Whittorn v Siu [2026] NSWSC 666 | Case summary

Whittorn v Siu [2026] NSWSC 666 | Case summary | Zoe

Court

Supreme Court of NSW

Decision date

2026-06-11

Before

Meek J

Catchwords

SUCCESSION — Familial disputes — Deceased survived by two adult children (P1 and P2, together Ps) of a long-standing marriage ended in 2014 and a companion/de facto wife (D) with whom he formed a relationship in 2013 — Property was purchased in 2019 and settled in 2021 solely with funds from the deceased, held in joint tenancy as between the deceased and D — Post the deceased’s death, D by lodgement of a Notice of Death form held the Property solely and changed her Will excluding Ps as beneficiaries — Ps advance various claims of entitlement to the Property (via the deceased’s estate or directly) including by means of a resulting trust, constructive trust, promissory estoppel, (binding) oral agreement and a back-up family provision claim for P2 — D cross claims for family provision relief — Held Ps entitled to relief in respect of the Property with the D having a right of residence in the Property subject to holding the remainder interest for the Ps to be gifted to them under D’s Will — Family provision relief declined TRUST — Discussion of legal principles bearing upon trusts and categorisation preferences and inconsistencies RESULTING TRUSTS — Discussion of terminology — Discussion of fact-finding and presumptions — Discussion of aspects of resulting trust fact-finding — Discussion of timing for considering intention CONSTRUCTIVE TRUSTS — Discussion of terminology — Discussion of formalities and nature of interest PROMISSORY ESTOPPEL — Outline of principles CONTRACT — Oral agreements affecting real property — Failure to plead Statute of Frauds defence — Lack of writing belatedly raised as issue in defendant’s separate list of issues — Lack of writing was not the subject of any developed submission and not an obstacle to relief for the Ps ORDERS — Injunctive relief regarding property may be recorded on the title to the property by means of the Court orders being annexed to NSW Land Registry Services ‘Request’ Form (Form 11R) SUCCESSION — Family provision — Eligibility — Adopted child — Obligations of the legal practitioners to provide details regarding adoption in particular where child was adopted interstate under since repealed legislation — On assumed facts, P2’s adoption does not affect adoptee’s status as a child of the deceased SUCCESSION — Family provision — Disclosure by applicants of material and financial circumstances — Form and nature of disclosure requirements discussed — Contention that D had failed to properly disclose financial circumstances rejected SUCCESSION — Family provision — Outline of claim for provision — Claimants who provide little or no outline of their claim for provision and no details or evidentiary base to support it run a risk that the claim will be dismissed PRACTICE AND PROCEDURE — Court Books — Issues with poor quality inputted images — Legal practitioners (or parties) who provide electronic Court Books should ensure that the input images or scans are of a sufficiently good quality to enable easy OCR conversion and readable text. That includes by use of high-resolution scanning equipment and ensuring very good or favourable lighting and contrast conditions when capturing images PRACTICE AND PROCEDURE — Lists of issues — The purpose (or a prime purpose) of an agreed list of real issues is to reduce down to an essence the critical matters factual, legal or otherwise, that are said to be determinative or going to be likely to be determinative of the outcome in the case — A direction to provide an “agreed” list is to be understood to require actual co-operation between practitioners as distinct from provision of separate lists (without good explanation) — Lists of issues which simply convert each prayer for relief into question format often are of limited utility and run the risk that no insight is given as to crucial factual or legal questions — Lists should not contain issues not otherwise pleaded or not fairly foreshadowed to affected parties in a timely way prior to the hearing — Lists containing numerous issues should be refined to ensure the list is not antithetical to the just, quick and cheap overriding purpose COURT CONDUCT — Expectations regarding conduct of attendees in court during examination of witnesses discussed — Audible, visible or any other overt paralinguistic expressions or reactions to questions and answers should be avoided by Court observers to avoid risks of inappropriately influencing witnesses and examiners LEGAL PRACTITIONERS - Conduct of legal practitioners in court during examination of witnesses WORDS & PHRASES — trust (relational) — jus accrescendi

Source

Original judgment source is linked above.

Catchwords

SUCCESSION — Familial disputes — Deceased survived by two adult children (P1 and P2, together Ps) of a long-standing marriage ended in 2014 and a companion/de facto wife (D) with whom he formed a relationship in 2013 — Property was purchased in 2019 and settled in 2021 solely with funds from the deceased, held in joint tenancy as between the deceased and D — Post the deceased’s death, D by lodgement of a Notice of Death form held the Property solely and changed her Will excluding Ps as beneficiaries — Ps advance various claims of entitlement to the Property (via the deceased’s estate or directly) including by means of a resulting trust, constructive trust, promissory estoppel, (binding) oral agreement and a back-up family provision claim for P2 — D cross claims for family provision relief — Held Ps entitled to relief in respect of the Property with the D having a right of residence in the Property subject to holding the remainder interest for the Ps to be gifted to them under D’s Will — Family provision relief declined TRUST — Discussion of legal principles bearing upon trusts and categorisation preferences and inconsistencies RESULTING TRUSTS — Discussion of terminology — Discussion of fact-finding and presumptions — Discussion of aspects of resulting trust fact-finding — Discussion of timing for considering intention CONSTRUCTIVE TRUSTS — Discussion of terminology — Discussion of formalities and nature of interest PROMISSORY ESTOPPEL — Outline of principles CONTRACT — Oral agreements affecting real property — Failure to plead Statute of Frauds defence — Lack of writing belatedly raised as issue in defendant’s separate list of issues — Lack of writing was not the subject of any developed submission and not an obstacle to relief for the Ps ORDERS — Injunctive relief regarding property may be recorded on the title to the property by means of the Court orders being annexed to NSW Land Registry Services ‘Request’ Form (Form 11R) SUCCESSION — Family provision — Eligibility — Adopted child — Obligations of the legal practitioners to provide details regarding adoption in particular where child was adopted interstate under since repealed legislation — On assumed facts, P2’s adoption does not affect adoptee’s status as a child of the deceased SUCCESSION — Family provision — Disclosure by applicants of material and financial circumstances — Form and nature of disclosure requirements discussed — Contention that D had failed to properly disclose financial circumstances rejected SUCCESSION — Family provision — Outline of claim for provision — Claimants who provide little or no outline of their claim for provision and no details or evidentiary base to support it run a risk that the claim will be dismissed PRACTICE AND PROCEDURE — Court Books — Issues with poor quality inputted images — Legal practitioners (or parties) who provide electronic Court Books should ensure that the input images or scans are of a sufficiently good quality to enable easy OCR conversion and readable text. That includes by use of high-resolution scanning equipment and ensuring very good or favourable lighting and contrast conditions when capturing images PRACTICE AND PROCEDURE — Lists of issues — The purpose (or a prime purpose) of an agreed list of real issues is to reduce down to an essence the critical matters factual, legal or otherwise, that are said to be determinative or going to be likely to be determinative of the outcome in the case — A direction to provide an “agreed” list is to be understood to require actual co-operation between practitioners as distinct from provision of separate lists (without good explanation) — Lists of issues which simply convert each prayer for relief into question format often are of limited utility and run the risk that no insight is given as to crucial factual or legal questions — Lists should not contain issues not otherwise pleaded or not fairly foreshadowed to affected parties in a timely way prior to the hearing — Lists containing numerous issues should be refined to ensure the list is not antithetical to the just, quick and cheap overriding purpose COURT CONDUCT — Expectations regarding conduct of attendees in court during examination of witnesses discussed — Audible, visible or any other overt paralinguistic expressions or reactions to questions and answers should be avoided by Court observers to avoid risks of inappropriately influencing witnesses and examiners LEGAL PRACTITIONERS - Conduct of legal practitioners in court during examination of witnesses WORDS & PHRASES — trust (relational) — jus accrescendi

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Whittorn v Siu [2026] NSWSC 666

Hearing dates: 26-28 May 2025 2, 10 June 2025 (submissions) 1 July 2025 (mention) 15 July 2025 (further submissions)

Date of orders: 11 June 2026

Decision date: 11 June 2026

Jurisdiction: Equity

Before: Meek J

Decision: Findings in favour of plaintiffs on Property claim

Catchwords: SUCCESSION — Familial disputes — Deceased survived by two adult children (P1 and P2, together Ps) of a long-standing marriage ended in 2014 and a companion/de facto wife (D) with whom he formed a relationship in 2013 — Property was purchased in 2019 and settled in 2021 solely with funds from the deceased, held in joint tenancy as between the deceased and D — Post the deceased’s death, D by lodgement of a Notice of Death form held the Property solely and changed her Will excluding Ps as beneficiaries — Ps advance various claims of entitlement to the Property (via the deceased’s estate or directly) including by means of a resulting trust, constructive trust, promissory estoppel, (binding) oral agreement and a back-up family provision claim for P2 — D cross claims for family provision relief — Held Ps entitled to relief in respect of the Property with the D having a right of residence in the Property subject to holding the remainder interest for the Ps to be gifted to them under D’s Will — Family provision relief declined
TRUST — Discussion of legal principles bearing upon trusts and categorisation preferences and inconsistencies
RESULTING TRUSTS — Discussion of terminology — Discussion of fact-finding and presumptions — Discussion of aspects of resulting trust fact-finding — Discussion of timing for considering intention
CONSTRUCTIVE TRUSTS — Discussion of terminology — Discussion of formalities and nature of interest
PROMISSORY ESTOPPEL — Outline of principles
CONTRACT — Oral agreements affecting real property — Failure to plead Statute of Frauds defence — Lack of writing belatedly raised as issue in defendant’s separate list of issues — Lack of writing was not the subject of any developed submission and not an obstacle to relief for the Ps
ORDERS — Injunctive relief regarding property may be recorded on the title to the property by means of the Court orders being annexed to NSW Land Registry Services ‘Request’ Form (Form 11R) SUCCESSION — Family provision — Eligibility — Adopted child — Obligations of the legal practitioners to provide details regarding adoption in particular where child was adopted interstate under since repealed legislation — On assumed facts, P2’s adoption does not affect adoptee’s status as a child of the deceased SUCCESSION — Family provision — Disclosure by applicants of material and financial circumstances — Form and nature of disclosure requirements discussed — Contention that D had failed to properly disclose financial circumstances rejected SUCCESSION — Family provision — Outline of claim for provision — Claimants who provide little or no outline of their claim for provision and no details or evidentiary base to support it run a risk that the claim will be dismissed PRACTICE AND PROCEDURE — Court Books — Issues with poor quality inputted images — Legal practitioners (or parties) who provide electronic Court Books should ensure that the input images or scans are of a sufficiently good quality to enable easy OCR conversion and readable text. That includes by use of high-resolution scanning equipment and ensuring very good or favourable lighting and contrast conditions when capturing images PRACTICE AND PROCEDURE — Lists of issues — The purpose (or a prime purpose) of an agreed list of real issues is to reduce down to an essence the critical matters factual, legal or otherwise, that are said to be determinative or going to be likely to be determinative of the outcome in the case — A direction to provide an “agreed” list is to be understood to require actual co-operation between practitioners as distinct from provision of separate lists (without good explanation) — Lists of issues which simply convert each prayer for relief into question format often are of limited utility and run the risk that no insight is given as to crucial factual or legal questions — Lists should not contain issues not otherwise pleaded or not fairly foreshadowed to affected parties in a timely way prior to the hearing — Lists containing numerous issues should be refined to ensure the list is not antithetical to the just, quick and cheap overriding purpose COURT CONDUCT — Expectations regarding conduct of attendees in court during examination of witnesses discussed — Audible, visible or any other overt paralinguistic expressions or reactions to questions and answers should be avoided by Court observers to avoid risks of inappropriately influencing witnesses and examiners LEGAL PRACTITIONERS - Conduct of legal practitioners in court during examination of witnesses WORDS & PHRASES — trust (relational) — jus accrescendi

Parties

Applicant/Plaintiff:

Whittorn

Respondent/Defendant:

Siu

Legislation Cited (12)

Cited:** Adoption Act 1984(Vic)

Adoption Act 2000(NSW)

Civil Procedure Act 2005(NSW)s 90.

Conveyancing Act 1919(NSW)

Evidence Act 1995(NSW)

Real Property Act 1900(NSW)

Succession Act 2006(NSW)

Adoption of Children Act 1964(Vic)s 32(1)(a).

Uniform Civil Procedure Rules 2005(NSW)

Adoption Act 1984(Vic)

Children Act 1964

Conveyancing (Amendment) Act 1930

Cases Cited (64)

Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Bahr v Nicolay (No.2) (1988) 164 CLR 604; [1988] HCA 16
Bardi v Giannaros (No 2) [2025] NSWSC 917
Birmingham v Renfrew (1937) 57 CLR 666
Black Uhlans Incorporated v New South Wales Crime Commission & Ors [2002] NSWSC 1060; (2002) 12 BPR 22,421
Bosanac v Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199
CBA v Amadio (1983) 151 CLR 447; [1983] HCA 14
Charles Marshal Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28
Ciaglia v Ciaglia [2010] NSWSC 341; (2010) 269 ALR 175
Clarke v Callow (1876) 46 LJQB 53
Clayton v Clayton [2023] NSWSC 399
Collins v Hawkes [2025] NSWSC 316
Commissioner of Police (New South Wales Police Force) v Zisopoulos [2020] NSWCA 236; (2020) 299 IR 314
Corbould v Gay [2026] NSWSC 385
Corin v Patton (1990) 169 CLR 540; [1990] HCA 12
Currie v Hamilton (1984) 1 NSWLR 687
Daley v Donaldson [2022] NSWCA 96
Dedakis v Deligiannis; Estate of Deligiannis [2024] NSWSC 1018
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Estate of Anderton; Edwards v Animal Welfare League [2025] NSWSC 70
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128
Foundas v Arambatzis [2020] NSWCA 47
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Galati v Deans & Ors [2023] NSWCA 13
Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143
Jones v Dunkel (1959) 101 CLR 298
Last v Rosenfeld [1972] 2 NSWLR 923
Les & Zelda Investments Pty Ltd (as trustee of Les & Zelda Family Trust) v Whitehaven Coal Limited (No 4) [2026] NSWSC 107
Mekhail v Hana [2019] NSWCA 197
Morgan v Worthington (1878) 38 LT 443.
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Nadilo v Souris [2019] NSWSC 108
Olley v Fisher (1886) 34 Ch D 367
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Re Griffith; Easter v Griffith (1995) 217 ALR 284
Robinson v Tame [1994] NSWCA 266
Rodny v Weisbord [2024] NSWCA 183
Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497
Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274
Salvo & Ors v New Tel Limited [2005] NSWCA 281
Shymko v Lach [2022] NSWSC 1096
Stone v Stone [2019] NSWSC 233
Shephard v Cartwright [1955] AC 431
Tarbes v Taleb [2023] NSWSC 565
The trustees of the property of Cummins v Cummins (2006) 227 CLR 278
Tjen v Bilic [2017] NSWSC 364
Walton’s Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
White v Overland [2001] FCA 1333
Williams v Legg (1993) 29 NSWLR 687
XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133

Texts Cited: American Heritage, ‘Blondin The Hero Of Niagara’ (Web Page) (see endnotes for accessible link)
Carter, J. Adam, ‘Trust and Its Significance in Social
Epistemology’ in Lackey, Jennifer and Adian McGlynn, The Oxford Handbook of Social Epistemology (Online ed, 2025, Oxford University Press)
Cheshire & Fifoot Law of Contract (online ed, LexisNexis)
Christie, Agatha, Endless Nights (1967, New York: Pocket Books) (see endnotes for accessible link)
Conveyancing Service NSW (LexisNexis)
de Groot, John and Bruce Nickel, Family Provision in Australia (7th ed, 2025, LexisNexis)
Donne, John, DD, Dean of St Paul’s Cathedral, Devotions (Upon Emergent Occasions, and several steps in my Sickness) (1840) Meditation XVII
Edgeworth, Brendan Butt’s Land Law (7th ed, 2017, Thomson Reuters)
Emerson, Ralph Waldo, ‘Man the Reformer’ (Lecture, Mechanics’ Apprentices’ Library Association, 25 January 1841) (see endnotes for accessible link)
Find & Connect, ‘Adoption of Children Act 1964, Victoria’ (Web Page) (see endnotes for accessible link)
Greene, Graham, The Ministry of Fear (1943, William Heinemann Ltd) (see endnotes for accessible link)
Guinness World Records, ‘First tightrope walk over Niagara Falls’ (Web Page) (see endnotes for accessible link)
Halsbury’s Laws of Australia (LexisNexis)
Hancock PA, et al, ‘How and why humans trust: A meta-analysis and elaborated model’ (2023) Frontiers in Psychology (see endnotes for accessible DOI link)
Heydon, J D and M J Leeming, Jacobs’ Law of Trusts (8th ed, 2016, LexisNexis)
Liew, Ying Khai ‘Choice of Law Rules in Australia for Resulting and Constructive Trusts’ (2022) 44(3) Sydney Law Review 441
Macquarie Dictionary, online ed
NSW Land Registry Services ‘Order of Court of Injunction’ (Web Page) (see endnotes for accessible link)
Ong, Denis, Trusts Law in Australia (5th ed, 2018, Federation Press)
Oxford Dictionary, online ed
Practice Note SC EQ 07
Smith, David Woodruff, ‘Phenomenology’ in Edward N. Zalta and Uri Nodelman (eds), The Stanford Encyclopedia of Philosophy (online) (see endnotes for accessible link)
Meggary, E. and V. Baker Snell’s Principles of Equity (24th ed, 1954, Sweet & Maxwell)
The Honourable Steven Rares KC and Quentin Rares The Law of Estoppel in Australia (1st Ed, 2026, Lawbook Co.) Forward
Utley, Fiona, ‘Considerations Towards a Phenomenology of Trust’ (2014) 18(1) Symposium: Canadian Journal of Continental Philosophy/Revue canadienne de philosophie continentale
Young, Peter, Clyde Croft and Megan Smith, On Equity (2009, Thomson Reuters)

In modelling interpersonal trust, their original model included trustworthiness (a trustee characteristic), the propensity to trust (a trustor characteristic) and interactive outcomes (one element of a contextual/environmental factor), as the primary elements which impacted trust development and maintenance [11] . In an elaborated model they emphasised the context within which the trust interaction occurs [12] .
To greater or lesser degrees, all humans must trust somethings or some others. Individuals affect others and are shaped by a myriad of trust relationships. Thus, John Donne, the preeminent metaphysical poet, observed “No man is an island, entire of itself; every man is a piece of the continent, a part of the main” [13] . The renowned English novelist (Henry) Graham Greene articulated the consequences of complete lack of trust in grave terms of solitary confinement “But it is impossible to go through life without trust: that is to be imprisoned in the worst cell of all, oneself” [14] .
Trust is and may be beneficial. Hancock et al observe that “as a general proposition, the social value of trust outweighs its potential downsides, on average” [15] .
Yet broken trust or betrayal between people, especially couples, lovers, friends, and family can be profound, and must not be trivialised or underestimated in its repercussions. Its effects are rarely quarantined. Denial, shock, anguish, humiliation, anger are but a few reactions or emotions arising or unleashed in varying degrees. Directly or collaterally, others (children, broader family, friends and colleagues) are or may be impacted and potentially drawn into the conflict or align themselves with the principal parties according to their perceptions of the righteousness of the situation.
People are modelled trust in their rearing and upbringing, significantly through life with family and friends.
The creative arts often express and in particular opera libretto and popular music lyrics often have a degree of verisimilitude or reflect aspects of real life. Their passionate stirring and cathartic effect are renowned sources by which people grappling with aspects of trust may have resonance, narrative empathy or use therapeutically. Classics in these arts: inspire us to honour trust and remain steadfast (e.g. ‘Count On Me’ – Bruno Mars); use truth to salvage and restore relationships (e.g. ‘Truth and Honesty’ - Aretha Franklin); depict various trust issues including who to trust and contain trials or ordeals which test character (e.g. vow of silence in ‘The Magic Flute’ - Mozart); exemplify ‘blind’ unwavering but misplaced trust in the face of mounting counter-evidence (e.g. ‘Madama Butterfly’ – Puccini); poignantly or viscerally depict acts of betrayal, its indirect discovery, the insincerity of remorse, vanquishing of initial fear of ramifications, and moving on in life with resilient, even sanguine optimism (e.g. ‘I Heard It Through the Grapevine’ - Marvin Gaye, ‘You’re Not Sorry’ - Taylor Swift, ‘I Will Survive’ - Gloria Gaynor).
Trust of an object may be readily gained and continue incidentally with minimal or no thought. For example, if a person judges a chair safe to sit on the first time, and successfully does so, the person usually implicitly trusts the chair to hold his or her weight thereafter without question. There is a constancy about the integrity of the chair, not subject to variation, so as to cause no loss of trust.
Trust between mortals, in some respects may be simple, but can be and often is complex because of the inherent nature of human life.
Humans may trust out of necessity, convenience, or motives including desire for relationship or property benefits which might flow from relationship. The complexity of the lives of individuals impacts trust relationships. Some people are generally steadfast in character and often very predictable in action, which is manifest in various ways, including by settled or generally unvarying routines in their lives and statements. However, that is not always so (e.g. the wonted coffeeholic who ‘invariably’ orders a piccolo might occasionally order a ristretto or a cappuccino). There are many individuals who are mercurial in character and atypical in action. Essential aspects of their lives, but especially their statements of intent and promises are variable.
Human trust can be mutual (A and B trust each other), unreciprocated (A trusts B but B does not trust A), uncertain (A trusts B but A does not know if B trusts A), transient or perdurable. Trust may be differential - we may trust the same person with some things but not with others. Trust between individuals is protean subject to the “changes and chances” of human life, and contoured to the evolving nature, ebb and flow and peaks and troughs of relationships, even in the case of so-called ‘predictable’ or ‘habitual’ people.
Trust by one person of another may be engendered within minutes or may take months (or much longer) to be fostered. Distrust may similarly arise readily or germinate over a prolonged timespan. In some cases, trust may never be engendered, or at least not so to any material degree.
Trust and mistrust have a particular role and effect where property or wealth is involved. Agatha Christie famously stated “…Where large sums of money are concerned, it is advisable to trust nobody” [16] . Ralph Waldo Emerson notably observed (in context, regarding adverse consequences of our human nature) “**… Our distrust is very expensive*”* [17] .

Relevantly, the deceased’s choices about brief disclosure of his relationship with Ped to Timothy, non-disclosure to Christopher (discussed below), limited communication as between Christopher and Timothy and long delay before the plaintiffs even met Ped from the time the deceased commenced a connection with her (5 years in the case of Timothy and almost 10 years in the case of Christopher), rendered a barren base and scant time for Ped and the plaintiffs to even begin to establish rapport and engender (empirical) trust with one another when crucial events bearing upon their claims to the Property occurred between 2019 and the deceased’s death just under 4 years later.
Part of Ped’s evidence is suggestive that she had feelings of goodwill to the plaintiffs which changed in the late stages of the deceased’s life [18] . In relation to Timothy (whom she met in 2018), she gave evidence that she found him (and his wife and two children) to be “pleasant and likeable” and said “I never had any conflict with him until events in hospital shortly before Neil passed” [19] .
However, there is other material suggestive that her distrust of the plaintiffs was seeded well before then.
Thus, by the time that the deceased contracted to purchase the Property in 2019, he observed of Ped to his solicitor “She doesn*’*t trust my executor” [20] . By the last month of the deceased’s life (March 2023), Ped recounted a conversation with the deceased in which he expressed that Timothy would look after her and she responded that she did not “believe them” and did not “trust them” (in context, both plaintiffs) [21] . In the midst of the final few days of the deceased’s life, that position had not changed. The deceased, according to Timothy alerted him to Ped’s lack of trust of them “as executors to do the right thing” [22] .
The precise basis for Ped’s lack of trust of the plaintiffs was not explored in any detailed way on the evidence other than by brief cross-examination. Ped accepted that after the deceased’s death, Timothy had stayed with Ped for some time and indeed invited her back to Japan with him to stay with her family [23] . Yet, when it was put to her that the plaintiffs “have only ever been kind to you”, she deflected direct response by asserting that they had wanted to get the Property after their father’s death [24] .
The combined effects of Ped’s lack of trust of the plaintiffs, the deceased’s failure to formalise (at least through his solicitor and documentation) his intentions for the Property, and the plaintiffs’ voiced concerns arising out of that lack of formality, have had a devastating effect on the parties.
Unable to resolve their differences in some way that is acceptable to each other, the parties have collectively spent in excess of $300,000 litigating over the Property and their claims to it.
The supreme tragedy of that costly exercise is that on one view, the parties are not far apart in their own beliefs and proposals regarding what should happen to the Property they are disputing over. The plaintiffs for their part throughout the hearing (and even beforehand) enunciated that they do not wish to impede or cut across the defendant’s right to remain living in the Property, subject to them receiving the remainder interest in the Property. The defendant for her part, whilst wishing the assurance of being able to remain in the Property and perhaps entertaining the notion that she might have some form of portable life estate in the Property, has expressed a willingness to execute a Will disposing of the remainder interest in the Property to the plaintiffs.
One might have thought that in light of that, the parties could resolve their differences. However, regrettably that is not the case and instead, the parties, unable to collectively muster enough goodwill or trust to resolve their differences, have left the matter in the hands of the Court to decide their rights - which must be done according to law.
Ped’s formal position as submitted by her counsel is that the plaintiffs’ claims regarding the Property should be dismissed [25] . However, for reasons which follow, I have decided that the plaintiffs’ claims in relation to the Property succeed – principally on the basis of an agreement between the deceased and the defendant for her to have an interest in the Property but qualified by a promise to leave the Property to the plaintiffs – effectively giving her a right of residence in the Property.
It is obvious in light of the findings that I have made that, the parties may well be practically constrained by the legal rights which they have requested the Court to determine. If that is the case, they had ample opportunity before requiring the Court to determine their rights to attempt to resolve the case consensually with all the flexibility of outcomes that are not strictly available on a legal analysis of the rights. Indeed, at the end of each of the 3 days of hearing, I raised with the parties the fact that the case had a degree of messiness regarding it, that there were significant risks in the litigation being continued and that there was still opportunity for the parties to resolve the matter consensually [26] .
Ominously, the parties wished to defer addressing on costs until these reasons were delivered. Potentially, a lamentable outcome for Ped may ensue. If (as prima facie is the case) costs follow the event, seemingly her only significant asset to pay the plaintiffs’ legal costs is the (as yet unquantified) value associated with her right of residence in the Property which may need to be realised. Thus, there is a real prospect that she may lose the Property she fought so hard to keep. Whether that is the case or not remains to be seen.

The deceased was born in Melbourne in August 1947 [27] and died on 20 March 2023 aged 75 [28] . He married Robyn Ellen Oldmeadow (Robyn) in or about 1971 [29] . They separated in or about 2012 [30] after 40 years of marriage. Ultimately, they divorced, in or about 2014 [31] . Christopher, an adopted child of the deceased [32] , was born in January 1981 and is aged 45 [33] . No clear evidence was given of Timothy’s age other than that he is approximately 3 years younger than Christopher [34] .
The deceased, Robyn and their children initially lived in Mount Martha, Victoria (on the Mornington Peninsula) [35] . The deceased was a beer brewer by occupation for a large part of his working life [36] .
The deceased was one (it seems) of three children of their parents. No mention is made of the deceased father’s. His mother died in November 2018 aged 104 [37] . He had sisters Lynne and Julia [38] .
The deceased was survived by a nephew Adrian Morton (Mr Morton) being a child of Lynne [39] .
Ped was born in Thailand in April 1970 and is now aged 56 [40] . She came to Australian in or about 2000 [41] . She says she was sponsored by her now ex-husband Geekit Sui. They were married and “broke up” about 5 or 6 years later (c.2005-2006) [42] .
The parties did not venture much evidence about the precise characterisation of Ped’s relationship with the deceased.
The plaintiffs pleaded, and in submissions accepted, that Ped was in a “relationship” with the deceased from in or about 2013 until his death, though Ms Bianchi submitted that it was unclear when they started to cohabit [43] .
Ped pleaded that she was the de facto partner of the deceased from about 2013 until his death and was eligible as such, pursuant to s 57(1)(b) Succession Act 2006 (NSW) (Succession Act). However, that was not admitted on the pleadings [44] . Ped describes herself as the “long-term de facto” to the deceased [45] , having a “long-term loving relationship” with him [46] . The deceased in his 2019 Will (see below) describes Ped as his “partner” [47] .
It is unclear precisely when they commenced a relationship. Ped’s evidence suggests it was shortly after she met the deceased in 2012 in Melbourne. The deceased emailed Timothy on 15 October 2013 as follows [48]

There is no doubt that the deceased was referencing Ped [49] . In cross-examination, Timothy intimated that he was aware from people and his mother that the deceased had been seen with “a young woman” [50] . On the face of that email, it appears that the deceased was responding to a query from Timothy. However, Timothy disputed that, indicating that he had not raised a “girlfriend” issue with his father [51] . In one sense it matters little whether the deceased volunteered the information or was responding to a query from Timothy. I think the more likely scenario is that the deceased was responding to some form of query from Timothy. In any event, the deceased’s relationship with Ped subsisted until his death - as a result of lymphoma, to which he sadly succumbed.
For quite a while after 2013, little was said by the deceased to his sons about Ped. It appears that Timothy did not alert Christopher at that point of time to what he had been told [52] .
The deceased alerted Mr Morton to his relationship with Ped in or about 2014 (or in any event Mr Morton thinks around the same time as the deceased informed Timothy about Ped) [53] .
Following the deceased’s separation from Robyn, he lived with his mother at Black Rock, Victoria [54] until about 2015 when he moved to Tweed Heads after accepting a role with Stone & Wood Brewery (Stone & Wood) based in Byron Bay [55] .
Ped indicates that the deceased asked her to move in with him. Initially they rented premises at Currumbin [56] it seems for about 6 months and then consequent upon the property settlement with Robyn (detailed below), he purchased a property at Stuart Street, Tweed Heads (the Stuart Street p****roperty) [57] . Ped worked as a massage therapist [58] .
Christopher only became incidentally aware of the existence of Ped when workers at Stone & Wood arranged for a surprise 70th birthday party for the deceased in August 2017 informing him that Ped was the deceased’s partner. He was gobsmacked about it as it was the first time that she had been described to him as such and says he had no idea about her [59] .
Christopher says that the deceased did not mention the existence of Ped to him until around 2018 stating “I*’*ve got a companion” (telling him Ped was aged 47) [60] . Timothy first met Ped in or about 2018 when the deceased and Ped came to Hawaii (where he was living at the time) for holiday [61] .
Timothy further states that he and the deceased “didn*’*t really talk about Ped” until the 2019 Will was made [62] .
Christopher indicates that Ped was never included in his father’s cards or notes to him for birthdays or Christmas [63] . Timothy’s evidence is to like effect [64] . The deceased (according to Timothy) referred to Ped as a “companion” but never described Ped as his partner [65] .
It appears that Christopher had not seen a picture of Ped until about 2020, during a Covid lockdown period. He recalls the deceased showing him a photograph which included “part of someone”. He asked the deceased who that was to which the deceased replied “that*’*s Ped” [66] .
The deceased worked with Stone & Wood until about December 2020 at which time (according to Christopher) he was forced into retirement consequent upon the sale of that business. He then worked for Two Mates Brewery, helping out as a casual brewer and later invested in Madocke Beer Brewing Company Pty Ltd (Madocke) working for that company based on the Gold Coast until he got too sick to work approximately in February 2022 [67] .
It was not until January 2023 that Christopher met Ped [68] . Christopher gave answers in cross-examination consistent with him being quite unaware of the deceased’s relationship with Ped for a lengthy period of time [69] .
The lack of information imparted by the deceased to the plaintiffs about Ped is explicable on the evidence of Mr Morton that at first, the deceased was quite shy about the relationship and the deceased told him that he did not wish to hurt Robyn, Christopher or Timothy but that he was happy [70] . This is consistent with Christopher’s evidence that the period following the deceased separation from Robyn was a “very hard moment in our life” [71] and Christopher’s reluctance to pry into aspects of the deceased life or even that of his brother [72] , or to bring back memories of what he understood about his father’s post separation liaisons. He stated [73]

The proceedings commenced in the context of urgency in which the plaintiffs on 28 July 2023 approached the Equity Duty Judge filing in court a Statement of Claim and Notice of Motion with a supporting affidavit of a solicitor in the employ of the plaintiffs’ solicitors.
The urgency in the matter arose in circumstances in which on 22 June 2023, the plaintiffs had caused a caveat to be registered on the title to the Property and on 10 July 2023, the defendant had caused a lapsing notice to be served. On 12 July 2023, the plaintiffs’ solicitors sought an undertaking that the defendant would not deal with the property until proposed proceedings were concluded. On 19 July 2023, a responsive letter from the defendant’s solicitors did not address such an undertaking, but in any event did not consent to the extension of the caveat.
On the application before the Duty Judge Hammerschlag CJ in Eq , his Honour made an order pursuant to r 7.10 Uniform Civil Procedure Rules 2005 (NSW) that the plaintiffs represent the estate of the deceased for the purposes of the proceedings. Further, upon the plaintiffs giving an undertaking as to damages, his Honour ordered an extension of the operation of the caveat on the Property pursuant to s 74K Real Property Act 1900 (NSW) up to and including 2 August 2023.
On 2 August 2023, in a hearing before Lindsay J, the caveat was extended until further order, and the defendant restrained from transferring, charging or otherwise dealing with the Property without the prior written consent of the plaintiffs of leave the Court with the plaintiffs undertaking not to interfere with the defendant’s quiet possession of the Property without the leave of the Court.
On 9 November 2023, the issue of a grant of probate to Christopher formalised his representation of the interests of the deceased’s estate. On 2 October 2024, Lindsay J gave leave to the plaintiffs to amend the Statement of Claim and the Amended Statement of Claim (ASC) was filed on 11 October 2024 – which is the final court process articulating the plaintiffs’ claims.
On 13 September 2023, the defendant filed a cross-claim which is the current document articulating the defendant’s claims. The plaintiffs’ initial claims sought declarations in various formulations that the property was held by the defendant either as to whole or one half on a resulting trust, or alternatively a constructive trust for the estate of the deceased, with a further or alternative claim for provision pursuant to s 59 Succession Act, relevantly seeking designation of the Property as notional estate. The ASC clarified the family provision claim was a claim by Christopher rather than Timothy and relevantly enlarged the paths by which the plaintiff sought to lay claim to interest in the Property by adding estoppel and oral agreement claims.
Essentially, those enlarged claims are claims that:
at the time of the purchase of the Property, the defendant made a promise to the deceased to leave her estate, or part of it, including the Property to the plaintiffs in her Will and was estopped from changing her Will;
on or about 17 March 2023, the defendant promised the deceased and the plaintiffs that she would transfer half of the Property to the plaintiffs and was estopped from changing her Will or retaining the Property in her sole name;
the deceased had made a Will without provision for the defendant pursuant to an oral agreement that in consideration for the defendant being a joint tenant of the Property she would leave her residuary estate, including the Property to the plaintiffs in her Will; and
the plaintiffs otherwise have an equitable interest in the Property which should be protected by way of caveat.
In relation to the plaintiffs’ claims regarding the Property, the defendant did not admit that the deceased had solely funded the purchase of the Property including stamp duty from his own resources, and further denied that she had made no financial contribution to its acquisition or in respect of its upkeep and maintenance. The defendant relevantly denied the plaintiffs’ claims that the Property was held on a resulting or constructing trust and other relief in respect of the promissory estoppel and agreement claims.
The defendant’s cross-claim sought family provision relief.

The plaintiffs’ principal claim for relief was in respect of a resulting trust regarding the Property. The other claims for relief were put as alternative claims.
The defendant did not advance any positive pleaded defence to the effect that there was a specific intention between the parties regarding holding of interests in the Property.
The submissions of the parties essentially focused upon the various claims for relief. In light of that, and having regard to the fact that the plaintiffs’ list of issues was framed that way and the defendant’s list of issues was not agreed to by the plaintiffs, I will address the issues on the proceedings by reference to the claims for relief as follows:
Is there a resulting trust in respect of the Property (Resulting trust claim)?
Is there a constructive trust in respect of the Property (Constructive trust claim)?
Is the defendant estopped from changing her Will based on a promise at the time of (or proximate to) the exchange of contracts of the Property in April/May 2019 (Promissory estoppel – 2019 purchase claim)?
Is the defendant estopped from changing her Will (or retaining the Property in her sole name) based on a promise on or about 17 March 2023 (Promissory estoppel - 2023 hospital discussions claim)?
Was there an oral agreement as between the deceased and the defendant at the time he made his Will (2 August 2021) affecting the Property and giving rise to equitable relief (Oral agreement claim)?
Are the plaintiffs entitled to other equitable relief in respect of the Property including relief that may be recognised by caveatable interest (Other equitable claim)?
Should family provision relief be made in favour of either Christopher or the defendant (Family provision claims)?
In relation to the above claims, there are several factual issues which the parties addressed relevant to their determination, relevantly including the following:
What is the proper characterisation of the deceased’s relationship with Ped?
Who as between the deceased and the defendant provided the funding for the purchase of the Property?
What was the deceased’s understanding of joint tenancy?
Broadly speaking, the questions which pertain to the parties’ claims and entitlements regarding the Property ought (at least in this case) to be determined first prior to addressing the family provision claims of Christopher and Ped. That is for two reasons. First, logically it is relevant to know what property forms part of the deceased’s estate or is capable of being designated as notional estate. The claims regarding the Property bear upon that issue. Secondly, each of Christopher’s and Ped’s family provision claims as noted below were a type of “backup” claim in the event that the claims in respect of the Property were determined unfavourably to them.

Mr Williams’ affidavit essentially deposed: (a) he had received a subpoena seeking the contents of the files he kept when he did work for the deceased; (b) he had produced to the Court the materials required by the subpoenas; (c) to his belief that notes (in those materials) were made contemporaneously during phone calls or conferences or shortly thereafter; (d) to his further belief that the contents (to the extent that they recorded conversations instructions or advice given) were accurate. His affidavit did not annex or exhibit any such records.
Certain materials from Mr Williams’ files had apparently been prepared for an earlier listing or hearing before Lindsay J in September 2024. Those materials had not been incorporated into the Court Book that I had directed to be prepared for the purposes of this hearing. Mr Brennan sought to adduce that material on the second day of the hearing. There was some debate about it. However, eventually Ms Bianchi did not object to tender of a bundle of documents (drawn from Mr Williams file) comprising 48 pages (pages 296-343) out of a much larger 739 page Supplementary Court Book that had been prepared for the listing before Lindsay J. That material was accordingly marked as exhibit D2.
Ms Bianchi did not require Mr Williams for cross-examination [94] .
Mr Brennan then observed that he would like to call Mr Williams to identify certain of the file notes and affirm that they were accurate or to answer anything vague regarding them, such as that which was written on page 303. His application in that regard had not been foreshadowed to Ms Bianchi and she opposed that course. I asked Mr Brennan whether he was seeking to reopen his case to call evidence from Mr Williams to which he responded that he was. Ms Bianchi opposed that. I provisionally indicated to Mr Brennan that I was not minded to permit it in circumstances in which the case had been progressed on the basis that there was no evidence from Mr Williams either annexing his file notes or explaining them. In those circumstances, Mr Brennan did not press the application to adduce evidence from Mr Williams [95] .

During the cross-examination of the defendant, it came to my attention, through my Associate, that the defendant’s solicitor (Ms Tangsilsat) was shaking her head before some answers were given by the defendant. I observed at least one instance of this myself.
At the time, my provisional impression was that the solicitor was facing the witness box and the shaking of her head was not some unassociated movement but connected to the question asked.
It is not necessary for me to form any concluded view about the matter. At the time, to avoid any possibility or risk that the defendant was being influenced regarding responses to questions, I simply made the observation that witnesses need to be able to give their evidence without influence from other people in the courtroom [96] .
I did not at the time take the matter further and I do not intend to take the matter further now.
However, it would be remiss of me not to reiterate that court proceedings should be conducted in a manner consistent with the solemnity of the occasion and facilitative of the administration of justice.
Foundational to the Australian legal system is the crucial principle that generally speaking, court proceedings are open to the public who are free to attend and observe justice being administered. Different roles are played by various persons within a courtroom setting. The different attendees within a court setting include the judge, the judge’s Associate and Tipstaff; a Court officer, a Court Reporter or Sound Recordist, the parties, the parties’ legal practitioners and other allied paralegals or assistance, friends, relatives, colleagues or other supporters of one or other of the parties, and lastly (but not least) members of the public.
During examination of a witness, essentially the only persons actively involved in that event are the examiner, the witness and the judge. During such examination, other attendees in court, whilst perfectly entitled to observe proceedings, should not audibly or visibly respond to questions or answers.
Non-exclusively audible or visible responses include gestural responses whether they be nodding of the head (up-and-down), shaking of the head (from side to side), facial expressions and hand movements, scoffing, or any other overt paralinguistic expression.
Intentionally or unintentionally, such overt responses to questions that are being asked by an examiner or answers being given by a witness gives rise to a grave risk that the witness will be inappropriately influenced such as responding to a question in a particular way or otherwise feeling judged or shamed. Similarly, an examiner may be influenced or deflected in some unacceptable way such as in formulating questions or refraining from asking particular questions.
Even in cases where there is no motivation or intention on the part of the attendee to influence or affect the proceedings in any way, the fact that the reaction has been made, may nonetheless have the objective effect of conveying disapproval of a question or an answer. For example, if the attendee reaction is in the form of some scoffing, it may act to shame the examiner or the witness.
If court attendees who are not involved in the examination of a witness are unable to control themselves to what is unfolding before them, they should leave the court room, at the very least do so temporarily, until they are able to compose themselves and, if they wish to return to court then to do so in circumstances where they are able to observe without demonstrable response.

The parties listed in the joint schedule property which is said to be notional estate as follows [108] :
Property $1 million (alternatively, 50% of the Property $500,000);
Funds in Bank Account from proceeds of the Australian Super Choice Account ($470,506.84), Australian Super Investment Account ($10,858.80) and Australian Super Insurance Account ($1,170.52) - together totalling $482,535.76 (Australian Super amounts) [109] ;
Funds paid to the defendant’s superannuation account $430,000;
Madocke shares (said to have been transferred in specie) $111,000; and
TWE shares (said to be sold and contributed to estate liabilities) $3,387.80.
I have simply recorded the above details. Subject to one matter, the contentions regarding either the whole or half of the property as being notional estate are explicable. No particular details have been provided regarding the second items relating to superannuation and insurance proceeds. Details regarding the payments constituting the total of $430,000 in respect of the third item are set out below. The fourth item has been included on the basis that it is distributed property. The basis for describing the fifth item as notional estate is unclear.
Ms Bianchi in POS stated that the Australian Super amounts have been paid to Timothy and Christopher equally [110] . That fact was not obviously disputed, and I will proceed on that basis.
No current title search in respect of the Property has been adduced in evidence. Nonetheless, the matter has been litigated on the basis that the title to the Property is now recorded in the sole name of Ped as the registered proprietor.
A significant aspect of the plaintiffs’ claims in the matter is their contention that Ped does not have an unqualified interest in the Property. They say she may remain or reside in the Property but is obliged to bequeath the Property to them. However, the value of such “right” to remain or reside is not the subject of valuation evidence.
The absence of evidence in that regard impacts upon the question of the value of any interest in the Property which may be able to be designated as notional estate.

There was some brief cross-examination of Mrs Johnson on the issue of the deceased’s and Ped’s move. Mrs Johnson was a little vague regarding timing. The evidence did not strongly support any timing other than the move in or about 2015 [334] . Mr Johnson’s best recollection was that the deceased and Ped moved interstate in 2013 [335] . However, I find that he is simply mistaken on that evidence.
I accept Ped’s evidence that the deceased spent some time staying with Ped in her rented accommodation in Melbourne. However, that was accommodation she shared with “some friend”. It is not clear to me that a de facto relationship existed in the period between 2013 and 2015 (or for much of that period).
Having regard to the deceased’s email communication with Christopher, it seems to me that by October 2013, Ped was more properly characterised as being the deceased’s girlfriend. The deceased (as noted above) lived with his mother in Black Rock until about 2015 when he moved to Tweed Heads (with Ped) after accepting a role with Stone & Wood, and rented in Currumbin.
Black Rock is located on the southern part of Victoria being one of the suburbs adjoining Port Phillip Bay. Tweed Heads on the other hand is close to 1700 km away on the far NSW coast essentially on the NSW side of the border and adjacent to the Queensland suburb of Coolangatta in the city of the Gold Coast. Currumbin is a little north of Coolangatta, Qld.
Living together of itself does not necessarily bespeak of the sort of commitment that might constitute a de facto relationship. However, a mutual agreement by a couple to move interstate or overseas to live together is a significant step.
The lack of focus of the parties on the detail makes fact-finding on it difficult. However, it seems to me that a de facto relationship [336] likely existed from close to the point of time at which the deceased invited Ped to move interstate with him and she committed to that momentous course.
On that basis, whilst the deceased and Ped may have had a relationship for about 10 years, it’s characterisation as a de facto relationship spanned approximately 8 years (2015-2023).

Ped indicates that as a couple she and the deceased contributed to household expenses. She says she paid for all the food and household groceries and when renting, they would take turns paying the rent. Ped indicates that the deceased would generally buy appliances and pay for electricity, water, gas, internet and council rates and strata levies. Sometimes she would give the deceased cash to pay for appliances in house [353] .
During the period of time that they lived the Stuart Street property, Ped indicates that she worked 4-5 days a week as a massage therapist (walking to work) [354] .
She worked in restaurants or doing massage therapy and she had an income of about $600 net per week from full-time work until about 2020 when because of back and shoulder pain she cut back work to 2-3 days a week and took home about $300 net per week. She had stopped working in the last 9 months of the deceased life (from about June 2022) to be with him and take care of him when he was sick [355] :
As at 22 November 2023, Ped had not worked since the deceased died nor sought or received any unemployment benefits and at that stage had no income. Her intention was to return to doing massage therapy part-time (because of her back and shoulder pain). She asserted that her earning capacity then was about $300 per week and her living expenses were about $600 per week (with a weekly shortfall of approximately $300 per week) [356] .
Ped, as at November 2023, says she had about $30,000 in savings. She stated that that amount was reducing due to legal expenses. She disclosed that she had at that stage (based on a statement as at 30 June 2022) $400,000 in superannuation. She indicated that when she reaches the age of 60 she said she will be eligible to withdraw (funds) from her superannuation [357] .
On 16 May 2025, Ped provided an affidavit updating her circumstances. She indicated that at that stage she was working as a massage therapist three days a week, earning about $1,000 a week. Her living expenses were said to total $536 per week and she had a loan of $40,000 for outstanding for legal fees [358] .

In relation to relevant presumptions when ascertaining beneficial ownership of assets, where there are family relationships and provision of purchase monies Ms Bianchi referenced the decision of Hallen J in Tjen v Bilic [2017] NSWSC 364 [385] .
In opening submissions, Ms Bianchi submitted that the presumption of a resulting trust arose [386] as follows.
The intention of the deceased at all relevant times was the Property was his and for it to ultimately go to his sons (such that the defendant did not take beneficial ownership and could not deal with the Property other than live in it by right of residence) - demonstrated in the conduct of the deceased, and the words spoken to the solicitor and family and friends as to ownership of the Property, in particular the deceased and Ped discussing each other’s Wills, their meetings with Mr Williams and the deceased knowing that if he was to die first, Ped would live in the Property and was giving the Property to the plaintiffs in her Will [387] .
To the extent that intention at the time of exchange is relevant, the deceased initially preferred to have the Property to his name, and following discussion the defendant wished to have her name on the title (despite not contributing any money towards its purchase) - the deceased’s email correspondence with Ms Spencer (20 May 2019 at 10:59 AM/11:00 AM; 8:43 PM) supporting this [388] .
Subsequent materials [389] show or are consistent with the above intention including: (a) correspondence as between Ms Spencer and the deceased on 27 May 2019; (b) the deceased’s and Ped’s 2019 and 2021 Wills; (c), payments to Ped’s superannuation; (d) the deceased’s statements to the effect that whilst the deceased could live in the unit it was for the plaintiffs and that Ped could not change Wills; (e) the deceased’s handwritten note dated 5 March 2023 and (f) the deceased’s reassurances to his sons that the Property would devolve upon them (and binding death benefit nominations [390] ).
Ms Bianchi submitted that if it be the case that Ped’s intention is relevant, her intention was not otherwise but in fact supported by her Will, her conversations with the plaintiffs and promises to the Deceased [391] .
In concluding submissions, Ms Bianchi contended as follows.
The relevant acquisition date was the date of settlement for the property (January 2021) but there was no real difference in the deceased’s intentions at any prior point of time (such as April 2019 when a holding deposit was paid or July 2019 when the balance of the deposit was paid) [392] .
Despite initial denial of the defendant that the deceased paid the entirety of the purchase price for the Property the evidence is that in fact did so [393] .
The defendant in cross-examination gave evidence consistent with an agreement that prior to the purchase of the Property or moving into the Property she would leave the Property to the plaintiffs in her Will – referencing answers I have outlined above at T 103, 105-107, 109, 111 [394] .
The deceased’s intention of regarding the plaintiffs’ eventual ownership of the Property (both at the time of exchange and settlement) was of the whole of the Property (not half of it) [395] .
The defendant had changed her Will out of spite to the plaintiffs [396] .

Prima facie and uncontextualised (without knowing anything else about a property or its acquisition), title of property is as it appears to be. Thus, beneficial ownership of real property is presumed commensurate with the legal title [448] .
However, as has been stated recently by no less authority than Kiefel CJ and Gleeson J, it is the concern of the courts to determine what was intended when property was purchased or transferred [449] .
Legal texts and cases advance propositions about the types of factual situation in which consideration is given to resulting trusts. It is unnecessary to be precise about how many types of situation may enliven such a trust [450] . On any view of it, it is clear that a classic situation in which consideration of the question arises is where one person provides the purchase price of property, which is conveyed into the name of another person, and the provider (or some other legitimately interested party) contends that beneficial ownership is different to the legal title.
In such a circumstance, a question ripe for determination by a court involves an enquiry about what actually happened in respect of what I will for present purposes loosely describe as the “transaction” by which money was paid and title registered.
Within the realm of legal fact finding, presumptions have a useful place.
Nonetheless, as I recently observed, in the context of succession law, under modern litigation, the use of presumptions and concepts of shifting evidentiary onus and prima facie cases, are largely deployed in the pre-hearing forensic decisions by parties as to what evidence will be adduced and have diminishing, if any, residual significance by the time that the hearing is completed and the judge is tasked with assessing the totality of the evidence [451] .
Likewise, judicial findings about who holds the beneficial interest in land are made with the assistance of presumptions [452] . The enquiry into intention of the relevant party or parties providing the purchase price is relevantly determined or established upon the whole of the evidence of the case [453] .
Legal principles evolve in a changing society. Two aspects of this bear significance. First, over time, conceptions about how people relate to one another in particular within families or close personal relationships evolve. Secondly, the lives of people in modern society and their communications with one another are very easily recorded through multiple forms of media. Both of those factors bear upon presumptions in different ways. The first factor regarding how people relate gives rise to legitimate questions regarding presumptions about how people, and in particular families or those people who are closely connected or related to one another act. The second factor regarding recording intentions, communications and conduct of people gives rise to the consequence that there is an increase in evidentiary sources by which those matters may be proved. Those matters and in particular the second matter have effect that the impact or materiality of presumptions will have limited practical significance - it being in only rare cases where the totality of the evidence is incapable of permitting relevant findings regarding intention to be made [454] .

For reasons which I am about to explain, I have found that the transfer of the Property into joint names occurred in the context in which the deceased agreed with the defendant to the defendant’s name being recorded on the title to the Property as joint tenants, on the basis that she would be permitted to live in the Property, with her to make a Will leaving the Property to the plaintiffs (Agreement).
In the event that I am incorrect in that finding, I find that the defendant promised or represented (without formal agreement) to the deceased that if the deceased arranged for the defendant’s name to be recorded on the title to the Property as joint tenants, with her being permitted to live in the Property for her life she would make a Will leaving the Property to the plaintiffs (Promise**/Representation**).
Prior to explaining my reasons it is appropriate to mention a few matters.
First, Ms Bianchi submitted that no presumption of advancement arises and Mr Brennan did not contend otherwise [481] .
Secondly, the defence of ‘duress’ was only pleaded by the defendant in relation to what was described in the ASC as “the Second Promise” claim (i.e. a promise said to be made on or about 17 March 2023). There was no claim of duress pleaded in relation to the events at the time of purchase of the Property or transfer of the Property into the names of the deceased and the defendant as joint tenants.
Thirdly, no defence was pleaded to the plaintiffs’ claim that there was a lack of intention between the deceased and Ped to create legal relations. There is no presumption against “family arrangements” giving rise to contractual legal obligations. Rather, the relationship of the parties and the circumstances in which an arrangement is entered into form part of the surrounding circumstances from which consideration is given to determining whether or not a contract came into existence [482] . Certainly on one view it would be unfair to the plaintiffs to determine the matter on the basis of lack of intention in circumstances where it had not been raised as a defence.
However to the extent that it is relevant, I am satisfied that if on the basis that there was an Agreement as between the deceased and Ped, it was intended to be relevantly legally binding such that if there was a breach of it that the deceased or a representative on the part of the deceased estate (or in this case relevantly the plaintiffs) would have legal recourse to seek to enforce the Agreement.
I find that the Agreement (or alternatively the Promise/Representation) was made prior to the date of settlement for the Property when the majority of the purchase funds were paid and the names of the deceased and Ped were recorded as joint tenants on a transfer which was registered in January 2021.
In making those findings, I have considered the totality of the evidence.
It is not necessary for me to make specific findings regarding the parties motives for acting as they did. However, I am left with a strong impression that when the deceased initially contemplated purchasing the Property, Ped raised with the deceased a concern about being secure for the future. The way the deceased and Ped sought to manage that was though the Agreement (or alternatively by her Promise/Representation) that in the context in which the Property being placed in joint tenancy (giving her a sense of security), she would leave the Property to the plaintiffs. This view of motives and intentions (if it be the case) is consistent with the deceased correspondence with Ms Spencer on 20 May 2019.
During her cross-examination at a number of points (which I have set out above) Ped acknowledged that at the time of “purchase” of the Property there was a discussion between the deceased and Ped that it would be placed in the names of both the deceased and Ped on the basis that the Property would go to (or be left) to the plaintiffs when Ped died by dint of Ped leaving the Property to them in her Will and not changing her Will [483] .
The precise timing of the discussion is a little elusive. However, Ped gave evidence that this occurred before they, “got the...new house” and “bought” the Property [484] and in any event before they “had moved in to” the Property [485] .
That evidence is at odds with Ped’s affidavit evidence about what occurred at the time of signing the contract. In that evidence (recounted above) she denied that she had made any promise about the Property and indicated that there was no discussion about Wills [486] . I find that her affidavit evidence was at the very least incomplete or simply false. She also indicated that when there was discussion about Wills at that time (i.e. at the time of signing the contracts) the deceased had told her that the “apartment is all yours without you having to worry about the will” [487] . I reject that affidavit evidence.
The evidence is contrary to the evidence that Mr Morton gave in which he intimated that when the deceased had told him about buying a unit of the plan that it would be a good investment for the boys or an investment for the future [488] . Mr Morton’s evidence which I accept is consistent with there being a discussion and agreement, which Ped accepted in cross-examination.
I find the Agreement (or Ped’s Promise/Representation) occurred prior to settlement and registration of transfer of the property on or about 12 January 2021.
The Agreement (or Ped’s Promise/Representation) - that his sons would inherit the Property through Ped leaving it to them, is consistent with the deceased’s correspondence with Ms Spencer. In his morning email dated 20 May 2019, the deceased raised a concern about joint ownership and expressed his wishes that the Property go to the plaintiffs when Ped dies [489] . His evening email of the same day instructing to keep the Property in joint ownership is still a context in which he has an expectation that his sons will inherit all or at least half of the apartment [490] .
The deceased’s correspondence with Ms Spencer on 27 May 2019, she having explained joint tenancy is consistent with the sons inheriting by reference to the deceased’s observation about making Wills “to cover all contingencies”.
There was some focus on the terms of the deceased’s 2019 Will. Upon reflection, without having evidence from Mr Williams regarding discussions in respect of it I am not persuaded that the terms of the 2019 Will provide any clarity regarding the Agreement (or Promise/Representation) in respect of the Property. At the time the deceased made the 2019 Will, he still owned the Stuart Street property but he had also paid a 10% deposit on the Property. It is not profitable to speculate about the deceased’s thoughts in respect of the Property from the terms of the 2019 Will. It suffices to observe that on one view it is not inconsistent with the deceased having Agreement with Ped (or relying upon her Promise/Representation) to complete the purchase of the Property in joint names with her to leave the Property to the plaintiffs via her Will.
Ped’s evidence about attending upon Mr Williams at the time of the “conveyance” of the Property [491] , as I have noted above was linked to drafting of Wills. On any view of it there was a gap of time between the making of the deceased’s Wills (whether it be the 2019 Will or the 2021 Will) and the so-called conveyance. If it be the case that Mr Williams explained to the deceased and Ped the effect of joint tenancy, the fact that the Property was ultimately transferred into the deceased and Ped’s names as joint tenants is explicable or at the very least consistent with the deceased having the Agreement (or her Promise/Representation) that in the event she survived him, she would leave the Property to the plaintiffs.
In light of Ped’s evidence in cross-examination, I reject her affidavit evidence that the deceased informed her at the time of finalisation of the purchase of the Property that she did not have to worry about the Will and that upon his death it would be her Property [492] , if she was intimating that she had no obligation to ultimately leave the Property to the plaintiffs.
The above evidentiary matters which are either prior to or contemporaneous with final acquisition of the Property as at January 2021 are sufficient to found the Agreement.
For the purposes of considering whether a trust arises, as indicated above, one looks at the time that the trust was created or before or at the time of the relevant transaction. However, the extent to which one may consider subsequent conduct (whether by statements or acts) as evidencing the Agreement was not the subject of any detailed submissions. There is a question as to what subsequent conduct could properly be taken into account as evidencing the Agreement.
However, as counsel referenced conduct after January 2021 as bearing upon whether some enforceable obligation (whether by agreement or otherwise) had been reached, it suffices for me to observe that the matters referenced are either neutral, or consistent with the Agreement or not necessarily inconsistent. In this regard I note the following.
The file notes of Mr Williams in July 2021, in the absence of any oral evidence by Mr Williams bearing upon the discussions he had with the deceased do not to my mind strongly or decisively counter the notion that there was an Agreement (or Promise/Representation) as I have found, as between the deceased and Ped – with the Property being placed in joint tenancy on the basis that she would leave the Property to the plaintiffs upon her death.
The deceased’s and Ped’s contemporaneous Wills dated 2 August 2021 are not inconsistent with such an Agreement (or Promise/Representation) and nor is the evidence of Mr and Mrs Johnson.
Each of the following matters (in chronological order) are either consistent with or not inconsistent with such an Agreement (or Ped’s Promise/Representation) on which he relied:
Timothy’s discussion with the deceased when Timothy first saw the 2021 Will in which the deceased indicated that Pete was to live in the Property until she passed and then he and Christopher would get it [493] .
Timothy’s evidence that his father’s indicated that the “condo” would go to the plaintiffs is “set in stone” [494] .
Mr Morton’s evidence that after the deceased was first diagnosed with cancer the deceased had informed him that ownership of the unit would go to the plaintiffs [495] consequent upon Ped leaving it or upon her death.
Mr Morton’s evidence that 6 months prior to his death (September 2022), the deceased informed him that Ped could live in the Property but she would not own it, rather it would go to the plaintiffs after she moved out or died [496] .
The deceased’s 14 December 2022 text that “Ped cannot change Wills”. [497]
The evidence of Mr Morton that 2 months prior to the deceased’s death (i.e. circa January 2023) he had a conversation with the deceased where the deceased said that Ped could live in the Property but if she moved overseas or died the Property would go to the plaintiff. [498]
The deceased’s handwritten note dated 5 March 2023 regarding the Property being Ped’s until she sold or died with the proceeds eventually to go to the plaintiffs [499] .
The deceased’s statement to Timothy over the course of the deceased’s final weeks that [500]

The discussions that took place in the Hospital in March 2023 are to my mind to be understood in the above context and an evolving situation in which the deceased was ill (and at least to some extent contemplating his mortality).
From the time that Timothy visited the deceased in the Hospital in early March 2023, he asserts that the deceased informed him that he wished to talk about his Will in the context in which Ped had been raising money concerns with the deceased including requesting him to transfer $40,000 to her [501] . Timothy’s evidence indicates that Ped was at least present at the Hospital at the time. It is not entirely clear whether he asserts that the deceased’s statement to him was in Ped’s presence or audible to her hearing. Ped for her part did not deny that she had asked the deceased about money or requested a sum of $40,000. Rather she simply states that the words asserted by Timothy were not said when she was present [502] .
I accept Timothy’s evidence that what the deceased said in early March 2023 about Ped raising money concerns is correct. She was unemployed at the time (she says – which I accept – she was looking after the deceased). Further, even on her own evidence a little later about mid-March 2023, Ped expressed concern about having monies to pay body corporate fees and mentions an assertion that the deceased told her he would give her $40,000 [503] . On 15 March 2023, on Timothy’s evidence which I accept there was further discussion about money with Ped asserting that “I need money to live, I want money in the bank”.
To be clear, I accept that in early to mid-March 2023, Ped was anxious about money and her security in life without the deceased. I find that Ped further raised the question of money with the deceased or at least requested the deceased for money in the sum of $40,000. It was not given and I reject her evidence that the deceased promised to give her that sum. I prefer Christopher’s evidence that the deceased denied her that sum [504] .
It seems to me that in the context of Ped raising her concerns about money and security, that in turn triggered concerns in the deceased about whether she would adhere to their (earlier) Agreement or her Promise/Representation. Further, in turn or alternatively, coincidentally, that gave rise to concerns on the part of the plaintiffs who were becoming cognisant of the fact that the Property was in joint tenancy and there being no formal documentation which evidenced what they understood to be the arrangement that they were to inherit the Property consequent upon Ped’s death.
Timothy’s evidence about what occurred on 15 March 2023 [505] with Ped voicing concerns about needing money to live on and wanting money in the bank is consistent with her expressing concerns about security and in that context I consider that it is both understandable and likely in that context that the deceased and the plaintiffs wished to have some assurance from Ped about what was to happen with the Property after the deceased’s death. It is understandable in the circumstances there was communication with Mr Williams to attempt to see if something could be formalised.
I remain unpersuaded that the deceased was confused about the effects of joint tenancy. However, I admit of the possibility that in the context of the parties discussions with the deceased at the Hospital the deceased may have become concerned that the effects of joint tenancy may permit or facilitate Ped not complying with the Agreement or Promise/Representation he had with her for her to leave the Property to the plaintiffs.
Ultimately, I am not satisfied that the discussions that took place within the last week of the deceased’s life represented any departure from the Agreement as I have found it. The deceased’s assertions according to the plaintiffs regarding what was to happen to the Property is consistent with them ultimately receiving it upon Ped’s death.
To the extent that on 17 March 2023 Timothy asserts that Ped agreed to transfer the property to them (which Ped concurs with) [506] , it seems to me that as she says it was in accordance with (or consistent with) her current Will and she was not given anything or promised anything in exchange for saying that. She says (and it could well be the case) that she wished to stop the fighting or argument over the matter at that time. In any event, I do not regard those conversations as materially altering the initial Agreement or Promise/Representation.

Ped’s cross-examination that I have set out above suggests that she and the deceased contemplated that she would live in the Property until she died and she would leave the Property under her Will to the plaintiffs. Thus termination of her right of residence was envisaged as occurring on her death and devolution to the plaintiffs would occur via her Will. The deceased’s communications with Ms Spencer also focused upon devolution to the plaintiffs upon Ped’s death [507] . Timothy’s evidence regarding what was to happen when he first saw the 2021 Will is to like effect [508] .
Slight variations on that appeared in the evidence of Mr Morton who indicated in his evidence, statements of the deceased that the deceased would make provision or arrangements (i.e. future) so Ped could live there “free of charge” until she wanted to move out or did move out or moved overseas or upon her death, “but that the ownership would be with Chris and Tim” [509] .
Another variation on the theme appears in the deceased’s handwritten note of 5 March 2023 which references the Property being for Ped “until she sells or dies” but also contemplating that she could change residences with the proceeds.
The deceased’s discussion with Christopher on 15 March 2025 is partly premised on the deceased asserting that the Property would eventually go to the plaintiffs on Ped’s death. However in the course of their conversation in which the deceased stated that he wished for her to be “secure in the house” Timothy raised the prospect of that occurring “until she doesn’t want to live there” [510] .
Ultimately, whilst the evidence of Mr Morton and the handwritten note of the deceased contemplate some form of termination of Ped’s rights prior to death and possibly some portable right of residence, it is not clear to me that those matters were or are necessarily part of the initial Agreement or Promise/Representation but rather something that the deceased contemplated after the settlement of the purchase of the Property and the transfer of the Property into joint tenancy.
The plaintiffs’ pleaded claim was to the effect that the deceased intended that Ped have “a right of residence and/or life estate in the Property…”. That was relevantly denied [511] .
However, for and on the hearing, the parties did not provide or closely explore evidentiary detail about whether the nature of the discussions between the deceased and Ped involved a form of life estate or right of residence for Ped for life.
I find that the Agreement between the deceased and Ped at the time of settlement of the purchase of the Property and the transfer into their names as joint tenants, or her Promise/Representation proceeded on the basis that Ped would have a right of residence in the Property until her death. I consider the better view is that it was a right of residence rather than what lawyers technically describe as a form of “life estate”. Thus, for example, there is no suggestion on the evidence that the deceased contemplated that Ped might leave the Property but nonetheless have the ability to rent it out and obtain income from it by that means.

That case which is essentially my alternative finding that there was a Promise/Representation is made out on my findings. Prima facie, I consider that it gives rise to and justifies declaratory relief and relief that the defendant be restrained from dealing with the Property by Will or otherwise contrary to her Promise/Representation with the deceased.
Whether that case is properly described as promissory estoppel or not, is a “nice” (i.e. interesting) question.
I have mentioned above various elements of promissory estoppel. It seems to me that at least on one view of the facts:
The deceased acted to place the Property in their joint names on the basis of the Promise/Representation by Ped to leave the Property to the plaintiffs in her Will.
The Promise/Representation by Ped (to leave the Property to the plaintiffs in her Will) was clear.
The deceased assumed the Promise/Representation was correct in that Ped would not enforce the technical legal rights that she might have as a joint tenant of property contrary to her Promise/Representation to leave the Property to the plaintiffs.
The deceased relied upon the Promise/Representation in effecting the Property into the joint names of himself and Ped.
The defendant by making the Promise/Representation in clear terms induced the deceased to rely upon it and in fact knew that he was relying upon it.
If Ped is allowed to depart from the Promise/Representation, the deceased’s estate would suffer detriment or loss in the sense that the deceased, if Ped had not made the Promise/Representation, would have taken steps to either legally formalise their arrangements so as to give Ped security of having a right of residence in the Property but subject to the remainder interest in the title of the Property being secured to the plaintiffs upon Ped’s death or other like action.
I mentioned above that Ms Bianchi belatedly raised characterisation of the plaintiffs’ rights by reference to the defendant being subject to an equitable personal obligation [512]

First, the provisions of s 54A Conveyancing Act were not pleaded as a defence. There is commentary (which in the absence of any submissions I have not explored) to the effect that a defendant who intends to rely on the section must plead it and that a bare denial of the contract is insufficient [514] .
Secondly, in formulating the list of issues, Ms Bianchi did not agree with Mr Brennan’s additional issues or in any event I did not understand her to agree that the effect of the provisions of s 54A Conveyancing Act being an issue. The matter was not debated. Conceptually, had it been formally raised well in advance of the hearing, the plaintiffs and their legal representatives may have taken different steps in the matter including exploring a reply of there being sufficient writing or part performance or other effective reply to such a defence.
Thirdly, the provisions of s 54A Conveyancing Act were not mentioned during the hearing and reference to that section is not recorded in the transcript.
Fourthly, Mr Brennan did not make any written submissions on the provisions of s 54A Conveyancing Act.
Fifthly, even if the provisions of s 54A Conveyancing Act were pleaded it is far from clear to me that that provision is applicable on the facts as distinct from s 23C Conveyancing Act. The applicability of those provisions is discussed at length by White J in Ciaglia v Ciaglia [515] , but was not the subject of any submission before me.
Sixthly, there is authority to the effect that s 54A Conveyancing Act (or other like potentially relevant statutory provisions e.g. s 23C Conveyancing Act) may not be relied on to perpetrate a fraud, where a party takes the benefit of an oral contract concerning land and then seeks to rely on the statute to defeat a claim [516] . There is certainly one view of the facts of this case that the applicable legal principles is that of a constructive trust and that otherwise it would be a perpetration of a fraud to allow the defendant to take the benefit of the joint tenancy.
In any event, it is not to be thought that lack of writing could stymie an outcome for the plaintiffs. Conceptually, a resulting trust may arise in circumstances where there is a failure of consideration. On one view of the facts, the deceased’s consideration for the Agreement was entirely executed with the Property being placed into joint names, he having solely provided the purchase price (or acquisition costs). Ped’s failure to ensure the Property is left to the plaintiffs is or would be a total failure of consideration.
Further, a constructive trust may arise in circumstances of unconscionability. Mr Brennan acknowledged that the appropriate remedy for a breach of promise to make a Will disposition is a declaration “that the executor of the defendant’s will holds the estate on constructive trust” citing Birmingham v Renfrew. Indeed, Mr Brennan submitted that the defendant has no resistance to a declaration to that effect [517] . It would be unconscionable for Ped to do other than bequeath the Property to the plaintiffs (this being essentially the tenor of Ms Bianchi’s constructive trust submissions). Lack of writing would on the basis of a constructive trust be irrelevant.
Lastly, to the extent that I am incorrect regarding the finding of the Agreement, it is clear from the analysis of the High Court in Waltons that the provisions of s 54A Conveyancing Act do not apply to outflank a promissory estoppel claim [518] .

On 1 July 2025, I directed the parties to provide any further submissions in relation to the form of orders or relief contended in the event that the Court were to find that the defendant holds her interest in the Property on a constructive trust subject to her having a right of residence in the Property by 4 PM on Tuesday, 15 July 2025.
Ms Bianchi emphasised that the plaintiffs’ principal claim was in respect of a resulting trust and, as I have noted above, reiterated that the plaintiffs’ intention is not to force the defendant out of the Property but rather to fulfil the deceased’s wishes that the defendant be looked after with the Property ultimately going to them [519] .
Mr Brennan, in making the concession that the plaintiff does not resist the declaration sought in ASC [6A], proposed that if the Court needs to make orders, that sufficient protection is found by making an order for the defendant to make a new Will on terms that [520]
names the plaintiffs as beneficiaries;
grants to the plaintiffs in equal shares of the Property;
provides that if the Property is sold and proceeds used to purchase another property, the plaintiffs are bequeathed the replacement property; and
provides that if the Property is sold and no replacement property is purchased, the proceeds, or assets of equivalent value, are bequeathed to the plaintiffs.
Mr Brennan indicated that if the plaintiffs’ representatives drafted a suitable Will to give effect to the above, the defendant would be prepared to execute it [521] . He also submitted that it was appropriate that the defendant “is restrained from revoking the new will except to the extent that any new will does not derogate from the provisions stipulated in these orders” [522] .
Ms Bianchi disputed that the simple declaration of a constructive trust was enough and contended that orders needed to be made to restrain the defendant from disposing of the Property at the very least by way of caveat or alternatively by injunction [523] .
Further, Ms Bianchi submitted that if the Court were to find or provide the defendant with a right of residence it should be on the following terms, namely that the defendant

Ultimately, I have found that that the transfer of the Property into joint names occurred in the context in which the deceased agreed with the defendant to the defendant’s name being recorded on the title to the Property as joint tenants, on the basis that she would be permitted to live in the Property and agreed to make a Will leaving the Property to the plaintiffs.
Despite the lack of evidentiary detail or exploration of evidence as to whether Ped’s qualified joint tenant rights constituted a form of life estate or right of residence, I have found that the better view of the evidence is that it was a type of lifetime right of residence.
There is a further problematic issue in that the parties did not provide or explore evidentiary details regarding whether Ped’s rights as a joint tenant (qualified by the Agreement) were and are on the basis of her paying certain property expenses, insuring the property and maintaining the property - as Ms Bianchi contended in PS3.
In the absence of express evidence dealing with the matter and absence of submissions, it is difficult for me to make any particular finding about the matter.
It is evident that during the deceased’s lifetime, the deceased paid all of those relevant Property expenses. However, there is no suggestion that the deceased did that because of an express agreement that he do so.
The case was not argued on the basis that Ped had an express obligation to insure and maintain the Property during her lifetime so as to ensure that upon her death the Property would be in an insured and maintained state to bequeath to the plaintiffs.
Provisionally, my view is that the appropriate relief in respect of the Property claims is to make a declaration regarding the Agreement between the deceased and Ped.
It seems to me that injunctive relief restraining Ped from acting otherwise than in accordance with the Agreement is appropriate. Mr Brennan acknowledged (as noted above) that injunctive relief may be ordered to restrain a change of Will.
Of course, Ped has already changed her Will. Mr Brennan appeared to accept that it was appropriate for Ped to formalise a Will which bequeathed the Property to the plaintiffs and that relief restraining her from revoking such a Will was appropriate.
Ms Bianchi, as I have noted submitted that a caveat or injunctive relief was appropriate. Mr Brennan resisted a caveat or any suggestion that some form of protection to the plaintiffs in respect of securing the property was appropriate.
It seems to me that in light of Ped having already once changed her Will, that injunctive relief is appropriate.
Further, it seems to me that the concern of the plaintiffs to ensure that Ped would not otherwise dispose of the Property can be met by the plaintiffs taking steps to have the injunctive order recorded on the title to the property by means of the Court orders being annexed to NSW Land Registry Services (LRS) ‘Request’ Form (Form 11R). Detail regarding that in the procedures is available from the LRS website [524] .

The initial introduction in the family provision Practice Note of a pro forma affidavit was purposely designed to elicit, at an early stage, essential information necessary to enable determination of family provision claims and, further, to emphasise the economy with which that information is to be given to facilitate the just, quick and cheap resolution of real issues in the proceedings. [540]
The purpose of the statement of the applicant volunteering to produce documents sought by the administrator was and is to avoid the scenario that applicants would annex or exhibit to affidavits in chief affidavits copious documentation such as bundles of bank statements, credit card statements, tax returns and other like documents evidencing various aspects of assets and liabilities or financial resources.
Consistent with the “just, quick and cheap” overriding purpose, the basic disclosure of financial information in summary form coupled with a proffer (if sought) of documents strikes a balance between basic proof of a claim and opportunity for legitimate testing of that claim.
The informal nature of how initial financial details are provided is entirely consistent with the specific terms of the Practice Note which permits proof of certain financial details, health issues or claimed material needs by informal means unless the Court orders otherwise or reasonable notice is given that strict proof is necessary [541] .
In light of the above, it is evident that there is no formal initial obligation on the part of an applicant to annex bank statements (or other) documentation to their affidavit in chief.
Financial details in applicant affidavits can be provided in forms other than that suggested by the terms of the pro forma affidavit.
Where administrators or opposing parties seek to test initial summaries or assertions of a claimant’s financial resources, they may do so through various means including requesting particulars or seeking documents. Parties are expected to engage in that process in a sensible and moderated way including by informal means.
It is not necessary or appropriate to attempt to enumerate all the various legitimate means by which appropriate disclosure and testing of such disclosure might evolve in any given family provision case.
Relevantly, there is a difference between a situation in which an applicant gives a brief summary of financial details (in the form exemplified in the PN7 pro forma affidavit, or other summary form broadly consistent with it) when on the one hand the applicant is thereafter resistant in whole or part to production of documents or providing any further details sought by way of particulars and on the other hand where the opposing party does not seek to test the details in any way nor seek particulars or production of documents.
Family provision litigation should not be conducted as it is a game or test of veiled forensic strategy. Parties are expected to actively identify and engage on real issues and not tiptoe around [542] questions of disclosure or leave faint footprints [543] in correspondence regarding disclosure without directly raising it or responding to it.

The evidence that I have outlined above from cross-examination suggests that Ped has a surplus of income of $400 per week. It was unclear whether that was a surplus after-tax or not. However, even if it was pre-tax, no details of her tax have been provided. She did not assert that her income is insufficient to cover her daily or reasonably foreseeable future needs. She did not assert that she was unable to pay for medical treatment or her health needs.
No details have been given of her loan for legal fees. I have not been told from what source the loan monies have been provided nor what (if any) arrangements have been made for when such funds are to be repayable (e.g. now or at some deferred later stage when she is able to access superannuation).
Ms Bianchi’s submission that it is not clear how Ped is qualified to purchase a restaurant or massage therapy business however does have significant force. Ped has not provided any details at all about the type of such business that may be available, the cost and the logistics of getting it up and running, and her ability to run it (other than the fact that I accept based on her other evidence that she is able to work as a massage therapist). However, performing massage therapy is very different from running a business, unless perhaps it was simply a business run from the Property.
As I have previously observed [563] , for the Court to meaningfully assess claims, appropriate detail (such as how the claimant’s existing position is said to be inadequate and what is sought be way of provision) ought to provided [564] . In particular where accommodation provision or advancement for a business venture provision is sought, that should be evidenced by details of that claim including costing. Failure to do so leaves the applicant at some risk that the claim may be dismissed.
Mr Brennan’s ultimate submission was as I have noted above that a “life tenancy” would be adequate provision for Ped. Ultimately, I have found that she has a right of residence in the property for life. Thus, on the face of it, she has secure accommodation. A life tenant may conceptually live away from a property but be entitled to rental income if the property is rented. However, Ped did not give evidence of value of the life tenancy or the rental value of the Property, nor other available accommodation for rent or purchase. Thus, it is not clear in a practical sense what precise material or financial advantages Ped might have arising from a life tenancy as distinct from right of residence for life.
There may be some cases in which a de facto spouse may be able to succeed in a family provision claim without any elaboration of the claim for provision or evidence supporting what is claimed. However, I do not regard this as being one of them. In light of the paucity of evidence, I am not satisfied that Ped has been left with inadequate provision and in any event even if I were so satisfied, I have not been provided with any submission as to what amount is claimed as an appropriate order for provision.
In relation to Christopher’s claim, in the event that I am incorrect in my finding regarding the Agreement and/or Promise/Representation, it is far from clear to me that it is appropriate to designate the Property as notional estate (even assuming for the moment that the various requirements for designation could be satisfied). Because the parties have sought to defer dealing with the question of costs, it is difficult for me to know precisely the effect of costs orders on the net estate (from which an order for provision could be made). Further, a difficulty with Christopher’s family provision claim is that it was not obviously advanced on the basis that provision would be made from the share of the deceased estate (i.e. apart from the Property) to which Timothy is entitled.
Christopher does have some disclosed needs. I might be prepared to make an order giving him some provision to assist him to some degree with payment of liabilities and his shortfall of income. However, in order to do so I would need to be provided with greater clarity regarding the effect of costs on the estate and further, what superannuation amount Timothy has received.
No submission was made on the basis that the funds that Timothy has received should be designated as notional estate. Possibly, that is because the plaintiffs’ legal representatives might be conflicted to some degree in advancing the claim that funds should be designated from one of their clients to make provision for the other. Yet, in the scheme of things, if any property were to be designated as notional estate, one obvious source of property available to make provision for Christopher is the superannuation funds distributed to Timothy, who has not put his financial circumstances in issue.
If the parties desire to address me further on the above matters, I would, or might be prepared to consider the question of notional estate further. However, as matters currently stand, in light of the dispute between the parties which they have required the Court to resolve, I would not make any family provision order.

Whittorn v Siu

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (12)

Cases Cited (64)

JUDGMENT

Introduction

‘A matter of trust’

Distrust consequences and outcome

Family/relationship details

Hearing, issues and procedural aspects

Parties and appearances

Court Book issues

Submissions

Pleadings and claims

Issues

Lists of issues

Real issues

Evidence

Standard of proof and weighing of evidence

Credit and reliability of witnesses

Plaintiffs

Defendant

Other witnesses

Mr Williams

Conduct of attendees in court during examination of witnesses

Will and estate

Wills

Estate

Notional estate

Costs

Property transactions and testamentary arrangements

2016 (settlement with Robyn and purchase of Stuart Street property)

2019 (Property purchase)

2019 Will

2020 (Inheritance distribution and stamp duty)

June 2020 (Christopher’s response to the 2019 Will)

January 2021 (settlement of purchase of the Property)

April-May 2021 (sale of the Stuart Street property)

June-July 2021 (superannuation contributions and testamentary instructions)

August 2021 (deceased’s and defendant’s Wills)

2020-2022 (deceased’s illness)

2021-2022 (discussions and correspondence regarding testamentary intentions)

January 2023- early March 2023 (visits and discussions)

Mid-March (testamentary discussions)

15 March 2023

Timothy

Christopher

Ped

GW&A notes

16 March 2023

Timothy

Christopher

Ped

GW&A notes

17 March 2023

Timothy

Christopher

Ped

GW&A notes

18-19 March 2023

20 March 2023

Deceased’s death and subsequent events

Further communication regarding the Property

Ashes

Phone and laptop

Notice of Death form and Ped’s new Will

Characterisation of the deceased’s relationship with Ped

Parties’ relationship with the deceased, health and financial circumstances

Timothy

Christopher

Relationship

Financial