Woodleigh v Williams

The Act

1. Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are "eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person". Section 58(2) requires an application for a family provision order to "be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown".
2. Division 2 of Part 3.2 of the Act deals with determination of applications for family provision orders. For the purposes of these proceedings, the relevant provisions are: 59(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. 59(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. … 60(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person, and (b) whether to make a family provision order and the nature of any such order. 60(2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased persons before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, … (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
3. In West v Mann [2013] NSWSC 1852 at [9]-[11] I explained the reasons for the approach I adopt to applications under the Act. That is how I will proceed in this case.
4. By reference to the language of the Act, the questions and issues which the Court must take into account are: 1. Is the person who has applied to the Court for a "family provision order" (as defined in s 3 of the Act) an eligible person under s 57 of the Act? In accordance with s 60(1)(a), the Court may (not must) have regard to the matters set out in s 60(2) in determining whether that person is an eligible person. It is not readily apparent how many of those matters could be relevant to the issue of eligible person, but nothing turns on that observation. 2. If the answer to question (1) is "yes", has the application been filed in the Court's Registry not later than 12 months after the deceased's death (ss 58(2) and (3))? 3. If the answer to question (2) is "no", has the eligible person who has brought the application shown sufficient cause for the Court to order otherwise to extend the date for the filing of the application in the Court's Registry (ss 58(2) and (3))? 4. If the answer to question (2) is "yes" or the Court has otherwise ordered under s 58(2), is the Court satisfied that the person in whose favour the order is to be made (the "applicant") is an eligible person (s 59(1)(a))? In reaching the requisite state of satisfaction the Court may (not must) have regard to the matters set out in s 60(2). As a theoretical matter this question admits of the possibility that "the person in whose favour the order is to be made" is not the person who has brought the application (in which case, the latter must also be an eligible person). 5. If the answer to question (4) is "yes", what provision has been made for the proper maintenance, education or advancement in life of the applicant by the deceased's will or by the operation of the intestacy laws (the "Provision")? 6. Is the Court satisfied, at the time when the Court is considering the application, that the Provision is not adequate for the proper maintenance, education or advancement in life of the applicant? 7. If the answer to question (6) is "yes" (i.e. the Court is satisfied the Provision is not adequate for the specified purpose) then the Court's discretion conferred by the chapeau to s 59(1) to make a family provision order in favour of the applicant (the "Discretion") is enlivened. 8. Once the Discretion is enlivened then, noting s 59(2), what provision, if any, does the Court think ought to be made for the proper maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made (the "Proposed Provision")? This is an evaluative judgment which arises from the word "ought" and requires examination of the applicant's needs. In making this judgment the Court may (not must) have regard to the matters set out in s 60(2) ("the nature of any such order": s 60(1)(b)). 9. Having answered question (8), should the Court exercise the Discretion to make an order for the "Proposed Provision"? In deciding whether to exercise the Discretion to make such an order, the Court may (not must) have regard to the matters set out in s 60(2) ("whether to make a family provision order": s 60(1)(b)). 10. Section 60(2) provides a helpful checklist but it is no more than that. The Court is not obliged to take those matters into account. The extent to which it does (if at all) will depend upon the facts of each particular case. 11. Section 60(2)(p) confirms the breadth of matters the Court can take into account. Once enlivened, the Discretion is expressly fettered only by the requirement in s 59(2) that if an order is made, it must be such order "as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made". The Discretion is otherwise unconfined, which means that in answering question (8) the Court is otherwise constrained only by the need to act judicially, that is to say "not arbitrarily, capriciously or so as to frustrate the legislative intent": Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ. The Court must act rationally and exercise the Discretion for the purpose for which it was conferred. Insofar as Anne applies for a notional estate order, in the circumstances of this case the Act requires a further seven questions to be answered: 1. Is a family provision order to be made under Part 3.2 of the Act (s 78)? 2. If the answer to question 12 is "yes", did the deceased enter into a relevant property transaction specified in s 75(1) of the Act (s 80)? 3. If the answer to question 13 is "yes", was the relevant property transaction entered into before the deceased's death as specified by s 77 of the Act (s 80)? 4. If the answer to question 14 is "yes", was the relevant property transaction one to which s 80 of the Act applies by virtue of s 80(2)? 5. If the answer to question 15 is "yes", does the relevant property transaction meet one of the criteria set out in s 83(1) of the Act? 6. If the answer to question 16 is "yes", is the Court satisfied of one of the matters set out in s 88 of the Act? 7. If the answer to question 17 is "yes", has the Court considered the matters set out in s 87 of the Act?
5. Having identified what I consider to be the correct approach under the Act to an application of this kind, I will make some preliminary observations and then deal with the credit of the witnesses before setting out the facts.

Preliminary observations

1. At the date of Dorothy's death, her liabilities totalled $200.48 consisting of an outstanding amount to Telstra and a pharmacy bill. The following amounts had been paid out of the Estate at the commencement of the hearing: 1. $1,391.06 for legal costs relating to the grant of probate 2. $17,500 for legal costs relating to the current proceedings 3. $795 for funeral expenses 4. $1,195.50 for the costs associated with the disposal of Dorothy's ashes 5. That left an amount of $21,371.67 being held on trust by the defendants' solicitors at the commencement of the hearing before me. The evidence at the end of the four day hearing was that there is an amount of $68,500 owing to the defendants' solicitors on a solicitor-client basis. It was not disputed that the Estate was insolvent.

The witnesses

1. Mr Liebhold submitted that Anne was not a truthful witness. He drew attention to various parts of her evidence which contradicted her affidavit evidence and changed again throughout the course of her cross-examination. Those parts included her address, the number of persons with whom she was cohabiting, the address of her husband (from whom she is separated), her assets, her liabilities, the number of bank accounts she held, her rental costs and her ability to use a computer.
2. When I asked her what she wanted from the litigation, she said [T70:37- T71:25]: LIEBHOLD Q. Ms Woodleigh, what - since you've made some statements about what this case is about, would you tell the Court what you think this case is about? A. I think it's about fairness. HIS HONOUR Q. What do you mean by that answer, Ms Woodleigh? A. Beg your pardon? Q. What do you mean by that answer? Why do you say this case is about fairness? A. Because I believe that that's the way things should go. It should be fair all the way down the line. Q. And what does that mean-- A. Where one person is not disadvantaged over and above the other person. Q. And what does that mean in your case here? What would be a fair outcome according to you? A. That I have enough to survive with in the future, so I can pay my way. Q. How much do you say that is? A. Well, the future it's an unknown to anybody at this stage. Q. Well, if you're right, I'm going to have to work it out, so I'm very interested to hear what you say it is, Ms Woodleigh? A. Well, I've got - I've got my rent that I have to pay. I have to eat. I've got my car registration. I will have to insure my vehicle. I don't have vehicle insurance at the moment. I have a pre-paid mobile phone I have to pay for myself and then I'm basically left with nothing, over and above all my other expenses. I've got my medication. Q. Are you a pensioner so that you get some allowance with your medication? A. Yes, we do. We get it for - well, you have to make the chemist aware, but-- Q. Well, you do, don't you? You tell them you're a pensioner? A. We do. They've - they've brought it back to $5.20, yes. This week. But that's only if you make them aware of it.
3. These were all matters which her present circumstances are able to meet although with little left over [T77:3- T202:50]: LIEBHOLD Q. And do you notice at some point in the past 18 months that the amount that you were receiving regularly as a pension from Centrelink had increased? A. Mm. Q. You noticed that it increased but you didn't - you weren't able to tell even in approximate terms how much the increase was? A. It didn't, didn't bother me, to be honest with you, and I can't be anymore truthful than that. Provided I had enough money each fortnight for my rent, to for power, food and every other expenditure that I had, I was happy. Q. And the fact is that both then and now you've got that, haven't you? You manage to meet all your expenses every fortnight? A. I do but at the end of each fortnight I'm left with nothing. … HIS HONOUR Q. Mrs Woodleigh even if it's not gambling, am I to take it then that at least your resources permit you to spend that money that you take out in UBET on your discretionary expenditure? A. Exactly your Honour and with that as stated I have no faith, even ..(not transcribable).. the year as well, and I have - I always provide for my grandchildren and if I've got the cash on me at the time rather than going to an ATM or - which I, I don't like doing - on the way home I draw the money out the UBET account or TAB account so that I've got the cash on me for the next day in the event that if I'm maybe out and about and I see something on special that's, that's a good and reasonable buy that I can afford for my grandchildren I either layby it or I purchase it there and then on the spot."
4. More tellingly Anne went on to say that her reason for bringing the proceedings was because she considered the beneficial dispositions to be unfair [T201:22-T206:15]: LIEBHOLD Q. I'll stop you there. The evidence you have given to his Honour that your basis for making this claim is that you don't have enough funds to cover your basic human needs on a week to week, month to month basis is false, isn't it? That's a yes or no question. A. Can you put the question to me again, please. Q. Yes. You told his Honour in your evidence during this hearing that the reason that you have brought this case is that you need funds to cover your routine, basic human needs such as food and other recurring expenses. A. Plus putting a roof over my head, and the reason that we are in court is not totally for that. As I said to your Honour yesterday, he asked me how did I see it, and I said I saw the whole situation as unfair, when there are another two siblings that should have been considered. Q. So are you now saying that the case is not only about fairness in relation to you? A. I'm saying it should have been in fairness in relation to myself and my other two siblings as well. HIS HONOUR Q. Even though they have apparently taken no interest in the proceedings? A. Exactly. That was their choice your Honour. Q. Yes? A. They were given a choice. … FANTIN Q. You recall being asked a question by the Court or my friend in relation to the fairness about this? A. Yes, I do. Q. What is unfair about this? OBJECTION. QUESTION ALLOWED. Q. What is unfair? A. It's-- HIS HONOUR: About this. FANTIN Q. About this? HIS HONOUR: About what's happening now, is that what you're asking? FANTIN: Yes. WITNESS: I think the whole situation is unfair and very, and very sad. Sad to the fact that it had to get to this point. Sad that my other - my siblings are out on their own. My, my actual sister is in more need than myself but that obviously - and our needs had not been taken into consideration by my brother, Robert, who has only been thinking of his own needs all the way through and that's all I have to say.
5. The Court accepts Mr Liebhold's criticism of Anne as a witness. The Court's overall impression is that Anne has long harboured deep resentment towards Robert and Andrea both during Dorothy's lifetime and now in death. Anne clearly felt that Hugh and Dorothy had shown undue favouritism to Robert and Andrea in connection with the Family Property. Her evident animosity to her brother and his wife did not give the Court any assurance her evidence could be relied on in relation to any matter of controversy. The Court concludes that Anne was and is so jaundiced by her resentment that she cannot be relied on as a witness of truth against Robert's interests unless her evidence is independently corroborated or is against interest.
6. James impressed me as an honest and reliable witness. He had met Hugh many years before through the scouting movement. He had been asked by Dorothy to be her executor. He was not a beneficiary under the will and was independent of the parties. He had no reason not to tell the truth and the Court accepts his evidence.
7. Robert also impressed me as a truthful witness. He answered in a straightforward manner and remained consistent in his evidence under cross-examination. He was frank in his admission that there had been no love lost between him and Anne for many years.
8. Andrea is clearly a business-like, no nonsense person. Robert left her in charge of the family finances because she was obviously well suited to that task. I was left in no doubt of her candour. She did not seek to paint her relationship with Dorothy as idyllic and volunteered that they had words from time to time. She also was entirely believable in her description of the pain she had felt as a result of being called unflattering names by Anne. Her evidence that the family kept large amounts of cash "in a sock drawer" struck me as entirely credible, particularly in an era years before the age of electronic banking.

Anne

1. Anne told the Court that she needed $350,000 - $450,000 to purchase her own accommodation. It was unclear whether she was content with the 2004 Hyundai Elantra that she had recently purchased for $500 or whether she pressed for $15,000 to purchase a new car. The Court will assume that she presses for a new car.
2. Anne is in receipt of a disability support pension of $1,780 per month and, by the conclusion of her evidence, it was established that she has an expenditure of approximately $1,327.87 per month. This leaves her with approximately $510.93 of discretionary income per month.
3. Anne has two adult children who are not dependent on her. Her asset pool is very small: 1. Motor vehicle - $500 2. Household furnishings - $1,800 3. Jewellery - $2,300 4. Savings - $500
4. She has $1,000 of outstanding debt owed to Centrelink.
5. Anne lives in rental accommodation for which she pays $200 per week. She shares that accommodation with two other persons, one of whom is her step-daughter. Despite this, Anne submitted, and the Court accepts, that she is financially independent from those with whom she cohabits.
6. Anne is separated from her husband.
7. Anne's evidence is that in 2006 she had a 'falling out' with Robert and since that time has stayed away from the Family Property.

Robert

1. Robert is 62 years old and lives with his wife Andrea McDowell ("Andrea") on the Family Property. Robert is in receipt of a disability support pension of $640 per fortnight. Andrea receives a carer's pension of $644 per fortnight and a carer's allowance of $121.70 (it is unclear if this is a weekly or fortnightly payment but nothing turns on the matter). Robert and Andrea's assets are as follows: 1. Family Property - $825,000 (this figure is derived from James' executor's affidavit of March 2015 which refers to a recent appraisal of the Family Property) 2. IAG shares - $10,000 3. Robert's car - $4,000 4. Andrea's car - $5,000 5. Savings - $1,800 6. Household furniture - $10,000 7. Caravan - $1,000
2. Robert and Andrea's only liabilities are the monies owing to their solicitor in this matter. At the conclusion of proceedings, those costs totalled $47,128.33.

Uncontroversial matters

1. Because Anne is Dorothy's daughter, she is an eligible person under s 57 of the Act. The summons was filed less than 12 months after Dorothy's death. It follows that the questions set out in sub-paragraphs (1), (2) and (4) of paragraph [12] above are all answered "yes".
2. The Provision referred to in the question posed in sub-paragraph [12(5)] above is a quarter of the residue of the Estate and half of Dorothy's remaining jewellery. At present, the residual Estate is comprised of $21,371.67 being held on trust by the solicitors for the defendants along with some personal effects of little known value. If the Court indemnifies the Estate in these proceedings, there will be no remaining cash.

Arrangements in relation to the Family Property

1. The most significant and controversial factual matter in these proceedings was Robert's claim of his expectations and interest in relation to the Family Property.

The $30 fortnightly payments

1. It was Robert's evidence, and the Court accepts, that in 1973 Robert and Hugh agreed that if Robert made payments of $30 per fortnight to Hugh, he would be repaid that money upon Hugh's retirement. The Court also accepts that the logic behind the arrangement on Hugh's part was to forego more of his salary into his retirement fund so that his final payout figure would be higher.
2. Robert dutifully paid Hugh $30 in cash every fortnight for the decade that followed until December 1983. At this time, Hugh and Dorothy were living together at a property in Seven Hills (the "Seven Hills Property") which was encumbered. Hugh had acquired two and a half years' worth of accumulated leave and planned to retire early on half pay for five years. Upon retirement, Hugh and Dorothy moved up to Budgewoi where they owned another house (the "Budgewoi House").
3. Robert's evidence, which was not tested further, was that he owned a third share of the Budgewoi House. Although nothing turns on this, the Court accepts that Robert's share was likely held on trust for him as a result of his monetary contributions to Hugh. When the Budgewoi House was sold later in 1985, Robert's third share of the proceeds of sale were incorporated into the newly acquired Family Property as payment for the electricity connection.

The Seven Hills Property mortgage payments

1. In 1978, Robert and Andrea married and Hugh asked the newlywed couple if they would move into the Seven Hills Property and service the mortgage instead of paying rent, which Hugh considered to be a waste of money. For the next three years, until 1981, Robert paid the mortgage on the Seven Hills Property which amounted to $30.69 per month. Additionally, for this period he paid the outgoings.

The $50 weekly payments for spending money

1. In December 1978, Hugh started to need additional spending money to get by. Robert began paying him $50 per week to top up his (Hugh's) half pay. This continued until 1985.

The purchase of the Family Property and construction of a home

1. In 1980 Robert decided that he would prefer to live in a rural location and Hugh told him to pick a block of land that he (Robert) would like to live on. Robert made that selection and on 5 September 1981 the Family Property was purchased. Hugh and Dorothy appeared on the title as joint tenants.
2. The money to purchase the Family Property came from a retirement cheque that Hugh received for between $40,000-$50,000 (doing her best, Andrea could not recall the exact figure). The purchase price of the property was $36,700 which left between $3,300 and $13,300 in reserve. The Court accepts Robert's evidence that the cheque was understood by him and Hugh to be the repayment to Robert of the payments he had been making to Hugh.
3. Upon moving out of the Seven Hills Property, Robert and Andrea lived in a caravan on the Family Property while their home was being built on the site. They paid for all of the building work that took place. I accept Andrea's evidence that the contract for the building work (which was in evidence) was in Dorothy and Hugh's names at the builder's insistence because they were on the title to the Family Property. Whilst the Court was not shown every receipt that would have accounted for the construction of the home, I am satisfied, from the receipts that were tendered, and from Andrea's account of events during her oral evidence, that Robert and Andrea did in fact pay for the construction of the house on the Family Property. The absence of many receipts after 35 years is unsurprising. I accept Andrea's evidence that part of the funds came from cash reserves that Robert "kept in his sock drawer".
4. The receipts that were tendered included the following: 1. Roof - $9,000 2. Water pumps - $1,149 3. Air conditioning - $2,148 4. Sheds - $3,270 5. Hot water system - $1,100 6. Electricity connection - $10,760 The Court has excluded from its consideration receipts in respect of items such as lawn mowing equipment because these depreciable items are not fixtures.
5. In 1985 Hugh and Dorothy sold the Budgewoi Property with Robert's third share of the sale proceeds going to pay for the electricity connection for the Family Property. Hugh and Dorothy purchased a mobile home and lived in it on the Family Property close to Robert and Andrea's house. By 2005 Andrea had become Dorothy's carer.
6. It was submitted on behalf of the defendants, and is accepted by the Court, that the total value of the ongoing monetary contributions made by Robert to his father in addition to the cost of the purchase of the Family Property and construction of the house exceeded $90,000.

James' evidence

1. Robert's and Andrea's evidence about the contributions and arrangements in relation to the Family Property was corroborated by James' evidence, which the Court accepts. In particular, James' evidence was that Hugh told him "If it wasn't for Robert we would not be in the financial position we are in. Robert has been topping up my retirement fund and when we are a bit short of a quid he helps us out". Hugh also said "Now that I am retired and on half pay and the pay is a lot less, Rob is helping me out by making sure I have enough to retire on. Plus he even owns a third of the place up at Budgewoi". Finally, James recalled Hugh saying not long after Robert and Andrea had built their house on the Family Property, "This place belongs to Rob for all the help he's given me and continues to give me". James also gave evidence that Dorothy had told him in or about July 2008 (being after the events recorded in the next section of these reasons) "Robert has done so much for Hugh and me over the years, like when he helped top up Hugh's super payments".

The joint tenancy

1. Mr Fantin submitted on behalf of Anne that Robert influenced Dorothy to enter into the joint tenancy between them for the Family Property after a family dispute. While the Court does accept that some kind of negotiation occurred between Robert and Dorothy that involved each of them engaging separate lawyers and Robert lodging a caveat over the Family Property, the Court does not accept that the joint tenancy was entered into as a result of any undue influence on the part of Robert. Rather, the Court is satisfied that the tenancy was created to reflect Dorothy's and Robert's mutual intention that Robert was entitled to the full beneficial interest in the Family Property on Dorothy's death. This is clear from the first piece of correspondence between the solicitors evincing a clear agreement between Dorothy and Robert to create a joint tenancy which predates the lodgement of the caveat.
2. Nevertheless, I will set out the evidence in respect of the lodgement of the caveat. 1. On 1 March 2006, Robert McKeown, Robert's solicitor, wrote to Dorothy's solicitor, John Mann as follows: We are instructed that our client and your own have had discussions whereby it has been agreed upon that a joint tenancy is to be created in respect of the property situated at and known as 432 Sackville Ferry Road, Sackville North. We look forward to receiving confirmation of this agreement from your office along with an executed transfer for lodgement with the LPI. 1. On 29 August 2006, Mr McKeown wrote to his agents as follows: Would you kindly tend (sic) to the registration of the enclosed Caveat. We enclose our cheque in the amount of $79.00 being the prescribed fee. We look forward to receiving the registered caveat in due course. 1. The caveat records the following details: The Caveator's interest arises out of substantial financial contributions to a preceding property from 1978 - 1981 owned by the Registered Proprietor (and her husband) and further financial contributions to the present property to date in accordance with a verbal agreement between the parties for the Caveator to take title to the current property upon the death of the Registered Proprietors. 1. On 4 September 2006, Mr McKeown wrote to Robert and Andrea: We refer to the above matter and confirm that we have today received notification that your caveat has been registered with Land and Property Information. We have forwarded your application for legal aid to the LAC for determination and will advise you of their response in due course. If you have any further queries in respect of your matter please do not hesitate to contact the writer. 1. On 21 September 2006, Mr Mann wrote to Mr McKeown: We have been consulted by Mrs Dorothy McDowell in regard to a caveat lodged by you on behalf of Robert and Andrea McDowell over our client's property, XXX, Sackville North. On our instructions, there is no basis upon which your clients are able to maintain a caveat. Could you please advise as follows; 1. Identify the financial contributions allegedly made to a preceding property: a. for the period 1978 to 1981; b. the amounts paid; c. when paid; d. to whom paid and; e. on what behalf those amounts were paid; f. the property for which the contributions were alleged to be made. 2. Identify the further financial contributions alleged to have been in respect of the present property: a. to date; b. the amounts paid; c. when paid; d. to whom paid and; e. on what behalf those amounts were paid; f. the property for which the contributions were alleged to be made. 3. In relation to the verbal agreement alleged between the parties please identify: a. on whose behalf that agreement was made on behalf of the caveator; b. on whose behalf such agreement was made on the part of the registered proprietor; c. where did such agreement take place; d. when did such agreement take place; the conversations on which you say an agreement arises; e. on what basis it is alleged that the caveator will take title of the property on the death of the registered proprietor. Would you please provide the above information within the next seven (7) days. Unless it appears from the material you provide that there is some substantial basis for your client to have a caveatable interest, a lapsing notice will be applied for immediately. 1. On 12 December 2006, Mr McKeown wrote to Mr Mann as follows: We refer to the above matter. We are instructed that our respective clients have had direct discussions in respect of this matter where your client has indicated that she is not opposed to our client's request that he be placed on title as joint tenant with your client. We await your confirmation of the above instructions. 1. On 27 April 2007, Mr Mann replied to Mr McKeown: We are instructed that our client will agree to a Transfer of an interest in her property whereby she and your client will own it as joint tenants. Would you please submit to us a form of Transfer duly stamped and executed by your client and we will arrange for the signature of this by our client. We hold the Certificate of Title and, when the document is ready for registration we will attend to this. We are further instructed to hold the Certificate of Title after registration has been complete.
3. There is no evidence to support the suggestion that Robert exerted pressure upon Dorothy before the first letter dated 1 March 2006 (set out in paragraph [48(1)] above). The request for particulars (see paragraph [48(5)] above) suggests there was a disagreement between Dorothy and Robert. Robert says that there was no dispute. Even if there was, the resolution of that dispute does not naturally lead to an inference of improper pressure, particularly given that Dorothy engaged her own solicitor. An equally available explanation is that put forward by Mr Liebhold: that Dorothy, as older people have a tendency to do, said one thing to Robert, something different to Anne and something different again to her solicitor. Even if there was a dispute, the independent circumstances that have been proven (see paragraph [54] below) support Robert's version of events that justifies Dorothy ensuring he ultimately received the entire interest in the Family Property.
4. On 24 July 2007 Robert and Dorothy made statutory declarations for the Office of State Revenue in respect of the stamp duty that would be payable on the transfer to Robert of an interest in the Family Property. The copies in evidence before the Court were file copies. Robert's statutory declaration was unsigned and undated with the exception of "July 2007" written in the execution clause. Dorothy's however, was signed, dated and witnessed.
5. Robert's statutory declaration said: 1. In the early 1970s my father, Hugh McDowell, approached me at our (then) home in Seven Hills and made me an offer. The offer was as follows; If I paid $30.00 per fortnight into my father's retirement fund then later on I would reap the benefits of contributing to his retirement by taking a share in one of his and my mother's properties. 2. I agreed to this at the time and commenced to assist my father by paying the $30.00 per fortnight into his retirement fund. This contribution continued for some 5 ½ years. 3. Whilst the agreement was made before I met my wife Andrea, the contributions continued after I met and married Andrea. 4. Some time afterwards my father informed me that he wanted to retire early and intended to use his accumulated leave and long service to do so. He and my mother moved up to their property in Budgewoi. As he needed to go on half pay to leave work early yet still had a mortgage on the Seven Hills property, my father asked Andrea and I to move into the Seven Hills property and continue to pay out all outgoings on the property as well as my father's war service loan. In addition my father requested I pay him and my mother an additional $50.00 per fortnight to "top up" his ½ pay so that he and mum could live comfortably. We did this on the understanding with my father that ultimately we would receive the Seven Hills property as our own and my parents would retain the Budgewoi property as their own. 5. After residing in the Seven Hills home for some time I informed my parents that I would like to live in a rural area again. My father received his retirement fund payout and informed me that we should look for some rural land to buy, which we did. 6. We found a block of 25 acres at Sackville North (our current home) and it was agreed between my parents and myself and my wife that we would purchase the land. My father and mother were the only parties to go on title to the Sackville North property despite the agreement that it was being purchased for myself, my wife and our children. The purchase settled in July 1980 and we spent our weekends and school holidays there until taking permanent residence there in September 1981. At this point my mother and father and I decided to sell the Seven Hills property and build our home at Sackville North. 7. Andrea and I paid all outgoings on the Sackville North property. In addition we paid for the building of tanks and fencing. During this time we were of the understanding that this property was to be our home and property and not my mother and father's. 8. From September 1981 until March 1982 my wife, children and I resided in a caravan on the Sackville North property until the house that we paid for was built. The home was constructed by Huxley Homes and we still have all the documents and receipts regarding this transaction. Attached hereto and marked with the letter "A" is a copy of all those documents and receipts. 9. For about 5 years we lived alone on the Sackville North property with no electricity (as we could not afford it). My mother and father decided to sell their Budgiewoi property and move onto the Sackville North property to be closer to us and their grandchild. They purchased a mobile home (which my mother continues to reside in to this day) and placed it on the property a short distance from our own home. 10. My mother and father never resided in our residence during the time they lived (and continued to live) on the property. 11. Recently, discussions with my mother have resulted in mum agreeing to transfer the title into our joint names (that is her and I as joint tenants) as a result of my contributions to the various properties and retirement fund over the past years in accordance with our original agreement. 12. I understand that in order to do this Transfer I will be liable for stamp duty for half the value of the property and as such I obtained a valuation from a registered valuer in order to ascertain the value of stamp duty payable upon transfer. Attached hereto and marked with the letter "B" is a copy of that valuation. 13. The valuation indicates that the total value of the property and improvements is $600,000. The valuation does not include the mobile home (in which my mother resides (my father having passed away some years ago)) as it is not a fixture on the property. 14. The remaining improvements on the property were erected by myself and my wife since we commenced living on the property and as such we believe we already own those improvements, namely our home and the other buildings. Attached hereto and marked with letter "C" is a copy of receipts for purchase of these improvements. 15. We request that the stamp duty be calculated on the value of the land alone, without taking account of the improvements. Therefore we request that the Office of State Revenue calculate stamp duty on the amount of $250,000, being half the value of the land alone.
6. Dorothy's Statutory Declaration said: 1. I have read the contents of the Statutory Declaration of my son, Robert McDowell and agree that the content of that Statutory Declaration is correct. Attached hereto and marked with the letter "A" is a copy of that Statutory Declaration. 2. I expressly reiterate that my son was responsible for the payment for and erection of all improvements on the property situated and known as 432 Sackville Ferry Road, Sackville North NSW and that neither I nor my late husband, Hugh McDowell made payments for those improvements.
7. The original statutory declarations were not available to the Court as they had been sent to the Office of State Revenue at the time of transfer and subsequently destroyed. There was unobjected evidence from Mr McKeown that the file copies were accurate. The Court accepts the copies as a true and correct copy of the originals and that their contents are true. Duty was paid on the transfer on 6 December 2007.
8. However, quite apart from the Court's views of the witnesses and the evidentiary weight of the 2007 statutory declarations, the following uncontroverted facts inform the Court's conclusion that Dorothy (and Hugh) intended the Family Property for Robert and his family and Robert always understood that to be the case: 1. The various payments made by Robert to his father. 2. That the sale of the Seven Hills Property and purchase of a new block of land was initiated by Robert's desire to live in a rural location. 3. That Hugh asked Robert to pick out the land and that Robert did so by reference to his own wishes. 4. Andrea's substantial role in the building of the house and the documentary evidence of her and Robert's payments towards the building of the house and then for the improvements to and outgoings for the Family Property. 5. The fact that Dorothy and Hugh never sought to live in the house built by Robert, instead buying and moving into a mobile home upon their move from Budgewoi. It is a powerful indication of Dorothy (and Hugh's) intention about the ultimate ownership of the Family Property that they left Robert's family to live in the permanent dwelling on the site and contented themselves with an impermanent one.

Has adequate provision not been made for Anne?

1. It is next necessary to consider what is sometimes referred to as the jurisdictional question. This is set out in sub-paragraph [12(6)] above, namely whether the Court is satisfied, at the time when the Court is considering the application, that the Provision for Anne is not adequate for her proper maintenance, education or advancement in life. If that question is answered "yes", then the Court's discretion to make a family provision order in favour of Anne is enlivened.
2. In Verzar v Verzar [2014] NSWCA 45 ("Verzar"), Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry: 39. The primary judge concluded that Stephen's will did not make adequate provision for the respondent's proper maintenance, education and advancement in life. Whether such provision has been made requires an assessment of the applicant's financial position, the size and nature of the deceased's estate, the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: see Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 75 at [70] and McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572; Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210; and Vigolo v Bostin [2005] HCA 11; 221 CLR 191 at [16], [75], [112]. Such an assessment is necessary because of the inter-relation between "adequate provision" and "proper maintenance". Whilst the inquiry as to what is "adequate" directs particular attention to the needs of the applicant, what is "proper" requires regard to all the circumstances of the case, and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries. As was observed by Sackville AJA in Foley v Ellis [2008] NSWCA 288 at [88], a court cannot consider the propriety and adequacy or inadequacy of any testamentary provision for an applicant in isolation from the resources and needs of the other claimants on the deceased's bounty.
3. In addition to the passage from Verzar quoted in the preceding paragraph [33] above, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 ("Camernik") both as to the general approach to be adopted to applications for family provision and judicial observations concerning claims by adult children. 154. Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education or advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996, unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. 155. An important consideration is whether, in all the circumstances, the community expectation would be for greater benefaction to have been made for the proper or adequate provision of the person seeking provision. Gleeson CJ observed in Vigolo v Bostin, at 199, that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. The process requires the court to "connect the general but value-laden language of the statute to the community standards". 156. As Allsop P said in Andrew v Andrew, at [16]: If I may respectfully paraphrase Sheller JA [in Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24 at 46F-47B], the Court in assessing the matter at s 59(1) and the order that should be made under s 59(1) and (2), should be guided and assisted by considering what provision, in accordance with prevailing community standards of what is right and appropriate, ought to be made. This, Sheller JA said ... involved speaking for the feeling and judgment of fair and reasonable members of the community. It is to be emphasised that s 59(1)(c) and s 59(2) refer to the time when the Court is considering [an application for a family provision order] and the facts then known to the Court. The evaluative assessment is to be undertaken assuming full knowledge and appreciation of all the circumstances of the case. This ... makes the notion of compliance by the testator with a moral duty (on what he or she knew) apt to distract from the statutory task of the Court. 157. In all cases under the Act, what is adequate and proper provision is necessarily fact specific. An inflexible approach cannot be taken in assessing the questions to be answered. 158. The Act is not a "Destitute Persons Act", and it is not necessary, therefore, that the applicant should be destitute to succeed in obtaining an order: In re Allardice, Allardice v Allardice (1909) 29 NZLR 959 at 966. 159. In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
4. Applying the principles just set out, the Court is not satisfied that the Provision is inadequate for Anne's proper maintenance, education or advancement in life. The question posed in sub-paragraph [12(6)] above is answered "no". The reasons for this conclusion are set out in the following paragraphs.
5. The Court has had regard to the factors set out in s 60(2) of the Act (see paragraph [12(10)-(11)] above which will be addressed in turn. 1. The relationship between Anne and Dorothy was not a strong one. The Court heard evidence of Dorothy not wanting to answer Anne's phone calls and taking steps to prevent Anne from stealing from her home. Anne's evidence was that their relationship was good but limited in contact by the fact that Anne resided in Queensland and Dorothy in New South Wales. While it cannot be said that Dorothy and Anne were estranged, the Court does not accept that their relationship was as close as described by Anne in her evidence. 2. While Dorothy owed Anne some obligation by virtue of their relationship as mother and daughter, the obligation owed by Dorothy to Robert far exceeded that owed to Anne. Robert's continual presence in Dorothy's life, including Andrea's role as her carer (which was not disputed) and his ongoing financial assistance to both his parents is a significant matter. 3. In the absence of a notional estate order, Dorothy's estate is small by any measure as set out in paragraph [14] above. 4. Anne's financial resources are limited. She is able to make ends meet with a small amount left over monthly for discretionary spending. 5. The persons that Anne is cohabiting with are financially independent from her. 6. Anne has documented back pain. 7. Anne is presently 63 years old and in receipt of a disability support pension. She has no future earning capacity. 8. There is no evidence to support Anne having made any significant contributions to Dorothy, financial or otherwise, with the exception of Anne's evidence that she stayed with Dorothy after she had a hip replacement. This, even on Anne's evidence, was a singular occasion. Robert's evidence is that Anne only contacted Dorothy out of self-interest and provided little support. Taking Anne's own evidence at its highest, it cannot be said that Anne made any significant contributions to Dorothy's benefit. This is to be contrasted with, for example, Robert's significant financial contribution to the Family Property. 9. Dorothy left Anne an equal quarter share in the residue of her Estate. 10. The statutory declarations set out in paragraphs [51] and [52] provide what the Court considers to be the best insight into Dorothy's intentions with respect to the Family Property. Dorothy's statutory declaration accepts that Robert's statement correctly records that the arrangement between Dorothy, Hugh and Robert was that the Family Property was being purchased for the benefit of Robert and his family. 11. Anne does not suggest that she was being maintained by Dorothy. 12. There is no other person liable to support Anne. Anne has children and is separated from her husband. 13. While there is no evidence that Anne gave any kind of significant support to Dorothy, there is nothing to suggest that her conduct was disentitling or inappropriate towards Dorothy. 14. In contrast, Robert provided continual support to Dorothy. 15. The Court's acceptance of Robert's contributions to the Family Property and his and his parent's understanding about its beneficial ownership is a very important matter - and in this case decisive - for the exercise of the Court's discretion.
6. Mr Fantin submitted that Anne is in receipt of a disability support pension with income of approximately $1800 per month and expenses of approximately $1700 per month. She has few assets and no superannuation. No submissions were made in respect of the impact that any order for provision might have on Anne's pension entitlements.
7. It was Mr Fantin's case that Anne required a one bedroom unit in a strata block with low strata fees. There was no evidence as to how much this might cost. The only evidence available to the Court were printouts of advertisements in respect of three bedroom homes advertised for sale in her residential area which were listed for, on average, $350,000.
8. Mr Fantin also submitted that Anne required spinal surgery in respect of an injury she had sustained in a fall. The medical evidence produced to the Court showed that Anne had been referred to physiotherapy for an injury to her lumbar spine but there was insufficient admissible evidence as to her need for surgery or any quantification of what this might cost. There was also a suggestion that she had a benign lump in her breast but this was not developed in argument and no evidence was tendered suggesting that this required treatment.
9. Mr Liebhold submitted that Anne had only demonstrated her wants rather than her needs and that her claim should be dismissed for three reasons.
10. The first reason was a lack of full and frank disclosure in giving evidence.
11. The Court does not accept this submission. In particular, Mr Liebhold drew to the Court's attention the inconsistencies between Anne's affidavit evidence and the oral evidence that emerged during her cross-examination. It was his submission that details of her address, assets, living arrangements, liabilities, number of bank accounts, income, expenditure and knowledge of computers among other things changed too frequently for her to be considered by the Court to be a credible witness. As noted in paragraph [19] above, the Court does not consider Anne to have been a credible witness in relation to matters of contention. However, while her answers to questions may have changed since the time of swearing her original affidavits and even through the course of questioning, the Court is satisfied that the requisite level of disclosure in relation to her financial circumstances was achieved for the purposes of these proceedings by the production and tender of a number of her historical bank records.
12. As part of his criticism of Anne's level of financial disclosure, Mr Liebhold also submitted that the Court should have been given evidence of the financial circumstances of the persons with whom Anne resides under her current rental arrangement. That submission is also rejected. The persons with whom Anne resides live independently to her in a 'flat-mate' type arrangement. She is wholly financially independent from them and, as such, their financial position is irrelevant.
13. The second reason to reject Anne's claim was that Anne had failed to establish that the Provision was not adequate for her proper maintenance, education or advancement in life. That submission is accepted.
14. Applying the approach set out in Verzar (see paragraph [56] above), there is no doubt that Anne's financial position is very modest, with no assets to speak of and a small surplus of income over expenditure. However, absent introduction of the Family Property, the one quarter share in the Estate is adequate for her proper maintenance given the very small size and nature of the estate.
15. In terms of closeness of relationship and assistance to Dorothy, Robert had a much greater claim than Anne. Robert's claim to the Family Property has an economic and moral basis that tells strongly against it being brought into consideration for the purpose of considering the adequacy of the Provision and the Court declines to do so.
16. To the considerations in the previous two paragraphs the Court adds the matters identified by Hallen J in Camernik. This is not a case where the size of the estate and the relationship between Dorothy and Anne was such that the community would expect Dorothy to have provided Anne with an unencumbered home. That conclusion is not changed in the circumstances of this case even when Anne's limited income and the likely vicissitudes of Anne's advancing years are taken into account.
17. The Court should also record that in making this submission Mr Liebhold invited the Court to make a finding that Anne spends, on average, $933 per month gambling. Answering the question of where the money Anne was withdrawing was going would not have altered the conclusion in the preceding paragraphs. Despite this, while I am not satisfied that it would be sustainable for Anne, on her income, to spend $233.25 each week on any form of gaming, I am satisfied that she does spend a portion of her income gambling. Her regular pattern of withdrawing cash from "UBET QLD" on her way home from doing her groceries is inconsistent with her own evidence that she could withdraw that cash from Woolworths, Coles or Aldi, as she had done on previous occasions at the time that she was paying for her groceries.
18. The Court does not accept Anne's evidence that stopping at UBET on the same days as she has been to one of those stores is consistently an afterthought or part of a convenient routine of withdrawing cash from a card that had previously been tampered with at a regular ATM. Even if Anne was not using this money for gambling, her evidence is that the withdrawals were used by her to purchase miscellaneous items such as cigarettes, meat from the butcher and gifts for friends. This demonstrates that she has access to sufficient - although by no means copious - income to meet her discretionary and other needs as they arise.
19. The third reason advanced by Mr Liebhold was that no notional estate order should be made even if the Court was satisfied that the Provision was not adequate.
20. The Court accepts Mr Liebhold's submission that even if an order for provision were to be made, it would not be just to make a notional estate order in this case. The Family Property, despite being purchased in the names of Hugh and Dorothy, was clearly always intended to be Robert and Andrea's home and understood by Robert to be such. By way of brief summary, Robert and Andrea picked the property and paid for the construction of their house on the Family Property and oversaw every element of its building. They lived in a caravan on the site while waiting for the completion of the main residence. Dorothy and Hugh made no claim on that residence and lived in the mobile home at the Family Property after they moved from Budgewoi. As is discussed more fully in what follows, having regard to s 87 of the Act (see paragraph [88] below) the importance of not interfering with Robert's reasonable expectations in relation to the Family Property and the substantial justice and merits of this case militate against making an order designating the Family Property as notional estate.

The Court's decision if the Provision was not adequate

1. Even if the Court had been satisfied that the Provision was not adequate such that an order for further provision should be made, the ultimate decision in these proceedings would have been no different. To demonstrate this, it is necessary to answer questions (12) to (18) set out in paragraph [12] above.

Is a family provision order to be made under Part 3.2 of the Act?

1. Section 78 of the Act relevantly provides that "the Court may make an order designating property as notional estate only for the purposes of a family provision order to be made under Part 3.2". Because the Court has not found that the Provision was not adequate, the discretion to make a notional estate order has not been enlivened. However, for the purposes of what follows the Court will assume that the answer to this question is "yes" and that the amount of further provision exceeds the $21,371.67 being held in the Estate.

Did the deceased enter into a relevant property transaction specified in s 75(1) of the Act?

1. This and the following two questions arise by virtue of the three prerequisites to the exercise of the Court's discretion to make a notional estate order set out in s 80(1) of the Act. They are (identified here by numbers for convenience) that the Court may make a notional estate order "if the Court is satisfied that the deceased person [1] entered into a relevant property transaction [2] before his or her death and that [3] the transaction is a transaction to which this section applies".
2. Section 74 defines "relevant property transaction" to mean a "transaction or circumstance affecting property and described in s 75 or 76". The relevant parts of those sections are: 75 Transactions that are relevant property transactions (1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being: (a) held by another person (whether or not as trustee), or (b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act. … 76 Examples of relevant property transactions (1) The circumstances set out in subsection (2), subject to full valuable consideration not being given, constitute the basis of a relevant property transaction for the purposes of section 75. (2) The circumstances are as follows: … (b) if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person's death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust, …
3. The answer to the question is "yes". In this case, Dorothy's death severed the joint tenancy between her and Robert in the Family Property. This caused Dorothy's interest in the Family Property to pass to Robert by survivorship. Subject to full valuable consideration not being given, what occurred in this case was a relevant property transaction of the kind described in s 76(2)(b) (set out in the preceding paragraph). It was, correctly, implicit in the way the parties analysed what had occurred that, insofar as Dorothy had not severed the joint tenancy before ceasing to be entitled to do so by her death, she had not been given valuable consideration for not taking that step: see Cetojevic v Cetojevic [2007] NSWCA 33 at [51] per Hodgson JA, [62]-[64] per Tobias JA, McColl JA agreeing with both Hodgson and Tobias JJA.
4. The Court notes in passing that it was also common ground that if the creation of the joint tenancy in 2008 could otherwise have been a relevant property transaction, it had taken place more than three years before Dorothy's death and therefore fell outside the application of s 80 (see s 80(2)(a)).

Was the relevant property transaction entered into before the deceased's death as specified by s 77 of the Act?

1. The answer to this question is "yes", by reason of the operation of s 77(3), which provides: 77 When relevant property transactions take effect … (3) A relevant property transaction consisting of circumstances described in section 76 (2) (b) or (e) is taken to have been entered into immediately before, and to take effect on, the person's death or the occurrence of the other event referred to in those paragraphs.

Was the relevant property transaction one to which s 80 of the Act applies by virtue of s 80(2)?

1. The answer to this question is "yes" by reason of the operation of s 80(2)(c) which provides that s 80 applies to "a transaction that took effect or is to take effect on or after the deceased person's death".

Does the relevant property transaction meet one of the criteria set out in s 83(1) of the Act?

1. The answer to this question is "yes" for the following reasons.
2. Section 83(2) provides that the "principal party to the transaction, in relation to a relevant property transaction, means the party who, under section 75 or 76, enters into the relevant property transaction". Having regard to s 75(1) (see paragraph [78] above) Dorothy is the principal party to the transaction because it was her failure to sever the joint tenancy immediately before her death that resulted in her interest in the Family Property passing to Robert.
3. In the circumstances of this case the Court is satisfied that the criterion set out in s 83(1)(a) has been met: 83 Disadvantage and other matters required before order can be made (1) The Court must not, merely because a relevant property transaction has been entered into, make an order under section 80, 81 or 82 unless the Court is satisfied that the relevant property transaction or the holding of property resulting from the relevant property transaction: (a) directly or indirectly disadvantaged the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death), or …
4. That sub-section is satisfied because Dorothy's omission to sever the joint tenancy immediately before her death disadvantaged her estate (by diminishing it) and disadvantaged Anne, as a person entitled to apply for a family provision order, because Dorothy's interest in the Family Property no longer formed part of the Estate and the assets available for further provision were reduced accordingly.

Is the Court satisfied of one of the matters set out in s 88 of the Act?

1. Based on the assumptions set out in paragraph [76] above, the answer to this question is "yes" because the Court is satisfied of the matter set out in s 88(b) that Dorothy's estate "is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made".
2. Has the Court considered the matters set out in s 87 of the Act?
3. Section 87 provides: 87 General matters that must be considered by Court The Court must not make a notional estate order unless it has considered the following: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, (c) any other matter it considers relevant in the circumstances.
4. It is the consideration of the matters set out in ss 87(a) and (b) which, even if the Court were otherwise satisfied that an order for additional provision should be made, would result in the Court declining to make the order designating the Family Property as notional estate.
5. By reason of the matters set out in paragraphs [34] to [54] above, the Court is well satisfied that Robert had more than reasonable and legitimate expectations in relation to succeeding to the Family Property. In circumstances where those expectations were based on both economic and moral considerations having regard to the arrangements between him and his parents, the Court places a very high, and in this case decisive, significance on not interfering with those expectations.
6. The same considerations engage the issue of the substantial justice and merits involved in the making or refusing of a notional estate order. Those same considerations would make it a substantial injustice to Robert if the notional estate order were made. The substantial justice and merits of the situation compel the refusal of such an order.
7. In reaching this conclusion, the Court has not overlooked the substantial justice and merits of the situation from Anne's point of view, including what Mr Fantin submitted was the real possibility of subdividing the Family Property so that Robert would be able to retain the residence he and Andrea had built and lived in for over 30 years. However, those matters (considered in the next two paragraphs) are far outweighed by Robert's claim to the Family Property.
8. First, Anne made no financial contribution to the acquisition of the Family Property and had a limited relationship with Dorothy. In saying it was "limited", the Court is not to be taken to be criticising Anne or suggesting that there was any moral obloquy on her part.
9. Second, confronted with the submission that a notional estate order would not be made because it would displace Robert and Andrea (it being obvious that they did not have the resources to buy Dorothy's share in the Family Property back from the Estate to fund an order in favour of Anne), Mr Fantin submitted the Family Property could be subdivided so Robert and Anne would be undisturbed. However, the evidence did not satisfy the Court on the balance of probabilities that a subdivision was possible. The only evidence Anne tendered was a letter from a real estate agent which set out that the Family Property might be suitable for sub-division (emphasis added): Thank you for contacting Wisemans Ferry Realty in regards to a current market appraisal for the property at the above address. Please Note - we have based the following on viewing the property from the road and from overhead images available online. Brief Property Description: Approximately 25 acres in the Hills shire with RU2 zoning. Brick veneer home and various shedding. This property appears to be suitable for Cluster Sub-Division which is applicable in the RU2 zoning. These types of properties are attracting a lot of interest by developers and are in demand. There are currently several properties in varying stages of implementing Cluster Sub-Division in the Maroota and Sackville North areas, with this new development there is potential to have 5 lots approved for building on (subject to council approval). Recent valuations indicate that each lot would sell for a minimum of $500,000. Blocks currently listed range in price from $580,000 - $695,000 for around 4000 square meters. Because of the Cluster Sub-Division if this property for some reason was not suitable for Cluser (sic) Sub-Divions (sic) it would still achieve a premium sale price as there are no longer 25 acre lots available."
10. The Court does not consider that evidence adequate to support the making of a notional estate order on the assumption that any potential prejudice to Robert could be cured by subdividing the Family Property.
11. It follows that even if the Court were satisfied that an order for further provision should be made for Anne, her claim would fail because, by reference to the matters set out in s 87 of the Act, the Court would decline to make an order designating the Family Property as notional estate.

Conclusion and orders

1. The Court is not satisfied that Dorothy did not make adequate provision for Anne's proper maintenance, education or advancement in life. The Court therefore declines to order any further provision. Even if it were otherwise, the Court would in any event decline to make an order designating the Family Property as notional estate.
2. The summons will be dismissed and the Court will hear the parties as to costs if that question is not able to be agreed.

Amendments 15 July 2016 - Minor amendments paras 15 and 19 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2016