for Alexis under the Will. In all the circumstances, I consider that there has not been adequate and proper provision (even taking into account the provision made for Alexis during her lifetime). The deceased clearly intended to make a gift to Alexis, under the Will, of The Entrance Road Property (unencumbered) and that gift failed. (Had the gift not failed I would have concluded that there was adequate provision even though tax liabilities would follow from that gift. As it is, I consider that it is not adequate or proper provision for Alexis to receive nothing at all out of the deceased's large estate - and I do not understand Erin to suggest otherwise.)
2. As to what provision is adequate, this is not a question of parity of distribution or family fairness, as such (as the authorities to which reference was made in the submissions make clear). Moreover, the deceased in her emails to Erin (and the unsent email on her computer) made clear that there was a considered basis for the testamentary provisions that were made by the deceased. Statements to others by the deceased that she wanted to make things fair must be understood in this context.
3. Alexis and Frank have not insubstantial assets, professional qualifications and the ability to earn income in the future. As to Alexis, I accept that she has health conditions that may well impact on her ability to earn income in the future but the extent of this is unclear. I do not consider that much weight should be placed on the fact that the deceased permitted Alexis to trade in shares with moneys from the estate. The evidence does not permit me confidently to conclude that this was an early inheritance (particularly given that the deceased did not refer to it as such in any of her successive draft wills nor in the relevant emails in January 2015 and on her computer in February 2017); though the losses would then count as a factor against Alexis' contribution to the deceased's estate during her lifetime.
4. Highly relevant, in my opinion, are the consistently expressed testamentary intentions of the deceased. It is very clear that the deceased was very concerned that Erin be able to return to Australia and to live in the Dover Heights Property. I am troubled that costs of such magnitude have been incurred in these proceeding, which may jeopardise the possibility that effect may be given to those testamentary intentions. It seems likely that tax issues have overtaken common sense in that regard. That said, though I have taken into account the high level of costs (and the rejection of the open offer that was made to Alexis) I consider that those issues are better dealt with in the context of the costs overall after any further submissions on that issue.

Orders

1. For the above reasons therefore, I make the following orders: 1. In lieu of the provision made for the plaintiff under the Will of the late Dianne Victoria Lakshmanan, order that there be provision out of the deceased's estate of a legacy in the sum of $820,000. 2. Direct that any brief submissions on costs be filed within 14 days with a view to costs being determined on the papers if possible.

Amendments 17 May 2022 - Amendment to Representation on coversheet 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: 29 June 2022