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Category: Principal judgment

Parties: Lynn John Wright (Plaintiff)
Graeme Colin Wright (Defendant)

Representation: Counsel:
M M Pringle (Plaintiff)
A J Grant (Defendant)
Solicitor:
Ticli Blaxland Lawyers & Conveyancing (Plaintiff)
Walsh & Associates Lawyers and Conveyancers (Defendant)

File Number(s): 2024/00229183

Publication restriction: Nil

JUDGMENT

INTRODUCTION

1. The plaintiff, Lynn John Wright, seeks provision under s 59 of the Succession Act 2006 (NSW) from the estate of his late mother, Valda Margaret Wright. Lynn’s application for provision is defended by his brother, Graeme Colin Wright, in his capacity as executor of Valda’s estate.

2. In this judgment, for convenience I will refer to each of the relevant family members by their first names without intending any overfamiliarity or disrespect.

3. The Wright brothers – Orville and Wilbur Wright, the legendary American aviation pioneers – were famous for their intense disagreements over their aerodynamic theories. Of these disagreements, in How We Made the First Flight (US Department of Transportation, page 8), Orville Wright is quoted as stating:

Often, after an hour or so of heated argument, we would discover that we were as far from agreement as when we started, but that each had changed to the other’s original position.

4. It is said that these arguments were so balanced and constructive that they proved to be the impetus to the Wright brothers’ ingenuity and eventual success in achieving the first powered flight. In stark contrast, all the acrimonious arguments and extremely petty grievances ventilated by a different set of Wright brothers on the other side of the Pacific in these proceedings have achieved nothing other than the depletion of Valda’s estate to their mutual disadvantage.

5. While I understand familial squabbling to be an unfortunate reality of life, legal proceedings following the loss of a loved one are rarely the occasion to re-trace or resolve historical resentments between family members. Too often litigants in proceedings of this kind come to this court and expend significant resources, putting significant volumes of material before the court that is of the most peripheral relevance to the issues required to be determined. To put it bluntly, an application for a family provision order is not an appropriate vehicle through which to seek judicial vindication of vitriolic views of one’s sibling(s). Even if it were, the court does not need to hear evidence about, much less determine, the whereabouts of a panoply of used household items like old refrigerators, a front–loading washing machine, an electric kettle or an electric can opener, once used by the deceased.

6. Very regrettably, and to Lynn’s significant discredit, he gave evidence of Valda’s alcohol consumption in her final years (when he admitted that he had no direct knowledge of it (T104)), presumably to sully the perceptions of her cognitive health during that time. This evidence was then required to be countered by Graeme’s own extensive evidence on that topic. There was no challenge made by Lynn to probate being granted to Valda’s last will on any alleged grounds of her incapacity or some other infirmity of her mind (T104–105). The relevance and utility of evidence of Valda’s alleged drinking in an application for a family provision order in circumstances where the principal testamentary intentions of Valda remained relatively constant for around the last 25 years of her life, is circumspect at best. It serves only to underscore how familial bitterness can blind parties in proceedings of this kind to not only the financial burden, but also the personal cost of the aspersions they cast on those who can no longer speak for themselves. Valda deserved far better consideration from Lynn.

7. For the reasons I have set out below, I have determined that in Valda’s last will, she did not make adequate provision for Lynn. I have made a family provision order in Lynn’s favour of $1.1 million from which will need to be deducted particular debts he owed to Valda and Graeme, together with interest on those debts.

RELEVANT FACTS

Witnesses and general observations about credibility and reliability

8. The primary witnesses called in support of Lynn’s claim were Lynn as well as Cheryl Elaine Midavaine, each of whom were cross-examined. An additional affidavit was also provided by Emmanual Tobin Wood (in his capacity as solicitor for Lynn) in relation to the costs incurred by Lynn in these proceedings.

9. The primary witnesses called in support of Graeme’s defence were Graeme and Anthony Francis Walsh, each of whom were cross-examined. An additional affidavit was also provided by Christine Mary Lewis (in her capacity as solicitor for Graeme) in relation to the costs incurred by Graeme in these proceedings.

10. In every instance, I have endeavoured to evaluate each witness’ evidence, not only in the light of their responses during cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence as a whole.

11. This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. I set out the salient principles at length, which I have used to guide me in this undertaking, in Les & Zelda Investments Pty Ltd (as trustee for Les & Zelda Family Trust) v Whitehaven Coal Limited (No 4) [2026] NSWSC 107 at [73].

12. Where necessary, I have made specific comments about the credibility and reliability of the evidence of particular witnesses in my findings about identified events below.

Valda and Colin

13. Valda was born on 29 January 1926 in Colac, Victoria, and died on 22 June 2023, aged 97 years.

14. Colin Eaton Wright was born on 8 August 1917 in Perth, Western Australia and died on 12 September 2002, aged 85 years.

15. In the late 1940s, Valda studied at art school in Melbourne, Victoria and qualified as a commercial artist in about 1947.

16. After working on farms and then as a deputy stationmaster in Esperance, Western Australia, Colin served in the Royal Australian Air Force (RAAF) during World War II and was posted to New Guinea in 1944–1945. After 1945, Colin remained with the RAAF for two years, being posted to East Sale, Victoria as a flying instructor.

17. On 13 June 1947, Valda and Colin married in Ivanhoe, a north-eastern suburb of Melbourne.

18. After their marriage, Valda performed home duties and worked as a commercial artist from home. Colin retired from the RAAF in January 1948 and became a domestic airline pilot with Ansett Airways.

19. On 29 February 1948, Graeme was born as the first child of Valda and Colin.

20. On 9 July 1951, Lynn was born as the second child of Valda and Colin.

21. During the period from 1948 to 1951, the Wright family home for Colin, Valda, Graeme and Lynn was in St Kilda, Victoria. During that time, in November 1948, Colin and Valda bought a vacant block of land in Rosanna, near Heidelberg in north-eastern Melbourne. Colin then built a house on the land in Rosanna, which became the Wright family home in about late 1951 or early 1952.

22. During the period from 1948 until the late 1960s, Valda stayed at home looking after their family and home as well as working as a commercial artist doing advertising artwork for local businesses in the Rosanna area.

23. From 1948 until 1972, Colin worked as a pilot for Ansett Airways. In or about 1972, Colin developed type 2 diabetes, lost his pilot licence and was medically retired, when aged approximately 55 years. Colin received a substantial insurance payment upon his retirement.

24. On 30 June 1972, Valda and Colin purchased a vacant block of land at 1 Wrights Lane, Mullaway, a small town on the mid-north coast of New South Wales, near Woolgoolga, which is a small town about 3 kilometres south of Mullaway. Over the following year, Colin built a house on that land, which was completed in 1973.

25. On about 6 July 1973, Valda and Colin sold the family home in Rosanna and retired to 1 Wrights Lane. On about 28 June 1974, Valda and Colin purchased a block of units in Coffs Harbour, New South Wales as an investment. This investment provided Colin and Valda with retirement income. In retirement, Colin also worked as a part-time bookkeeper for an auctioneer in Coffs Harbour.

26. Valda was also a painter. In 1974, Colin built a painting studio for Valda at 1 Wrights Lane where Valda completed most of her paintings. Valda was also a foundation member of the Woolgoolga Art Group in her retirement.

27. In November 1988, Colin and Valda sold the block of units in Coffs Harbour.

28. By about 1999, when Colin was aged 81 years old, he suffered three strokes and developed vascular dementia, which worsened with each stroke. Colin’s dementia progressed to a point where it was not safe for him to remain in their home at 1 Wrights Lane and Valda was unable to care for him. In June 2001, Colin entered full-time care at the Coffs Haven Aged Care Facility in Coffs Harbour. At that time, Valda also collapsed from exhaustion and was admitted to Baringa Private Hospital.

29. On 12 September 2002, Colin died.

30. Valda lived at 1 Wrights Lane until March 2021 (then aged 95 years), at which time Valda required full-time care and moved to the Woolgoolga Retirement Village. Valda had to go into full-time care due to her loss of mobility, and also needing assistance to safely get out of bed, stand and walk.

31. Valda died on 22 June 2023, while living at the Woolgoolga Retirement Village.

32. I accept Graeme’s evidence that at all relevant times in Valda’s life, he observed her to have full and normal mental capacity.

33. I do not accept any of Lynn’s evidence to the effect that Valda had a problem with alcohol or was a heavy drinker in the last years of her life. I prefer the evidence given by Graeme that Valda had a very slight build (around 34kg), had low blood pressure, regularly had a drink with dinner in the evening and, although initially it was considered (including by Graeme in emails in February 2019 and June 2019 to Lynn) that she had been drinking to excess, it was subsequently discovered that she had been wearing pain relief patches which contained medication that she had inadvertently mixed with drinking even a single glass of alcohol, affecting her awareness. Graeme was cross-examined at length on the topic of Valda’s alcohol consumption and adhered to his evidence that the issues he raised in the emails with Lynn were due to Valda mixing alcohol and pain medication (T123–131). I accept Graeme’s evidence on this topic.

34. I have set out further detail below about the care arrangements for Valda during the final years of her life after Colin passed away, which were principally undertaken by Graeme and with almost no assistance from Lynn.

35. After Valda died, in accordance with her wishes, she was cremated without ceremony. In October 2023, family members (including Lynn) were invited to attend the placement of Valda’s ashes within the memory wall of Woolgoolga Cemetery, alongside the ashes of Colin. Lynn did not attend the ceremony and did not acknowledge the invitation, as he admitted in cross-examination (T102–103).

Graeme and his family

36. As stated above, on 29 February 1948, Graeme was born as the first child of Valda and Colin. Graeme is currently aged 78 years.

37. Graeme and Lynn grew up in the Wright family home, initially in St Kilda and subsequently in Rosanna. Graeme first attended Coreen Grammar School in Heidelberg, Victoria and subsequently both Graeme and Lynn attended the same primary school (Rosanna Primary School) in Rosanna and, later, the same high school (Carey Baptist Grammar) in Kew, Victoria.

38. In 1966, then aged 18 years, Graeme obtained a Commonwealth Flying Scholarship (which covered about 90% of the training costs) and commenced his flying training in Whittlesea, Victoria. Lynn says their parents paid $2,000 so that Graeme could obtain a private pilot’s licence around this time. Graeme admits that Colin provided him with support in the first few months of his training before he obtained a position with the Country Roads Board of Victoria to self-fund the balance of his flying training.

39. In July 1967, Graeme was accepted for training as a military pilot in the Australian Army. Before commencing that training, Graeme was required to undertake officer training which he completed at Scheyville, near Windsor, New South Wales in March 1968. From April to December 1968, Graeme served as Infantry Platoon Commander posted to Puckapunyal, Victoria.

40. In January 1969, Graeme commenced his military flying training at RAAF Base Point Cook, Victoria, followed by advanced helicopter training at RAAF Base Amberley, west of Brisbane, Queensland. Graeme was then posted to New Guinea and Indonesian Borneo.

41. For his 21st birthday in 1969, Colin gave Graeme some company shares at an estimated value in today’s terms of less than $5,000.

42. In 1970 and 1971, Graeme served in South Vietnam during the Vietnam War as a combat rotary and fixed wing pilot. In 1972, on Graeme’s return from Vietnam, he was posted as Captain to the School of Army Aviation and remained in that position until he left the Australian Army in early 1973.

43. In 1973, Graeme married his wife, Elizabeth Wright (who is known by her nickname, Echah). In the same year, he was selected into the United Kingdom Royal Air Force and relocated to the United Kingdom. From 1973 to 1977, Graeme was posted to a squadron, operating a new form of transport helicopter and later served throughout Europe and in combat areas in Northern Ireland, Cyprus and Belize.

44. In 1978, Graeme moved from the United Kingdom to Nigeria to work for a subsidiary of KLM Royal Dutch Airlines (which maintained a large helicopter operation), first as Chief Pilot and subsequently as Manager of their African operations.

45. On 2 May 1978, the first son of Graeme and Echah, Benjamin James Eaton Wright, was born.

46. In 1979, while still living in Nigeria, Echah and Graeme purchased a block of vacant rural land at what is now 22A Darkum Road, Mullaway, New South Wales. 22A Darkum Road is located about 500 metres from 1 Wrights Lane where Colin and Valda lived.

47. On 10 January 1981, the second son of Graeme and Echah, Nicholas Luke Wright, was born.

48. In 1982, Graeme worked for another subsidiary of KLM in Indonesia, first as rotating Base Manager, and then from 1983, as Chief Pilot of Mobil Oil Helicopter Operations for Indonesia based in Singapore.

49. During this period, Echah and Graeme built a house at 22A Darkum Road, which was completed in December 1983.

50. In or about 1985, Graeme, Echah, Benjamin and Nicholas returned to Australia and settled in Sydney. At about this time, Colin gave Graeme $50,000 which Graeme and Echah used towards their purchase of a house in Sans Souci, Sydney.

51. Between 1985 and 1993, Graeme worked as the National Helicopter Operations Manager of Surf Life Saving Australia (SLSA) during which, amongst other achievements, the Westpac Rescue Helicopter Service was established.

52. In 1993, Graeme left SLSA and returned to work in a role for another KLM subsidiary for 12 months based at KLM’s head office in Leiden, Holland, which involved significant travel to Africa.

53. In 1994, Graeme incorporated a company called Aviation Professional Services Pty Ltd (AviPro), and established AviPro’s business providing aviation management and safety consulting services to mining and energy companies in Australia and New Guinea, such as BHP, Rio Tinto (formerly CRA) and Santos, in addition to contracts with other public and private bodies, including the New South Wales Department of Health, New South Wales Air Ambulance Service, Telstra, Network Ten and Channel 7.

54. In December 2000, Echah and Graeme relocated from Sydney to live at 22A Darkum Road. By this time, both Benjamin and Nicholas were no longer living in the family home.

55. In 2016, Graeme sold the AviPro business to a senior member of staff at AviPro. In June 2016, Graeme retired, aged 68 years.

Lynn and his family

56. As stated above, on 9 July 1951, Lynn was born as the second child of Colin and Valda. Lynn is currently aged 74 years.

57. As a child, Lynn had a number a health conditions, including poor eyesight (requiring glasses), severe migraines and chronic bronchitis which led to pneumonia and scarring on his lungs. Lynn has since been diagnosed with Chronic Obstructive Pulmonary Disease (CO****PD), which leaves him vulnerable to pneumonia.

58. When Lynn was five years old, he was diagnosed with encephalitis and nursed at home by Valda. The impact of this condition on Lynn and Valda’s claim that it explained his later conduct is dealt with in more detail below.

59. In 1966, Lynn developed sub-acute bacterial endocarditis after an upper respiratory tract infection and was hospitalised for a short time followed by antibiotic injections for six weeks at home. The infection reached his heart and damaged his aortic valve, which later required replacement.

60. In 1970, after completing high school at Carey Baptist Grammar in Kew, Lynn commenced studying medicine at the University of Melbourne but failed his second year and did not continue this course.

61. In 1972, Lynn commenced a Bachelor of Behavioural Science, majoring in psychology and biochemistry, at La Trobe University, Melbourne. In 1975, Lynn commenced a one-year Honours program but withdrew to take a break from study.

62. Throughout his studies, Lynn worked in hospitals in various roles, including as an orderly. When Lynn took a break from his studies, he worked full-time doing data collection and analysis for the Community Health Services Research Group. When Lynn completed his degree, he worked in the biochemistry department at the Repatriation General Hospital, Heidelberg.

63. In or about August 1973 — around the time Valda and Colin moved from Rosanna to Mullaway — Colin and Valda purchased for Lynn a two-bedroom unit in Reservoir, Victoria (Res****ervoir Property) for $15,150. Lynn says that this allowed him to stay in Victoria and continue his studies at La Trobe University. A loan agreement was entered into as between Lynn and his parents in respect of this purchase but Colin and Valda did not require Lynn to make any repayments under it. Lynn accepted that Colin and Valda did not purchase any real estate in the same way for Graeme (T8–9), as Graeme confirmed in cross-examination (T122).

64. In 1976 and 1977, Lynn completed a course in psychology at the University of New England, obtaining a Master of Letters in psychology.

65. In 1977, Lynn joined the Victorian Public Service, initially with the Victorian Ministry of Transport and then in 1979 with the Victorian Correctional Services Department in the position of Assistant Superintendent. As a requirement of this employment, Lynn undertook a Diploma in Criminology at the University of Melbourne, which he completed in 1982.

66. In or around 1981, Lynn purchased a three-bedroom home in Heidelberg Heights, Victoria (Heidelberg Heights Property) for $33,500 (T8), which he later renovated. Lynn did not need to sell the Reservoir Property (which was rented out) to buy the Heidelberg Heights Property (T8).

67. In 1982, Lynn sold the Reservoir Property for $31,000 (T8).

68. From 1982 to 1985, Lynn undertook a research project for a telecommunications company in the Mechanical Engineering Department at the University of Melbourne, supplementing his income by working as a handyman.

69. In 1984, Lynn married his first wife, Bronwen Machin, whom he met through the Army Reserve, where he spent eight years in the Psychology Corp.

70. Also in 1984, Lynn sold the Heidelberg Heights Property for $49,000 (T9) and, together with Bronwen, purchased a home in Ivanhoe, Victoria (Ivanhoe Property) for $84,900 (T9), which he extensively renovated around this time.

71. Lynn says that he was not given $50,000 by Colin in 1985 as Graeme had been and as Graeme assumed Lynn had been. Lynn adhered to this denial in cross-examination and I accept his evidence (T101–102).

72. In 1986, Lynn commenced a Bachelor of Applied Science, Physiotherapy full-time at the Lincoln Institute of Health Sciences (which later became part of La Trobe University).

73. In October 1986, the Psychologists Registration Board of Victoria granted Lynn registration as a psychologist as he still aspired to work in psychology at some future time.

74. In 1988, Lynn’s marriage to Bronwen broke down. In 1989, they sold the Ivanhoe Property for $242,250 and shared the proceeds equally by way of a property settlement as part of an amicable separation (T10–11). Lynn accepted that he did quite well financially from the sale of the Ivanhoe Property (T11).

75. Following this, Lynn lived in rented accommodation in Fairfield, Victoria and continued his physiotherapy studies at the Lincoln Institute of Health Sciences, which he completed in 1991.

76. In 1991, Lynn purchased a vacant block of rural land at 39 Darkum Road, Mullaway for $50,000 without a mortgage at a time when he was living with his parents (T12–13).

77. In about 1992, Lynn purchased a physiotherapy business operating from the rear of 9 Market Street, Woolgoolga for $50,000. Around this time, Lynn moved to Mullaway, saying that he first resided with his parents at 1 Wrights Lane and then stayed at Graeme’s property at 22A Darkum Road while Graeme was living and working in Sydney. Lynn also says that he paid the utility bills when he was living at 22A Darkum Road and when Graeme would come to visit, Lynn “had to move out” and return to his parents’ home at 1 Wrights Lane. Lynn says that he “would have enjoyed having closer contact with Graeme and his family than [he] was allowed” during these periods. Graeme denies that Lynn lived at 22A Darkum Road, paid any of the utility bills or that Lynn had to move out when Graeme came to visit until a much later time after September 1994. I accept Graeme’s evidence on these issues given that 22A Darkum Road was owned by him.

78. Lynn then moved to rental accommodation at 17 Market Street, Woolgoolga where Lynn constructed work premises for his physiotherapy business.

79. In 1993, Lynn purchased a unit in Nelson Street, Woolgoolga as an investment for $76,500 (T14). The solicitor in Woolgoolga who acted for Lynn on this transaction was Gordon Abbott of GL Abbott & Co of Woolgoolga (T14).

80. On 4 January 1994, Lynn established Woolgoolga Physiotherapy Pty Ltd to operate his physiotherapy business from the rear of 9 Market Street, with himself and Colin as the two directors (T14–15).

81. In September 1994, Lynn married his second wife, Cam-May Chung. They first resided at the rear of physiotherapy premises set up by Lynn at 17 Market Street. Cam-May worked as a pharmacist in Park Beach, 23 kilometres from Woolgoolga. Cam-May’s brother lived with Lynn and Cam-May at 17 Market Street and worked with Cam-May at her pharmacy. Graeme and Echah were on friendly terms with Cam-May and attended the wedding between Lynn and Cam-May. At some stage, Lynn and Cam-May lived rent free at 22A Darkum Road for about 12 months, with Lynn paying the utility bills and having to move out when Graeme and his family came to Mullaway for school holidays.

82. Also in September 1994, Lynn and Cam-May purchased 19 Market Street, Woolgoolga for $155,000 (T15–16), and relocated the modular home located at 19 Market Street to 39 Darkum Road (T16–17). Mr Abbott again acted for Lynn on this purchase (T16).

83. Lynn then built new physiotherapy business premises at 19 Market Street. Lynn engaged a builder, Robert Celka, to oversee the building works, which were extensive as they involved a pool, a gym area and about 12 rooms as part of a single story brick construction with a metal roof (T16–17).

84. The building works at 19 Market Street took longer than originally proposed and they were not complete by January 1997, which is why Lynn and Cam-May moved to 17 Market Street and did not move to 19 Market Street (T18). Lynn did a lot of the work fitting out 19 Market Street himself and it was a significant exercise costing over $100,000 (T19).

85. In 1995, Lynn had bilateral cataract surgery.

86. On 4 September 1995, Cam-May became a director of Woolgoolga Physiotherapy in place of Colin.

87. In 1997, Lynn sold the unit in Nelson Street for $88,000, with the proceeds used on the building works to develop his physiotherapy business (T19–20).

88. In about 1998 or 1999, Cam-May purchased a house in Diggers Beach (Diggers Beach Property) in her sole name for $280,000. Lynn agreed that Cam-May did not want to hold assets jointly with him and that they kept separate bank accounts (T21–22). Graeme says that he had a conversation with Cam-May about this in which she said that she was concerned about Lynn’s control over money and that she had lent Lynn $180,000 to complete the building of his physiotherapy business premises at 19 Market Street but had never been repaid. Lynn admitted that this loan was made to him by Cam-May and he did not repay it (T21).

89. On 17 March 1999, the first son of Lynn and Cam-May was born, Aethan Wihng Lohk Chung-Wright. Aethan is now aged 27 years.

90. On 17 October 2001, the second son of Lynn and Cam-May was born, Jovn Wihng Hong Chung-Wright. Jovn is now aged 24 years.

91. After Jovn’s birth, the relationship between Lynn and Cam-May began to deteriorate. On 6 February 2002, Cam-May ceased to be a director of Woolgoolga Physiotherapy due to the deteriorating relationship with Lynn (T23–24).

92. In April 2002, Lynn sold 9 Market Street for $160,000 (T24 – the reference to 39 Barcom Road is in error).

93. Shortly after Colin’s death in September 2002, the relationship between Lynn and Cam-May broke down. At that time, the building work at 19 Market Street was continuing and was an expensive project (T24).

94. In April 2003, Lynn purchased a home in Nana Glen, New South Wales (Nana Glen P****roperty) for $165,000, and Mr Abbott again acted for Lynn on the purchase (T25). Lynn moved into the Nana Glen Property with Aethan and Jovn and did not tell Cam-May he had done so until after it had occurred (T25).

95. Graeme gave evidence that he helped Lynn move from the Diggers Beach Property to the Nana Glen Property in one day, and that evening Lynn came to Graeme’s home at 22A Darkum Road with Aethan and Jovn and said:

I am removing the 2 boys from Cam-May. If I don’t, she will take them to China.

96. In cross-examination, Lynn did not agree that he had taken Aethan and Jovn to Graeme’s property before he took them to the Nana Glen Property, or that while they were at Graeme’s property, Lynn hid his children in the car when Cam-May came frantically looking for them (T26–27). Lynn did, however, agree that he did not tell Cam-May where Aethan and Jovn were for a number of days before an informal arrangement was reached under which Lynn and Cam-May shared custody of their children on an equal basis pending the outcome of the proceedings in the Family Court of Australia between Lynn and Cam-May (Family Court Proceedings) (T27).

97. I do not accept Lynn’s evidence-in-chief that Cam-May said to him, “You take them, I can travel and do other things” in respect of Aethan and Jovn (T28–29). It was Lynn who had taken the children without telling Cam-May for a number of days and she came looking for them. In those events, I consider it to be highly unlikely that Cam-May told Lynn that he could take their children with him.

98. Lynn’s divorce from Cam-May was acrimonious and disputes arose in respect of custody of Aethan and Jovn (T25–26). These disputes involved the Family Court Proceedings. Ron Vagg of Southern Cross Lawyers in Coffs Harbour acted for Lynn in the Family Court Proceedings. Lynn says that the $180,000 loan to him from Cam-May was subsequently taken into consideration in a judgment in the Family Court Proceedings which provided for Lynn to receive about $9,000 from Cam-May, which was not paid to him (T23).

99. Lynn says that he attempted to negotiate with Cam-May about spending time with Aethan and Jovn but she threatened to take them and he never wished to deprive the children of time with Cam-May (T26). Given the length of time that it took for the Family Court Proceedings to be resolved and that they concerned a dispute about the custody of Aethan and Jovn, is hard to accept that Lynn did not wish to deprive them of spending time with Cam-May.

100. Graeme says that Lynn told him that the legal costs spent by Cam-May and Lynn in the Family Court Proceedings totalled about $500,000, but Lynn says that those total legal fees were about $350,000, with Lynn spending around $130,000 and Cam-May spending about $200,000 in legal costs. Nothing turns on this difference. On any view, a substantial amount of money was spent by each of Lynn and Cam-May in relation to the Family Court Proceedings.

101. Lynn admitted that his physiotherapy business suffered as a result of the financial and emotional toll of the Family Court Proceedings.

102. On 6 December 2004, a Deed of Loan was executed as between Valda, Lynn and Graeme (2004 Deed of Loan) setting out the terms of the loan made by Valda to Lynn. The terms of the 2004 Deed of Loan loomed large as an issue in the submissions made by the parties during the trial. I have set out the circumstances which led up to the 2004 Deed of Loan and the terms of the 2004 Deed of Loan in further detail below.

103. In November 2006, 19 Market Street was transferred into the sole name of Lynn pursuant to orders made on 18 August 2006 in the Family Court Proceedings. Lynn said that the building works at 19 Market Street had been well and truly completed by then (T48).

104. After the conclusion of the Family Court Proceedings between Lynn and Cam-May in August 2006, they shared custody of their two sons, Aethan and Jovn, alternating on a fortnightly basis with the two boys living with Lynn at the Nana Glen Property for two weeks and then living with Cam-May in Coffs Harbour for two weeks (T49). When Aethan and Jovn stayed with Lynn at the Nana Glen Property at that time, they each had their own rooms (T50).

105. In 2006, Lynn collapsed and was taken to Coffs Harbour Base Hospital by ambulance. He was then taken by air ambulance to St Vincent’s Private Hospital in Sydney where he was fitted with a pacemaker and underwent surgery to replace his aortic valve. Lynn has been on blood-thinning medication ever since.

106. Graeme says that in June 2007, Lynn borrowed a further $30,000 from Valda and has not repaid it, but Lynn denies that this occurred (T48 and T98). I consider that there is insufficient evidence for me to find that this alleged loan was made by Valda to Lynn.

107. On 8 August 2008, Lynn married his third and current wife, Carmel Janelle Baldwin, who also moved into the Nana Glen Property along with her son (Lynn’s stepson), Simon, before the wedding (T49). Simon had a room of his own at the Nana Glen Property as he resided there full-time, while Aethan and Jovn then had to share a room when they stayed at the Nana Glen Property (T49–50). It appears to be common ground that Carmel is about 15 years younger than Lynn (T175).

108. Carmel trained as a swimming teacher and conducted learn to swim classes in the pool at Lynn’s physiotherapy practice and also helped to run that practice.

109. In 2008, Carmel commenced studying psychology online through Charles Sturt University and in 2009 transferred to the University of New England at Armidale, New South Wales. Carmel graduated with First Class Honours at the end of 2012.

110. On 28 September 2009, Carmel was appointed a director of Woolgoolga Physiotherapy. Carmel assisted with the physiotherapy practice and did private tutoring of a psychology undergraduate student while she was studying.

111. On 24 June 2011, Lynn ceased to be a director and secretary of Woolgoolga Physiotherapy. In cross-examination, Lynn rejected the suggestion that Woolgoolga Physiotherapy ceased to trade at that point, saying that it continued until 2014 when it was sold (T56–57). I accept this evidence.

112. Graeme’s evidence is that in about 2011, Valda said to him:

Lynn’s physiotherapy business is in trouble. It has to be sold. The business premises also have to be sold.

113. In cross-examination, although unsure of the timing, Lynn accepted that he was struggling a bit with his business and it was not doing as well as he would have liked (T56).

114. In October 2011, Lynn sold the Nana Glen Property for $289,000 and moved into a rental property in Woolgoolga, where he says that he provided physiotherapy and psychology services. In cross-examination, although initially rejecting that the Nana Glen Property was sold for this amount, Lynn ultimately accepted that it had been (T58–59). Lynn also agreed that part of the reason for the sale of the Nana Glen Property was that his physiotherapy business was in trouble (T60).

115. In November 2012, Lynn sold 19 Market Street for $525,000 (T60–62). In cross-examination, Lynn agreed that part of the reason why 19 Market Street was sold was financial pressure (T62).

116. During 2013, according to Lynn, when Carmel published her honours thesis, Valda said to Carmel, “I am proud of your achievements”. At this time, Carmel assisted her ill parents, with her father suffering from motor neurone disease and her mother suffering from leukemia, breast cancer and a double mastectomy, which led to Carmel’s mother moving in with Lynn and Carmel for one month so that Carmel could nurse her.

117. In late 2013, Lynn sold his physiotherapy business in Woolgoolga.

118. In 2013, Lynn required treatment for an enlarged prostate and was diagnosed with prostate cancer. In 2014, Lynn had a prostatectomy to remove the cancer and has remained cancer free since that time.

119. In January 2014, Lynn and Carmel moved into a rental property in Armidale (T62). During 2014, Carmel completed her Master of Clinical Psychology. According to Lynn, when Carmel published her master’s thesis, Valda said to Carmel, “I am proud of you”. Lynn also gave evidence that Valda bought presents for Carmel (a clock, wine, musical jewellery box, jewellery handbags and glass crystal items) and often suggested that Carmel take things from the house if she wished, although Carmel never availed herself of the opportunity. Graeme denied that Valda gave presents to Carmel or suggested that Carmel could take things from 1 Wrights Lane, saying that by 2013, Valda had concerns about Carmel. Nothing turns on this disputed evidence and I make no finding about it.

120. In 2015, having completed a Master of Clinical Psychology, Carmel commenced working as a clinical psychologist in Penrith, New South Wales. Around this time, Lynn and Carmel moved into a rental property in South Windsor, New South Wales (T63).

121. Shortly after, Lynn commenced working as a physiotherapist in Richmond, New South Wales and established a practice as a psychologist at Macquarie Towns Specialist Centre, also in Richmond. I do not accept Lynn’s evidence in cross-examination that he established a practice as a psychologist at any time prior to working in Richmond, and I especially do not accept his evidence that he was working as a psychologist in Woolgoolga whilst also working as a physiotherapist (T72–73). None of that evidence appeared in any of his four affidavits in these proceedings and I regard it as incorrect. Lynn’s claims that evidence to that effect may have been in an earlier draft of one his affidavits and “just might’ve got lost along the way” is implausible (T74).

122. In 2017, Lynn says he retired from physiotherapy and expanded his psychology practice (T75). Lynn agreed he is now down to working part-time, about three days a week, as a psychologist (T75).

123. In 2022, Lynn, Carmel and Simon moved to a different rental property in South Windsor, where they continue to reside.

124. Lynn has recently been diagnosed with osteoporosis and osteopenia in his hips, and is at risk of hip fractures. He takes medication for these conditions. He also has osteoarthritis in other areas of his body which limits some of his activities due to pain and loss of muscular strength.

125. Lynn regards himself in reasonable health for his age and given his medical history (T106).

126. In cross-examination, Lynn agreed that at no time since he sold the Nana Glen Property have either he or Carmel lived in their own home, and the reality of his financial position since the sale of the Nana Glen Property and the sale of 19 Market Street is that he has not been in a position to buy any further real estate (T63). Lynn also agreed that his financial position has deteriorated since that time (T63).

The relationship between Graeme and Lynn

127. By both accounts, apart from Lynn’s early health conditions, each of Graeme and Lynn had a fairly conventional, happy and otherwise unremarkable upbringing. It is clear that each of Graeme and Lynn received considerable financial support from their parents at an early stage in their adult lives.

128. As I observed at the hearing, the first two days of the trial saw Graeme and Lynn hurl insults at one another, sometimes politely and other times not so (T163). Many of these insults rested in written form in their respective evidence-in-chief.

129. Graeme noted that since he retired in 2000 until the time of the proceedings, he and Lynn would ordinarily communicate via email (T123) and rarely saw each other. According to Graeme, this was because Lynn did not tell him where he resided nor provide him with his telephone number (T123).

130. As foreshadowed above, the relationship between Lynn and Graeme is strained and has been for some time. It was submitted on behalf of Lynn that the brothers “appear to have had a distant relationship which fluctuated between cordiality and contempt”. I saw no fluctuations in the evidence before me. While emails that could be described as cordial were exchanged between the brothers, the subtext of disdain was both obvious and consistent. This sense of contempt and disquiet pervaded other aspects of their written and oral evidence. It is difficult to say on the evidence before me precisely when and why the relationship between Lynn and Graeme became so strained and vitriolic, and for the purposes of determining Lynn’s application for provision, it is not necessary for me to determine either of these things.

The relationship between Valda and Graeme and his care for her

131. Graeme had a very good, warm and loving relationship with Valda throughout her life. They got on well when he was a child. Even after he left home and went overseas to serve in the Vietnam War and then to work in the United Kingdom and Africa, Graeme stayed in regular contact with Valda by telephone and letters. From 1979, Graeme and his family usually returned to Australia for annual Christmas holidays and stayed with Colin and Valda at 1 Wrights Lane for about two weeks each time.

132. Colin and Valda visited Graeme and Echah in Nigeria for Christmas in 1980. In 1981 and 1982, Graeme and Echah made additional visits to Australia, spending around two weeks with Valda and Colin at 1 Wrights Lane. In 1983, Colin and Valda visited Graeme and Echah in Singapore and they then went on a two week holiday to Indonesia together.

133. From 1985, when Graeme and his family returned to Australia and settled in Sydney, Graeme spoke to Valda on the telephone at least once a week and Graeme and his family would travel from Sydney to Mullaway and stay at 1 Wrights Lane with Colin and Valda every school holiday.

134. In December 2000, Graeme and Echah left Sydney and moved to 22A Darkum Road to live there permanently, which was about five years earlier than they had planned due to Colin’s increasing dementia and Valda’s increasing trouble in handling Colin. From that time, Graeme saw Valda every day and often twice a day (morning and evening).

135. Graeme supported Valda as Colin’s dementia became worse and she struggled to care for him, leading to Colin being admitted to dementia care and Valda being admitted to hospital due to her exhaustion in June 2001 as mentioned above. When Colin was in dementia care, Graeme visited him three times per week, never seeing Lynn during any of his visits.

136. In 2005, Echah became Valda’s official carer while Graeme was still working full-time. Following Graeme’s retirement in June 2016, he took over that role from Echah and remained as Valda’s carer until her death on 22 June 2023.

137. From 2000, Valda usually received a minimum of three visits per day from either Graeme or Echah, who took her shopping and to visit doctors, dentists and eye specialists. Graeme and Echah provided Valda with additional care after Colin died on 12 September 2002. Throughout this period, Graeme and Echah also had Valda at their home at 22A Darkum Road for regular meals, as well as special occasions such as birthdays, Easter and Christmas.

138. After 2016, when Graeme retired, Graeme continued to see Valda at least twice a day (in the mornings and evenings) and then commenced to also visit her at lunchtime to make sure that she was eating.

139. After 2016, Graeme provided Lynn with regular updates concerning Valda by email as Lynn was no longer living in the area.

140. After Valda was admitted to Woolgoolga Retirement Village in March 2021, Graeme visited Valda three times per week and took her to all medical, dental and hospital visits. With one exception during the COVID-19 pandemic, Graeme never saw Lynn on any of his visits to Valda there.

141. After 2000, Graeme did most of the home repairs and maintenance at the home of Colin and Valda at 1 Wrights Lane.

142. Between March 2019 and October 2020, Graeme worked with a local builder to refurbish Valda’s studio at 1 Wrights Lane to convert it into a granny flat to be rented out.

143. From 2000, Graeme and/or Echah drove Valda on all of her trips from her home at 1 Wrights Lane and did her washing.

144. In 2015, Graeme arranged for an electric reclining lounge chair, a walker and an electric tilt bed to be provided to Valda.

145. In early 2021, when it became obvious that Valda required full-time care, Graeme and Echah were responsible for arranging it by investigating the possibility of living care or an aged care facility.

146. The bond for the Woolgoolga Retirement Village was $420,000. Graeme was prepared to pay half of this bond so that Valda did not have to sell 1 Wrights Lane but when he approached Lynn to ask him whether he would pay the other half of the bond, Lynn declined and so it became necessary for 1 Wrights Lane to be sold in May 2021.

147. Graeme and Echah did all of the work between March and May 2021 required to prepare 1 Wrights Lane for sale, including dealing with all of Valda’s possessions by sale or disposal, with no assistance or contribution from Lynn.

148. In cross-examination, Lynn accepted that Graeme took primary responsibility for the care of Colin and Valda and was the primary person looking after Valda following Colin’s death in 2002 (T68). I have not the slightest doubt that this was the case.

The relationship between Valda and Lynn

149. Lynn says that he maintained regular contact with Valda throughout her lifetime and until her death on 22 June 2023, including visiting her at 1 Wrights Lane and, later, at Woolgoolga Retirement Village.

150. During Graeme’s visits to care for Valda up to three time each day, Valda rarely spoke about Lynn (T132).

151. Lynn accepted that during 2014, he did not see Valda for around 12–14 months while he was being treated for his prostate cancer and since that time, with him living in Armidale and then South Windsor, he saw Valda around three times a year (T65–66).

152. While Lynn lived in Woolgoolga, Lynn says he enjoyed regular contact with both of his parents. Lynn recalls attending their home after receiving a call from Colin that Valda had collapsed in the bathroom. Lynn says Valda appeared to be under the influence of alcohol and that it was his belief that most of Valda's falls were due to her drinking. This evidence appears to have been led by Lynn to generally suggest that Valda had a problem with alcohol that affected her mental capacity. I have rejected this contention above and below.

153. In cross-examination, Lynn agreed that he was not involved in any of the improvements made to the home of Colin and Valda at 1 Wrights Lane other than to help Colin with the structure of a boat shed many years before they suffered ill-health (T79). Lynn also agreed that after both Colin and Valda suffered ill-health, he performed no work for his parents other than helping to clean up when he was there and clean gutters (T79).

154. Lynn accepted that he was not providing any care or support for Valda from June 2016 until Valda’s death in June 2023 (T69). In particular, Lynn agreed that he had no involvement in any of the arrangements that were made by Graeme for Valda to go into retirement village care (T79–80). Lynn said he had no means to make any contribution towards the bond of $420,000 required for Valda to go into Woolgoolga Retirement Village (T80).

155. Lynn admitted that (T104):

156. in anyone’s terms, the visits he made to see Valda in the last nine years of Valda’s life were rare;

157. he had no knowledge of the medications Valda was taking in the last nine years of her life; and

158. he had no evidence to contradict the explanation given by Graeme as to the occasions on which Valda mixed medications and alcohol.

Aethan and Jovn

156. Aethan is now 27 years old. From 2004 to 2011, he attended St Francis Xavier Primary School in Woolgoolga. From 2012 to 2015, he attended secondary school at John Paul College in Coffs Harbour.

157. Jovn is now 24 years old. From 2006 to 2013, he attended St Francis Xavier Primary School in Woolgoolga. From 2013 to 2015, he attended secondary school at John Paul College in Coffs Harbour.

158. In about 2015, Cam-May moved to Sydney with both Aethan and Jovn. Both Aethan and Jovn completed secondary school in Sydney. Aethan obtained his higher school certificate in 2017 and Jovn obtained his higher school certificate in 2019.

159. In about 2019, Aethan commenced an undergraduate degree at University of Sydney (majoring in science and mathematics). In about 2020, Jovn commenced a Bachelor of Management at the International College of Management in Sydney, where he graduated in 2023.

160. Aethan remains enrolled at the University of Sydney but since 2021 has taken time off from his studies and has worked in several minor jobs and been on welfare for a period.

161. In early 2024, Aethan took a job at the Manly Pacific hotel in Manly, New South Wales. He lives in a rental share house in Sefton in Western Sydney and he is single.

162. Since 2023, Jovn has worked for an alcohol importer in Sydney. He lives in a share house in Narraweena on Sydney’s northern beaches and he is single.

163. There are no details of the respective financial positions of either Aethan or Jovn.

164. Lynn’s relationship with each of Aethan and Jovn has deteriorated over time. Lynn says that Aethan and Jovn became more defiant and uncooperative over time. Aethan eventually (in around 2011, then approximately 12 years old) ran away and returned to Cam-May’s care. Lynn says Jovn’s behaviour also became problematic, he was “rude and discourteous” and so Lynn “returned him to his mother”. By their actions, Aethan and Jovn showed that they wanted to be with Cam-May and not in Lynn’s household.

165. While no precise time is placed by Lynn on these events, it would appear that they occurred between around 2011 to 2014 when each of Aethan and Jovn were approaching their respective early teenage years. Lynn says that Aethan “never returned to see [him]”, but they have since been in contact in person and by telephone. Lynn said that about 12 months after these events, Jovn sent an abusive message to Carmel (which does not need repeating) and that no other communication has been initiated by him at any time after he returned to live with Cam-May.

166. Lynn also says that he believes he was “deprived of the ability to remain in [his] children’s lives by their choices and the lack of support from their mother”. Lynn’s evidence on this topic is vague and accusatory. While nothing turns on it, I find it strange that Lynn appears to blame his sons and Cam-May for their present day lack of communication and the characterisation of events which appear to have occurred when each of Aethan and Jovn were around 12 years of age. As a trained psychologist, Lynn’s lack of acceptance and awareness of his own responsibility as a parent for the undoubted trauma he caused to Aethan and Jovn during the breakdown of his relationship with Cam-May is quite startling.

167. Lynn says that he does not know if Aethan and Jovn want to be back in his life but that he would welcome them.

168. During Graeme’s visits to look after Valda up to three times each day, Valda frequently mentioned Aethan and Jovn, stating that she loved them dearly (T132).

Valda’s Powers of Attorney and appointment of enduring guardian

169. On 19 November 1998, Valda made a power of attorney appointing Graeme and Lynn as her attorneys acting jointly and/or severally (1998 Power of Attorney).

170. On 17 July 2015, Valda:

171. revoked the 1998 Power of Attorney;

172. made an enduring power of attorney appointing Graeme as her enduring attorney, which he accepted; and

173. appointed Graeme as her enduring guardian, which he accepted.

174. On 21 July 2015, Lynn received a letter from Walsh and Associates, the law firm acting for Valda, informing him that he had been removed from his appointment under the 1998 Power of Attorney. Lynn says his removal was not raised by either Valda or Graeme prior to his receipt of the letter and, when he asked Valda about it, she seemed uncertain and said, “I don’t want to question Graeme”.

175. It is clear that Valda regarded Graeme as the person who she wished to perform the roles of her attorney and enduring guardian. It is obvious that Valda looked to Graeme to care for her, which he constantly did. Given the lack of care and assistance provided by Lynn to Valda, it is quite unsurprising that she did not consider him suitable to perform the roles of being her attorney or guardian.

2004 Deed of Loan

173. Lynn says that he financed the legal costs in the Family Court Proceedings with his own money before he approached Valda to ask if she could assist him. In cross-examination, Lynn was directly challenged on whether this evidence was correct (T35–36) but I accept his evidence given that the Family Court Proceedings had commenced in April 2003 and it was not until November 2003 that the loan from Valda to Lynn for the Family Court Proceedings was recorded. In any event, whatever amount Lynn financed from his own resources was likely to be relatively small.

174. During 2003, Lynn borrowed money from Valda to pay for the costs of the Family Court Proceedings against Cam-May. On 27 November 2003, Lynn wrote a letter to Valda (2003 Debt Letter) which stated as follows:

Dear Mum,

This is to formally acknowledge the financial debt I owe you, as you advised from your records, in order that a clear record is available for scrutiny by your executor should your demise predate my ability to repay you.

I owe you $41,000.

Please provide Graeme and Echah with a copy of this; I have included an extra one from this purpose.

Your loving son,

L. J. Wright

175. The 2003 Debt Letter indicated that Valda was financing Lynn in the Family Court Proceedings for some time before the entry into the 2004 Deed of Loan (dealt with in detail below) and that it was contemplated that Lynn might need to repay the debt recorded in the 2003 Debt Letter from his inheritance from Valda (T33–34).

176. The 2003 Debt Letter indicated that Lynn wished to borrow money from Valda to pay for the Family Court Proceedings rather than mortgage or sell the Nana Glen Property, which Lynn accepted that he could have done (T36).

177. At about this time, Lynn came to see Graeme at 22A Darkum Road and said to him:

I am in a lot of trouble. I can’t afford to pay my lawyers’ bills. I’ve maxed out 3 credit cards. I’ve got to come up with $50,000 to pay my lawyers or they may not continue. Nobody will lend me any money.

178. Lynn says that he told Graeme that he was struggling to pay his lawyer but denies that he said that he had “maxed out 3 credit cards” because he has never had 3 credit cards at the same time and has fully paid out all his credit card debts. There is no need to resolve this difference in the evidence. The critical point is that clearly Lynn was unable to pay his costs of the Family Court Proceedings without assistance from Valda and Graeme.

179. Graeme then met Mr Vagg at his Coffs Harbour office and they went through Lynn’s outstanding accounts together. Graeme established that $50,000 was immediately owed by Lynn with further bills to follow. While Valda was prepared to lend this amount to Lynn, she did not have those funds. Graeme then developed a proposal which, after discussion with Valda, he took to Westpac Bank in Coffs Harbour for their consideration. The proposal involved an extension of $25,000 to Valda’s War Service Home Loan and a separate personal loan from Valda to Lynn for an additional $25,000. Graeme offered to provide a personal guarantee to Westpac and to make all the repayments on the two loans until they were fully repaid. Westpac agreed to these terms.

180. Two loans of $25,000 each were then made to Valda: one loan of $25,000 from Defence Service Home Loans (which Westpac administered) and the second loan of $25,000 from Westpac to Valda, with Graeme providing a personal guarantee to Westpac for the repayment of both loans. As between Valda and Graeme, Graeme agreed to make all the monthly repayments on both loans because Valda was not in a financial position to do so.

181. Graeme then attempted to ascertain the amount that Valda had already lent Lynn. Graeme identified a $10,000 loan from Valda to Lynn on 19 October 2000 and further amounts totalling $59,000 that Valda had already lent Lynn, none of which had ever been repaid. Graeme calculated that, combining the $50,000 to be paid to Lynn by way of the two loans that Valda was borrowing from Westpac and the $59,000 that Lynn had already borrowed from Valda, the total amount owing by Lynn to Valda was $109,000.

182. Lynn claims that the $10,000 from Valda was a gift to him because she frequently gave him money and he assumed that Valda was doing the same from Graeme. The evidence demonstrates that it was a loan as it formed part of the amount loaned under the 2004 Deed of Loan as calculated by Graeme. In either case, whether the $10,000 is a gift or a loan, it is evidence of further provision made for Lynn by Valda during her lifetime.

183. Graeme then asked Anthony Walsh of Walsh & Associates in Coffs Harbour to prepare a legal document reflecting the arrangements. A proposed deed of loan was prepared by Mr Walsh, provided to Valda and Graeme, who in turn provided it to Lynn. Lynn accepted in cross-examination that he read through the 2004 Deed of Loan (T37).

184. Lynn consulted his lawyer, Mr Abbott, about it. Lynn says that he has no recollection of consulting Mr Abbott and agreed in cross-examination that he “may have just asked generally about it with somebody” but could not remember (T41), but I consider that it is likely that he did so as he told each of Graeme and Mr Walsh that he had.

185. The recitals to the 2004 Deed of Loan provided the following:

186. Valda was requested to make an advance of $109,000 (Principal Sum) to Lynn, and Valda agreed to make that advance to Lynn in order to assist Lynn with legal costs related to the Family Court Proceedings with Cam-May and allow Lynn to use those funds for this purpose (recitals A–B).

187. All funds payable under the 2004 Deed of Loan are to be repaid to Valda by Lynn on the date set out in it (recital C).

188. Valda has in addition to her own funds borrowed money from Defence Service Home Loans and Westpac to enable her to lend the Principal Sum to Lynn (recital D).

189. Graeme has agreed to make whatever repayments were required by Defence Service Home Loans and Westpac on Valda’s behalf until all money borrowed has been repaid (recital E).

190. The terms of the 2004 Deed of Loan included the following:

191. Valda had advanced the Principal Sum to Lynn, which Lynn acknowledged (cl 1).

192. Subject to the provisions of the 2004 Deed of Loan, Lynn agreed to repay the Principal Sum or so much of it still owing to Valda’s estate on the date twelve months after the death of Valda (Repayment Date) (cl 2.1).

193. Lynn may repay at any time part of all of the Principal Sum plus any accrued interest payable under the 2004 Deed of Loan prior to the Repayment Date (cl 2.2).

194. In addition to the Principal Sum, Lynn agreed to pay interest at a rate of 5% per annum accruing from 1 November 2004 and with such interest to be paid in full on the Repayment Date or, if the loan is repaid on some earlier date, on that date (cl 3).

195. If Lynn should fail to repay the Principal Sum or any other amounts payable under the 2004 Deed of Loan on the Repayment Date, Lynn agreed to pay interest at a rate of 20% per annum on all outstanding amounts until they are repaid (cl 4).

196. Valda has taken out loans from Defence Service Home Loans and Westpac to provide part of the Principal Sum (cl 5).

197. Graeme agreed to pay and guarantee payment of all moneys payable to Defence Service Home Loans and Westpac by Valda pursuant to loan agreements with them (cl 6).

198. Lynn agreed that whatever amount of the Principal Sum, interest accrued on the Principal Sum and any money paid by Graeme in relation to the loans which have not been reimbursed by Valda or Valda’s estate after she has died shall be a charge against any interest Lynn may have under the Will of Valda (cl 7.1).

199. Lynn irrevocably agreed and authorised Valda’s executor to deduct from any interest in Valda’s estate after Valda’s death sufficient money to repay all moneys payable by Lynn under the 2004 Deed of Loan, in particular cl 7.1 (cl 7.2).

200. In respect of the 2004 Deed of Loan, Lynn said that:

201. He borrowed money from his mother Valda in 2004 to “help pay for [his] divorce from Cam-May”.

202. At the time of the 2004 Deed of Loan, Lynn was struggling financially from the cost of the Family Court Proceedings to keep contact with his children.

203. At the time it was entered into, Lynn expressed surprise at the conditions of the 2004 Deed of Loan to which Graeme responded, “[i]t’s only business”, in reply to which Lynn claims to have been so stunned that he believes that he did not comprehend the rest of the document. Graeme does not remember saying those words. In cross-examination, Lynn accepted that he knew on reading the 2004 Deed of Loan that interest was payable at either 5% or 20%, depending on the terms of the 2004 Deed of Loan (T39).

204. Lynn understood that the amount he would owe under the 2004 Deed of Loan would be in the order of $50,000 to $60,000. It is unclear how Lynn arrived at that figure, which is approximately half of the Principal Sum, in circumstances where the 2004 Deed of Loan provides for repayment of the Principal Sum plus interest. In cross-examination, Lynn accepted that he knew that he owed Valda $109,000 plus interest (T38).

205. Lynn was under severe emotional distress at the time the 2004 Deed of Loan was executed and did not have the benefit of legal advice at that time because he could not afford it. As I have found above, I consider that Lynn did have the benefit of legal advice before entering the 2004 Deed of Loan.

206. Lynn found the 2004 Deed of Loan complex, Mr Vagg had ceased to act for him, the implications of it were not explained to him and he felt obligated to sign given Graeme’s decency in taking on repayments of loans to fund Lynn and Valda’s attempts to help. In cross-examination, Lynn refused to accept that Mr Vagg may not have ceased to act for him at this point and gave evidence that the purpose of the loan under the 2004 Deed Of Loan was to pay the debt owing to Mr Vagg (T43–44). I accept Lynn’s evidence on that point.

207. Lynn should have been warned about the 20% penalty interest clause, which far exceeded any commercial rate of interest at the time. In cross-examination, Lynn accepted that it was not particularly complex for him to understand that interest at 20% was to be charged and that he did not need to be warned about it (T44–45).

208. Lynn does not know how the sum of $262,321.51, which appears in the probate inventory, has been calculated.

209. Graeme has not responded to requests for information about “the alleged debt”.

210. In cross-examination, Lynn agreed that he knew what he was doing when he signed the 2004 Deed of Loan, that he wanted to borrow money from Valda to fund the Family Court Proceedings because he had run out of money and his lawyer would not continue to act without further funds (T45). Lynn knew that in order to fund the $109,000 Principal Sum, two commercial loans were being taken out (being a commercial loan with Defence Force Home Loans and a commercial loan with Westpac) and that Graeme was making all the monthly repayments on those loans (T45). Lynn accepted that he agreed to sign the 2004 Deed of Loan on that basis (T45).

211. Lynn also accepted that Graeme made all the repayments on the loans from Defence Force Home Loans and Westpac from December 2004 until June 2021, a period of about 16 and a half years (T46).

212. It was accepted by Lynn that he has not made any payments to Valda’s estate of the Principal Sum or any interest owing under the 2004 Deed of Loan (T46).

213. It was also accepted by Lynn that he has not made any payments to Graeme for the money paid by Graeme for the loans from Defence Service Home Loans and Westpac to Valda which is owing by Lynn under cl 7.1 of the 2004 Deed of Loan (T46). Valda did not reimburse Graeme for any of these amounts during her lifetime and no reimbursement to Graeme of these amounts has been made by Valda’s estate. The total amount paid by Graeme to Defence Service Home Loans and Westpac is $63,709.12, which is the amount now owing by Lynn to Graeme.

214. The amount calculated by Graeme as owing by Lynn to Valda’s estate under the 2004 Deed of Loan as at 22 June 2023 (the Repayment Date, being 12 months after the death of Valda on 22 June 2022) is as follows:

| Description | $ | Provision | | Principal Sum | 109,000.00 | recital A; cll 1 & 2.1 | | Interest at 5% per annum from 1 November 2004 – 31 October 2022 (18 years at $5,450.00 per annum) | 98,100.00 | cl 3 | | Interest at 5% per annum from 1 November 2022 – 22 June 2023 (233 days at $14.93 per day) | 3,479.04 | cl 3 | | Total owing as at 22 June 2023 | 210,579.04 | |

193. Graeme has not calculated any interest at 20% per annum owing by Lynn to Valda’s estate at 20% per annum for the period after 22 June 2023, which Lynn acknowledged he understood (T41). I understand that as executor of Valda’s estate, Graeme does not seek to enforce the 20% per annum entitlement to interest.

194. Lynn does not seek to set aside the 2004 Deed of Loan as part of these proceedings and I do not think that there is any basis on which I can proceed other than to treat it as valid and enforceable against Lynn by Valda’s estate and Graeme.

Valda’s wills

195. Valda made a number of wills and codicils over the last decades of her life, including the following:

196. Will made on 24 July 1992 (1992 Will), which appointed Colin as executor and trustee of Valda’s estate and left the entirety of Valda’s estate to him unless Colin did not survive Valda by more than 30 days, in which case Graeme and Lynn were appointed as executors and trustees and would share equally in Valda’s estate (cll 2–3.2). The 1992 Will also included a provision which forgave any debt owing to Valda by each of Graeme and Lynn (cl 6).

197. Codicil made on 1 October 1992 (1992 Codicil) directing that Valda be cremated and in all other respects confirming the 1992 Will.

198. Will made on 16 December 1998 (1998 Will), which appointed Graeme and Lynn as executors and trustees of Valda’s estate and left the whole of Valda’s estate to Colin unless Colin did not survive Valda by more than 30 days, in which case Valda’s estate would pass to Graeme and Lynn in equal shares (cl 8). The 1998 Will also contained a clause which forgave any debts owing to Valda by each of Graeme and Lynn (cl 9).

199. Codicil made on 8 December 2004 (2004 Codicil) (two days after the 2004 Deed of Loan) which had the effect of removing reference to Lynn from the operation of the forgiveness of any debt owing by him to Valda in cl 9 of the 1998 Will and inserting a new cl 9A which required that any funds owing by Lynn to either of Valda or Graeme under the 2004 Deed of Loan be deducted from any share Lynn may have under the 1998 Will. Valda made the 2004 Codicil on the advice of Mr Walsh.

200. Will made on 5 July 2005 (2005 Will), which appointed Graeme as sole executor and trustee of Valda’s estate (cl 3) and directed the trustee to hold balance of her estate to be divided into two equal parts, leaving one such part to Graeme absolutely (or his children when they attained the age of 18 years in equal shares if he predeceased Valda) (cl 8(A)) with the remaining part, less any amounts owed to either Valda or Graeme under the 2004 Deed of Loan, to be held on trust for Lynn (or his children in equal shares when they attained the age of 18 years if he predeceased Valda)) (cll 8(B) and 10). The 2005 Will established a discretionary testamentary trust for the benefit of Lynn and his dependants (with the interests of Lynn taking precedence) and required the net income or capital of the fund to be applied to their accommodation, maintenance, support, education, advancement and benefit (cll 8(B)(I)–(IV)). Upon Lynn’s death or if he failed to survive Valda by 30 days, the balance of the fund would be equally divided among his children (cl 8(B)(VII)). As foreshadowed, the 2005 Will required any amount owing to Valda or Graeme under the 2004 Deed of Loan, which was deducted from any share of Lynn under the 2005 Will, to be used to repay Graeme, Valda’s estate or other loans taken out by Valda and referred to in the 2004 Deed of Loan (cl 10). The 2005 Will also forgave any debts owing by Graeme to Valda (cl 9).

201. Will made on 17 January 2007 (January 2007 Will), which appointed Graeme as sole executor and trustee of Valda’s estate (cl 3). By the January 2007 Will, Valda directed the balance of her estate to be divided into two equal parts, leaving one such part to Graeme absolutely (or his children when they attained the age of 18 years in equal shares if he predeceased Valda) (cl 8(A)) with the remaining part, less any amounts owed to either Valda or Graeme under the 2004 Deed of Loan, to Lynn absolutely (or his children when they attained the age of 18 years in equal shares if he predeceased Valda) (cl 8(B)). The January 2007 Will required any amounts owing by Lynn to each of Valda and Graeme under the 2004 Deed of Loan to be deducted from Lynn’s share in Valda’s estate and used to repay Graeme, Valda’s estate or other loans taken out and referred to in the 2004 Deed of Loan (cl 10). The January 2007 Will also forgave any debts owing by Graeme to Valda (cl 9).

202. Will made on 12 June 2007 (June 2007 Will), which appointed Graeme and Lynn as executors and trustees of Valda’s estate (cl 3). The June 2007 Will was otherwise on terms almost identical to that of the January 2007 Will, other than it required any children taking in substitution to Graeme and Lynn to first attain the age of 25 years (previously 18 years) (cl 8) and forgave $50,000 of the debt owing by Lynn under the 2004 Deed of Loan, requiring the balance to be repaid from Lynn’s share as previously provided (cl 10). The June 2007 Will also forgave any debts owing by Graeme to Valda (cl 9). I note that Lynn says that a dispute arose following him becoming aware of the contents of the January 2007 Will, which resulted in him being re-instated as joint executor and trustee of Valda’s estate under the June 2007 Will, but nothing turns on this.

203. Will made on 17 July 2015 (2015 Will), which appointed Graeme and Lynn as executors and trustees of Valda’s estate (cl 3). By the 2015 Will, Valda gave pecuniary legacies of $150,000 to each of Graeme’s sons, Benjamin and Nicholas (cl 4). Valda then directed the balance of her estate to be divided into two equal parts, leaving one such part to Graeme absolutely (or his children when they attained the age of 25 years in equal shares if he predeceased Valda) (cl 5(b)(A)) with the remaining part, less any amounts owed to either Valda or Graeme under the 2004 Deed of Loan, to Lynn absolutely if he survived Valda (cl 5 (b)(B)). The 2025 Will removed the gift to Lynn’s children in substitution with the effect that, if Lynn failed to survive Valda, Graeme’s share would be correspondingly enlarged (cl 5). As in the June 2007 Will, by the 2015 Will, Valda forgave $50,000 of the debt owing by Lynn under the 2004 Deed of Loan and otherwise required any amounts owing by Lynn to each of Valda and Graeme under the 2004 Deed of Loan to be deducted from Lynn’s share in Valda’s estate and used to repay Graeme, Valda’s estate or other loans taken out and referred to in the 2004 Deed of Loan (cl 7). It also forgave any debts owing by Graeme to Valda (cl 6). In essence, the significant difference between the 2015 Will and earlier iterations was that substantial provision was made for Graeme’s children, Benjamin and Nicholas, whilst no provision was made for Lynn’s children, Aethan and Jovn, including by their removal from receiving Lynn’s share in substitution if he predeceased Valda.

204. Will made on 14 June 2019 (2019 Will), which was Valda’s last will and the provisions of which I have detailed below more comprehensively than I have done in respect of the earlier wills set out above.

205. Anthony Walsh, the solicitor who had acted for Valda for many years, drafted the 1998 Will, the 2004 Codicil, the 2005 Will, the January 2007 Will, the June 2007 Will, the 2015 Will and the 2019 Will and witnessed all of them except for the 2004 Codicil.

The 2019 Will and 2019 Trust

197. In submissions made by Lynn, he describes the 2019 Will as a “complex 12 page document which includes lengthy terms of a discretionary trust for [his] apparent benefit” (T160). As will become apparent, that is a fair description.

198. The 2019 Will included the following provisions:

199. Graeme was appointed as sole executor and trustee (cl 3).

200. Each of Graeme’s sons, Benjamin and Nicholas, were given $150,000 (cl 4).

201. The rest and residue of Valda’s estate was to be used to pay any debts, legacies, funeral and testamentary expenses and any death, estate or succession duties with the balance then remaining to be divided into two equal parts as follows:

(a) one half to Graeme absolutely (or if Graeme predeceased Valda, to his children in equal shares in substitution) (cl 5(b)(A)); and (b) in respect of the remaining half:

(i) $25,000 to each of Lynn’s sons, Aethan and Jovn, on attaining the age of 25 years (cl 5(b)(B)(i)); and (ii) the balance to Lynn if living on Valda’s death “subject to clause 7 of this Will on the terms in Clause 8” (cl 5(b)(B)(ii)).

4. Valda forgave any debts owed to her by Graeme (cl 6).

5. By cl 7, Valda forgave $50,000 of the debt owing to her by Lynn under the 2004 Deed of Loan and directed the balance of any money owed to Valda or Graeme at the death of her death pursuant to the 2004 Deed of Loan be deducted from Lynn’s share in Valda’s estate and used to repay Graeme, Valda’s estate or other loans taken out and referred to in the 2004 Deed of Loan.

6. By cl 8, Valda purported to establish a discretionary testamentary trust (2019 Trust) for the benefit of, amongst others, Lynn in respect of the share or part provided for Lynn under cl 5(b)(B)(ii)).

7. The 2019 Trust established under the 2019 Will differed in significant respects from the discretionary testamentary trust described in the 2005 Will.

8. Notably, the trust established by the 2005 Will provided that the trust fund (income and capital) was to be applied for the benefit of Lynn and his descendants during Lynn’s lifetime and, upon Lynn’s death, would ultimately vest for the benefit of Lynn’s children in equal shares.

9. The class of beneficiaries under the 2019 Trust however included (cl 8.1(a)):

10. Lynn;

11. the Trustee of the 2019 Trust in either their corporate or personal capacity as the case may be (cl 8.1(a)(ii));

12. “any company incorporated in any country throughout the world in which any of the Beneficiaries referred to in this clause may have some interest whether by shareholding or membership of the Board of Directors” (cl 8.1(a)(iii));

13. “the Trustee of any trust or settlement of which any of the Beneficiaries referred to in this clause is a beneficiary or object, whether present contingent or discretionary…” (cl 8.1(a)(iv)); and

14. “any company or other body corporate or incorporate nominated by [Valda’s] Trustees the objects and functions of which are charitable and which does not carry on business for the purpose of profit or gain to its individual members” (cl 8.1(a)(v)).

15. Clearly, the Beneficiaries to the 2019 Trust are much broader than Lynn and obviously include Graeme as the Trustee of the 2019 Trust (see below). There is a significant tension between cl 5(b)(B) of the 2019 Will and cl 8 of the 2019 Will (which sets out the 2019 Trust) because the former says that the balance of one part of the estate (after the payment of $25,000 each to Aethan and Jovn) is held for Lynn on the terms set out in cl 8 and the latter creates a trust where the beneficiaries are Lynn and others (including Graeme).

16. The Trustee of the 2019 Trust was Graeme with Graeme (or a person nominated by him) to have powers of removal and appointment (cll 3, 8.1(i), 8.2(r)–(s)). Should Graeme die, then his personal legal representative (whoever that may be) would become the Trustee and therefore a Beneficiary of the 2019 Trust as well.

17. The Trust Fund of the 2019 Trust was defined to be “the part of [Valda’s] Estate and any income arising from it other than the gifts made in clause 4(b)(ii)(B)”. This is an obvious drafting error as there is no cl 4(b)(ii)(B) in the 2019 Will and so this creates an absurdity. There are gifts made to each of Benjamin and Nicholas under cl 4, gifts made to each of Aethan and Jovn under cl 5(b)(B)(i) and the provision in respect of Lynn with which the 2019 Trust is concerned is cl 5(b)(B)(ii). In these circumstances, it is clearly arguable (and has been asserted by Lynn) that it is uncertain what the objective intention of this definition can be taken to have been (if the court were minded to correct what is an obvious error by an exercise in construction) and so the 2019 Trust fails for uncertainty of subject matter.

18. The Vesting Date of the 2019 Trust was defined as 70 years from the date of Valda’s death (cl 8.1(m)). The Distribution Date of the 2019 Trust was defined as either the Vesting Date or such earlier date as the Trustee may determine (cll 8.1(f)).

19. Under the terms of the 2019 Trust, the Trustee (Graeme) had extensive powers, including to do any of the following:

20. accumulate, pay, apply or set aside the whole or part of the income of the Trust Fund in any Financial Year for all or such one or more of the Beneficiaries exclusive of each other in such shares and proportions as he may in his absolute discretion determine (cl 8.2(a)–(b));

21. any amount set aside for any Beneficiary is to be held by the Trustee as a separate Trust Fund for such Beneficiary absolutely with powers pending payment over to that Beneficiary to invest or apply for the benefit of that Beneficiary or deal with such fund or any resulting income in the manner provided for in the 2019 Will in relation to the Trust Fund (cl 8.2(c));

22. from time to time and at any time prior to the Distribution Date distribute any part of the capital of the Trust Fund to all or such one or more of the Beneficiaries exclusive of the other in such shares or proportions as the Trustee may in their absolute discretion determine (cl 8.2(e));

23. hold, apply, invest, deal with, manage, transpose and realise all investments and all property constituting the Trust Fund as the Trustee thinks fit and with such powers, discretions and authorities as if the Trustee were the absolute beneficial owner (cll 8.2(g), 8.2(i));

24. exercise all powers and discretions vested despite the Trustee being interested in the mode or result of the exercising such power or discretion or in any of the property or investments and will not be called upon to account for any profits which they may make on account of being so interested (cl 8.2(j));

25. determine at any time after Valda’s death a date earlier than the Vesting Date as the Distribution Date in respect of the whole or any part of the Trust Fund (cl 8.2(m));

26. charge and be paid out of the Trust Fund and the income of the Trust Fund such remuneration as the Trustee in their absolute discretion considers reasonable and any benefit given under the 2019 Will is in addition to and not in substitution for any commission to which the Trustee may be entitled to their pains and trouble in the administration of Valda’s estate (cl 8.2(o)–(q));

27. remove a Trustee or appoint a new or additional Trustee (cl 8.2(r));

28. permit any Beneficiary to reside in any dwelling which may from time to time be the subject of the trust either gratuitously or on payment of such rent as the Trustee in their absolute discretion thinks fit (cl 8.2(w));

29. guarantee any debt, mortgage, charge or otherwise grant security, as well as lend, borrow and raise money in respect of the whole or any part of the Trust Fund (cl 8.2(x)–(y)); and

30. do all such other things as are or may seem to the Trustee in their absolute discretion to be “incidental to conducive to the furthering of the interests of the Beneficiaries hereunder or to the exercise by the Trustee of its powers hereunder or the performance of the Trusts” (cl 8.2(ee)).

31. Further management and investment powers are also provided to the Trustee (cll 9–10).

32. It is relatively clear that the intent of the 2019 Will was to make provision for Lynn, but that such provision was to be the subject of the 2019 Trust as a discretionary trust with Graeme as the trustee and a beneficiary on the terms outlined above. Unfortunately, that intent has not been achieved by the poorly drafted terms of the 2019 Trust in the 2019 Will.

33. The 2019 Trust does not provide for a remainder beneficiary to receive it on the Vesting Date (which is 70 years from the date of Valda’s death). Given that the 2019 Trust has an uncertain operation in light of the problems with the definition of Trust Fund outlined above, the 2019 Trust is one in which Graeme may act in his absolute discretion (including by granting the capital and income of the 2019 Trust to himself or any company established by him as a beneficiary), Graeme is 78 years old, Lynn is 74 years old and the relationship between Graeme and Lynn is acrimonious (to say the least), I consider that there is considerable uncertainty as to whether Lynn will ever receive any amount as a beneficiary of the 2019 Trust.

34. For the purposes of this application, it is not necessary for me to resolve the issue of whether the 2019 Trust fails for uncertainty of subject matter. I am sure that Valda did not have an appreciation that the 2019 Trust may fail for uncertainty of the Trust Fund within it. I certainly do not intend to redraft the terms of the 2019 Trust. As I foreshadowed earlier in this judgment and for reasons which will be made clear below, whether the 2019 Trust fails or not, I have determined that the provision made for Lynn under the 2019 Will is inadequate for his proper maintenance or advancement in life.

35. Lynn believes that, due to her age, infirmity and “alcoholism”, Valda lacked the cognitive capacity to understand the implications of the 2019 Will, the 2019 Trust and their operation together with the 2004 Deed of Loan. Lynn points to email exchanges he had with Graeme in 2016, 2017, 2018 and 2019 in which Graeme variously deals with Valda’s need for full-time nursing attention, Valda being hospitalised due to injuries from her falls, Valda varying “from totally lucid to totally spaced out”, Valda “living in her own world with the fairies most of the time”, Valda being “very slurry” and Graeme surmising that many of her falls “resulted from alcohol consumption”.

36. While there is certainly evidence of Valda’s physical decline in her advanced years, evidence of any cognitive decline does not rise above that of assertion and is ultimately not relevant to Lynn’s application for provision. Lynn does not seek to challenge the 2019 Will, the 2019 Trust or the 2004 Deed of Loan based on any alleged mental incapacity of Valda.

37. In any event, whatever assertions were made by Lynn about the mental competence of Valda at the time of the 2019 Will, I reject them. I prefer the evidence of Mr Walsh, who had dealings with Valda from 1998 to 2019 and attended on Valda twice during the preparation and completion of the 2019 Will, observing her to be “very frail but in good spirits” on 23 May 2019 and also stated that on 14 June 2019:

… The late Mrs Wright was again quite bright. I explained the Will to her and she appeared to me to understand it and to follow my explanation. I did not see, hear or otherwise observe any signs of cognitive decline or any other mental difficulties during our discussion.

My observation and opinion was that the late Mrs Wright had the mental capacity to make the Will dated 14 June 2019 (as she had for all of the previous Wills and other documents I had witnessed her sign).

If I had not thought this, I would have politely declined to go ahead. I would also have said something to a relative (such as Graeme) and advised that a medical assessment was needed before proceeding any further.

214. Mr Walsh’s recollection of Valda is clear and coherent and does not suffer any lack of reliability despite him acknowledging that he was unable to locate a file note of his attendance on her (T154–155).

Letter of Wishes

215. On 26 July 2019, Valda signed a handwritten note which explained her reasons for making the 2019 Will in the manner she had (Letter of Wishes). The Letter of Wishes was also drafted at the suggestion of Mr Walsh.

216. The Letter of Wishes stated as follows:

To Whom it may Concern,

This letter should only be used should there be a dispute Raised by my Son Lynn and/or his wife Carmel over the wishes expressed in my will dated 14 June 2019. During June 2019 I made a change to my will, making my Eldest Son Graeme my sole Executor and Trustee, and placing in a trust fund, any amount allocated to my younger Son Lynn. I have a number of reasons for taking this action, as it is difficult for me to write in my own hand due to arthritis, I have dictated and had my reasons typed. They are as follows:

217. Attached to the Letter of Wishes are two pages of typed reasons signed by Valda and dated 26 July 2019, as follows:

- At the age of five Lynn contracted sub-acute bacterial endocarditis and almost died. He was very sick for a considerable period. The doctor warned Colin and I that if he survived, the lack of oxygen resulting from the heart problem could result in permanent brain damage. I am not sure why he does some of the things he does but feel that it may be related to his sickness as a child.

- In my opinion he has been very neglectful and wasteful with money and he has appeared to squander any money he had, often on one fad after another.

- Regrettably I feel responsible for a major part of the problem, as I was the one to encourage a relationship that resulted in the marriage to his current wife Carmel. At the time of the marriage Lynn had a house, two cats and two dogs, and he was the primary guardian of his two young sons. At the time Lynn also had a physiotherapy business and owned the premises in Woolgoolga. Carmel then joined the family with her own son, and I believe that problems between Carmel and Lynn’s sons commenced at this time.

- At the time of the marriage to Carmel, Lynn was heavily in debt due to an expensive, lengthy and acrimonious divorce with Cam May. Despite Lynn’s and now the family’s debts, Carmel ceased work and undertook study. I am unsure of the order; however, Lynn’s sons’ cats were dispatched one by one, followed by their dogs, and ultimately both sons chose to move out to live with their mother. This particularly distressed me as it appeared that Carmel did nothing to discourage their departure and may have been instrumental. In my opinion Lynn’s children were no longer welcome in that household.

- Lynn then lost the house, followed by his business and then the business premises. I do not know how much of his debt was paid off by the sales. Although he still owed his brother and possibly others a considerable amount, his wife bought a new car and then proceeded to travel alone on a trip to Europe. Lynn remained at home to look after Carmel’s son.

- Lynn has refused to contact [sic] with his sons following their move to live with their mother, even though the boys have wanted to remain in contact. I still speak and meet with Cam May as she is the mother of my grandsons. Since the boys moved, I understand that Lynn has not contributed in any way either socially, morally or financially to their upbringing. This leaves me heart broken and I can no longer raise the issue with Lynn as it causes me so much distress.

I believe that a combination of Lynn’s childhood illness and manipulation by Carmel, has resulted in the dreadful situation between Lynn and his sons. Lynn requires any financial assets from my Will appropriately controlled via my trustee, and I do not wish Carmel to materially benefit from my estate. I therefore leave it to my trustee to dispense funds from the Trust to Lynn as deemed appropriate to meet his debts etc.

218. It was not disputed by Lynn that the Letter of Wishes was prepared and signed by Valda and is “her document” (T52–53 and T90). Lynn conceded that it was an accurate reflection of Valda's views (T53).

219. Lynn sought to discredit the Letter of Wishes as having no factual basis. I will deal with each of his contentions and the evidence about them in turn.

Lynn’s health

220. Lynn says that he did not contract sub-acute bacterial endocarditis when he was six years old and nor did he nearly die from it. Lynn says that he was 15 years old in 1966 when he contracted sub-acute bacterial endocarditis, he spent a short time in hospital followed by antibiotic injections for six weeks at home and he did not suffer any lack of oxygen to the brain.

221. Lynn also says that he was five years old when he was diagnosed with encephalitis and nursed at home by Valda, the diagnosis being based on a clinical assessment not on any pathology or any form of brain scan. Lynn points to the fact that he has managed to successfully complete undergraduate and postgraduate studies as well as work in his own physiotherapy practice and psychology practice, even at his current age.

222. Graeme’s evidence is that in about 1956 (when Lynn would have been about 5 years old), Lynn became extremely sick and was in hospital for a considerable period of time, with Valda and Colin being advised by the doctor that Lynn might not survive. Graeme said he did not know the diagnosis but he remembered Valda and Colin being very concerned. Graeme also remembers that after Lynn returned from hospital, he was isolated in his bedroom. Lynn says that he relied on what Valda told him about having encephalitis when he was growing up, his memory being that he was not hospitalised and was definitely in his bedroom for a considerable period of time with Valda present.

223. I am not in a position to resolve the differences between the evidence of Lynn and the evidence of Graeme with respect to Lynn’s health condition when he was five years old, although I accept Lynn’s evidence that he suffered from encephalitis rather than sub-acute bacterial endocarditis as claimed by Valda in the Letter of Wishes.

224. During the cross-examination of Lynn, there was no challenge to his evidence about his own health. I am satisfied that there is no evidence on which I could find that the conduct of Lynn during his life was related to his “sickness as a child” as claimed by Valda in the Letter of Wishes.

Lynn’s abilities with money

225. Heavily woven through the matters raised by Valda in the Letter of Wishes are Lynn’s financial difficulties. There is no doubt that Lynn has suffered from financial difficulties, having to sell his home at the Nana Glen Property, his physiotherapy business and his business premises at 19 Market Street and no longer being able to afford to buy a home or business premises for himself and Carmel. Lynn agreed that his financial position has deteriorated (T63). It is clear that Lynn’s financial position in the final years of his life is a shadow of what it once was.

226. In cross-examination, Lynn denied that Valda’s concerns about his abilities with money in the Letter of Wishes are borne out by the history of the properties that he had bought and sold since the age of 22 at a profit and yet since he sold the Nana Glen Property in October 2011 and 19 Market Street in November 2012 he has been living in rental premises (T64). Lynn agreed that the building project at 19 Market Street caused him serious financial problems, was a major cause of his financial difficulties and he had to sell his business and business premises because of that financial trouble (T64). Lynn also agreed that the other factor leading to his financial difficulties was the Family Court Proceedings with Cam-May (T64).

227. In my view, the objective evidence of the principal causes of Lynn’s financial problems being the building project and the Family Court Proceedings certainly justify a finding that Lynn has not been very good in his dealings with money, but I do not have the basis on which to find that Lynn “has been very neglectful and wasteful with money and he has appeared to squander any money he had” as Valda stated in the Letter of Wishes.

Lynn’s relationship with Aethan and Jovn

228. In the Letter of Wishes Valda regrets encouraging the relationship between Lynn and Carmel and blames Carmel for the breakdown in Lynn’s relationships with Aethan and Jovn.

229. Lynn denies that Valda had any part in his marriage to Carmel, saying that he knew Carmel for some time before she married and lived inland for 10 years and they became reacquainted after Carmel’s divorce when she returned to live in Woolgoolga. Lynn says that this was before Carmel commenced occasional in-home care for Valda. Lynn also says that he and Carmel became better acquainted as members of the same book discussion group. Lynn also says that he had two cats prior to his marriage to Carmel but the dogs were not acquired until a year or two after his marriage to Carmel and they were forced to re-home the cats and dogs when they had to move into a rental property in Woolgoolga that did not allow pets. I accept Lynn’s evidence on these matters. I find that the Letter of Wishes contains factual inaccuracies about them.

230. Lynn denies that the contents of the Letter of Wishes in relation to Aethan and Jovn are true (T53). Lynn says that his problems with Aethan and Jovn existed well before he married Carmel. Lynn says that Aethan ran away, he returned Jovn to Cam-May and he spoke to Cam-May in an effort to have them return to him on a fortnightly basis but was unsuccessful (T54–55). I accept that Lynn may have had problems with Aethan and Jovn before he married Carmel, principally due to the trauma Lynn and Cam-May had put them through in their relationship breakdown, with incidents such as Lynn taking his sons from their home and refusing to tell Cam-May where they were.

231. The evidence outlined above in relation to Aethan and Jovn does, however, demonstrate that the real problems that arose between Lynn, Aethan and Jovn occurred after Lynn married Carmel in August 2008 and moved into the Nana Glen Property with Simon in advance of the marriage. Aethan and Jovn were moved from each having their own bedroom to then having to share a bedroom, re-adjust to a step-brother who assumed occupation of their former bedroom and deal with Lynn’s new relationship with Carmel. Aethan and Jovn both chose to be with Cam-May and not in the home of Lynn and Carmel. I consider that it is likely that the problems experienced by Lynn in his relationship with Aethan and Jovn were centrally based around Carmel coming into their lives.

232. Graeme gave evidence-in-chief of a conversation that occurred in about April or May 2019 during which Valda told him that she had gone on a shopping trip in Woolgoolga and had met Carmel’s sister, Cheryl Midavaine, and they had discussed the situation with Lynn, Carmel, Aethan and Jovn. It was alleged that Valda told Graeme that Ms Midavaine had said words to the following effect:

It’s no surprise Aethan & Jovn returned to live with Cam-May full-time. Carmel had no interest in them and had no intention of keeping them in the family. Carmel wanted them out of the house from the beginning. Carmel looks after herself and, perhaps, Simon. When Aethan & Jovn were living at Nana Glen, Carmel often set the boys up to look bad in front of Lynn”.

233. Graeme said that Valda was very distinct, concise and angry when she told him this, was also distraught at the thought this had happened to her two grandsons, Aethan and Jovn, and from that time Valda would not refer to Carmel by her name again but only as “that woman”. Graeme said that Valda subsequently determined that she did not want any of Lynn’s inheritance to go to Carmel and said to Graeme:

I do not want that woman to get access to Lynn’s inheritance. That woman is not to get any of my money. And if she does, she may well leave with the money.

234. Ms Midavaine said that she knew Valda, only ever exchanged pleasantries with her and denies ever having a conversation with Valda as stated in Graeme’s evidence. Ms Midavaine was cross-examined at the hearing before me in a forthright manner and her evidence was consistent with her written evidence (T117–119). I accept her evidence.

235. The Letter of Wishes stated that Lynn has not contributed in any way either socially, morally or financially to the upbringing of Aethan and Jovn. Lynn’s evidence is that he paid half of their school fees for a period and also contributed child support payments for Jovn. This evidence was not challenged in the cross-examination of Lynn. I accept it. Lynn had nothing to say about how he contributed to the social and moral upbringing of Aethan and Jovn. Given that Lynn has had almost no contact with them since they left his household over a decade ago, it is safe to conclude that he made no social or moral contribution to their upbringing after once they left.

236. I have no doubt that the Letter of Wishes accurately records Valda’s emotions and views concerning the breakdown of the relationship between Lynn and his sons, Aethan and Jovn. I accept that the source of those problems was when Lynn and Carmel commenced to live together at the Nana Glen Property. It seems that those events caused Valda to take a negative view of Carmel. It is not hard to imagine why Valda reached the opinion that Lynn’s children were no longer welcome in his household with Carmel and Simon.

Carmel’s work and travel

237. The Letter of Wishes contains Valda’s disapproval of several of Carmel’s actions while Lynn was heavily in debt and losing his house, his business and his business premises. Valda specifically mentions Carmel ceasing to work and undertaking study, buying a new car and taking an overseas holiday without Lynn, who stayed to look after Simon.

238. As I have concluded above, Valda was obviously correct in concluding that Lynn was heavily in debt and that Lynn had to sell his house, his business and his business premises to pay those debts. It is notable that after these sales Lynn did not have sufficient funds to repay Valda and Graeme under the 2004 Deed of Loan. In my view, Lynn’s sale of his house, his business and his business premises were properly regarded by Valda to have been assets that Lynn “lost”.

239. Lynn says that Carmel did not cease to work, but worked in his physiotherapy business, which she continued to do as she could while caring for her own mother and father with their serious health conditions. I accept his evidence. The Letter of Wishes was factually incorrect in stating that Carmel ceased to work.

240. In cross-examination, Lynn admitted that Carmel did travel overseas on a European holiday on her own for about four weeks and Carmel did buy a new car as Valda said in the Letter of Wishes (T90–91). Lynn also agreed that he and Carmel took a second European holiday between 2013 and 2016 to celebrate the completion of her studies, while Simon stayed with his maternal grandmother (T91).

Carmel not to benefit from Valda’s estate

241. In cross-examination, Lynn agreed that he understood that Valda’s wishes as expressed in the Letter of Wishes were that Carmel would not materially benefit from her estate and also agreed that if he is successful in obtaining a family provision order at all or to an extent in these proceedings, effectively the outcome will be that Carmel will ultimately inherit something (T96).

Conclusions on the Letter of Wishes

242. As stated above, there are different statements contained in the Letter of Wishes that are either correct and incorrect respectively. In any event, I have no doubt that the Letter of Wishes generally contained Valda’s honestly held and thoughtful views across the matters dealt within it to which I must give weight.

Probate of the 2019 Will and the value of Valda’s estate

243. On 16 December 2023, this court granted probate of the 2019 Will in solemn form to Graeme as executor.

244. The inventory of property attached to the grant of probate stated that the total value of the assets of Valda’s estate as at 16 December 2023 was $2,661,699.81, comprising the following:

245. Nursing home bond – $424,129.70

246. Superannuation policy – $248,215.46

247. North investment account – $1,719,084.56

248. Banana Coast Credit Union account – $1,964.54

249. Insurance Australia Group – $5,984.04

250. Debt due by Lynn – $262,321.51

251. On 8 February 2024, Graeme paid the gifts of $150,000 to each of Benjamin and Nicholas under the 2019 Will.

252. Graeme accepted that the amount of $262,321.51 stated in the inventory as owing as a debt due by Lynn under the 2004 Deed of Loan was incorrectly calculated as it was based on a Repayment Date of 21 June 2024 not 22 June 2023.

253. As at 10 September 2025, Graeme estimated the value of Valda’s estate to be a total of $2,535,133.65, comprising the following:

254. St George estate account – $2,029,734.15

255. Debt due by Lynn – $224,288.16

256. Interest on debt due to estate by Lynn (from 22 June 2023 to 10 September 2025 (810 days) and continuing at $48.24 per day – $40,947.34

257. BCU Bank estate account – $187,113.32

258. BCU Bank term deposit – Aethan (maturing 24 October 2025) – $25,000

259. BCU Bank term deposit – Jovn (maturing 9 November 2025) – $25,000

260. Interest on BCU Bank term deposits (as at 10 September 2025) – $3,050.68

261. Graeme explained that the amount of $224,288.16 stated as the debt due by Lynn under the 2004 Deed of Loan was calculated as at 22 June 2023 as follows:

| Description | $ | Provision | | Amount owing to Valda’s estate | 210,579.04 | | | Less: Forgiveness of loan | 50,000.00 | 2019 Will cl 7 | | Balance owing to Valda’s estate | 160,579.04 | | | Add: Amount owing to Graeme | 63,709.12 | 2019 Will cl 7 | | Total owing by Lynn | 224,288.16 | |

249. Graeme confirmed this calculation in cross-examination (T139).

250. To the total amount owing by Lynn of $224,288.16, it is necessary to add interest calculated at the rate provided in s 100 of the Civil Procedure Act 2005 (NSW) (CPA).

251. Lynn does not cavil with this calculation of the amount owing under the 2004 Deed of Loan and that interest is to be added in accordance with s 100 of the CPA.

252. Graeme gave evidence that in the week before the hearing he paid a further $20,000 in costs to Walsh & Associates, which would have reduced the amount in the BCU Bank estate account to $167,113.32 (T138).

253. Graeme also gave evidence that each of the term deposits held for Aethan and Jovn would have matured on 24 October 2025 and 9 November 2025 respectively and would have earned additional interest of $497.37 and $503.33 on those respective dates, totalling $1,000.70.

254. Aethan has now turned 25 years old and he is entitled to a $25,000 gift under the 2019 Will. Graeme has refrained from paying Aethan his legacy but would like to do so. Lynn said he had no objection to that being done (T108).

255. As Jovn will not turn 25 years old until 17 October 2026, the $25,000 gift to him under the 2019 Will is not due to be paid to him until then.

256. As at 10 September 2025, there were no liabilities owing by Valda’s estate.

257. As at 10 September 2025, Graeme estimated that the value of Valda’s gross distributable estate was $2,525,133.65.

258. The estimated value of Valda’s gross distributable estate up to the date of the end of the hearing (9 October 2025) would be reduced to $2,505,133.65 by the $20,000 reduction in the BCU Bank estate account due to the payment of legal fees by Graeme in the week before the hearing (T138).

Costs of the proceedings

259. The solicitor for Graeme, Cherri Lewis of Walsh & Associates, gave evidence that as at 10 September 2025:

260. the amount already paid out of Valda’s estate on account of costs and disbursements (including counsel fees) of these proceedings by Graeme on the indemnity basis was a total of $130,840.40 (inclusive of GST); and

261. she estimated that Graeme’s costs and disbursements (including counsel fees) on the indemnity basis from 10 September 2025 up to and including the completion of the hearing of the proceedings on 9 October 2025 was a total of $63,000 (inclusive of GST).

262. Graeme gave evidence that a further $20,000 was paid to Walsh & Associates in the week before the hearing, which meant that the amount already paid out of Valda’s estate as at the date of the hearing was $150,840.40 and the estimated costs to the end of the hearing became $43,000 (T138 and T145).

263. The solicitor for Lynn, Emmanuel Wood, gave evidence that as at 22 September 2025:

264. no costs of the proceedings had already been paid by Lynn;

265. he estimated that Lynn’s costs and disbursements on the ordinary basis up to and including the completion of the hearing on 9 October 2025 was a total of $100,000 (inclusive of GST);

266. he estimated that Lynn’s costs and disbursements on the indemnity basis up to and including the completion of the hearing on 9 October 2025 was a total of $120,000 (inclusive of GST); and

267. the fee agreement with Lynn did not include an uplift fee.

Procedural history

262. Lynn commenced these proceedings by way of summons filed on 21 June 2024. The relief claimed in the summons was as follows:

1. An order pursuant to section 59 of the Succession Act 2006 that further provision be made for the plaintiff's education, maintenance and advancement in life from the estate and/or notional estate of Valda Margaret Wright, who died on 22 June 2023, late of Woolgoolga in the State of New South Wales.

2. Costs.

3. Such further and other orders as this Honourable Court deems appropriate.

263. There is no contest that the application was brought within time, albeit only just, for the purposes of s 58(2) of the Succession Act.

264. On 18 July 2024, Lynn filed a notice of eligible persons in which he identified both himself and Graeme as “eligible persons” who may apply to this court for a family provision order within the meaning of s 57 of the Succession Act.

265. On 25 July 2024, the matter was listed for directions before Registrar Gerritsen of this court who directed Graeme to file and serve the affidavit of administrator by 29 August 2024 and stood the matter over for further directions on 5 September 2024.

266. On 5 September 2024, Registrar Gerritsen made orders by consent, including that the affidavit of administrator be filed by Graeme by 10 September 2024, Lynn serve any affidavit in reply by 4 October and referred the matter to a private mediation that was set down for 11 November 2024.

267. On 5 December 2024, Registrar Gerritsen made orders including that Lynn file and serve any further evidence-in-chief by 20 December 2024, Graeme file and serve his evidence-in-chief by 28 February 2025, Lynn file and serve his evidence-in-reply by 21 March 2025 and standing the matter over for further directions before the Registrar in Probate on 27 March 2025.

268. After some timetable slippages, the proceedings were listed before me to commence on 7 October 2025 with an estimate of three days.

269. On 7 October 2025, the hearing in this matter commenced before me and at its conclusion on 9 October 2025, I reserved my judgment.

Lynn’s financial position

The income and expenses of Lynn and Carmel

270. Lynn and his wife Carmel work as clinical psychologists. Lynn’s current income (expressed as “take-home pay”) is estimated to be $5,800 per month, with an additional $66 per month expressed to be “income from savings and investments”. Carmel’s current income (expressed as “take-home pay”) is estimated to be $8,900 per month.

271. This means that the collective monthly net income of Lynn and Carmel is estimated to be a total of $14,766.

272. Lynn says that their collective monthly living expenses are estimated to be a total of $14,776 (exactly equal to the total of their collective monthly net income), as itemised below:

273. Rent and utilities estimated to be a total of $3,850 per month. As I have mentioned, Lynn and Carmel reside in rental accommodation.

274. Insurance and financial costs estimated to be a total of $6,6161 per month. This line item includes descriptions of “[c]ars, home contents, life, roadside assist, health” of $1,288 per month, “investments & super contributions” of $1,200 per month and Australian Tax Office (ATO) instalments of $2,873 per month. Curiously, the debt said to be owing to the ATO was calculated as being some $6,515 in July 2024 (with monthly repayments of $2,736) and by September 2025 (with monthly instalments of $2,873) the debt was calculated at “nil”. Putting the intervening 13 months to one side, in circumstances where the debt appears to have been repaid, it is difficult to conceive of the $2,873 as being an ongoing monthly expense. It may be that the amount of $2,736 per month is simply an ongoing PAYG instalment without being an accrued debt. This was neither explained further by Lynn or explored in the cross-examination of him.

275. Groceries and household costs estimated to be a total of $1,893 per month.

276. Personal and medical expenses estimated to be a total of $1,385 per month.

277. Entertainment and restaurant expenses estimated to be a total of $1,175 per month. This amount includes items such as “streaming services, books, eBooks, art” in the amount of $433 per month.

278. Transportation expenses estimated to be a total of $312 per month.

279. Carmel’s son, Simon, has complex medical needs which make it unlikely that he will be able to live by himself. Simon works for Carmel as a receptionist, receiving approximately $400 per week plus superannuation. Simon does not receive any Centrelink payment, nor does he receive any support from the National Disability Insurance Scheme. Lynn and Carmel both support Simon.

The assets and liabilities of Lynn and Carmel

274. Lynn and Carmel have limited assets, with neither of them owning any real property.

275. Lynn’s assets are estimated to be a total of $41,105 and Carmel’s assets are estimated to be a total of $64,155, comprising:

276. Joint personal effects – Lynn ($10,000) and Carmel ($10,000).

277. Vehicles – Lynn ($5,980) and Carmel ($12,000).

278. Trailer – Lynn ($1,200).

279. Life insurance (cashout) – Lynn ($7,500).

280. Superannuation – Lynn ($12,414) and Carmel ($38,880).

281. IAG shares – Lynn ($586).

282. ANZ savings – Lynn ($150).

283. CBA Joint Accounts – Lynn ($3,275) and Carmel ($3,275).

284. Ensuring that there is no double counting of the joint assets of the personal effects ($10,000) and the CBA joint accounts ($3,275), the combined estimated total of the assets of Lynn and Carmel is $91,985.

285. Lynn’s liabilities are estimated to be a total of $8,555 and Carmel’s liabilities are estimated to be a total of $33,555, comprising:

286. HECS debt – Carmel ($25,000).

287. Mastercard – Lynn ($7,055) and Carmel ($7,055).

288. Macquarie Bank credit card – Lynn ($1,500) and Carmel ($1,500).

289. Ensuring that there is no double counting of the joint liabilities of the Mastercard ($7,055) and Macquarie Bank credit card ($1,500), the combined estimated total of the liabilities of Lynn and Carmel is $33,555.

290. Lynn’s liabilities do not include the debt he owes to Valda’s estate under the 2004 Deed of Loan.

291. Not including the amount owing under the 2004 Deed of Loan, the net surplus of the estimated total of the combined assets of Lynn and Carmel over the estimated total of their combined liabilities is $58,430.

Lynn’s alleged needs

281. Lynn says his needs are as follows:

282. Relief from his obligations to repay the Principal Sum plus interest under the 2004 Deed of Loan, less the sum of $50,000 forgiven under cl 7 of the 2019 Will. The value of this relief as at 10 September 2025 would appear to be $224,288.16 (debt as at 22 June 2023, including $50,000 debt forgiven) plus interest of $40,947.34 (from 22 June 2023 to 10 September 2025), which is a total of $265,235.50.

283. Secure accommodation which will allow Lynn and Carmel to continue working from home (preferably in separate offices). Lynn says he would like to return to the Port Macquarie area and estimates the price of a suitable home in that area to accommodate 3 adults (Lynn, Carmel and Simon) plus 2 offices is between $1,200,000 and $1,400,000. In support of this estimation, Lynn has provided the advertised sale price (but not the sold price) of three different 5-bedroom homes in the Port Macquarie, New South Wales area, with scant detail provided in relation to each property. In cross-examination, Lynn agreed that he would not need a full office for his part-time practice as a psychologist and he could do so from a bedroom using a telephone and video conference facility (T76–77).

284. Replacement of Lynn’s motor vehicle, Subaru Forester, with an estimated on-road cost of $45,000, which Lynn accepted was not an immediate need (T107).

285. Replacement of both of Lynn’s knees, at an estimate cost of $15,000 per knee.

286. Lump sum “for contingencies” in the amount of $200,000.

287. The total amount of Lynn’s needs is therefore asserted to be between $1,725,235.50 and $1,925,235.50. The payment of such an amount to Lynn in this range by way of a family provision order would be between 68.3% and 76.2% of the value of Valda’s gross distributable estate of $2,525,133.65.

Disputes over Valda’s money and possessions

283. Lynn complained that he has “not been provided with information on any monies or chattels assumed without disclosure” from Valda’s home by Graeme. Lynn made particular complaint about not knowing of the income which was earned by Valda’s estate from the renting out of 1 Wrights Lane and its studio and not receiving detailed information about the paintings done by Valda, some of which had been sold.

284. Lynn also said that he did not know what had become of Valda’s possessions, including her electric tilt bed, her furniture, her white goods (such as refrigerators and front loader washing/dryer), kitchen items (such as microwave oven, electric kettle, electric can opener, extensive crockery and cutlery), freezer and gas stove, items from the guest room, television, DVD player, stereo speakers, DVD collection, family photographs, books, mower, boat, metal shelving, pot plants and jewellery.

285. These complaints have to be considered in the context that Lynn gave no assistance to Graeme and Echah when they were preparing Valda’s house at 1 Wrights Lane for sale after Valda moved in the Woolgoolga Retirement Village in March 2021, and only coming to Mullaway to retrieve his own possessions from her garage when he knew it was going to be sold (T81–82). I also accept Graeme’s evidence that Lynn had never previously raised any issue about any of these matters with him before detailing his complaints in evidence in these proceedings.

286. None of these complaints have anything to do with the issues I am required to decide in relation to Lynn’s application for a family provision order. The result of these complaints was that Graeme provided extensive evidence of the dealings with 1 Wrights Lane (I accept that it was never rented), the granny flat at 1 Wrights Lane (it ceased to be rented when 1 Wrights Lane was sold and all rent went to Valda before then) and what had happened to each of these items (including paintings which I accept Valda instructed Graeme to throw out).

287. It was not to Lynn’s credit that he decided to ventilate these matters in this application. For Lynn to raise them in circumstances where he admitted providing no care or support for Valda in the final years of her life, knowing that the considerable burden for doing so fell to Graeme and his wife Echah, is risible.

288. I intend to give these complaints the attention they deserve: none.

Open offers made by Lynn and Graeme

289. During the hearing on 8 October 2025:

290. Lynn made an open offer to Graeme in the following terms (Ex B):

1. $2,029,734 +

2. $187,113 +

3. $50,000 (Aethan & Jovn) taken from the executor's updating affidavit, OTB pp618,619

4. $2,266,847 -

5. $200,0001 (defendant's costs rounded up) affidavit of Cherri Lewis, OTB 623

6. $2,066,847 / 2 = $1,033,423

a. $1,033,423 (plaintiff's estimated half share; clause 5(b)(ii)(B)) -

b. $265,235 100% loan repaid to estate (rule in Cherry v Boultbee)-

c. $50,000 legacies to plaintiff’s sons

d. $718,188+

e. $132,618 (half loan added back; clause 5(b)(ii)(B))

f. $850,805

Plaintiff's open offer: in lieu of the trust in clause 8 of the will, the plaintiff receive provision by way of a lump sum of $850,000, inclusive of his costs, to the intent the balance of the residuary estate be paid to the defendant in accordance with the terms of the trust (clauses 8.1(a)(ii), 8.2(m)).

2. Graeme made an open offer to Lynn in the following terms (T89):

The defendant makes an offer in the sum of $200,000. Secondly, the defendant offers to pay the plaintiff’s costs in the sum that they have estimated; namely, $100,000. Both sums are payable within 28 days. Consistently with the plaintiff’s offer that the money is in lieu of the trust in cl 8 to the will, the plaintiff consents to Mr Graeme Wright terminating the trust. So in other words, the trust would be over. Next, the defendant’s costs may be paid or retained from the estate on the indemnity basis, and finally, that the parties consent to short minutes of order that reflect those terms.

290. Both offers were rejected.

LYNN’S APPLICATION FOR FAMILY PROVISION ORDER

Legal principles

291. Section 57(1) of the Succession Act provides that certain “eligible persons” may apply to this court for a family provision order in respect of the estate of a deceased person. Relevantly, a child of the deceased is such a person: s 57(1)(c).

292. Section 59 of the Succession Act relevantly provides:

(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 [defined in s 57(1)(c) as including a child of the deceased person], 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.

(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.

…

293. Section 60(2) of the Succession Act contains a list of factors to which the court may have regard for the purpose of determining the eligibility of an applicant for family provision and whether and in what form a family provision order should be made. Those matters are:

(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 person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(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,

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

(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.

294. In Bassett v Bassett [2021] NSWCA 320, the New South Wales Court of Appeal summarised the enquiry the court must undertake pursuant to ss 59(1)(c) and 60(2) of the Succession Act, with Bell P, Leeming and Payne JJA stating at [78]–[81] (emphasis in original):

[78] Before an order for provision can be made in favour of a child of the deceased (who is an “eligible person” within the meaning of s 59 of the Succession Act), the Court must be satisfied that “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”: Succession Act, s 59(1)(c).

[79] Satisfaction in this regard is “jurisdictional” insofar as it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): see, for example, as to the use of the description “jurisdictional”, White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; Singer at 208-210; Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [69]-[72]. Care must, however, be taken when answering this jurisdictional question not to confine the relevant consideration to an applicant’s financial or material needs; the language of “proper maintenance, education or advancement” involves more than simply a question of financial needs: see Sgro v Thompson [2017] NSWCA 326 at [68]-[74] (Sgro).

[80] Once the level of satisfaction referred to in [78] has been reached, the Court has a broad discretion, “having regard to the facts known to the Court at the time the order is made” (emphasis added), to make such order for provision out of the estate as ought to be made “for the maintenance, education or advancement in life of the eligible person”: Succession Act, s 59(2).

[81] In considering both whether to make a family provision order and the nature of any such order if the threshold required by s 59(1)(c) is satisfied, the Court is entitled to consider the broad range of matters specified in s 60(2) of the Succession Act. The breadth of the matters that may be considered under s 60(2) does not, however, authorise the making of an order which is for a purpose other than “the maintenance, education or advancement in life of the eligible person”. Nor does it relieve the Court of the need to make the order “having regard to the facts known to the Court at the time the order is made” (emphasis added).

295. In Baker v Baker [2024] NSWSC 559, Hammerschlag CJ in Eq at [20]–[25] helpfully analysed the provisions of the Succession Act, together with the relevant authorities and legal principles that guide the making of family provision orders, as follows (emphasis in original):

[20] The following useful summary of the basal provisions of the Act concerning this type of application was recently provided by Basten AJ in Bohen v Mitchelmore [2024] NSWSC 171 (Bohen v Mitchelmore) at [18]-[20]:

[18] The statutory scheme for family provision orders is found in Pt 3.2 of the Succession Act. It commences by identifying classes of “eligible persons” who may make such an application: s 57. The classes include a child of the deceased person…

[19] The Court may make such an order if satisfied that, at the time the Court is considering the application, “adequate provision for the proper maintenance, education or advancement in life of the person … has not been made by the will of the deceased person”: s 59(1)(c). If so satisfied, the Court is empowered to make “such order” as it thinks “ought to be made for the maintenance, education or advancement in life of the eligible person”: s 59(2).

[20] In determining whether an order should be made and, if so, in what form, the court is empowered to have regard to matters set out in s 60(2) of the Succession Act. Those matters provide guidance, but are not exhaustively stated. Importantly, they inform the content of what may be considered “adequate” provision and “proper” maintenance, education or advancement in life. These matters require the Court to consider the family relationship between the applicant and the deceased person, “including the nature and duration of the relationship” (par (a)); “the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant … or to any beneficiary of the … estate” (par (b)); “the nature and extent of the … estate” (par (c)); “the financial resources (including earning capacity) and financial needs, both present and future, of the applicant” and of any beneficiary of the estate (par (d)); “the age of the applicant” (par (g)); “evidence of the testamentary intentions of the deceased person” (par (j)); “the character and conduct of the applicant before and after the date of the death of the deceased person” (par (m)); and “any other matter the Court considers relevant” (par (p)).

[21] It is well established that s 59 requires a two-step process. First, the Court considers whether adequate provision for the proper maintenance, education or advancement in life of the applicant for the order has not been made by the Will, and if the Court is satisfied that it has not been made, the Court may make such order for provision out of the deceased’s estate as the Court thinks ought to be made for the 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 emphasised words appear in s 59(2)). Those words focus attention on the necessity for the Court to have updated information, which in turn casts upon an applicant a duty to make full and frank disclosure of her or his financial circumstances as at the date of the hearing: DJ Singh v DH Singh and Others [2018] NSWCA 30 at [284]-[291].

[22] The requirement for the Court to have regard to the facts known to it at the time of the order brings with it the clear implication that the relevant facts will be placed before the Court. Added to this, an applicant’s financial circumstances are matters specifically within their own knowledge. In Srekovic v Srekovic [2018] NSWSC 1597, Hallen J (as His Honour then was) had occasion to remark, with reference to Practice Note SC Eq 7 (as it then stood), that:

[228] I have stressed, on numerous occasions, the need of an applicant for provision to disclose her or his financial circumstances at or about the time of the hearing. Indeed, Paragraph 17 of Practice Note SC Eq. 7 requires updating affidavits to be filed and served, and, invariably, when a matter is set down for hearing, a direction is made for such affidavits to be served a few days prior to the final directions hearing. Regrettably, more often than not, as in this case, the direction is not complied with.

…

[24] If it becomes clear that there are pertinent facts which have not been placed before the Court, it cannot make the evaluative judgment which s 59(1)(c) requires it to make: Cringle v Cringle [2018] NSWSC 1558 at [35]-[36]; Stone v Stone [2019] NSWSC 233.

[25] The following canons emerge from the series of decisions cited immediately below:

(1) an applicant has the onus of establishing that adequate provision for their proper maintenance, education or advancement in life was not made by the will;

(2) the terms “proper” and “adequate” do not invoke any precise or immutable standard. The standard will depend on the circumstances of the case;

(3) the jurisdiction is not exclusively needs-based. There are other relevant considerations, as the list of relevant factors in s 60 makes clear;

(4) the notion of advancement in life is concerned or envisages, not merely maintaining a standard or status of an eligible person, but in an appropriate case improving and enhancing it;

(5) the Act does not create legal rights of inheritance;

(6) fairness and equality are not touchstones for relief, and it is not appropriate for the Court to endeavour to achieve an overall fair division of the deceased’s estate; and

(7) the discretion to make an order is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the deceased’s freedom of testation.

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Hughes v National Trustees (1979) 143 CLR 134 at 149; Gorton v Parks (1989) 17 NSWLR 1; Singer v Berghouse (1994) 181 CLR 201; McKenzie v Topp [2004] VSC 90; Vigolo v Bostin (2005) 221 CLR 191 at [10]; Sung v Malaxos [2015] NSWSC 186 at [5]; Steinmetz v Shannon (2019) 99 NSWLR 687; Barbuto v Barbuto [2019] NSWSC 1023 at [308] and following; Bohen v Mitchelmore at [21] and following.

296. Determining the adequacy of provision involves an evaluative judgment on a question of objective fact, based on all the circumstances: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2, Gibbs J (with whom Mason and Aickin JJ agreed) at 147–148; White v Barron (1980) 144 CLR 431; [1980] HCA 14, Barwick CJ at 434–435, Mason J at 443; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, Mason CJ, Deane and McHugh JJ at 210–211. It requires a “multifaceted evaluative approach” that takes into account all the factual circumstances relevant to the application, including a claimant’s needs (accepting that those needs are not determinative of the adequacy of any provision made), as well as the size of the estate and other’s claims on it: Angius v Angius [2025] NSWCA 113, Michelmore JA (with whom Bell CJ and Ball JA agreed) at [25], quoting with approval the summary of Henry J in Lalic v Lalic [2022] NSWSC 31 at [51]–[53].

297. Where a claim is brought by an adult child of the deceased, the following principles (lifted from Smith v Johnson [2015] NSWCA 297, Sackville AJA (with whom Macfarlan and Ward JJA agreed) at [62], reproducing Camernik v Reholc [2012] NSWSC 1537, Hallen J at [159]) offer guidance:

298. A child does not cease to be a natural recipient of parental affection or support upon leaving home or merely because the bonds of childhood are relaxed.

299. Ordinarily (but without fixing this as a universal standard), there exists a community expectation that parents will raise and educate their children to the best of their ability while they remain children. Where feasible and where financial circumstances allow, this will probably mean securing them with a tertiary education and providing them with a start in life such as a deposit on a home. While this does not extend, in ordinary circumstances, to providing one’s children with an unencumbered property or the finance to acquire an unencumbered house, in a particular case where assets permit and the relationship between the parties is such as to justify it, such an obligation may be taken to exist.

300. In general, the community does not expect a parent to look after their child for the duration of the child’s life and into retirement, particularly where someone else (such as a spouse) has or may be taken to have assumed the primary obligation to do so. In respect of an adult child who remains a dependent of a parent, the community will usually expect the parent to make provision to fulfil that ongoing dependency after death.

301. Where a child, including an adult child, encounters hard times, or has been unable to accumulate superannuation or otherwise make provision for their retirement, and where there are assets available, a parent may be expected to provide a buffer against contingencies and/or something to assist their child in their retirement if otherwise they would be left destitute.

302. If a person applying for family provision has obligations of support in respect of others (such as a parent’s obligation to support a dependent child), that will be a relevant consideration in determining what is an appropriate provision for the maintenance of the applicant.

303. An applicant adult child is not required to show some special need or special claim.

304. An adult child’s lack of savings sufficient to meet present and future demands, such as that of ill-health, which is likely to be of greater concern with age, but also of the ordinary vicissitudes of life, is a relevant consideration. An applicant’s diminished or total lack of earning capacity could give rise to an increased call on the estate of the deceased.

305. The applicant bears the onus of establishing before the court, on the balance of probabilities, the justification for the claim.

306. The starting point for the consideration of provision under s 59 of the Succession Act is the terms of the will itself, as recognised in Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 by White J at [127] as follows:

In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court’s determination under s 59(1)(c) and (2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.

299. In the exercise of its statutory powers in determining an application for family provision, the court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating the deceased as wise and just rather than fond and foolish, making allowance for current social conditions and standards and consulting the statutory criteria so far as they may be material in the unique circumstances of the case: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (with whom McTiernan J agreed) at 20; Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (with whom Stephen and Mason JJ agreed) at 502; Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, Allsop P at [12] and [16]; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, Basten JA at [11]–[12]; Bassett, Bell P, Leeming and Payne JJA at [170]–[171]; all of which were cited for these general propositions by Lindsay J in Broadus v Cradduck [2025] NSWSC 402 at [3].

300. It is the duty of the court to apply the statutory text to the particular circumstances of the case, taking into account the “totality of material circumstances”: Verzar v Verzar [2012] NSWSC 1380, Lindsay J at [131].

Submissions of Lynn

301. In summary, Lynn made the following submissions.

302. He is an eligible person as defined in s 57(1)(c) of the Succession Act, by virtue of the fact that he is a child of Valda.

303. He has need for which adequate and proper provision has not been made as required pursuant to s 59(1) of the Succession Act. At the date of Valda’s death, he was not dependent upon her for support and had not been for some years. However, he and Carmel work as clinical psychologists, and their household income matches their household expenses such that they cannot save, have minimal superannuation and cannot afford to retire.

304. On the issue of the provision Valda made for Lynn in the 2019 Will:

(a) Lynn did not fail to maintain contact with Valda, allowing for the vagaries of work and distance, Valda’s cognitive and sensory decline and the COVID-19 pandemic and its effect on access to residents of aged care facilities. (b) Valda’s instructions to Mr Walsh for the preparation of the 2019 Will indicate she was labouring under the misapprehension that Carmel had interfered with Lynn’s relationship with his sons from his second marriage to Cam-May and that it was only on this basis that Valda did not wish any part of her estate to pass to Carmel. (c) Valda was a heavy drinker, aged 93 at the time of making the 2019 Will and was suffering from cognitive impairment, such that it can be inferred she failed to give proper consideration to Lynn’s need for provision from her estate at the time she gave instructions for the 2019 Will. (d) The 2019 Trust in the 2019 Will was so poorly drafted that it remains open to the court to find neither Valda nor her solicitor fully understood the effect of the document they executed.

4. Ultimately Lynn seeks orders to the effect that he receives the gift in clause 5(b)(B)(ii) of the 2019 Will absolutely and without the imposition of the 2019 Trust (T160–161) and that if any further provision was to be made for him, then it should take the form of relief from some or all of the obligation to repay 2004 Deed of Loan.

5. The total amount sought by Lynn is an amount equal to a one-half share of the net residuary estate less the $50,000 payable to his two sons as tenants in common in equal share, a sum of $63,709.12 repayable to Graeme and $80,290 being half the 2004 Deed of Loan.

6. Lynn said that any proposed family provision order should not disturb any of the gifts made to Graeme, Nicholas, Benjamin, Aethan or Jovn under the 2019 Will and should only come from the half-share held by Graeme for Lynn under the 2019 Trust in the 2019 Will (T108–109).

7. The amount sought by Lynn in the family provision order was submitted on the three different bases (with no allowance for any commission to be paid to Graeme) explained as follows:

8. Excluding the amount owing under the 2004 Deed of Loan as an asset of Valda’s estate:

(a) $2,029,734 St George account + (b) $187,113 BCU account + (c) $50,000 (Aethan & Jovn: interest on these deposits is not included as it will pass with the gifts; it is not an estate asset) (d) $2,266,847 subtotal - (e) $70,000 (defendant’s costs rounded up from $63,000) (f) $2,196,847 / 2 = $1,098,423 (g) $1,098,423 (Lynn’s estimated half share; 2019 Will cl 5(b)(ii)(B))- (h) $266,537 (100% loan repaid to estate (rule in Cherry v Boultbee (1839) 4 My & Cr 422))- (i) $50,000 legacies to Aethan and Jovn (j) $781,886 + (k) $133,268 (half loan added back; 2019 Will cl 5(b)(ii)(B)) (l) $915,154 Provision to be paid to Lynn

2. Including the amount owing under the 2004 Deed of Loan as an asset of Valda’s estate:

(a) $2,029,734 St George account + (b) $187,113 BCU account + (c) $266,537 Loan due to estate (d) $50,000 (Aethan & Jovn: interest on these deposits is not included as it will pass with the gifts; it is not an estate asset) (e) **$2,**533,387 subtotal - (f) $70,000 (defendant’s costs rounded up from $63,000) (g) **$2,**463,384 / 2 = $1,231,691 (h) $1,231,691 (Lynn’s estimated half share; 2019 Will cl 5(b)(ii)(B))- (i) $266,537 (100% loan repaid to estate (rule in Cherry v Boultbee))- (j) $50,000 legacies to Aethan and Jovn (k) $915,155 + (l) $133,268 (half loan added back; 2019 Will cl 5(b)(ii)(B)) (m) $1,048,423 - (n) $63,709 (debt due to Graeme under 2004 Deed of Loan) (o) $984,714 Provision to be paid to Lynn

3. Excluding the amount owing under the 2004 Deed of Loan as an asset of Valda’s estate and Lynn’s costs:

(a) $2,029,734 St George account + (b) $187,113 BCU account + (c) $266,537 Loan due to estate (d) $50,000 (Aethan & Jovn: interest on these deposits is not included as it will pass with the gifts; it is not an estate asset) (e) $2,533,387 subtotal - (f) $70,000 (Graeme’s costs rounded up from $63,000) (g) $108,000 (Lynn’s costs) (h) $2,355,387 / 2 = $1,177,693 (i) $1,177,693 (Lynn’s estimated half share; 2019 Will cl 5(b)(ii)(B))- (j) $266,537 (100% loan repaid to estate (rule in Cherry v Boultbee))- (k) $50,000 legacies to Aethan and Jovn (l) $861,156 + (m) $133,268 (half loan added back; 2019 Will cl 5(b)(ii)(B)) (n) $994,424 - (o) $63,709 (debt due to Graeme under 2004 Deed of Loan) (p) $930,715 Provision to be paid to Lynn

Submissions of Graeme

304. In summary, Graeme submits:

305. It is disputed that there was no contest about the quality of the relationship between Lynn and Valda. This relationship deteriorated particularly from the time of Lynn’s move to Armidale in January 2014 to Valda’s death in June 2023.

306. Lynn contributed little (if any) to Valda’s property and welfare during her life. After December 2000, Graeme never saw Lynn provide any substantial care or support for either Valda or Colin, declined to make any financial contribution to the cost of Valda’s nursing home bond and did not assist with the clean-up and sale of 1 Wrights Lane.

307. Valda made significant provision for Lynn during his lifetime including the purchase of the Reservoir Property and several loans which were never repaid (such as a $30,000 gift or loan made in June 2007).

308. Valda’s testamentary intentions and capacity are clear and consistent. As early as July 2005, Valda evinced an intention that Graeme be the sole executor, hold her enduring power of attorney and be her enduring guardian.

309. Any allegation that Valda lacked testamentary capacity was extensively denied.

310. There are no compelling reasons as to why Lynn should be relieved of his obligation to repay the funds he borrowed under the 2004 Deed of Loan. Instead, the debt owed ought to be deducted from the half share of the residuary estate held on trust for him. Accordingly, no issue as to whether Lynn can raise the money arises. The 2004 Deed of Loan was not merely a book entry but rather was funded by Valda’s savings and investments or raised from third parties in arm’s length commercial transactions. Graeme made the monthly repayments on this loan from December 2004 until repayment in June 2021.

311. There is no issue that Lynn’s half share of the residuary estate can be used to obtain secure accommodation for himself, Carmel and Simon. It is of no concern that those funds are insufficient to purchase the $1.2 – $1.4 million properties in Port Macquarie suggested by Lynn.

Consideration

305. It is uncontroversial that, as a child of Valda, Lynn is an “eligible person” within the meaning of s 57(1)(c) of the Succession Act and, by virtue of ss 57(1) and 59(1)(a) of the Succession Act, has standing to apply for a family provision order.

306. It is also common ground between the parties that Lynn’s application for provision was brought within the time contemplated by s 58(2) of the Succession Act, being a date which was “not later than 12 months after” the date of Valda’s death. Valda died on 22 June 2023, and the application was brought on 21 June 2024.

307. The distinct but related questions raised by ss 59(1)(c) and 59(2) of the Succession Act require me to determine whether Lynn has been left without adequate provision for his proper maintenance, education or advancement in life and, if so, what provision “ought to be made” for him. In addressing these issues, I may have regard to the matters set out in s 60(2) of the Succession Act, being matters which “may have a resonance in these proceedings, although not in a determinative way”: Alexiou v Alexiou [2024] NSWSC 1340, Lindsay J at [85].

308. I will now turn to consideration each of the relevant factors contained in s 60(2) of the Succession Act, to the extent that they are applicable in these proceedings.

Section 60(2)(a) of the Succession Act: any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

309. Lynn is the son of Valda and so their relationship lasted nearly 72 years, from Lynn’s birth on 9 July 1951 until Valda’s death on 22 June 2023.

310. Oddly, nowhere in the evidence does Lynn express himself with any particular warmth for Valda. There was also no statement of love or affection for Valda in any of Lynn’s evidence. Lynn’s lack of care and support for Valda in her final years is illuminating of his lack of concern for Valda. The failure of Lynn to attend the placement of Valda’s ashes within the memory wall of Woolgoolga Cemetery, or even acknowledge the invitation to do so, reinforced my view of his lack of warmth towards Valda.

311. Lynn’s preparedness to sully any enduring memory of Valda by contending that she had a problem with alcohol when he was not seeking to challenge the 2019 Will on the basis of any lack of capacity also points to a lack of emotional care for Valda from him.

312. The evidence does reveal that Valda loved Lynn, giving him gifts and loans throughout his life, even to the extent of being willing to loan him money to pay the costs for the Family Court Proceedings when she had to borrow that money herself. Her love for Lynn is also demonstrated at the distress she felt at the events she perceived as having occurred in Lynn’s life as outlined in the Letter of Wishes and, despite her feelings about them, her still stating her intention to provide Lynn with roughly half of her estate in the 2019 Will albeit through the poorly drafted 2019 Trust.

Section 60(2)(b) of the Succession Act: 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

313. Applying the principles outlined in Camernik, Valda did not owe any continuing obligations or responsibilities to Lynn as her adult child who has been married to Carmel for nearly 18 years. Prior to Valda’s death, except for the episode of the Family Court Proceedings which led to Lynn borrowing money from Valda under the terms of the 2004 Deed of Loan, it would appear that Lynn and Carmel were able to provide for themselves to meet all of their living expenses.

314. There is no suggestion that any other beneficiary under the 2019 Will (Graeme, Benjamin, Nicholas, Aethan or Jovn) was owed any obligation or responsibility by Valda.

Section 60(2)(c) of the Succession Act: 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

315. As detailed above, as at 10 September 2025, the value of Valda’s gross distributable estate was estimated to be $2,525,133.65, with no liabilities owing by Valda’s estate. By the end of the hearing on 9 October 2025, the value of Valda’s gross distributable estate was estimated to be $2,505,133.65 following the payment of $20,000 in legal fees by Graeme.

316. This amount includes $224,288.16 owing by Lynn, comprising:

317. $160,579.04 as the net amount owing by Lynn to Valda’s estate under the 2004 Deed of Loan (being $210,579.04 less the $50,000 forgiveness of the debt under cl 7 of the 2019 Will); and

318. $63,709.12 as the amount owing to Graeme under cl 7 of the 2019 Will.

319. In light of the marginal combined financial position of Lynn and Carmel, it is unlikely that Lynn would be able to pay the amounts he owes each to Valda’s estate and Graeme under the 2004 Deed of Loan unless it is deducted from his share of Valda’s estate under the terms of the 2019 Will.

320. No claim for a notional estate was made in the proceedings.

Section 60(2)(d) of the Succession Act: 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

319. As stated above, the combined monthly expenses of Lynn and Carmel of $14,766 is equal to their combined monthly income of $14,766. They are unlikely to be able to save any money. They also have modest combined superannuation totalling $51,294 and very minor savings of $3,275.

320. Lynn is currently aged 74 years and is not likely to earn much more income into the future. Carmel is by far the major income earner in Lynn’s family. There is no evidence of Carmel’s age and so it is unclear for how long it is likely she will continue to earn an income. It appears that they cannot afford to retire.

321. Lynn’s need to repay the debt he owes to Valda’s estate and Graeme under the 2004 Deed of Loan can be met under the terms of the 2019 Will.

322. Lynn also appears to need funds to continue to accommodate him, Carmel and Simon (either by buying or renting), to replace his motor vehicle and to undergo two knee replacements.

323. There is insufficient evidence to determine the financial resources and financial needs of the other beneficiaries under the 2019 Will: Graeme, Benjamin, Nicholas, Aethan and Jovn. I assume that Graeme does not have any financial need because he is a party to the proceedings and has given evidence which did not indicate that he has any financial need.

Section 60(2)(e) of the Succession Act: if the applicant is cohabiting with another person—the financial circumstances of the other person

324. Lynn lives with Carmel and Simon. The financial circumstances of Carmel are dealt with above as part of her joint financial circumstances with Lynn. Simon is fully dependent on Lynn and Carmel.

Section 60(2)(f) of the Succession Act: 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

325. As detailed above, Lynn considers himself to be in reasonable health for his age given his medical history of encephalitis, endocarditis, cataracts, aortic valve replacement, insertion of a pacemaker, COPD, prostate cancer, osteoporosis, osteopenia and osteoarthritis (T105–106). Despite these various conditions, at different times in his life, Lynn has played competitive squash, trained and competed in Olympic weightlifting and has been (and remains) a frequent swimmer, swimming two-to-three kilometres once or twice a week (T105).

326. There is no evidence of any physical, intellectual or mental disability of the other beneficiaries under the 2019 Will: Graeme, Benjamin, Nicholas, Aethan and Jovn.

Section 60(2)(g) of the Succession Act: the age of the applicant when the application is being considered

327. Lynn is currently 74 years old.

Section 60(2)(h) of the Succession Act: 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

328. I am not satisfied that Lynn has made any financial contribution to the acquisition, conservation and improvement of Valda’s estate, although he did assert that “for some years from 1993 [he] paid house and contents insurance for [his] mother’s house” because he “stored some personal items at the house”.

329. Lynn gave no evidence to suggest that he made any contribution to Valda’s welfare, content to let Graeme undertake the burden of nearly all of Valda’s care over the last decade of her life.

330. The cost consequences of the present proceedings are yet to be determined. I have had no regard to the potential costs consequences of these proceedings in my determination of Lynn’s claim for provision: Chalik v Chalik [2025] NSWCA 136, Bell CJ, Payne and Free JJA at [123] and [126]–[127].

Section 60(2)(i) of the Succession Act: 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

331. Valda (as well as Colin) made considerable provision for Lynn during her lifetime and from her estate. This was admitted by Lynn in cross-examination (T97). They appear to have been kind, generous and loving parents in this regard.

332. Lynn was gifted the Reservoir Property in August 1973 at age 22 years when it was bought for him by Colin and Valda, he was never required to repay the loan to cover the purchase price of $15,150 and nor did he do so (T6–7 and T97–98).

333. Lynn gave evidence-in-chief that Valda frequently gave him money, which he confirmed in cross-examination were gifts (T99). Lynn also admitted that he received loans and gifts of money from Valda, including the loan under the 2004 Deed of Loan and the $10,000 provided by Valda to Lynn on 19 October 2000 (as either a gift or a loan) (T98–99).

Section 60(2)(j) of the Succession Act: any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

334. Valda made numerous wills in which the detail of the bequests made to Lynn varied but the principal intentions of Valda (following the death of Colin) across those wills remained constantly as follows:

335. for the vast majority of the estate to be divided equally between each of Graeme and Lynn; and

336. for Lynn to repay the amounts he owed to Valda and Graeme under the 2004 Deed of Loan, subject to any forgiveness of part of the amount owing to Valda, from his share.

337. The 1992 Will (confirmed by the 1992 Codicil) and the 1998 Will provided for the whole of Valda’s estate to pass to Colin or, if Colin died before Valda, to each of Graeme and Lynn in equal shares and for any debts owed by Graeme or Lynn to Valda to be forgiven.

338. The 2004 Codicil was made immediately following the 2004 Deed of Loan and required the amount owing by Lynn to each of Valda and Graeme under the 2004 Deed of Loan to be deducted from his equal share of Valda’s estate under the 1998 Will (Colin having died in September 2002).

339. The 2005 Will provided for Graeme to receive one-half of Valda’s estate absolutely and to be forgiven any debt he owed to Valda and for Graeme to hold the remaining one-half of Valda’s estate (after deducting the amount owing by Lynn to each of Valda and Graeme under the 2004 Deed of Loan) in a discretionary trust for Lynn for life, with the balance of the amount in trust at Lynn’s death to pass to Aethan and Jovn in equal shares. This was the first introduction of the concept of Lynn’s share of Valda’s estate to be held on trust by Graeme for Lynn.

340. The January 2007 Will provided for Graeme to receive one-half of Valda’s estate absolutely and to be forgiven any debt he owed to Valda and for Lynn to receive the other half of Valda’s estate absolutely (after deducting the amount owing by Lynn to each of Valda and Graeme under the 2004 Deed of Loan).

341. The June 2007 Will was in almost identical terms to the January 2007 Will except it forgave $50,000 of the debt owing by Lynn to Valda under the 2004 Deed of Loan but required Lynn to pay the balance of the amounts owing to each of Valda and Graeme under the 2004 Deed of Loan from his share of Valda’s estate.

342. The 2015 Will gave pecuniary legacies of $150,000 to each of Graeme’s sons, Benjamin and Nicholas, then divided the balance of Valda’s estate equally between Graeme and Lynn absolutely, forgave Graeme for any debt he owed to Valda and deducted from Lynn’s share any amounts owing to Valda and Graeme under the 2004 Deed of Loan.

343. The 2019 Will was Valda’s last will. Benjamin and Nicholas were left $150,000 each and then the balance of Valda’s estate was divided so that one half went to Graeme absolutely (as well as forgiving any debt owed by Graeme) and the other half was divided between Aethan and Jovn receiving $25,000 each and the rest to be held by Graeme on trust for Lynn (and others) after deducting any amounts owing to Valda and Graeme under the 2004 Deed of Loan.

344. The problems with the operation of the 2019 Trust are dealt with above. Suffice to say, there are such significant problems with the drafting of the 2019 Trust and its operation that there is real uncertainty as to whether Lynn would ever receive any amount under it. While it might have been Valda’s intention that Lynn receive roughly half of the balance of her estate under the 2019 Will (after the deduction of the legacies to Aethan and Jovn and the amounts owing to Valda and Graeme under the 2004 Deed of Loan) through the operation of the 2019 Trust, that intention has not been fulfilled due to the problematic drafting of it.

Section 60(2)(k) of the Succession Act: whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

343. Lynn was not being maintained by Valda before her death.

344. Valda provided Lynn with accommodation prior to his marriage to Cam-May and also helped him pay the costs of the Family Court Proceedings as documented in the 2004 Deed of Loan.

Section 60(2)(l) of the Succession Act: whether any other person is liable to support the applicant

345. Lynn and Carmel support each other as a married couple. No other person is liable to support Lynn.

Section 60(2)(m) of the Succession Act: the character and conduct of the applicant before and after the date of the death of the deceased person

346. I need do no more than repeat the matters I have set out above in relation to the relationship between Lynn and Valda, and his conduct towards Valda both before and after her death. I consider that those matters are injurious of Lynn’s character.

Section 60(2)(n) of the Succession Act: the conduct of any other person before and after the date of the death of the deceased person

347. I consider that it is relevant that Graeme and Echah were the primary carers for Valda in her retirement years. Graeme matched his love and affection for Valda with substantive action in caring for her.

Section 60(2)(o) of the Succession Act: any relevant Aboriginal or Torres Strait Islander customary law

348. Customary law does not apply to Lynn.

Section 60(2)(p) of the Succession Act: 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

349. Any provision made for Lynn should not disturb any of the legacies given to Benjamin and Nicholas or Graeme’s absolute gift of half the net residuary estate, or traverse the gifts made to Aethan and Jovn under the 2019 Will, as Lynn accepts (T3).

350. Any provision for Lynn will operate as a departure from the deliberate testamentary intention of Valda: Broadus, Lindsay J at [2], citing Slack, White J at [127] as approved in Sgro v Thompson [2017] NSWCA 326, White JA (with whom McColl and Payne JJA agreed) at [83]–[87].

351. I have also had regard to the loving and enduring care which Graeme provided to Valda over many years prior to her death, which stands in stark contrast to the minimal support provided by Lynn to Valda.

Conclusion

352. In my opinion, adequate provision for the proper maintenance, education or advancement in life of Lynn as the adult child of Valda was not made by the 2019 Will. I consider that provision should be made from the 2019 Will to grant Lynn an amount absolutely rather than to be held on trust by Graeme for him.

353. While the form of provision differs from that intended by Valda, in that Lynn will inherit that amount absolutely rather than subject to Graeme’s discretion under the 2019 Trust, any disquiet I may feel about this is lessened by the fact that it was not until the 2005 Will that Lynn’s inheritance was subject to any trust and it has always been approximately half the value of Valda’s estate.

354. I also consider it to be important that Lynn be held to the terms of his bargain under the 2004 Deed of Loan. The terms of the 2004 Deed of Loan and the 2019 Will (when taken together) provide for the payment of any amount owing by Lynn to Valda’s estate (after the forgiveness of $50,000) and to Graeme following Valda’s death had to be repaid by Lynn from his share of what was left to him in the 2019 Will. As half of any repayment of an amount owing to Valda’s estate under the 2004 Deed of Loan (including interest calculated under s 100 of the CPA) would come back to Lynn as part of the Trust Fund (if it had been drafted correctly), I consider that Lynn should only repay half of the amount owing to Valda’s estate under the 2004 Deed of Loan but must repay the whole of the amount owing to Graeme under the 2004 Deed of Loan plus interest calculated under s 100 of the CPA.

355. I have also taken into account that Lynn provided little-to-no support, care or assistance to Valda over at least the last nine years of her life. Lynn’s lack of concern for Valda in that period was strikingly conspicuous.

356. Lynn is now 74 years of age. It will be up to Lynn to make sound financial decisions for himself and those who depend upon him into the future. It is plain from each of the wills made by Valda that she intended to provide for Lynn in a substantive way in some form. I am very conscious that Valda explained in the Letter of Wishes why she chose to create the 2019 Trust under the 2019 Will, expressing a concern that Lynn did not manage his finances appropriately and a desire for Carmel not to benefit from her estate.

357. I am also apprehensive about keeping Graeme and Lynn in the relationship of trustee and beneficiary respectively as envisaged by the 2019 Will, especially given the animosity between them that was on obvious display in the evidence during the trial. I have determined that the risk of further disputes is significant. I also have taken into account that uncertainty exists in the operation of the 2019 Trust in the 2019 Will which may result in real difficulties precisely identifying what is the Trust Fund under it. I think that it is appropriate in the circumstances for provision to be made for Lynn which is not subject to the 2019 Trust.

358. I note that the open offers made during the hearing both accept that any family provision order made to Lynn should involve a payment to Lynn absolutely in lieu of the 2019 Trust.

359. Undertaking the evaluative judgment required of me, I consider that a wise and just testatrix in the position of Valda, in light of all the circumstances of the case as now known and having regard to current social conditions and standards, and consulting the criteria set out in s 60(2) of the Succession Act, would determine that Lynn ought to receive out of Valda’s estate the provision of $1.1 million (which is close to 50% of the value of the estate when the loans under the 2004 Deed of Loan are included as an asset of Valda’s estate and after total costs of both sides of about $180,000 and the gifts to Aethan and Jovn of $50,000 are paid) from which should be deducted the following amounts by Graeme acting as executor:

360. half of the sum of:

(a) $160,579.04 (being the amount owing by Lynn to Valda’s estate under the 2004 Deed of Loan less $50,000 forgiven under the 2019 Will); and (b) interest on the amount of $160,579.04 from 22 June 2023 to the date of judgment calculated in accordance with the rates to be determined under s 100 of the CPA; and

2. the sum of:

(a) $63,709.12 (being the amount owing by Lynn to Graeme under the 2004 Deed of Loan as at 22 June 2023); and (b) interest on the amount of $63,709.12 from 22 June 2023 to the date of judgment calculated in accordance with the rates to be determined under s 100 of the CPA.

360. For the avoidance of any doubt, as accepted by Lynn, the provision for Lynn should not disturb the legacies to Benjamin and Nicholas or Graeme’s absolute gift of half the net residuary estate or traverse the gifts made to Aethan and Jovn under the 2019 Will (T3).

361. I make no finding about the right of Graeme to charge any commission to the estate as executor. While Graeme reserved the right to do so, he did not seek any finding about that right and I observe that none of the open offers made during the trial contained any such deduction from the estate.

362. Subject to any contrary submission, the costs orders should be the following:

363. Lynn’s costs of the proceedings calculated on the ordinary basis be paid out of Valda’s estate; and

364. Graeme’s costs of the proceedings calculated on the indemnity basis be paid out of Valda's estate.

ORDERS

363. The order I make is for the parties to email the Associate to McGrath J a set of agreed short minutes of order to give effect to this judgment by 4pm on 12 June 2026, failing which they are to provide competing submissions of not more than three pages (12 font, 1.5 spacing) with proposed short minutes of order and any material on which they rely by 19 June 2026. In either case, I will determine the orders to be made in chambers.

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