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PIPER v FRASER & ORS [2020] SASC 239 (17 December 2020)

Last Updated: 18 December 2020

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

PIPER v FRASER & ORS

[2020] SASC 239

Judgment of The Honourable Justice Peek

17 December 2020



SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - DUTY TO CHILDREN

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN

EQUITY - TRUSTS AND TRUSTEES - APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES - APPOINTMENT OF NEW TRUSTEES - BY THE COURT

Claims under the Inheritance (Family Provision) Act 1972 (the IFP Act) and the Trustee Act 1936 (the Trustee Act).

The applicant, Ms Heather Piper, seeks orders pursuant to the IFP Act and the Trustee Act that further provision be made for her out of the estate of the late Dorothy Heather Piper, the testator, who died on 11 June 2018, and for the revocation or variation of a trust over two thirds of the applicant’s inheritance established by the Will of the testator. The respondents, in their various capacities, oppose the application.

Held:

1. The provision made to the applicant is adequate and proper in the circumstances and the inheritance and the conditions imposed are not inconsistent with that which a wise and just testator would have chosen. Family Provision Act 1969 (ACT) s 8; Inheritance (Family Provision) Act 1972 (SA) ss 6-7; Succession Act 2006 (NSW) s 59; Uniform Civil Rules 2020 r 74 referred. Butler v Tiburzi [2016] SASC 108; Carter v Brine [2015] SASC 204; Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76; Megerditchian v Khatchadourian [2020] NSWCA 229; Pontifical Society for Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9; Revell v Revell [2016] NSWSC 947; Richard v AXA Trustees Ltd [2000] VSC 341; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 discussed. Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656; Bartlett v Coomber [2008] NSWCA 100; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190; Chan v Chan [2016] NSWCA 222; Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494; Crawford v Munden [2020] NSWSC 1463; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Farr v Hardy [2008] NSWSC 996; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490; Gregory v Hudson (No 2) (unreported, Supreme Court, NSW, Young J, 18 September 1997); Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; Mayfield v Lloyd-Williams [2004] NSWSC 419; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; Re Allen [1921] NZGazLawRp 155; [1922] NZLR 218; Re Buckland (No 2) [1967] VicRp 1; [1967] VR 3; Re Estate of Guthrie (1983) 32 SASR 86; Re Leonard [1985] 2 NZLR 88; Sadiq v NSW Trustee & Guardian [2015] NSWSC 716; Shepherd v Shepherd [2010] NSWSC 167; Slack v Rogan [2013] NSWSC 827; Taylor v Farrugia [2009] NSWSC 801; White v Barron [1980] HCA 14; (1980) 144 CLR 431 considered.

2. The applicant has no “moral claim” against the testator that has not been satisfied by the present terms of the Will.

3. In all of the circumstances, there is good reason to vary the terms of the Will Trust to order a monthly stipend in the amount of $3,000 to be distributed to the applicant. Trustee Act 1936 (SA) s 59C referred. Clarke v Ebdon [2020] SASC 67 discussed. Benzjia v Adriatic Fisheries Pty Ltd and Cubelic (1984) 37 SASR 545; Chapman v Chapman [1954] UKHL 1; [1954] AC 429; Cowan v Scargill [1985] Ch 270; Mui Pty Ltd v Hoh (No 6) [2017] VSC 730; Paloto Pty Ltd v Herro [2015] NSWSC 445; Quinton v Proctor [1998] 4 VR 469; Re Campbell (dec’d); Rowe v McMaster [1973] 2 NSWLR 146; Saunders v Vautier (1841) 41 ER 482.

4. Pursuant to the equitable jurisdiction of the Court, upon final orders in these proceedings having been pronounced, including any judgment as to costs (by consent or following taxation), Julie and Steven Fraser are to be removed as Trustees of the Will Trust and the Public Trustee for the State of New South Wales is to be appointed as Trustee in lieu of Andrew Overall. Administration and Probate Act 1919 (SA) s 69; Supreme Court Act 1935 (SA) ss 7, 48; Trustee Act 1936 (SA) ss 36, 91; Uniform Civil Rules 2020 r 11.1 referred. Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572; Monty Financial Services Ltd v Delmo [1996] VicRp 7; [1996] 1 VR 65 discussed. Esso Australia Ltd v Australian Petroleum Agents & Distributors Association [1999] 3 VR 642; Karger v Paul [1984] VicRp 13; [1984] VR 161; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australian and New Zealand [2008] HCA 42; (2008) 237 CLR 66; Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180; (2000) 2 VR 276 considered.

Administration and Probate Act 1919 (SA) s 69; Family Provision Act 1969 (ACT) s 8; Inheritance (Family Provision) Act 1972 (SA) ss 6, 7; Succession Act 2006 (NSW) s 59; Supreme Court Act 1935 (SA) ss 7, 48; Trustee Act 1936 (SA) ss 36, 59C, 91; Uniform Civil Rules 2020 rr 11.1, 74, referred to.

Butler v Tiburzi [2016] SASC 108; Carter v Brine [2015] SASC 204; Clarke v Ebdon [2020] SASC 67; Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76; Megerditchian v Khatchadourian [2020] NSWCA 229; Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572; Monty Financial Services Ltd v Delmo [1996] VicRp 7; [1996] 1 VR 65; Pontifical Society for Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9; Revell v Revell [2016] NSWSC 947; Richard v AXA Trustees Ltd [2000] VSC 341; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, discussed.

Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656; Bartlett v Coomber [2008] NSWCA 100; Benzjia v Adriatic Fisheries Pty Ltd and Cubelic (1984) 37 SASR 545; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190; Chan v Chan [2016] NSWCA 222; Chapman v Chapman [1954] UKHL 1; [1954] AC 429; Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494; Cowan v Scargill [1985] Ch 270; Crawford v Munden [2020] NSWSC 1463; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Esso Australia Ltd v Australian Petroleum Agents & Distributors Association [1999] 3 VR 642; Farr v Hardy [2008] NSWSC 996; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490; Gregory v Hudson (No 2) (unreported, Supreme Court, NSW, Young J, 18 September 1997); Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; Karger v Paul [1984] VicRp 13; [1984] VR 161; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australian and New Zealand [2008] HCA 42; (2008) 237 CLR 66; Mayfield v Lloyd-Williams [2004] NSWSC 419; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; Mui Pty Ltd v Hoh (No 6) [2017] VSC 730; Paloto Pty Ltd v Herro [2015] NSWSC 445; Quinton v Proctor [1998] 4 VR 469; Re Allen [1921] NZGazLawRp 155; [1922] NZLR 218; Re Buckland (No 2) [1967] VicRp 1; [1967] VR 3; Re Campbell (dec’d); Rowe v McMaster [1973] 2 NSWLR 146; Re Estate of Guthrie (1983) 32 SASR 86; Re Leonard [1985] 2 NZLR 88; Sadiq v NSW Trustee & Guardian [2015] NSWSC 716; Saunders v Vautier (1841) 41 ER 482; Shepherd v Shepherd [2010] NSWSC 167; Slack v Rogan [2013] NSWSC 827; Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180; (2000) 2 VR 276; Taylor v Farrugia [2009] NSWSC 801; White v Barron [1980] HCA 14; (1980) 144 CLR 431, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"adequate", "proper", "needs"

PIPER v FRASER & ORS
[2020] SASC 239

Civil

  1. PEEK J: Claims under the Inheritance (Family Provision) Act 1972 (the IFP Act) and the Trustee Act 1936 (the Trustee Act).
  2. The applicant, Ms Heather Piper, seeks orders pursuant to the IFP Act and the Trustee Act that further provision be made for her out of the estate of the late Dorothy Heather Piper, the testator, who died on 11 June 2018, and for the revocation or variation of a trust over two thirds of the applicant’s inheritance (the Will Trust) established by the Will of the testator (the Will). The respondents, in their various capacities, oppose the application.

PART A: BACKGROUND AND OVERVIEW

  1. The testator had been married to William Edward Piper (who died on 13 December 2008). The couple had three children: the applicant, the first respondent, Julie Fraser (Julie) and John Howie Piper (John Snr). John Snr died on 10 May 2017. The testator had eight grandchildren.
  2. The applicant was born on 19 December 1950. She has two children, John Overall (John) and Andrew Overall (Andrew), who are the first and second interested parties respectively. Julie married Steven Fraser (Steven) and they have two children, Benjamin and Bonnie Fraser. John Snr had four children: the third respondent Rhys Piper (Rhys), the fourth respondent Ryan Piper (Ryan), Alison Piper (Alison) and Kira Piper (Kira).
  3. The Will provides, inter alia, that the residue of the testator’s estate is divided into three equal shares:
  4. As Alison and Kira are under the age of 25, they are represented in the proceedings by the Executors of the testator’s estate, Julie and Steven.

The applicant’s relationships with members of her family

  1. The nature of the applicant’s respective relationships with the testator, her father, her sister Julie, her brother John Snr (and his children) and her sons John and Andrew are important factors to be considered. I will deal with them in turn.

The applicant’s relationship with her parents

  1. Although the claim only concerns the testator’s estate, it is relevant to address the applicant’s relationship with both of her parents. Indeed, a significant proportion of the correspondence tendered at trial concerns them both.
  2. The applicant lived with her parents until she was 20 years old. She gave evidence that she later continued to visit them throughout her studies, and during her three marriages, with varying degrees of frequency. The applicant described the testator as being vital to her obtaining a law degree. The testator lived with her for “months at a time” after Andrew was born. The applicant gave evidence that she helped care for the testator in the 1990s after she had a pacemaker inserted and that later in the testator’s life, when she moved into Walkley Heights Retirement Village, and subsequently Helping Hand Aged Care Facility (Helping Hand), the applicant phoned, wrote and visited her in person.
  3. Various challenges to the applicant’s evidence were made in cross-examination concerning various aspects of her relationship with her parents (and especially the testator). One was an allegation of undue interference by the applicant in the testator’s affairs. As examples, a letter dated 16 June 2004,[2] from the testator’s solicitor intimated that during a visit to Gleneagles – where her father was staying at the time – the applicant made a scene and agitated her parents. The applicant’s alleged behaviour included demanding that staff produce the contract pertaining to her father’s residency and his medical records. Another instance of the applicant interfering with her father’s care was referenced in an email from the testator dated 21 September 2008.[3] When questioned about the testator’s high state of agitation, the applicant attributed that to the testator, and not her own behaviour.
  4. The applicant denied persistent interference by her in her parents’ lives and I do not consider the evidence to be sufficiently specific to warrant the making of a finding against the applicant in this regard.
  5. However, the much more important matter was the applicant’s continuous requests made to the testator for, and receipt of, substantial financial aid. I find that this is clearly established and it is considered in detail below.

The applicant’s relationship with Julie

  1. The applicant gave evidence that she has had minimal contact with Julie in the last 20 years, comprising only two or three telephone conversations and meeting Julie’s husband Steven at most “half a dozen times”. The applicant last communicated with Julie (and Steven) at the testator’s funeral on 18 June 2018, when they hugged the applicant. In evidence, she chose to describe this as “an assault”.
  2. The applicant gave evidence that she attempted to discuss the testator’s welfare by telephone, but Julie asserted that she was looking after the testator and refused to enter such discussion. The applicant gave evidence that this culminated in Julie telling the applicant in a phone call in 2017 that: “If you keep asking mum for money, ... I’ll prosecute you for elder abuse”.
  3. The applicant gave evidence that she recalled other occasions demonstrating the difficult nature of her relationship with Julie. They included occasions: when the applicant asked for assistance looking after her children during her second marital separation and Julie said that if the applicant wanted help, the children would have to live with her; when Julie did not inform the applicant of John Snr’s death or funeral in 2017; and when Julie failed to invite the applicant to her house in Blair Athol at any time prior to the testator’s wake.

The applicant’s relationship with John Snr and his children

  1. The applicant accepted that she did not see much of John Snr during the last 32 years of his life. She said that she did not know about his illness until the last Sunday in July 2017, and that she understood he became ill in May 2016 and died on 10 May 2017.
  2. The applicant accepted that subsequent to John Snr’s death, she contacted the solicitor acting for his widow (Kristen Piper) about seeing a copy of his Will. However, she denied that she intended to challenge John Snr’s estate; rather, she wanted to ensure his first two children, Ryan and Rhys, were provided for and was merely collecting information before she decided what action, if any, she would take.

The applicant’s relationship with John

  1. John is 37 years old and has a disability that was diagnosed in 2002 when he was aged 19. He currently does not work because he is subject to a Community Treatment Order for compulsory medication for his mental health and requires a structured work environment. He has received assistance from the National Disability Insurance Scheme since June 2020 and receives a Disability Support Pension from Centrelink.
  2. The applicant gave evidence that she previously supported John financially and visited him up to four times a week, or “as needed”, to help with household tasks; and that until about 18 months prior to trial, John visited the applicant at her home on a weekly basis. The applicant has advocated and lobbied for John and is his nominee, which allows her to act on his behalf, for example, paying bills.

The applicant’s relationship with Andrew

  1. Andrew is 34 years old. The applicant stated that she has not been given his home address since 2011. However, they have remained in contact over the last nine years, with Andrew visiting the applicant three to six times a year in person, occasionally speaking over the phone and in sporadic email communications. Andrew described his relationship with the applicant as “challenging” and I revert to this matter later in the context of the question of the suitability of Andrew to become Trustee of the Will Trust.

PART B: THE COURSE OF THE LITIGATION

  1. On 5 March 2019, the applicant issued a Notice of Intended Application for a Family Provision Order (putting the respondents on the required notice) and later issued a summons. In the applicant’s first Points of Claim filed on 23 September 2019,[4] she sought half of the testator’s residue estate, about $900,000, in further provision under ss 6 and 7 of the IFP Act.
  2. On 29 November 2018, solicitors for the respondents wrote to the then solicitor for the applicant, Ms Linda Alexander, stating, inter alia, that:[5]
Our clients will not oppose any change to the Will concerning the one third equal part of the residuary estate referrable to your client and invite you to offer a way forward which does not expose our clients to any liability or disadvantage any other beneficiary.
  1. This letter was tendered at trial. The applicant did not instruct her solicitors to make any proposal in response.
  2. On 21 February 2019, solicitors for the respondents wrote to the current solicitor for the applicant, once again asking that they “particularise the outcome your client is aiming to achieve”.[6] This letter was tendered at trial. The applicant again did not act upon this request.
  3. On 4 July 2019, Judge Bochner ordered that the beneficiaries with vested interests be joined as respondents. Julie, Rhys and Ryan were joined in their capacity as beneficiaries under the Will; and Julie and Steven were joined in their capacity as Trustees of the applicant’s Will Trust. The applicant then filed amended Points of Claim on 17 July 2020 to include an order pursuant to s 59C of the Trustee Act to vary or revoke the Will Trust.
  4. On 4 September 2020, the applicant filed two open formal offers. The essential difference was that Formal Offer (1) provided for an additional provision out of the testator’s estate of $50,000, but no order as to costs, whilst Formal Offer (2) provided for an order as to costs, but no additional provision. Neither offer was accepted.
  5. On 8 October 2020, the respondents filed an open formal offer seeking to settle the applicant’s claim in relation to the IFP Act only and pay the applicant $75,000 by way of further provision from their share of the testator’s estate. This offer was not accepted.
  6. The trial was listed to commence on 26 October 2020. On Friday, 9 October 2020, the Court received an email request from the respondents’ solicitors “that the matter be listed for directions as soon as reasonably possible”. The purpose of the directions hearing was unstated and the parties were asked to indicate as soon as possible the matters they wished to discuss. Solicitors for the respondent indicated in a reply the same day that they considered there were “a number of issues that should be canvassed” and that they would contact the applicant’s solicitors regarding an agenda and proposed Minutes of Order. Due to counsel availability, the earliest convenient time was Thursday, 15 October 2020 at 11.00 am – a week and three calendar days before commencement of trial.
  7. On 14 October 2020, solicitors for the respondents provided an agenda and Draft Minutes of Order (the draft orders), noting they were not agreed. The agenda was comprised of the following seven items:
    1. Pre-trial orders
    2. Open offer to settle Provision Claim filed by the Respondents
    3. Division of time at trial
    4. Identity of witnesses
    5. Subpoenas
    6. Joinder of parties
    7. Expert evidence
  8. The draft orders also addressed the filing and serving of Trial and Tender Books as a part of these proceedings.
  9. Having had no previous indication of the significant number of issues to be discussed – both in terms of number and importance – a seemingly innocuous request for directions turned into something much larger very shortly prior to trial.
  10. At the directions hearing on 15 October 2020, counsel for the applicant stated:
...can I adumbrate that my client’s application does not include an additional money provision. The essence of our claim is to unlock the money that is already provided in the will to be available to my client but is constrained by a testamentary trust. [Emphasis added]
  1. Counsel for the respondents replied:
... Mr Ross-Smith’s announcement... is to say that no compensation beyond unlocking the trust is now pressed, comes as significant news to the respondents and has real implications for how the trial is conducted. The trial book will need to contain points of claim and points of defence that have been exchanged in this matter. The points of claim at present contains under Part 3, remedies, as order A: ‘An order under the Inheritance (Family Provision) Act ... residue of the estate.’
...
My client has to date been approaching this matter on the basis that there are two strands to the remedies that are sought and one of those strands seeks 50% of the residue of the estate in addition to unlocking anything in the trust or that might come to the trust. If that is not pursued, then we are simply dealing with a Trustee Act claim, then that changes dramatically the complexion of the issues that your Honour will need to decide. [Emphasis added]
  1. Consequently, two of the orders made at the directions hearing were that: (1) the applicant file a final amended claim, and (2) the applicant arrange for Andrew and John to be joined as parties to the proceedings.
  2. The applicant then filed her Second Revised Points of Claim on 19 October 2020 (a week before commencement of trial). It still maintained a claim under both the IFP Act and the Trustee Act, but sought that the order under the IFP Act be in accordance with the applicant’s Formal Offer (1), or alternatively, Formal Offer (2), meaning “unlocking” the monies currently held under the Will Trust, plus additional provision of $50,000. Andrew and John were joined as interested parties.
  3. At no time prior to the trial did the applicant seek to amend her claim to include an order for the appointment of a new trustee.
  4. The position of each of the respondents to the applicant’s claim is as follows. Julie and Steven, in their capacity as Executors, stand neutral, but seek the usual order as to costs, consistent with their right to indemnity from the corpus of the testator’s estate. As Trustees of the Will Trust, Julie and Steven participate in these proceedings only so as to execute their duties as Trustees.
  5. In their capacity as beneficiaries under the Will, Julie, Steven, Rhys and Ryan take no position as to the applicant’s claim under the Trustee Act, but they deny that the applicant has standing under the IFP Act. If it were found that the applicant had standing, they contend that the burden of any additional provision be borne by each beneficiary in a proportion equal to their interest under the Will.[7]
  6. As an interested party, John filed an affidavit in support of the applicant’s claims. Andrew opposes “unlocking” the Will Trust.

PART C: THE APPLICANT’S CLAIM PURSUANT TO THE IFP ACT

  1. Sections 6 and 7 of the IFP Act provide:
6—Persons entitled to claim under this Act
The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act:
(a) the spouse of the deceased person;
(b) a person who has been divorced from the deceased person;
(ba) the domestic partner of the deceased person;
(c) a child of the deceased person;
(g) a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
(h) a child of the child of the deceased person;
(i) a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;
(j) a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1) Where—
(a) a person has died domiciled in the State or owning real or personal property in the State; and
(b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
(2) Notice of an application under subsection (1) of this section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct.
(3) The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.
(4) The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.
(5) If, in respect of an application under subsection (1) of this section, it appears to the Court that the matter would be more appropriately determined by proceedings outside the State, the Court may (without limiting the powers conferred on it by the preceding provisions of this section) refuse to make an order under this section or adjourn the hearing of the application for such period as the Court thinks fit.
(6) In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments.
  1. The applicant plainly comes within s 6(c) and is entitled to make a claim under the IFP Act. The fact that the applicant is an adult child is to be considered, but the claim is not treated materially differently to other forms of claim under the IFP Act.[8] The parties do not dispute, and I find, that s 7(a) has been satisfied: the applicant died in South Australia after moving here from NSW and owned personal property in this State.
  2. In determining the applicant’s claim pursuant to the pre-condition under s 7(b), the Court usually undertakes a two-stage process. First, the Court must consider whether the applicant has established that she has been “left without adequate provision for [her] proper maintenance, education or advancement in life” (the jurisdictional stage). If, and only if, the first stage is satisfied, the Court must then consider the quantum of any further provision to be made. [9] Thus, the majority in Singer v Berghouse (Mason CJ, Deane and McHugh JJ) stated: [10]
It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the “jurisdictional question”. That description means no more than that the court’s power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a). [Citations omitted]
  1. The applicant wrote in supplementary submissions to the Court that “the two-stage process and what it means in practice is under review”, but made no direct submission that the two-stage process should not apply here. I note that the High Court has acknowledged some artificiality in separating the process into two stages, given their close alignment and consideration of similar relevant issues,[11] but as at the time of the decision of the High Court in Vigolo v Bostin in 2005,[12] the two-stage process continued to be required as part of family provision claims in Australia.
  2. The applicant submitted that more recently in Megerditchian v Khatchadourian,[13] Payne JA (Macfarlan JA and Emmett AJA agreeing) held that the two-stage approach is “generally no longer appropriate”.[14] However, a large part of his Honour’s reasoning relied on the substantive amendments to the applicable family provision legislation in NSW[15] and the South Australian legislation does not mirror the current NSW regime in its form or complete substance. While I bear in mind the criticisms of the two-stage process and the fact that reference must be made to all of the circumstances and not just the financial,[16] the applicant has not demonstrated good reason to here depart from the two-stage process.
  3. In considering the first stage, the Court must place itself in the position of the testator. The Court must consider what should have been done by a testator who is “wise and just”, rather than “fond and foolish”,[17] and is aware of all the relevant circumstances that exist at the time of the death of the testator. Gleeson CJ articulated the concept of a wise and just testator in Vigolo v Bostin thus:[18]
15. Perhaps the most frequently cited statement of basic principle underlying this legislation is that of Salmond J in In re Allen; Allen v Manchester:
“The provision which the Court may properly make in default of testamentary provision is that which a just and wise father [or testator] would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.”
16. That statement was adopted by the Privy Council in a New South Wales appeal in Bosch v Perpetual Trustee Co. Bosch, in turn, has been followed and applied in this Court many times. In McCosker v McCosker, Dixon CJ and Williams J, referring to what is sometimes called the primary or jurisdictional question, said:
“The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word ‘proper’ in this collocation of words is of considerable importance. It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.” ... [Emphasis added; Citations omitted]
  1. In written supplementary submissions, counsel for the applicant contended that the Court, when addressing each of the two stages, should consider the circumstances as at the time of the application, and not as at the date of the death of the testator. He cited in support the recent decision of the NSW Supreme Court in Crawford v Munden.[19]
  2. However, unlike other Australian jurisdictions, the Succession Act 2006 (NSW) expressly provides that a court consider whether an applicant has adequate provision for their “proper maintenance, education or advancement in life” as at the time of considering the application,[20] and the question of quantum at the time of making any such order.[21] In other jurisdictions,[22] including South Australia, the first or jurisdictional stage is still to be determined through objective assessment as at the date of death with reference to the objective facts then existing.[23] The objective facts may include future expectations and contingencies within the range of reasonable foresight as at the date of death, but it is not for the Court to apply the wisdom of hindsight or the objective facts existing at the date of trial.
  3. It is only if the Court determines that it has jurisdiction, and thus must exercise its discretion in determining the quantum of any further provision, that the circumstances of the beneficiaries (including the applicant) as at the date of trial may be taken into account.[24] This was summarised by Lovell J in Butler v Tiburzi thus:[25]
17. The twin tasks facing a court are similar. The first stage involves the application to the facts of a legal criterion although that involves a value judgment by the Court. The second question involves the exercise of a judicial discretion. Although they are separate questions they may in many circumstances come close to each other and a favourable determination of the first may substantially influence the answer to the second. However, the first question is to be decided as at the date of death of the deceased and the second as at the date of any order.[26] [Emphasis added]

The jurisdictional stage

  1. The principle of freedom of testamentary disposition must be borne in mind. A court will not rewrite a testator’s Will just because it considers that a different disposition would have been preferable. A court must respect and give deference to the considered judgment of a rational and sensible testator, due to their knowledge, insight and experience of their family affairs, but not so far as to oust the consideration of the Court.
  2. While the jurisdictional stage does not involve the exercise of the Court’s discretion, it is an objective question that calls for “a value judgment”.[27] There are no fixed standards upon which to determine whether a claimant has been left without adequate provision. Rather, the Court may form opinions “upon the basis of its own general knowledge and experience of current social conditions and standards”.[28]
  3. The words “adequate” and “proper” are always relative.[29] They must be applied in a relative sense to all of the circumstances of the case. Thus, Dixon CJ stated in Pontifical Society for Propagation of Faith v Scales,[30] that “proper” refers to the standard of the maintenance, education and advancement in life relative to the claimant’s age, gender, condition and mode of life and situation generally, whereas “adequate” refers to the quantum of the provision relative to not only the claimant’s needs, but also their capacity and resources for meeting them.
  4. In Vigolo v Bostin,[31] Callinan and Heydon JJ stated that: the “[a]dequacy of provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. ... The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors”.[32]
  5. Further, in Revell v Revell,[33] Pembroke J noted under equivalent NSW legislation that: “Adequacy is a relevant concept. It requires a broad, evaluative assessment. And... respect should be given to the testator’s judgment. See also Slack v Rogan at [125]-[127] per White J”.[34]
  6. And in Carter v Brine,[35] Blue J discussed the relevant factors to be considered under the adequacy of provision thus:[36]
593. ... This requires an examination of all relevant circumstances.[37] Factors to be assessed and weighed relative to other factors include but are not limited to:
  1. In the recent decision of the Western Australian Court of Appeal in Lemon v Mead, Buss P stated in the course of a helpful judgment: [45]
60. The word “proper” connotes something different from the word “adequate”.
61. For example, a small sum may be sufficient for the “adequate” maintenance, etc, of the claimant but, having regard to all the circumstances, including the size of the deceased’s estate and the lifestyle to which the claimant had become accustomed during the deceased’s lifetime, may be wholly insufficient for his or her “proper” maintenance. By contrast, a sum may be quite insufficient for the “adequate” maintenance, etc, of the claimant, and nevertheless be sufficient for his or her maintenance, etc, on a scale that is “proper” in all the circumstances. See Bosch (476); Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1 at 14‑15 (Kitto J); White (457) (Wilson J).
62. The determination of whether the provision, if any, made for the claimant is “adequate” for his or her “proper” maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. See Goodman (496‑497) (Gibbs J); Hunter v Hunter (1987) 8 NSWLR 573 at 574‑575 (Kirby P); Singer (209‑210) (Mason CJ, Deane and McHugh JJ).
63. Plainly, the totality of that relationship would include:
(a) any sacrifices made or services given by the claimant to or for the benefit of the deceased;
(b) any contributions by the claimant to building up the deceased’s estate; and
(c) the conduct of the claimant towards the deceased and of the deceased towards the claimant.
See Coates (at 510) (Dixon CJ); Hughes (at 147) (Gibbs J); Goodman (at 497) (Gibbs J).
64. Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act. See Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 28 (Kirby P), 40‑42 (Sheller JA).
65. “Adequate” is concerned with the quantum, whereas “proper” prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards. See Bosch (at 476‑479); Worladge (at 11) (Williams and Fullagar JJ), (at 15‑18) (Kitto J); White (at 440) (Stephen J), (at 441‑445) (Mason J), (at 457) (Wilson J); Goodman (at 497, 502) (Gibbs J); Singer (at 209‑211) (Mason CJ, Deane and McHugh JJ), (at 227‑228) (Gaudron J).
66. The capacity of a court to make “adequate” provision for the “proper” maintenance, etc, of the claimant may be constrained by practical considerations such as the size and nature of the deceased’s estate, and competition from other persons having competing claims upon the deceased’s bounty, and their relative urgency. See McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571‑572 (Dixon CJ and Williams J); Singer (at 227) (Gaudron J); Barns v Barns (2003) 214 CLR 169 at [4] Gleeson CJ).
67. In Scales, Dixon CJ pointed out that the words “adequate” and “proper” are always relative and that what the testator regarded as “superior claims or preferable dispositions” is a relevant consideration:
The “proper” maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is “adequate” must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words “proper maintenance and support”, although they must be treated as elastic, cannot be pressed beyond their fair meaning.
68. In Vigolo, Callinan and Heydon JJ made this comment about the interaction between the word “adequate” and the word “proper” (at [114]):
The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.
69. A claimant may fail to establish that the disposition of a deceased’s estate was not such as to make adequate provision for his or her proper maintenance, etc, even though no provision was made for him or her in the will. See Goodman (at 505) (Murphy J); Singer (at 210) (Mason CJ, Deane and McHugh JJ).
70. The term “need” has been used to refer to the claimant’s inability to satisfy his or her financial requirements from his or her own resources. See Singer (at 227) (Gaudron J).
71. “Need” has also been used in the context of a value judgment or conclusion, namely, that the claimant is “in need” of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 at 10‑12 (Bryson J).
72. The determination of whether the disposition of the deceased’s estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, include an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant’s “needs” that cannot be met from his or her own resources on the other. See Hunter (at 579) (Kirby P).
73. Although the existence or absence of “needs” which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for the claimant’s proper maintenance, etc. See Singer (at 227) (Gaudron J). Compare Gorton (at 6‑12) (Bryson J); Collicoat v McMillan [1999] 3 VR 803 at [38], [47] (Ormiston J).
74. Often “need”, in the sense of the claimant’s inability to satisfy his or her financial requirements from his or her own resources, and a “moral claim”, in the sense of a claim arising from the totality of the relationship between the claimant and the deceased (for example, sacrifices made or services given by the claimant to or for the benefit of the deceased or contributions by the claimant to building up the deceased’s estate) and contemporary accepted community standards, will co-exist. Sometimes there may be a strong “moral claim” but no “need”. Sometimes the “moral claim” may be slight but the “need” dire. Whether the court should intervene or not will depend on all the circumstances of the case; in particular, whether the value judgment made upon an examination of those circumstances is that the claimant has been left without ‘adequate’ provision for his or her “proper” maintenance etc. See Re Sinnott, deceased [1948] VicLawRp 4; [1948] VLR 279 at 281 (Fullagar J).

The present situation of the applicant

  1. The applicant was born on 19 December 1950 and was 69 years old at the time of giving evidence at trial. She worked as a lawyer until her practising certificate lapsed on 1 July 2006. She lives alone in her house in Killara, NSW (the Killara home).
  2. She detailed in a written outline of evidence prior to trial, and in evidence at trial, that she had various medical conditions, including arthritis, chronic back pain and sleep apnoea, as well as schizoaffective and bipolar disorders (diagnosed in about 2008).
  3. As to her mental health, the applicant was admitted to hospital in 2008 for a total of five weeks. Her medication includes: Epilim (a mood stabiliser), Seroquel (an anti-psychotic), Pristiq (an anti-depressant) and Melatonin (for trouble sleeping). The applicant provided an overview of her treating medical professionals, only two of whom had been disclosed or had provided affidavits to the Court (being the applicant’s General Practitioner, Dr Ian McIntosh, and her recently acquired psychiatrist, Dr Sharon Hodgson).
  4. During the trial, the applicant sought to reply on a purported report of Dr Hodgson and applied for her to give evidence as to how the applicant’s medical conditions may impact upon her capacity to manage her affairs; and whether it is necessary to remove the protective Will Trust. The respondents objected to the report being admitted on the basis that it did not comply with the requirements under r 74 of the Uniform Civil Rules 2020, or common law admissibility requirements.[46] Having carefully considered the parties’ written and oral submissions, I declined to receive Dr Hodgson’s report into evidence.[47]
  5. As to the applicant’s physical health, her arthritis affects her ability to write and manipulate things with her hands. She requires assistance at home from Australian Unity Home Care, Meals on Wheels and Catholic Care.
  6. As to the applicant’s financial situation, this is dealt with below.

The applicant’s requests for financial assistance during the testator’s lifetime

  1. Returning to the matter of the applicant’s requests for financial support from her parents, the applicant denied in her evidence that she needed or requested financial aid from her parents at every stage of her life. However, counsel for the respondents methodically took the applicant through the years in chronological order and demonstrated that denial to be false.
  2. A one-page balance sheet[48] prepared by the applicant’s parents, dated 1 June 1985, stated that each of their children (the applicant, Julie and John Snr) had at that time received $16,700. In an accompanying letter dated 3 June 1985,[49] the applicant’s parents expressed that they loved their children dearly and wished for no animosity between them. In the last paragraph, they wrote:
Mum & I feel it wise to balance any gifts to date so that in the event of my leaving this world and go to [sic] a hotter climate which I have no intentions of doing until I’m 210 there is no misunderstandings.
  1. When the applicant was asked whether she accepted that after 1985 until now she had received a lot more money from her parents than her siblings, the applicant stated: “Yes, I don’t know exactly how much they got, but I do acknowledge getting quite a lot ...”.
  2. The applicant was then taken to a letter to her from the testator dated 11 January 1993,[50] in which the testator stated the applicant had over $44,000 in debt. The applicant accepted she had incurred debts that she was unable to pay by that date, and that it was certainly possible that she had asked the testator for significant amounts of money by that time. In addition, her parents wrote that they had been “generous” to the applicant and that, as an aside, the applicant’s “birthday/Christmas presents just past cost more than the rest of the family combined”.
  3. The applicant was then taken to a letter from the testator to her dated 18 June 1996,[51] in which her parents asked: “Just how long do you expect us to support you?”. The applicant agreed that as at the date of the letter her parents were paying debts she could not meet out of her own assets.
  4. In a fax dated 13 October 1996,[52] the applicant’s parents stated:
We know that you consider us a gold mine to be tapped whenever you need money. Andrew informed us that you said we just sat down there and counted our money – how charming of you. It seems to us that whatever we do for you or give to you it will never be enough. By giving so much to you we have been restricted in helping John [Snr], who deserves help just as much as you, and he has never asked for help.
You have refused to give us any information about what you earn, what the child support has been and is now, and you have ignored our request for information as to the $20,000.00 JAO is supposed to have paid in January. You seem reluctant, indeed it appears refuse to try and collect the other $6,000.00 owing.
We have chosen to send this by fax as conversation with you is impossible, either by telephone or face to face. If you refuse to be honest and open with us, then we will have to leave the situation as it is. It is up to you. We are not threatening or refusing you, we just want an honest and open explanation of what has been done, an explanation to which we are more than entitled.
  1. The applicant recalled hearing her parents talk about money in their office, such as tax affairs and various expenses. The applicant denied that she did not inform her parents about the $20,000 to be paid by JAO (her second ex-husband, John Overall) and denied her parents assertions that it was impossible to have a conversation with her because she became agitated. The applicant further denied that she was relentless in her demands for money and that she always wanted more than she had.
  2. When asked if there were any periods of time when she was not making such requests or demands of the testator, the applicant asserted that: “There were intervals when there was no request made. Intervals sometimes months at a time, sometimes several years at a time”. When pressed, the applicant specified one such interval as 1997 to 2006 and consequently, counsel for the respondent commenced to ask a series of questions as to that period (1997 to 2006) and referred to correspondence including the following:

“Against my better judgment I have forwarded $2000.00 to you to-day. There will not be any more until I feel I am in a position to send anything I might feel like sending, not because you get yourself into such a financial mess all the time. You have no right to spend money or employ someone when you know you do not have the money to cover it.”

  1. In a lengthy cross-examination, the applicant generally acknowledged that she had made requests for the monies referred to in the above correspondence and that the testator had paid these amounts (with some minor dispute concerning precise amounts). The cross-examiner then asked whether the applicant wished to amend her earlier claim in evidence that between 1997 and 2006 she had made no requests for money from the testator. The applicant’s initial responses were evasive and unresponsive, stating that she had been under enormous stress and referring to her asserted difficulties with Julie. She then stated that from 2016 she received no payments from the testator. When pressed yet again whether she wanted to correct her evidence concerning the period of 1997 and 2006, which she herself had nominated, the applicant agreed that she did make financial requests of the testator between 1995 up to the testator’s death, but she disputed that they were constant.
  2. Reference may also be made to a line of cross-examination with respect to a letter dated 11 March 2013, from the testator to the applicant, in which the testator listed payments made from August 2012 to February 2013 as follows:[61]
23.2.13 $1,000.00
31.1.13 $1,000.00
9.12.12 $3,000.00
16.11.12 $1,000.00
15.10.12 $1,000.00
4.10.12 $400.00 $2,000.00 for John
28.9.12 $1,000.00
3.8.12 $1,000.00
  1. The following exchange concerning the total amount paid by the testator to the applicant up until the former’s death occurred thus:
    1. And then she asks a question: ‘Do you have any idea just how much money your father and I have given you over the years’. The answer to that you’ve told his Honour is ‘No’.
A. There was a lot of money, I’m not saying there wasn’t.
Q. You’d accept it runs into the hundreds of thousands.
A. Yes.
  1. And I suggest to you that what your mother says next is accurate, which is that you had wasted that money.
A. Nope, not one cent. [Emphasis added]
  1. Thus, it is clear that the total of the amounts the testator during her life gave to the applicant was in the range of hundreds of thousands of dollars.
  2. These matters provide necessary background to an examination of the terms of the Will and the establishment of the Will Trust. The testator was clearly concerned, as expressed in the Will (and demonstrated by the previous correspondence),[62] that the applicant did not have the ability to handle responsibly the receipt of her whole inheritance outright.[63] The Will expressly provides that the Trustees of the Will Trust have unfettered discretion to apply any part of the Will Trust they consider reasonable and necessary, for the purpose of providing the applicant with the “reasonable necessaries and comforts of life or for any other purpose”. Such purposes included, but were not limited to:[64]
(a) the maintenance, accommodation, medical or hospital, nursing or like expenses (including, without limitation, the taking out and maintaining of private health insurance cover) for the education, benefit, welfare or advancement of HEATHER;
(b) if considered appropriate at any time by [the Trustees], for the purchase or rental or upgrading of a house or unit or some other form of suitable accommodation for the purpose of the residence therein by HEATHER...; and
(c) for such other purpose or the payment of such costs or expenses as [the Trustees] may consider to be necessary for the benefit of HEATHER in order to allow her to maintain and enjoy a lifestyle commensurate or superior to that which she has (in the opinion of [the Trustees]) enjoyed up to the date of my death ...
  1. Nonetheless, the testator also expressed her wish that the discretion granted to the Trustees be “exercised in a generous manner” in favour of the applicant wherever possible during her lifetime.[65]

The applicant’s evidence and credibility

  1. During the applicant’s evidence, she made a number of assertions that on their face are simply not believable. I mention the following examples.
  2. On 25 November 2001, the applicant’s parents wrote to her,[66] including to assert that she was telling them what to do with their money and their lives and complaining that they were fed up with her continued requests for money.
  3. When asked generally about her parents being offended by her requests for money, the applicant stated: “They say that, but I don’t know if they truly were because it didn’t stop them shopping, it didn’t stop them socialising or going on holidays, so it’s hard to know how deep the offence was ...”. And when asked specifically about this letter of 25 November 2001, and about her parents being fed up with the applicant’s requests for money, she stated in response: “That doesn’t necessarily mean they were fed up with me, they were fed up with whatever was irritating them, including the income tax commissioner, they hated him”. However, when pressed again, she finally accepted her parents’ comments were with respect to her requests for money.
  4. In similar vein, in a letter to the applicant dated 12 March 2016 (when the testator was living at Helping Hand), the testator wrote:[67]
I know that you do have similar costs but you should by now have been able to work out a budget and stick to it. I have been more than generous and now I must be very careful. [Emphasis added]
  1. When asked what the testator meant when she said, “now I must be very careful”, the applicant denied it was an expression of financial concern and said:
    1. I think it was much more an expression of emotional distress at being incarcerated involuntarily when she thought she’d gone in for short respite.
    2. You mean a woman in her early 90s that’s in an aged facility because she’s not able to look after herself.
    3. That’s in a matter of opinion [sic]. She was doing very well in the retirement village, and all of the services could have been brought to her.
  2. This is clearly not a reasonable interpretation. The entire preceding sentence of the letter concerned the financial situations of the applicant and the testator. There is no reason to suggest that the testator was referring to any concerns about residing at Helping Hand (other than the financial concern of having to pay for such tenure).
  3. The applicant made similar assertions about her parents’ treatment when they resided at what she described as “locked” aged care facilities. With respect to her father, the applicant repeated on at least three occasions in evidence that her father was “terrified” when at Helping Hand, but could not give any clear reason for that alleged state of mind. The applicant gave evidence that she visited the testator at Helping Hand in Adelaide for three weeks in 2017. She stated that, unlike other occupants, the testator was not allowed out from Helping Hand to go for a coffee or to the local shops. The applicant said that she did not know what she could to do help the testator, despite her experience as a lawyer. The applicant further stated that the testator had been allowed out with her son Andrew (the testator’s grandson), but that the testator was not allowed out with her. She also said that on the last day of her three-week stay, she was informed that she could have had lunch with the testator each day should she have wanted to do so. The applicant also gave evidence that had the testator stayed in NSW she would still be alive today. I find all of this less than credible.
  4. The applicant also demonstrated a tendency to defy logic in various of her answers or assertions. As only one example, the applicant asserted that her experience with medico-legal matters meant that she could comment on whether her father had Alzheimer’s disease or the state of her own mental health or an asserted fact that “plenty of people have psychotic episodes and ... they don’t have any recurrence”.[68] However, when confronted with evidence of the testator criticising her spending habits (as referred to above), she dismissed such criticism on the basis that the testator did not have any qualifications or experience. It is difficult to accept that the applicant did not appreciate that, even without formal qualifications, a mother with first-hand experience of her daughter’s behaviour and financial management (or lack thereof) over many decades is in a position to provide informed comment on such matters.
  5. It is also the case that the applicant demonstrated an obtuse approach to the requirements of legal proceedings, such as the present, in spite of her legal background. Although she had been treated by multiple medical professionals over a long period, the applicant asserted that she did not need to provide reports or treatment notes from them on the basis that she was present to give evidence and a summary of her past medical history provided by Dr McIntosh should be sufficient.[69] While detailed, the summary from Dr McIntosh is not a full and complete record and matters relating to the manner in which the applicant has been managing her health, and in turn her financial affairs, are plainly relevant to issues being considered in these proceedings.
  6. In similar vein, the applicant, prior to trial, had made the two offers referred to above, in which she gave an undertaking to the Court to execute a Will containing a legacy. This legacy consisted of: giving and bequeathing $136,000[70] to John and Andrew in equal shares; directing that it be increased by three per cent per annum from the date of her Will until her death; including the legacy in any later Will, codicil or other testamentary instrument; and giving her executor(s) the power to sell, call in and convert into money sufficient part of her estate to pay the legacy. However, as counsel for the respondents rightly pointed out in his closing address, “a will is only as good as the assets that are there to bequeath as at the date of the applicant’s death”. There would be no guarantee that the applicant would still have money or assets amounting to the value of $136,000 at the date of her death to bequeath to her sons.
  7. At trial, the respondents called for production of her Will so as to establish what she was currently leaving to her sons, who are contingent beneficiaries of the Will Trust. The applicant was remarkably vague about this and took no steps to produce her Will in Court; she asserted that her Will was somewhere in Sydney and she was not certain of its location.
  8. I find that the applicant is not a reliable historian or narrator with respect to her relationship with her parents and the financial assistance they provided to her.

Andrew’s evidence and credibility

  1. Andrew described having a positive relationship with the testator. His knowledge of the Will was really limited to the facts that the residue of the testator’s estate was divided into three equal shares between Julie, John Snr and the applicant and that two thirds of the applicant’s inheritance was subject to a trust (the Will Trust). However, Andrew seemed unsure as to how, or under what circumstances, he could or would become Trustee of the Will Trust. He offered himself as an option to assist the applicant out of concern that the applicant “be appropriately cared for financially”. He had previously given her some financial advice.
  2. Andrew considered that it would be unwise to “unlock” the Will Trust because of his concerns that should the applicant have access to all of the monies, she would spend them frivolously; and that she would then have no financial resources left for herself, let alone to bequeath to John and himself. In cross-examination, Andrew expanded his view that he is firmly against the applicant undoing the testator’s wishes and intentions. He had requested the applicant not to pursue these proceedings in the lead-up to trial, and stated that if she did he would feel compelled to provide information to the Court. The applicant’s response was to allegedly threaten to sue him for defamation if he did so.
  3. Part of Andrew’s concern also stemmed from what he described as “confronting situations” surrounding the applicant’s mental health. One such situation occurred when Andrew was only five years old. He arrived home from a friend’s house to see the applicant throwing out items onto the front lawn. Andrew observed that the items were either black, gold or red in colour, or divisible by the number six, such as a six-pointed star or a trophy with three stripes (which can be multiplied to make six). The applicant in fact confirmed that this episode had occurred and stated that it was due to stress.
  4. Other instances were alluded to by Andrew but they were largely based on hearsay evidence, which I will ignore.
  5. I find that Andrew only had a cursory understanding of the contents of the Will; and even after being joined as an interested party and being provided with various documents relating to these proceedings, he had made no attempt to read them in detail. He was somewhat hesitant in providing some answers, but I consider that this was due to being faced with the challenging task of giving evidence against the applicant (his mother) in her presence. I find that he is basically a reliable narrator of events and did not attempt to mislead the Court.

The situation of the other beneficiaries

  1. All of the other beneficiaries expressed having positive relationships with the testator. She was supportive of their endeavours (sometimes financially) and they kept in contact with her over the years – to varying degrees – up until her death.
  2. No direct evidence was led as to Julie and Steven’s assets and liabilities. However, evidence was provided to the Court by consent in the form of unsigned draft affidavits[71] addressing the financial and other circumstances of the remaining beneficiaries: Rhys, Ryan, Alison and Kira,[72] and their circumstances prior to trial. That material may be briefly summarised as follows.
  3. Rhys is 33 years old. He has a Certificate 2 and 3 in security operations and first aid. He is married and has two step-children and three biological children. Two of his children, aged 9 and 10, have Autism Spectrum Disorder and require almost full-time care, with associated considerable expenses. Rhys and his family reside in the Gold Coast where they rent a four-bedroom property for $445 per week. He does shift work as a security guard for Wilson Security. When he was working full-time he earned about $56,000, but now he is working reduced hours he expects an annual income of $30,000. Rhys and his wife have about $20,000 in savings and the only major assets they have are two cars, together costing $41,000.
  4. Ryan is 29 years old. He has not undertaken tertiary education. He works as a Federal Cabinet Minister advisor earning about $145,000 per year. He currently lives with his partner in a two-bedroom apartment that they purchased in 2019 for $535,000, with a mortgage of about $408,000. They share joint bank accounts, with $140,000 in their offset account. Ryan’s car is worth about $50,000, but is subject to a loan of about $40,000. Ryan has spinal injuries sustained while working for a freight company and weight training. He continues rehabilitation exercises.
  5. Alison is 20 years old. She completed Year 12 and is studying a Diploma in Photography and Photo Imaging at a cost of $3,000, which she is paying in instalments. She expects to complete the course in mid-2021. Alison also works as a retail consultant earning about $42,400 per year. She has savings of about $2,000 and owns two cars together valued at $22,000. She also lives with her mother and sister and pays no rent or board. Alison has depression/anxiety, an adjustment disorder and severe eczema for each of which she takes medication.
  6. Kira is 17 years old. She is in the process of withdrawing from school and does not intend to complete Year 11. Kira has been diagnosed with a social anxiety disorder (for which she takes medication) and visits a psychologist every other month, costing about $1,200 a year. Kira works part-time in hospitality and intends to enrol in a Certificate IV in Visual Arts with an upfront cost of $2,000. Kira lives at home.

Adequate and proper provision

  1. The applicant’s two sons are now financially independent and live independently. While John is not employed, he receives the supports necessary to facilitate his lifestyle, minimising the need for the applicant’s assistance. Andrew is also gainfully employed. No evidence was led about either’s assets or income.
  2. The applicant receives a pension and small dividend from her shares as income. Based on the financial estimates the applicant provided to the Court, she has significant assets totalling $1,715,871. Her immediate cash assets are limited to $2,313. The applicant also has liabilities totalling $195,892, the most significant of which are the ongoing costs of these proceedings. Although the applicant gave evidence, no primary documentary evidence was tendered to establish these values. Under the Will, the applicant will receive about $600,000 directly, with about a further $1.2 million to be held in the Will Trust for her benefit during her lifetime.
  3. Given the applicant’s current lifestyle, with no plans to return to study or work (such that she would require provision for “education”), the most relevant considerations for adequate provision are “maintenance” and “advancement in life”, bearing in mind the expansive nature to be attributed to the latter concept.[73]
  4. An applicant’s “need” has been interpreted as being relative to all of the circumstances. Need is not limited to immediate need, nor that which is necessitous,[74] and may include consideration of contingencies. The lifestyle and standard of living to which the applicant has become accustomed is to be assessed relative to her history and circumstances, and not simply what she requires to survive or live comfortably.
  5. The applicant provided an updated schedule of her financial circumstances dated 7 October 2020, which sets out the following details (which the applicant supplemented in her evidence):
Applicant’s current assets and liabilities
Assets:
Estimated values
House at Killara NSW[75]
$1,700,000
2007 Holden Commodore Sedan
$2,000
Public company shares –[76]
IAG – 258 shares @ $4.69
$1,210
AMP – 256 shares @ $1.36
$348
CBA – cash at bank
$2,313
Furniture and appliances[77]
$10,000
Total assets
$1,715,871


Liabilities:[78]
Electricity bill (arrears as at 14/08/2020)
$4,002
Gas – cancelled
$0
Private health insurance – stopped paying
$0
Electricity repairs due, as per quote received
$2,500
Council rates – 2020/2021
$1,617
Water rates –
$800
Australian Unity (formerly NSW Home Help) for home help – arrears
$620
Loan from Centrelink – balance due
$970
Outstanding unpaid legal fees: costs & disbursements (estimated, up to and including trial dates)
$185,383
Total liabilities
$195,892


Net: assets – liabilities
$1,519,979
Superannuation: Legal Super[79]
$0

Applicant’s current income and expenses
Expenses per month[81]
Estimated amounts
Chemist
$135
Groceries, food and petrol
$650
Meals on Wheels
$89
Australian Unity (formerly NSW Home Help) – 4 times per fortnight @ 1 ½ hrs: cleaning, scrubbing, washing
$150
Electricity service
$320
Mowing lawn & grass
$180
Pool maintenance
$305
House maintenance, repairs and fixing leaks[82]
$1,750
Plumber
$433
Electrician
$50
Private Health Insurance (not currently being paid – cannot afford)
$235
House and Contents insurance
$180
Car insurance (third party property damage only)
$42
NRMA road service membership
$14
Council rates
$135
Water rates
$67
Total estimated monthly expenditure:
$4,735

  1. There was a further table proffered styled “Applicant’s immediate needs”, which the respondents disputed in a number of respects.
  2. First, the respondents’ counsel took issue with an item “therapy to reduce medication and withdraw reliance on it” being a course, the cost of which was estimated at some $252,000. The applicant’s evidence was that she had telephoned the Northside Clinic in Greenwich, NSW over a year ago and was given a quotation by a person working there (whose identity was not specified). However, in cross-examination she stated that the quote was based on a
    10-minute phone call with the receptionist at the Northside Clinic or an Internet search two years ago. The applicant also said that she discussed this treatment with people, to whom she referred as “colleagues”, who attended a support group for people with, or carers of people with, mental illness. However, it is to be noted that no treating medical professional has recommended this particular course and the applicant had made no further enquiries concerning the matter in preparation for these proceedings.
  3. I acknowledge the applicant’s evidence that she experiences side effects from her current medication regime, predominantly drowsiness and difficulty concentrating, but she appears to have management strategies in place. And while I accept that medication is an ongoing cost for the applicant,[83] there is simply no medical or expert evidence that reducing the applicant’s medication would be beneficial to her, or assist her in managing her financial affairs. In fact, given that the applicant has a mental illness that affects her capacity for decision-making (and taking her medication improves this) there is the distinct possibility that this $252,000 “course” would have an opposite and deleterious effect.
  4. Secondly, the respondents’ counsel took issue with a quotation for “house maintenance, repairs and restoration”. The applicant’s evidence was that since preparing the table she had received an updated quotation. The applicant stated that “Joe” from MAX Build Constructions Pty Ltd had attended the Killara home two weeks prior to trial and had drawn up the quotation and pushed it under her door at about 11 pm on Saturday, 24 October 2020. Subsequently, “Joe” the builder was identified as Mr Joe Romanous and was called to give evidence via video link. He said he had been put in contact with the applicant by a real estate agent, Mr Adam Lamb, and that he visited the Killara home on two occasions. On the first occasion, the applicant described what she wanted (“to provide a quotation to renovate the entire house”) and Mr Romanous inspected the house. He identified that: the kitchen was out-dated, cupboards were damaged, the carpet had deteriorated and there was water damage on all of the windows (the majority of which could not be opened) and doors. On the second occasion, Mr Romanous took measurements of the rooms and made further notes.
  5. The quotation for work totalling $271,838.60 was tendered at trial.[84] It detailed that the project brief had been renovation and refurbishment. In cross-examination, Mr Romanous stated that the quotation was for the entire house. In cross-examination, the applicant denied that the list of repairs was a “wish list” and maintained that all the works were necessary.
  6. The applicant has owned her home since 1988. She described damage to the ceilings and leaks, and indicated that areas were unusable, such as the laundry. The “quotation” includes repairing damage to the ceiling and leaks in the top storey in circumstances where the applicant states that she has had difficulty accessing the upstairs area for the past four or five years.
  7. In cross-examination, the applicant admitted that a one-level property may be more suitable for her physical needs, but stated that she did not intend to sell the Killara home and had not looked at the Sydney property market. In re-examination, she explained that part of her reason for not selling the Killara home was because: (a) she finds it very comforting and feels safe there, which benefits her mental health and (b) John is also familiar with it and has plans for repair and renovation. Further, the applicant asserted that she had not inquired into the possibilities of alternative accommodation or entering a nursing home, and nor did she adduce evidence as to the actual costs of such alternatives. I find the applicant’s evidence in these areas to be unconvincing and, in fact, disingenuous.
  8. The applicant also argued that house maintenance and repairs are contingencies that should be covered by her inheritance because, she asserts, the testator was well aware of the state of the Killara home and that the applicant had lived there for decades. I consider that while the Will does articulate that costs of maintaining and repairing suitable accommodation were to be covered within the applicant’s inheritance, I do not consider that the testator, as a wise and just testator, can be taken to have known the likely costs associated with repairing the Killara home (as now estimated) or that the applicant would in her present condition, at this stage of her life, wish to continue to live there.
  9. Thirdly, and more generally, the respondent objected to the phrase “immediate needs” on the basis that the table contained a number of items that were on their face not immediate needs, but rather a general “wish list” of wants.
  10. The applicant gave some evidence as to her plans for the future. She expressed interest in renewing a subscription to “Australian Geographic” and travel generally.
  11. With respect to the applicant’s schizoaffective and bipolar mood disorders in the context of adequate and proper provision, I refer to the decision of Eames J in the Victorian Supreme Court in Richard v AXA Trustees Ltd.[85] The applicant there suffered from a bipolar mood disorder and part of her inheritance was left on discretionary trust, which she challenged. Eames J found that the denial of autonomy was a relevant factor in determining the question of adequate provision. Importantly, he observed that there was evidence before the Court that the discretionary trust, and in turn the denial of independence and self-determination, had adverse effects on the applicant’s well-being, and that the testator had had a flawed view of her daughter’s lack of ability to manage her money, which was based on newspaper articles about bipolar disorder. His Honour therefore ordered further provisions from the trust for the purchase of a home and for the applicant to manage (with the remainder still held on trust).
  12. However, the present case is to be distinguished from Richard v AXA Trustees Ltd. There is here no indication that having part of the applicant’s inheritance held under the discretionary Will Trust will adversely affect her health. And nor did the testator in the present case have a flawed view of her daughter’s acumen for financial management. To the contrary, she had had
    first-hand experience with the applicant’s financial mismanagement over many years.
  13. Finally, and for completeness, I do not consider that a wise and just testator should, when determining the provision to be left to the applicant, have taken into account as a foreseeable contingency that she might bring expensive proceedings to challenge the Will and thereby incur sizeable legal costs which she is unable to pay.

The estate and provisions already made

  1. On 22 October 2018, probate of the Will dated 21 July 2015, was granted by the South Australian Supreme Court to the named Executors, Julie and Steven. The grant of probate was subsequently re-sealed by the NSW Supreme Court on 1 July 2019, to enable the testator’s property in Glebe, NSW to be sold for net proceeds of $5,154,386.09.
  2. The assets and liabilities of the testator at probate as estimated by the Executors were:[86]
Assets
Amount
Assets within South Australia
$834,909.54
Assets outside South Australia
  • Real estate in NSW
$5,100,000
  • Personal estate in NSW
$404,307.51
  • Personal estate in Victoria
$512,832.41
  • Personal estate in WA
$8,370
Total estimated value of assets
$6,860,419.46
Less Liabilities
$941.85
Net estate
$6,859,477.61

  1. Prior to the applicant’s claim, specific bequests were paid and interim distributions were made to the residuary beneficiaries as follows:
  2. The remaining assets of the testator’s estate have been converted to cash, being $5,755,872.57. The only significant liability of the estate (excluding further legal fees relating to the administration of the estate) is tax and associated accounting fees. The tax payable is estimated as $278,281.25.[87]
  3. The applicant argued that the testator’s estate is a large estate and as such the associated principles apply, referring to the work of John de Groot and Bruce Nickel,[88] and specifically the following passages:[89]
3.4 ... in large estates, stress is placed more on the word ‘proper’ than on the word ‘adequate’, and ‘need’ is not so much for the necessities of life as for the appropriate needs of an applicant in that situation. Accordingly, provision might be made for an adult son where on the same facts, except for the size of the estate, it would not be made.
...
3.5 In the case of large estates, the court has the opportunity to make provision for contingencies which it cannot provide for in small estates[90] and will do so. Examples include:
  1. I have considered these “large estate” principles and bear them in mind when addressing adequate and proper provision above and in what follows.
  2. I take into account the previous provisions made by the testator during her lifetime to the applicant.[96] The applicant argues that this is not a relevant consideration as the testator forgave any loans under clause 3.2 of the Will and made no reference to the applicant’s monetary mismanagement as the reason for the Will Trust. I reject this contention. The applicant’s repeated requests for financial assistance and demonstrated lack of ability to ensure her long-term financial security is explicitly referenced within the Will and plainly is the reason why the Will Trust procedure was adopted.[97]
  3. The financial support the applicant received from the testator, by her own admission, amounted to hundreds of thousands of dollars. Where there is such a great disparity, as here, between the provisions or gifts provided to children who inherit under the testator’s Will during the testator’s lifetime, these gifts take on significance when considering a claim for further provision.[98]
  4. All in all, I consider find that Pembroke J’s comments in Revell v Revell[99] has some resonance:
30. The facts of this case call to mind the words of Professor Rosalind Croucher, which were adopted by Hallen J in Penfold v Predny  [2016] NSWSC 472  at  [6] . She described with apparent disdain ‘a cohort of independent self-sufficient 50 and 60 year olds, wanting to get more of the pie from their parents, notwithstanding that the parent had made a conscious decision that they had already had enough’. Many would regard a legacy of $1.5 million as generous, especially for a married son who was almost 60 years of age at the time of the death of his father; who had already received numerous gifts of financial assistance from his father; and who had not had a close or harmonious relationship with his father for many years.
  1. In the present case, the applicant has accrued significant assets of her own; has generous provision under the Will; and had received generous financial assistance from the testator during her lifetime.
  2. Of course, provision under a Will may be inadequate or improper in form, as distinct from amount, and such might be so in the case of a discretionary trust where receipt of any benefit is dependent upon the exercise of a trustee’s discretion.[100] Here, the applicant raises concerns about what distributions from the Will Trust will be made to her, particularly in light of the fact that no distribution has yet been made to the applicant.
  3. However, the respondents have made clear that this lack of distribution is a direct result of advice the Trustees received from the Courts concerning their discretion not to make any further distributions until this litigation is completed; this is a course commonly taken in circumstances where litigation is pending and the corpus of the Will Trust is uncertain.[101]
  4. Nonetheless, I note the applicant’s concerns, which I address below in the context of the Trustee Act application.

Conclusion as to the jurisdictional stage

  1. I find that it is not demonstrated that the provision made to the applicant is other than adequate and proper in the circumstances and that the inheritance and the conditions imposed are other than those that a wise and just testator would have chosen. I find that the applicant has no “moral claim” against the testator that has not been satisfied by the present terms of the Will.
  2. For completeness, I note a somewhat novel aspect of the applicant’s claim, namely an attempt to invoke an IFP Act order as an alternative route to “unlock” the Will Trust by preventing monies presently in the estate from flowing into the Will Trust. There does not appear to be any precedent of an Australian Court taking that approach. I consider that the testator had good reason to implement the trust procedure for reasons discussed elsewhere in this judgment and, therefore, even if the applicant had standing and thereby jurisdiction, it would not be appropriate to make such an order. To do so would plainly be to ignore the principle that Courts should be reluctant to re-write trust instruments.

PART D: THE APPLICANT’S CLAIM UNDER THE TRUSTEE ACT

  1. The testator set up the protective Will Trust based on the view that the applicant was unable to manage her finances, and the appointment of a trustee would ensure that the applicant would be suitably maintained for the remainder of her life.
  2. The four main duties of the Trustees are to: get in Will Trust property; preserve and protect the Will Trust property; not to bind or fetter their discretion; and to carry out the Will Trust in accordance with the terms of the Will Trust instrument (the Will).
  3. However, here the applicant is not the sole beneficiary under the Will Trust, as her sons John and Andrew are contingent beneficiaries (the contingent beneficiaries) upon the applicant’s death.[102] Thus, in exercise of their general duty to preserve the trust property, a trustee is obliged to protect all beneficiaries as a whole, including present and future beneficiaries.[103]
  4. A trustee is duty bound to prevent others, particularly individual beneficiaries, from dictating the manner in which their fiduciary discretion ought to be exercised.[104] A trustee can only deviate from the terms of the trust where they either have the informed consent of all beneficiaries, being sui juris and together absolutely entitled; or the Court orders them to do so.[105]
  5. Section 59C of the Trustee Act gives the Court a broad, but not unfettered power to authorise a variation or revocation of a trust thus:
59C—Power of Court to authorise variations of trust
(1) The Supreme Court may, on the application of a trustee, or of any person who has a vested, future, or contingent interest in property held on trust—
(a) vary or revoke all or any of the trusts; or
(b) where trusts are revoked—
(i) distribute the trust property in such manner as the Court considers just; or
(ii) resettle the trust property upon such trusts as the Court thinks fit; or
(c) enlarge or otherwise vary the powers of the trustees to manage or administer the trust property.
(2) In any proceedings under this section the interests of all actual and potential beneficiaries of the trust must be represented, and the Court may appoint counsel to represent the interests of any class of beneficiaries who are at the date of the proceedings unborn or unascertained.
(3) Before the Court exercises its powers under this section, the Court must be satisfied—
(a) that the application to the court is not substantially motivated by a desire to avoid, or reduce the incidence of tax; and
(b) that the proposed exercise of powers would be in the interests of beneficiaries of the trust and would not result in one class of beneficiaries being unfairly advantaged to the prejudice of some other class; and
(c) that the proposed exercise of powers would not disturb the trusts beyond what is necessary to give effect to the reasons justifying the exercise of the powers; and
(d) that the proposed exercise of powers accords as far as reasonably practicable with the spirit of the trust.
(4) An order made by the Supreme Court in the exercise of powers conferred by this section is binding upon all present and future trustees and beneficiaries of the trust.
(5) This section does not apply to—
(a) a trust affecting property settled by an Act; or
(b) a charitable trust.
(6) This section does not derogate from any other power of the Supreme Court to vary or revoke a trust, or to enlarge or otherwise vary the powers of trustees.
  1. The Court must be satisfied of all of the prerequisites before granting a variation or revocation of a trust. Thus, Blue J stated:[106]
26. This Court’s jurisdiction to entertain an application to vary a trust is conditioned on satisfaction of three[107] prerequisites:
  1. the existence of a trust;
  2. an application by a trustee of the trust or person with an interest in property held on trust;[108] and
  3. the interests of all actual and potential beneficiaries being represented in the proceeding.[109]
27. This Court’s power to vary a trust is conditioned on satisfaction of six prerequisites:
  1. there is good reason to make the variation;[110]
  2. the variation is in the interests of beneficiaries;[111]
  3. the variation will not result in one class of beneficiaries being unfairly advantaged to the prejudice of another class;[112]
  4. the variation accords as far as reasonably practicable with the spirit of the trust;[113]
  5. the variation will not disturb the trust beyond what is necessary to give effect to the reasons for the variation;[114] and
  6. the application is not substantially motivated by a desire to avoid or reduce the incidence of tax.[115]
  7. In the present case, jurisdiction is established in that the three prerequisites referred to by Blue J at paragraph [26] in Clarke v Ebdon are clearly satisfied.
  8. As to the six prerequisites in paragraph [27] in Clarke v Ebdon, the applicant’s claim pursuant to s 59C for revocation, and alternatively variation, of the Will Trust is based on the fact that she has been unable to access part of her inheritance and wishes to protect her position in that she does not have a large amount of cash assets that can be quickly or easily accessed and has regular expenses to meet. However, “weighty reasons” are required before a court contemplates variation or revocation of private trust arrangements under s 59C.[116] It is uncontroversial that “the business of the court [is] to execute trusts, not to alter them”,[117] although a court may do so is in “exceptional” or “emergency” situations.[118] Here, it is not enough for the applicant to persuade the Court that she is capable of managing her own finances. Rather, she must persuade the Court that there is a positive need to dissolve the Will Trust completely.
  9. The applicant has not persuaded me that there is such a positive need. Indeed, having regard to the evidence before me concerning the applicant’s propensity to mismanage her financial affairs, I find that there is no good reason to revoke the Will Trust. I consider that the Will Trust is highly desirable here and that the applicant will greatly benefit from an independent trustee exercising a discretionary check on her expenditure for her long-term support and maintenance.
  10. Giving the applicant unfettered access to the corpus of the Will Trust would plainly affect the other contingent beneficiaries, John and Andrew, whose interests I must also consider under s 59C(3)(b). I note the applicant’s open offer proposing that John and Andrew share $136,000 upon her death under her Will (should she still have it), but I consider it to be unrealistic. Indeed, if the applicant is to be believed when she states that her current Will (which she did not produce) provides that her children inherit her estate in equal shares, the offer would appear to be effectively redundant.
  11. However, I do consider that in all of the circumstances there is good reason to vary the terms of the Will Trust so as to order a monthly stipend in the amount of $3,000 to be distributed to the applicant, which will enable her to maintain her lifestyle, particularly as the applicant becomes, or has become, unable to undertake remunerative employment due to age and ill health.
  12. Such a variation is consistent with both the terms and apparent objectives of the Will and the spirit of the Will Trust. Counsel for the respondents did not object to the ordering of a monthly stipend during final addresses, proposing that a quantum of $2,000 to $3,000 would be acceptable. It is not such as to risk infringing s 59C(3)(b) having regard to the facts that: the Will Trust will make some yearly income, the applicant’s advanced age, and that additional requests by the applicant for other distributions may be considered in the light of her continuing receipt of that stipend.

PART E: THE IDENTITY OF THE FUTURE TRUSTEE

  1. Despite complaints about the conduct of the current Trustees, the applicant declined to make an application pursuant to s 36 of the Trustee Act for the Court to appoint a new trustee. The respondents are not themselves in a position to make this application, as it is inconsistent with their duties as Trustees. Section 36 provides:
36—Power of the Court to appoint new trustee
(1) The Supreme Court may, on the application of a person referred to in subsection (1c), make—
(a) an order removing one or more of the trustees of a trust; or
(b) an order replacing one or more of the trustees of a trust; or
(c) an order appointing a trustee or trustees, or an additional trustee or trustees, of a trust; or
(d) any other order that in its opinion is necessary or desirable.
(1a) The Court may make the order if it is satisfied that the order is desirable—
(a) in the interests of the persons (whether identified or not) who are to benefit from the trust; or
(b) to advance the purposes of the trust.
(1b) There is no need for the Court to find any fault or inadequacy on the part of the existing trustees before making an order under this section.
(1c) The following persons may apply for an order under this section:
(a) the Attorney-General; or
(b) a trustee of the trust; or
(c) a beneficiary of the trust; or
(d) in the case of a trust established wholly or partly for charitable purposes the following persons may apply for an order in addition to those referred to in the other paragraphs of this subsection:
(i) a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or
(ii) a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or
(iii) a person who in the past has received money or other property from the trustees for the purposes of the trust; or
(iv) a person of a class that the trust is intended to benefit; or
(e) any other person who satisfies the Court that he or she has a proper interest in the trust.
(2) An order under this section, and any consequential vesting order or conveyance shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.
(3) Nothing in this section shall give power to appoint an executor or administrator.

Equitable jurisdiction

  1. The Court has an equitable jurisdiction under which it can remove a trustee. As Ashley J held in Monty Financial Services Ltd v Delmo:[119]
There is no doubt that courts of equity have asserted and applied, over many years, an inherent jurisdiction to remove a trustee. That jurisdiction is to be distinguished from the statutory power given courts by s. 48(1) of the Trustee Act 1958, and from the statutory power given by s. 41(1) of the Trustee Act to certain private persons to appoint a person to be trustee in place of a trustee “who is unfit to act therein”. It likewise stands apart from any right to remove a trustee conferred by the creating instrument itself.
  1. The High Court had some years earlier clarified the equitable jurisdiction to remove a trustee in Miller v Cameron thus:[120]
It has long been settled that, in determining whether or not it is proper to remove a trustee, the Court will regard the welfare of the beneficiaries as the dominant consideration (Letterstedt v. Broers[121]). Perhaps the principal element in the welfare of the beneficiaries is to be found in the safety of the trust estate. Accordingly, even though he has been guilty of no misconduct, if a trustee is in a position so impecunious that he would be subject to a particularly strong temptation to misapply the trust funds, the Court may properly remove him from his office as trustee. ...

Consideration

  1. The applicant has made several complaints about the behaviour of the current Trustees (Julie and Steven).[122] It was in that context that the Trustees made an application to a Master of the Supreme Court for advice and directions under the Trustee Act[123] pursuant to the Uniform Civil Rules 2020.[124] The decision of the Trustees not to make a trust distribution until the resolution of these proceedings was taken as a result of receiving that advice.
  2. The current Trustees have indicated that once these proceedings are concluded they will step down and cease acting. Under the current terms of the Will, should Julie and Steven no longer wish to act as Trustees the role transfers to Andrew; and if he is no longer able to adopt the role, to the NSW Public Trustee.
  3. The applicant positively takes issue with Andrew becoming Trustee on the basis of the apparent conflict of interest that would arise in that Andrew, as one of the contingent beneficiaries, would be seen as having an interest in not distributing the Will Trust funds, which would conflict with the interest of the applicant in receiving such distributions.
  4. Of course as a matter of law and equity, a trustee must act in accordance with the express terms of the trust instrument (the Will) and only consider the class of beneficiaries to whom distributions can be made when exercising its discretion.[125] The Will Trust expressly provides that for the duration of the applicant’s lifetime, the applicant herself is the only class of beneficiary to whom distributions may be made;[126] and therefore she is the only beneficiary to whom the appointed Trustee can give real and genuine consideration when exercising its discretion to make a particular distribution.
  5. However, while Andrew is willing to become Trustee, the situation must be considered in the light of his relationship with the applicant. By Andrew’s own admission, that relationship is difficult and more often than not their conversations result in an argument. Indeed, up until this time, Andrew has refused to disclose his residential address to the applicant due to his concern as to the applicant’s tendency to interfere.
  6. Without casting any aspersion upon Andrew at all, I am firmly of the view that he should not be appointed as Trustee having regard to his complete inexperience in the role of Trustee, his difficult relationship with the applicant and the fact that a distinct appearance of a conflict of interest would emerge if he were to act as Trustee due to the fact that he is a contingent beneficiary.
  7. During her evidence at trial, the applicant stated that should she not succeed in having the Will Trust revoked, she would accept the NSW Public Trustee as a new Trustee, in favour of the alternative options (Julie and Steven or Andrew). I find this to be the most appropriate option in all of the circumstances. The NSW Public Trustee is an independent body, and there is no reason to consider that it would fail in its duties to administer the Will Trust.

PART F: DISPOSITION

  1. Upon noting the undertaking of Julie and Steven to resign their position as Trustees, and further that the applicant has expressly declined to seek orders pursuant to s 36 of the Trustee Act 1936, it is ordered that:
    1. The applicant’s claim for further provision under ss 6 and 7 of the Inheritance (Family Provision) Act 1972 is dismissed.
    2. The applicant is to receive a monthly stipend of $3,000 from the corpus of the Will Trust and its terms are to be so varied pursuant to s 59C of the Trustee Act 1936.
    3. In the equitable jurisdiction of the Court, Julie Fraser and Steven Fraser be removed upon final orders in these proceedings having been pronounced, including any judgment as to costs (by consent or following taxation) as Trustees of the Will Trust established by clause 5.2.2 of the Will of Dorothy Heather Piper dated 21 July 2015 and the NSW Public Trustee be appointed as Trustee in lieu of Andrew Overall.
  2. I will hear the parties on the question of costs.

[1] The terms of the Will Trust are contained in clause 5.2.2 of the Will.

[2] Exhibit R12.

[3] Exhibit R13.

[4] Pursuant to an order of Judge Bochner made on 29 August 2019.

[5] Exhibit R16.

[6] Exhibit R17.

[7] This is the default position under s 9(2) of the IFP Act.

[8] Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190, 204 [45] (Debelle J) referring to McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, 576; Pontifical Society for Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19; Re Buckland (No 2) [1967] VicRp 1; [1967] VR 3.

[9] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208-209 confirmed by the High Court again in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191.

[10] [1994] HCA 40; (1994) 181 CLR 201, 208-209.

[11] For example, see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 210.

[12] [2005] HCA 11; (2005) 221 CLR 191, 197 [5], 218-219 [74], 227 [112].

[13] [2020] NSWCA 229.

[14] [2020] NSWCA 229, [33].

[15] Chapter 3 of the Succession Act 2006 (NSW), applicable to deaths from 1 March 2009.

[16] For example, see Chan v Chan [2016] NSWCA 222, [22].

[17] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478-479; Re Allen [1921] NZGazLawRp 155; [1922] NZLR 218, 220-221; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 209; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 200-201 [16]; Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190, 204 [45].

[18] [2005] HCA 11; (2005) 221 CLR 191, 200-201.

[19] [2020] NSWSC 1463 (Kunc J).

[20] Succession Act 2006 (NSW) s 59(1)(c).

[21] Succession Act 2006 (NSW) s 59(2).

[22] The only other jurisdiction that expressly legislates that a court is to consider the circumstances at the date of the order is the Australian Capital Territory under the Family Provision Act 1969 (ACT) s 8(2), which states as follows: “The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available...”.

[23] Carter v Brine [2015] SASC 204, [592] (Blue J) referring to Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507-509 (Dixon CJ), 515-516 (Webb J), 526 (Kitto J); White v Barron [1980] HCA 14; (1980) 144 CLR 431, 437 (Barwick CJ), 441 (Mason J), 446-448 (Aickin J).

[24] Butler v Tiburzi [2016] SASC 108, [17].

[25] [2016] SASC 108.

[26] White v Barron [1980] HCA 14; (1980) 144 CLR 431; Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656.

[27] White v Barron [1980] HCA 14; (1980) 144 CLR 431, 442 (Mason J), 449 (Aickin J), 455 (Wilson J); Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 501-502 (Gibbs J), 509 (Aickin J); Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 210 (Mason CJ, Deane and McHugh JJ).

[28] Goodman v Windeyer (1980) 114 CLR 490, 502.

[29] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 502 (Gibbs J) applying Pontifical Society for Propagation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

[30] [1962] HCA 19; (1962) 107 CLR 9, 19.

[31] [2005] HCA 11; (2005) 221 CLR 191.

[32] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 231 [122].

[33] [2016] NSWSC 947.

[34] Revell v Revell [2016] NSWSC 947, [33].

[35] [2015] SASC 204.

[36] Carter v Brine [2015] SASC 204.

[37] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210 per Mason CJ, Deane and McHugh JJ.

[38] Pontifical Society for the Propagation of the Faith v Scales ([1962] HCA 19; 1962) 107 CLR 9 at 19 per Dixon CJ (with whom McTiernan J agreed) and 25 per Taylor J (dissenting at on the facts but not as to the principle); McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 572 per Dixon CJ and Williams J.

[39] Pontifical Society for the Propagation of the Faith v Scales ([1962] HCA 19; 1962) 107 CLR 9 at 19 per Dixon CJ (with whom McTiernan J agreed) and 25 per Taylor J; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 572 per Dixon CJ and Williams J; Collins v McGain [2003] NSWCA 190 at [41]- [51] per Tobias JA (with whom Beazley and Hodgson JA relevantly agreed).

[40] Pontifical Society for the Propagation of the Faith v Scales ([1962] HCA 19; 1962) 107 CLR 9 at 19 per Dixon CJ (with whom McTiernan J agreed); Devereaux-Warnes v Hall (No 3) [2007] WASCA 235, (2007) 35 WAR127 at [83]-[85] per Buss JA (with whom Pullin JA agreed);

[41] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210 per Mason CJ, Deane and McHugh JJ.

[42] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 per Dixon CJ (with whom McTiernan J agreed); McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 572 per Dixon CJ and Williams J.

[43] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210 per Mason CJ, Deane and McHugh JJ.

[44] Pontifical Society for the Propagation of the Faith v Scales ([1962] HCA 19; 1962) 107 CLR 9 at 19 per Dixon CJ (with whom McTiernan J agreed) and 25 per Taylor J; McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 572 per Dixon CJ and Williams J.

[45] [2017] WASCA 215; (2017) 53 WAR 76, 94-96 (Mitchell JA and Beech JA concurred in separate reasons).

[46] See Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.

[47] Ruling made Day 3 of the trial (Wednesday, 28 October 2020).

[48] Exhibit R33.

[49] Exhibit R34.

[50] Exhibit R35.

[51] Exhibit R26.

[52] Exhibit R37.

[53] Exhibit R38.

[54] Exhibit R39.

[55] Exhibit R40.

[56] Exhibit R41.

[57] Exhibit R42.

[58] Exhibit R43.

[59] Exhibit R44.

[60] Exhibit R45.

[61] Exhibit R51.

[62] Such statements are admissible to the extent that they prove the reasons that motivated the testator to make her Will and not to prove the truth of the assertion made: see Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 150 (Gibbs J).

[63] Clause 5.2.2(3) of the Will.

[64] Clause 5.2.2(4) of the Will.

[65] Clause 5.2.2(5) of the Will.

[66] Exhibit R40.

[67] Exhibit R52.

[68] However, the applicant later retracted any assertion of having medical qualifications.

[69] The applicant made no attempts to contact the relevant practitioners for their notes.

[70] This figure approximately corresponds to the monies held in a Term Deposit currently for distribution to the applicant from the testator’s estate.

[71] Affidavit of Victoria Jennifer Gilliland, 14 October 2020, Annexures VJG-7 to VJG-10.

[72] A draft affidavit of Kristen Piper was provided outlining Kira’s position, who is under the age of 18.

[73] For example, see Bartlett v Coomber [2008] NSWCA 100, [50] (Mason P); Sadiq v NSW Trustee & Guardian [2015] NSWSC 716, [274] (Hallen J) citing Mayfield v Lloyd-Williams [2004] NSWSC 419, [114] (White J).

[74] For example, see Re Leonard [1985] 2 NZLR 88, 92.

[75] The house value was based on a valuation obtained in 2020. In cross-examination, the applicant said that a real estate agent, Mr Adam Lamb, had told her that he knew a builder who would be willing to pay $2.1 million for the property. She declined to amend the asset value accordingly.
[76] The value of the public listed shares was based on the listed share value.
[77] The estimate is based on the applicant’s understanding of the second-hand value of the items.
[78] The liabilities were calculated based on bills the applicant has received.
[79] The Superannuation Fund referred to is closed.

[80] The income from the Disability Support Pension is the fortnightly payment the applicant receives doubled.

[81] The expenses listed are based on bills, invoices and receipts the applicant has in her possession.
[82] Eg past 12 months repairs to roof to stop leaks were $21,000.

[83] Exhibit A11.

[84] Exhibit A10.

[85] [2000] VSC 341. Neither party referred to this case.

[86] Tender Book Volume 1, Item 2, pp. 76-79.

[87] Affidavit of Jenny Lee Tummel, 22 October 2020.

[88] John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Butterworths, 5th ed, 2017).

[89] John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Butterworths, 5th ed, 2017) 103-104.

[90] Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478; Re Buckland (No 2) [1967] VicRp 1; [1967] VR 3 at 5. For commentary on small estates, see 3.8.

[91] See, generally, Re Leonard [1985] 2 NZLR 88.

[92] Re Buckland (No 2) [1967] VicRp 1; [1967] VR 3 at 5. The effect of inflation only was referred to in Goodman v Windeyer [1980] HCA 31; (1980) 54 ALJR 470 at 474.

[93] Falkingham v Falkingham [2002] NSWSC 534; McCarthy v McCarthy [2009] NSWSC 774; Axiak v Axiak [2009] NSWSC 1319.

[94] Dobb v Hacket (1993) 10 WAR 532; Berkelmans v Bulach [2009] VSC 472; Jagoe v Maguire [2013] NSWSC 1283.

[95] Cannings v Cannings [2010] NSWSC 87 at [42].

[96] It is relevant to consider monetary benefits provided to the applicant by testator during the testator's lifetime: Re Estate of Guthrie (1983) 32 SASR 86, 96.

[97] Clause 5.2.2(3) of the Will.

[98] Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190, 206 [51].

[99] [2016] NSWSC 947.

[100] Gregory v Hudson (No 2) (unreported, Supreme Court, NSW, Young J, 18 September 1997); Taylor v Farrugia [2009] NSWSC 801, [62]; Shepherd v Shepherd [2010] NSWSC 167; Farr v Hardy [2008] NSWSC 996.

[101] On the evidence provided, the applicant has made no request for maintenance to the Trustees. Rather, she has requested a distribution to satisfy legal fees incurred in these proceedings, which the Trustees, reasonably exercising their discretion, have declined: see correspondence from the applicant’s solicitor dated 30 September 2020 (Exhibit A62) and the Sixth and Seventh Respondents’ solicitor’s response dated 8 October 2020 (Exhibit A63).

[102] Clause 5.2.4 of the Will.

[103] Mui Pty Ltd v Hoh (No 6) [2017] VSC 730, [405] referring to Cowan v Scargill [1985] Ch 270, 295. In these circumstances, it is not open for the applicant to call for and compel the corpus of the Will Trust property to be distributed to her. This is not a situation like that in Saunders v Vautier (1841) 41 ER 482, as the applicant is not the sole beneficiary, and there is dispute among the applicant and her son Andrew (a contingent beneficiary) as to the complete removal of the Will Trust, which also under the terms of the trust instrument was designed to operate as a protective trust.

[104] Quinton v Proctor [1998] 4 VR 469, 471.

[105] Re Campbell (dec’d); Rowe v McMaster [1973] 2 NSWLR 146, 156.

[106] Clarke v Ebdon [2020] SASC 67.

[107] There is also a negative requirement imposed by section 59C(5) that the trust not be a charitable trust or a trust affecting property settled by an Act but there is no suggestion that this applies in the present case and it can be ignored.

[108] Trustee Act 1936 (SA) s 59C(1).

[109] Trustee Act 1936 (SA) s 59C(2).

[110] This requirement is implicit in the requirement that the proposed exercise of powers would not disturb the trusts beyond what is “necessary to give effect to the reasons justifying the exercise of the powers” and would be “in the interests of beneficiaries”.

[111] Trustee Act 1936 (SA) s 59C(3)(b). It may be that the second and third prerequisites are a single composite prerequisite but it is convenient to treat them separately.

[112] Trustee Act 1936 (SA) s 59C(3)(b).

[113] Trustee Act 1936 (SA) s 59C(3)(d).

[114] Trustee Act 1936 (SA) s 59C(3)(c).

[115] Trustee Act 1936 (SA) s 59C(3)(a).

[116] Benzjia v Adriatic Fisheries Pty Ltd and Cubelic (1984) 37 SASR 545, 559 (Bollen J) citing Chapman v Chapman [1954] UKHL 1; [1954] AC 429; Clarke v Ebdon [2020] SASC 67, [27].

[117] Paloto Pty Ltd v Herro [2015] NSWSC 445, [12].

[118] Paloto Pty Ltd v Herro [2015] NSWSC 445, [18] and the authorities referred to therein.

[119] [1996] VicRp 7; [1996] 1 VR 65, 73-74.

[120] [1936] HCA 13; (1936) 54 CLR 572, 575 (Latham CJ).

[121] (1884) 9 App. Cas. 371, at p. 387.

[122] This has extended to complaints as to potential conflict with the respondents’ solicitors acting for them all, which arose for the first time during the commencement of trial and which I find has no foundation on the facts. The lack of conflict is demonstrated by the clear roles of each respondent, the respective capacities in which they act and the particular aspects of the applicant’s claims with which they take issue.

[123] The Trustee Act s 91, adopting Administration and Probate Act 1919 s 69.

[124] Uniform Civil Rules 2020 r 11.1; Supreme Court Act 1935 ss 7(2), 48(2)(c). See also Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australian and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 127-128 [196].

[125] The exercise of a trustee’s absolute and unfettered discretion is only examinable as to whether the discretion is being exercised in good faith; upon real and genuine consideration; and proper (as opposed to extraneous) purposes: Karger v Paul [1984] VicRp 13; [1984] VR 161, 166. See also Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180; (2000) 2 VR 276, [27]; Esso Australia Ltd v Australian Petroleum Agents & Distributors Association [1999] 3 VR 642, [39].

[126] Clause 5.2.2(4) of the Will.

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