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Harris v Harris [2018] NSWSC 552 (1 May 2018)

Last Updated: 1 May 2018



Supreme Court
New South Wales

Case Name:
Harris v Harris
Medium Neutral Citation:
Hearing Date(s):
14 December 2017
Date of Orders:
1 May 2018
Decision Date:
1 May 2018
Jurisdiction:
Equity
Before:
Ward CJ in Eq
Decision:
(1) Pursuant to s 91 Succession Act 2006 (NSW), order that administration in respect of the estate and notional estate of the deceased, Hubert Estes Harris, who died on 15 October 2015, be granted to the plaintiff, Andrew Harris, for the purposes only of permitting his application for a family provision order.
(2) Dispense with compliance with the Court Rules in relation to Order 1.
(3) Pursuant to Rule 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW), appoint the first defendant, Jennifer Kay Harris, to represent the estate of the late Hubert Estes Harris, for the purposes of these proceedings.
(4) Dismiss the plaintiff’s claim for provision out of the deceased’s estate.
(5) Order that each party pay his, her or its own costs of the proceedings.
Catchwords:
SUCCESSION – family provision – deceased left estate to widow – no provision made in will for adult son – whether provision should be made under s 59 of Succession Act 2006 (NSW) in favour of adult son – whether notional estate orders should be made – appropriate approach to balancing obligations to beneficiary and applicant – respect for testator’s intentions – conclusion that deceased did not fail to make “proper” provision for the applicant’s maintenance, education and advancement in life hence no family provision order made
Legislation Cited:
Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bladwell v Davis [2004] NSWCA 170
Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep)
Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313
Chan v Chan [2016] NSWCA 222
Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201
Epov v Epov [2014] NSWSC 1086
Golsky v Golsky [1993] NSWCA 111
Gray v Mather [2016] NSWSC 699
Hampson v Hampson [2010] NSWCA 359; (2015) 5 ASTLR 116
Luciana v Rosenblum (1985) 2 NSWLR 65
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641
Category:
Principal judgment
Parties:
Andrew Harris (Plaintiff)
Jennifer Kay Harris (First Defendant)
Halliday Shores Retirement Living Pty Ltd ACN 151 551 405 (Second Defendant)
IOOF Investments Management Ltd ABN 53 006 695 021 (Third Defendant)
IOOF Portfolio Service ABN 70 815 369 818 (Fourth Defendant)
Representation:
Counsel:
P W Bates (Plaintiff)
R Colquhoun (First Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
John Katen (First Defendant)
MinterEllison (Second Defendant) (Submitting Appearance)
Grindal & Patrick (Third and Fourth Defendants) (Submitting Appearance)
File Number(s):
2016/00307360
Publication Restriction:
Nil

JUDGMENT

  1. HER HONOUR: This is an application pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) by the plaintiff (Andrew Harris) for provision out of the estate or notional estate of his late father (Hubert Estes Harris), who died on 15 October 2015. The first defendant (Jennifer Kay Harris) is the deceased’s widow and Andrew’s stepmother. She is aged 72 and was married to the deceased for nearly 35 years. Without intending any disrespect I will refer to the plaintiff, first defendant, and other family members by their first names. Jennifer is appointed as the sole executrix in the deceased’s last will dated 20 December 2013. Given the limited assets in the estate, Jennifer does not propose to apply for a grant of probate (see Jennifer’s 16-paragraph affidavit sworn 9 December 2016 at [2]-[3]).
  2. The second defendant, Halliday Shores Retirement Living Pty Ltd, owns and operates the retirement village where Jennifer and the deceased lived prior to the deceased’s death and where Jennifer remains living. Jennifer has the benefit, as lessee, of the balance of a 99-year lease, the deceased’s interest as joint tenant in the leasehold having passed on his death to Jennifer by survivorship. The second defendant filed a submitting appearance, save as to costs, on 31 January 2017 and has taken no active part in these proceedings.
  3. The third and fourth defendants are, respectively, the trustee and fund manager of the superannuation fund of which the deceased was a member. The superannuation benefits payable to the deceased’s estate on his death have now been transferred to Jennifer in her capacity as the reversionary superannuation beneficiary (in accordance with a nomination made by the deceased prior to his death) and hence do not form part of the deceased’s estate as such. The third and fourth defendants have filed a joint submitting appearance, save as to costs, on 16 November 2016. They too have taken no active part in these proceedings.

Procedural orders sought

  1. At the outset, I note that Andrew seeks the following procedural orders:
1. Pursuant to s 91 Succession Act 2006 (NSW), administration in respect of the estate and notional estate of the deceased, Hubert Estes Harris, who died on 16 October 2015, be granted to the plaintiff, Andrew Harris, for the purposes only of permitting his application for a family provision order;
2. Compliance with the Court Rules in relation to Order 1 be dispensed with; and
3. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW), Rule 7.10(2)(b), the first defendant, Jennifer Kay Harris, be appointed to represent the estate and notional [sic] of the late Hubert Estes Harris, for the purposes of these proceedings.
  1. Those orders were not opposed by Jennifer and will be made to permit the present proceedings to be properly constituted.

Background

  1. The relevant chronology of events can be briefly stated.
  2. Andrew is the adult son of the deceased and the deceased’s first wife, Janet Elizabeth Green. He is 42 years old. His mother is still living. The deceased and his first wife had three children together: Cassandra, who they adopted in 1972; Kathlyn (now deceased), who was born in 1973; and Andrew, who was born in 1975.
  3. The deceased and his first wife separated in 1978. Andrew was then about 3 years old. The deceased married his second wife, Jennifer, on 13 December 1980.
  4. After his parents’ separation, Andrew and his sisters lived first with their mother in Maryborough and then Melbourne (see Andrew’s affidavit sworn 25 October 2016 at [14] – to which I will refer as his first affidavit) until 1980 and then, after his mother became very ill, they moved to live with their father and Jennifer in Sydney (see Andrew’s first affidavit at [19]).
  5. In about 1989, when Andrew was about 14 years old, he moved back to live with his mother in Melbourne (see his first affidavit at [20], [30]). Andrew has deposed that he decided to move back to Melbourne to live with his mother because he was being subjected to sexual abuse by a close family member in his father’s home (see his first affidavit at [31]). (He has since identified this person as a male relative of Jennifer, who he says was about two years older than him at the time.)
  6. I interpose here to note that s 578A(2) of the Crimes Act 1900 (NSW) prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. However, there do not appear to have been any proceedings brought in relation to Andrew’s complaint and therefore this provision would not apply in the present case. Nevertheless, given that during the course of the hearing of these proceedings Andrew identified the (then) child who allegedly abused him, and these are unsubstantiated allegations, I consider that it is in the interests of justice to make orders pursuant to ss 7 and 8(1)(a)-(d) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication in Australia of that child’s name, or other material that would be likely to identify that person, and will direct that the transcript be redacted accordingly.
  7. Andrew has deposed that he kept in regular contact with his father from 1989 (when he moved back to Melbourne) to 1993 (when he was aged 18) (see his first affidavit at [35]-[42]). In cross-examination, Andrew said that he started taking marijuana around the age of 15 (by which time he was living in Melbourne); that this was when he was beaten up by 30 young men; and he agreed that he has taken marijuana extensively over the years since then (T 29.31-44). He also gave evidence (at T 36.29-30) that:
My father hated me taking drugs, absolutely. That’s why – a lot of the time, that’s why we never got along.
  1. Jennifer’s evidence was that the deceased had said to her on three or four occasions in the early 1990s, when they became aware that Andrew was taking drugs, words to the following effect:
I am so disappointed in Andrew. If only he would drop the drugs and straighten out his life.
[See Jennifer’s 32-paragraph affidavit sworn 10 March 2017 at [7]; T 43.17-30]

Jennifer’s evidence was also that when Andrew later periodically came back to live with them it was “great” for a while until the issue of drugs arose each time (T 66.9).

  1. Andrew returned to live with his father and Jennifer at the end of year 12, having left school in Melbourne halfway through that year (see his first affidavit at [42]-[43]). Andrew has deposed that he stayed at his father’s place for about a year, during which time he was working in a yachting store and completing a TAFE course at Ultimo (see his affidavit at [44]).
  2. Andrew has deposed that when he was 18 he told his father that he had been sexually abused when he was young, but that he did not tell his father who had abused him. He places that conversation as occurring one evening when he, his father and Jennifer were discussing why he had left Sydney (see his first affidavit at [45]). He describes his father as being distraught by the news. Jennifer did not recall being told by her husband about a year prior to Andrew’s 19th birthday that Andrew was being abused by someone and said that she thought that if she had been told she would have made a point of finding out who Andrew was talking about (T 61.40). However, at some point she learnt from the deceased about the alleged abuse (T 62.15).
  3. Andrew has deposed that (after he had been living at his father’s house for about a year) his father asked him to leave his house and helped him to move into a property in Gladesville which he shared with a sailing friend; and that he was upset about this but remained in contact with his father (see his first affidavit at [47]-[48]).
  4. Andrew has deposed that in about 1994 he was at his father’s place and he told his father that it was a close family member who had abused him and that this person was related to Jennifer (see his first affidavit at [53]). In his first affidavit he placed this conversation as occurring the day before his father had suffered from a heart attack (which he said caused his father to suffer “a minor brain damage due to blood loss” and after which he said his father’s character had changed – see his first affidavit at [54]-[56]). Pausing here, Jennifer disputes that the deceased suffered a heart attack and brain damage at all. Her evidence is that the deceased suffered an aortic aneurysm; that it was in 1997; that she did not see any personality changes in her husband after that; and that her husband had had some short-term memory loss and concentration loss but had recovered totally and had run a business after the operation (see her 32-paragraph affidavit sworn 10 March 2017 at [16]; T 61.20-29; T 71.22-25).
  5. I regard Jennifer’s evidence where it conflicts with Andrew’s evidence as by far the more credible. Andrew conceded that his memory was “foggy” at times (T 28.14), and he was agitated and anxious in the witness box. Jennifer, on the other hand, presented as an honest and reliable witness. She conceded matters put to her in cross-examination (such as matters relating to her finance) and her wry acknowledgment as to the uncertainty and stress of her current position struck me as genuine (see the following exchange at T 56.21-37):
Q. Now, you're aware that we're hearing this case and her Honour will be giving a judgment at some stage.
A. Yes.
Q. And you agree that that will then resolve this
A. I hope so.
OBJECTION. UNFOUNDED CONCLUSION
BATES: I'll put it a different way.
Q. Madam, you agree that once the Court has dealt with this dispute
A. Mmhmm.
Q. that that source of suffering and stress will go away.
A. I'm hoping so, but depending on the decision, it may create some difficulty for me.
  1. Andrew’s evidence was that, following his father’s “heart attack” to the date of his death (in October 2015), they did not share the close relationship they once had but did remain in contact. He has deposed that they spoke to each other every few months, via telephone and emails (see his first affidavit at [60]).
  2. In the period from mid-1997, Andrew says that he was feeling depressed (see his first affidavit at [61]ff). He has deposed to having been taken by the deceased to Royal North Shore Hospital on one occasion but says that he did not agree to being admitted to the hospital that day and hence was not admitted on that occasion (see his first affidavit at [65]); and to his subsequent voluntary admission to the psychiatric unit at that hospital about three weeks later (see [67]), after which he says he moved into the deceased’s place for about three weeks (at a time that the deceased was overseas). He says that he and Jennifer “got into a massive fight because we were not getting along” and that when his father returned to Sydney he asked Andrew to leave (see his first affidavit at [71]). Jennifer denies that there was a massive fight while the deceased was away, but does agree that there were several disagreements with Andrew over that period. Jennifer deposes that Cassandra and Andrew’s two cousins were also living in the house at that time (see Jennifer’s 32-paragraph affidavit sworn 10 March 2017 at [25]).
  3. From about 1998 to 2002, Andrew lived in Melbourne (see his first affidavit at [77]). In April 2002, Kathlyn committed suicide (see Andrew’s first affidavit at [78]).
  4. Andrew has deposed that after his sister’s funeral (in 2002) the next time he saw the deceased was in 2011 but that in the meantime he and the deceased spoke regularly over the phone – at least every couple of months (see his first affidavit at [81]-[83]). Andrew refers to a dinner they had together in 2011 during an interstate visit by his father (see [83]-[85]) and says that, after that, they kept in contact by phone every few months until his father’s death (see [86]-[92]).
  5. In the period from at least 2007, Andrew was admitted from time to time to psychiatric or mental health units (as to which I give more detail later in these reasons, from [57]).
  6. In 2013, Andrew moved to Adaminaby, and then to Cooma a year later (see his first affidavit at [88]). He currently resides in rented accommodation in Berridale (which he described in the witness box as a bit of a “rat’s nest” – see T 26.17).
  7. Andrew did not attend the deceased’s funeral. He has deposed that his father rang to speak to him before his death and that his father told him that if anything was ever going to happen to him (i.e., to the deceased) all family was going to be invited to his funeral (including the family member who Andrew says had abused him); that his father told him not to attend if he was going to make a scene; and that he (Andrew) became distressed, they had an argument, and Andrew “hung up on him”, but then called his father later in the day and said he would like to attend the funeral (see Andrew’s first affidavit at [93]-[94]). Andrew says that when his father died he could not bring himself to attend the funeral; and that he spoke with Jennifer about a week later and told her he did not think he could have attended without “losing my cool and having a breakdown”. Andrew says that Jennifer said she understood and thanked him for not coming (see Andrew’s first affidavit at [95]).
  8. Jennifer confirmed that she had heard the deceased say to Andrew on the telephone a couple of weeks before his death that “I want you to come to the funeral. I don’t want trouble but the whole family is there” or “is going to be there” (T 69.22; T 70.6) and that the deceased told her that Andrew had said “How dare you invite [the alleged abuser]” (T 69.24, 69.28). Jennifer denies that the conversation which Andrew says occurred about a week after the funeral, ever took place and says that she did not hear from Andrew until about March or April the following year (T 70.40-71.2).

The deceased’s will

  1. Under the deceased’s will dated 20 December 2013, Jennifer is appointed as the deceased’s sole executrix and the deceased gives all of his estate to her (cl 3). There is provision, if Jennifer were not to survive the deceased for 30 days, for the appointment of Cassandra (or, failing that, another person) as the deceased’s executor and trustee; and in that event the deceased bequeaths to Cassandra any home the deceased owns at the date of his death together with all contents therein or the proceeds of sale from such home or long-term lease of property at Halliday Shores (cl 4). The residue of the deceased’s estate in that event is divided under the will as to 75% to Cassandra and 25% to another named residuary beneficiary. No provision is made for Andrew, nor is there any reference to Andrew, in the deceased’s will.

Application for provision

  1. Andrew’s application for provision is brought pursuant to s 59 of the Act, which provides, relevantly, that the Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of an eligible person, having regard to the facts known to the Court at the time that the order is made, if the Court is satisfied that:
(1)(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
  1. Section 60(1)(b) of the Act provides that the Court may have regard to the matters set out in sub-s (2) for the purpose of determining whether to make a family provision order and the nature of any such order. Relevantly, those matters include:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
...
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
...
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
  1. It has been made clear in many cases, including recently in the Court of Appeal in Sgro v Thompson [2017] NSWCA 326, that what is required is a multi-faceted evaluative approach to the question posed by s 59 of the Act as to whether adequate provision was made for the proper maintenance, education or advancement in life of an applicant. In Sgro, Payne JA (agreeing with White JA) said at [6]:
What is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. I agree with White JA that while the Court’s assessment of what is proper maintenance, education and advancement in life must be made at a time when the Court is considering the application, that does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.
  1. It is also well recognised that the evaluative judgment made under s 59(2) is fact specific (see Sgro at [67] per White JA, with whom McColl JA agreed).
  2. There has been debate as to whether the two-stage analysis held to have been applicable to claims for family provision under the predecessor legislation (as articulated in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 210-211) is applicable to claims made under the corresponding provisions of the Act (see Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308; v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113; Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641; Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313). That debate was referred to by White JA in Sgro at [68], his Honour going on to observe (at [69]) that the question should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood; and that (if the two-stage approach is still to be adopted) the same considerations apply at both stages of the inquiry (see [70]).
  3. White JA identified the risk of error, if a two-stage approach is adopted, as being that the first stage of the inquiry may be seen to be confined to an assessment of the adequacy of the provision made for the applicant to satisfy his or her financial needs (at [73]), emphasising that the question is as to the adequacy in all the circumstances of the provision made for the “proper” maintenance, education or advancement in life of an applicant (see [72]-[74]). His Honour (at [72]) expressed his agreement with the reasoning of Basten JA in Andrew v Andrew that the structural changes between the Family Provision Act 1982 (NSW) and Ch 3 of the Act mean that a two-stage approach is generally no longer appropriate.
  4. Having regard to the reasons in Sgro, I approach the task in the present case as one requiring a multi-faceted evaluative approach, noting the distinction emphasised by Basten JA in Chan v Chan [2016] NSWCA 222 at [22] between an applicant’s needs and the adequacy of provision.
  5. Before turning to consider the relevant matters in the present case, it is also necessary to note that Part 3.3 of the Act contains provisions relating to the making of notional estate orders for the purpose of making a family provision order or for the purpose of ordering that costs in the proceedings be paid from the notional estate. This is relevant here, given that the deceased’s interest as joint tenant in the lease of the retirement villa, which passed to Jennifer by way of survivorship, as well as his half interest in their joint bank account and his superannuation benefits that passed to Jennifer by reason of the nomination made by him as beneficiary (and thus did not form part of his actual estate), all constitute property that could be designated notional estate (see ss 75 and 76). Section 78 provides:
(1) The Court may make an order designating property as notional estate only:
(a) for the purposes of a family provision order to be made under Part 3.2, or
(b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person.
(2) The Court must not make an order under subsection (1)(b) for the purposes of an order that the whole or part of the applicant’s costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant.
  1. The Court must not make a notional estate order unless it has considered the matters set out in s 87 of the Act (including the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits involved in making or refusing to make the order) and must not do so unless satisfied of one of the matters in s 88 of the Act (including that the deceased person’s estate is insufficient for the making of the family provision order or any order as to costs that the Court is of the opinion should be made).
  2. I turn then to the matters relevant to the determination to be made in the present case.

The family relationship between the applicant and the deceased (s 60(2)(a))

  1. While the family relationship between the deceased and Andrew is not in dispute (and nor is its duration), the closeness of that relationship over the period of Andrew’s life is in dispute.
  2. Andrew maintains that his relationship with the deceased was a close one (as described in his first affidavit from [11]-[95]) and submits that he is a person who has a strong claim to the testamentary bounty of his late father’s estate and notional estate. His first affidavit recounts incidents from his childhood years – birthday presents and the like. Of more relevance, in my opinion, is the nature of the relationship in his adult years and particularly in the decade or so before his father’s death.
  3. From the chronology set out earlier (see from [6]), it can be seen that the contact between Andrew and the deceased in the years prior to the deceased’s death was sporadic and limited mainly to telephone and email exchanges (the frequency of which was disputed). On Andrew’s own evidence he saw his father only once after the funeral of his sister in April 2002 (that being in 2011) and not at all after 2011.
  4. Jennifer accepted in cross-examination that Andrew had maintained contact with his father over the years but described it as “occasional”; accepting that there were telephone calls between the two but saying that they were occasional and that there were emails but not a lot (see T 65-66). Jennifer said that she had read the emails (as I understand it, this was after the deceased’s death) and that they were mainly about fishing and yabby traps (a passion of Andrew’s, to which I will come in due course – see at [73]) (see T 66.31). In cross-examination there was the following exchange about the emails and telephone calls (at T 67.3-27):
Q. But you didn't read those emails when they were passing between each other, did you?
A. No, no. Hugh would - some emails were very upsetting, Hugh would - and text messages on the phone. Hugh would show me them.
Q. So, when you say that your husband had text messages, that was on his mobile phone, was that right?
A. Yes, yes.
Q. To your observation, when Andrew telephoned your husband, was it on the landline at home or on the mobile? Or both?
A. On the landline.
Q. But you say that there were text and things, so there was also communication between them on the mobile, was there not?
A. There were messages from Andrew on the mobile.
Q. Right.
A. Mm.
Q. So again, you wouldn't have - if Andrew and your husband were having mobile telephone conversations, you would not have necessarily heard them, would you?
A. I wouldn't have heard them, but Hugh would definitely talk to me about them. We didn't hold an awful lot back between us.
  1. The email communications were not in evidence but there is no reason not to accept that there was email and telephone contact from time to time between Andrew and his father (the frequency of which seems likely to have been exaggerated by Andrew, whose evidence I did not regard as particularly reliable, as noted earlier at [18]).
  2. Jennifer’s evidence as to upsetting emails having been sent to the deceased is consistent with the evidence of disputes with Andrew within the family over the years (not only as to Andrew’s drug use but also as to the allegations he made against Jennifer – to which I refer from [84]); as well as with Andrew’s own evidence as to the last telephone conversation he had with his father (when he says he hung up on his father, though later calling him back). I consider that Jennifer’s evidence as to the degree of contact between Andrew and the deceased over the last dozen or so years of the deceased’s life is more likely to be accurate than that of Andrew (who himself conceded that his memory of events was “foggy” – at T 28.14). In that regard, though Andrew gives an explanation for this and though I do not suggest that this is in any way determinative, it is relevant to note that Andrew did not honour his father’s request that he attend his funeral.
  3. The conclusion I draw from the evidence is that at least from 2002 to the time of the deceased’s death, although there was contact between the deceased and Andrew from time to time there was not a particularly close father/son relationship. I accept Jennifer’s evidence that it was a strained relationship. Indeed, Andrew himself accepted that his father had been unhappy at his use of drugs (corroborating Jennifer’s evidence that the deceased had expressed his disappointment at this) and that the relationship with his father was not as close after his father’s operation (which Jennifer placed as being in 1997).

Nature and effect of obligations owed by the deceased to the applicant and to his wife (s 60(2)(b))

  1. It was not disputed that both the deceased’s widow and his son were natural objects of the deceased’s testamentary bounty. In the case of Jennifer, she had been his wife for almost 35 years and there is no suggestion that this was other than a happy marriage over the years. Jennifer’s comment in the witness box that there was not a lot they had kept back from each other over the years rang true. Also, it is apparent that Jennifer had welcomed the deceased’s children from his first marriage into their home and had cared for them over the years. Relevantly, he now accepts that his father would have wanted Jennifer to be secure in her old age. In his affidavit sworn 2 November 2017 (to which I will refer as his third affidavit), Andrew deposes “that it would have been my father’s wish for Jennifer to be secure during her life” (at [15]).
  2. In the case of Andrew, again he is a natural object of his father’s bounty and it is apparent that over the years the deceased provided support and encouragement to him. I consider later (from [108]) the observations made in the authorities as to the position of adult children in family provision applications of this kind, particularly where the child in question has fallen on hard times or is suffering from a particular disability. Suffice it here to note that Jennifer accepts that Andrew has a competing moral claim which must be considered in this context.

The deceased’s actual estate and potential notional estate (s 60(2)(c))

  1. The deceased’s actual estate at his date of death was small – comprising $7,943.00 after payment of liabilities (those being credit card debt and funeral expenses) (see Jennifer’s 16-paragraph affidavit sworn 9 December 2016 at [4(a)], [5]-[7], [13]).
  2. The deceased’s potential gross notional estate (leaving aside the costs of the current proceedings) was calculated by Andrew (in his amended submissions filed 13 December 2017) at $627,307.65 (projected up to the date of the final hearing), comprised of:
  3. On the calculations handed up by Counsel for Jennifer at the hearing, the potential notional estate was slightly less – being $599,111.31, comprised of the half leasehold interest ($230,000) and the deceased’s superannuation entitlements (as at 29 November 2017 being $369,111.31). The deceased’s superannuation entitlements were transferred to Jennifer as a reversionary beneficiary and are paid as an allocated pension. These calculations do not appear to take into account the half share of the joint bank account moneys (item (a) above). Nor do they take into account the reversionary superannuation pension stream (item (d) above) – that being because it is argued for Jennifer that to include this amount would, to a large extent, amount to double-counting.
  4. Suffice it to note that although the potential notional estate is in the order of $600,000 (and will vary up and down with the performance of the superannuation fund in which much of the cash component is invested), a significant portion of this is the deceased’s half interest in the lease of their retirement villa, which passed to Jennifer by survivorship and which could only be realised if there were to be a sale of the lease.

Andrew’s personal and material circumstances and needs (s 60(2)(d), (f), (g))

Age and personal circumstances

  1. As noted earlier, Andrew is now 42. He is single and has no dependants (see his first affidavit at [98]-[99]). He rents a two bedroom cottage in Berridale for $120 per week (see Andrew’s third affidavit at [6]).

Assets and liabilities

  1. Andrew is currently unemployed – and has not been employed since 2000 when he worked as a motorbike courier (see his first affidavit at [103]). He is in receipt of a disability support pension of about $1,004 per fortnight (see his first affidavit at [102]). He effectively has little in the way of assets (his main asset seems to be his car, which is the subject of finance from Westpac). He has deposed that he has debts of about $12,000 (see his third affidavit at [12]), relating to a Westpac loan of around $8,876 in relation to his car (which he refinanced not so long ago), his repayments for this loan being $323.15 per month; and a loan from his mother (of which $3,300 is outstanding) to pay for compulsory third party insurance for his car and to assist Andrew to recover the car after it was repossessed during a period in which he was in hospital. He has an arrangement with his mother to repay her $200 per month till his debt to her is repaid. His repayments on those two loans therefore come to around $523.15 per month.
  2. Andrew has deposed that he finds it hard to live on the disability support benefits; often misses meals; eats cheaply and has no funds for recreation (see his third affidavit at [12]).
  3. In his affidavit sworn 15 March 2017 at [12] (to which I will refer as Andrew’s second affidavit), Andrew deposed to the receipt of payment of a sum of $54,599.07 in February 2013 for a total and permanent disablement claim (on the basis of “psychosis”). He has deposed that he spent this amount in the following way: $12,000 towards the purchase of his current vehicle; approximately $5,000 towards relocation costs when he moved to Adaminaby in 2013; approximately $5,000-$10,000 in trying (unsuccessfully) to establish a yabby farming business when he moved to Adaminaby; and, over the next three years or so, to meet the shortfall in his expenses compared to his income (see at [13]).

Andrew’s health

  1. Andrew has deposed that he has no “physical health condition” but says that he has been diagnosed with “Cyclothymic Bipolar Disorder” for which, as at October 2016 he was not taking any medication (see his first affidavit at [104]).
  2. In Andrew’s second affidavit (at [4]-[5]), he has deposed that he suffers from bipolar disorder and anxiety; that he has recently been referred to a psychiatrist (Dr Butterfeld) with whom he “discussed the possibility that [he] also suffer[s] from post-traumatic stress disorder (PTSD)”. Pausing here, though there is reference to the possibility of such a disorder it is not clear that there has been a formal diagnosis as such; nor is it clear to what the potential PTSD relates (the alleged sexual abuse when he was a minor or the alleged assault by a large group of men when he was a teenager) – nothing, however, turns on this. Andrew describes in that affidavit (at [8]ff) his stress and anxiety during the course of the proceedings and when he was notified that he would need to attend a judicial settlement conference in these proceedings on 2 February 2017 (which he did not attend). (In the witness box during the hearing, Andrew also referred to his anxiety, telling me that he had taken Valium during the hearing – see at T 37.20.)
  3. There was no evidence from a medical expert as to Andrew’s psychiatric condition but there are a number of documents in evidence which point to him suffering from psychiatric illnesses or conditions of various kinds. Bearing in mind that some of the content of those documents appear to depend on the accuracy of the history given to the relevant health professionals, they nevertheless paint a picture of ongoing mental health problems. That material includes the following.
  4. Annexed to Andrew’s second affidavit are various mental health discharge/separation summary reports: these refer to an involuntary admission, by police and CATT, on 24 April 2007 (noting Andrew’s previous psychiatric history as including his “first involvement with mental health” at 21 years old; a diagnosis with Bipolar Affective Disorder at 22 years old) “because of relapse of mania and bizarre behaviour” (noting that on admission Andrew had delusional ideas about being robbed and treated badly by police); and an admission on 18 May 2007 (after case management following a discharge on 10 May 2007 from an inpatient unit on a community treatment order). (There was no evidence to assist in the interpretation of these admission/discharge reports.)
  5. A letter headed “To whom it may concern” and dated 30 March 2012 on NorthWestern Mental Health letterhead refers to admissions to the psychiatric impatient unit from 20 April 2007 to 10 May 2007 and from 16 May 2007 to 25 May 2007, noting that Andrew was also a “client” of their service between 1 April 2004 and 23 June 2004; and that he was treated under a Community Treatment Order from 11 September 2003 until 5 November 2003 and from 10 May 2007 until 13 November 2007.
  6. A discharge referral report dated 6 March 2015 refers to a “long history of Bipolar Affective Disorder, complicated in the past by substance abuse” and recording delusional statements by Andrew on his admission to Cooma Emergency Department on 14 January 2015.
  7. By letter dated 31 March 2015, Dr Teresa Foce, a psychiatrist and psychotherapist, reports that she had reviewed Andrew that day; that he was recently admitted to the Chisholm Ross Centre (in Goulburn) “with a manic episode with a long history of Bipolar 1 Disorder and Cannabis use disorder” and that he was discharged on 5 March 2015 on a number of medications. Dr Foce noted that he presented as “over-medicated” and that he presented “very late for his appointment today leaving inadequate time to obtain his background history”. Dr Foce stated that there was no evidence of a formal thought disorder; no suicidal ideation; and that Andrew displayed a “reasonable range of affect”.
  8. A facsimile transmission dated 14 May 2015 from Professor Cathy Owen in the Queanbeyan Community Mental Health Service states that she reviewed Andrew via video conference as locum for Dr Foce. In that report she notes that Andrew had coped with a stressful experience of his mother taking an overdose “remarkably well” without any relapse of symptoms and had remained well since stopping some medication.
  9. A letter dated 21 October 2016 from a Sexual Assault Worker, Cooma Community Health, headed “To Whom it May Concern”, provided at Andrew’s request “in support of a current court matter regarding his father’s deceased estate and his diagnosis of C-PTSD [Complex PTSD] and Bipolar Affective Disorder”, states that Andrew has been a client of the service since 12 May 2015, having been referred by a case worker at Mission Australia after disclosing to her that he was sexually abused as a child or young person.
  10. That letter notes Andrew’s statements that he had reported the sexual assaults to Chatswood Police Station in 1998 and Queanbeyan Police in early 2015; that when he rang the former to find out what happened to his report “he was told that the case was closed as his step-mother had been contacted and told the police that Andrew was on drugs and couldn’t be trusted to tell the truth” (Jennifer denied on oath in the witness box that she had ever been contacted by Chatswood police – see T 63.19, 63.30-37, 64.1-19). The letter (obviously based on the history given to her by Andrew) goes on to state:
Andrew has often talked about his father, how badly his father and step-mother treated him and failed to protect him when he was a child, from being sexually abused by [the alleged abuser].
  1. The letter states that during clinical counselling sessions over the last 16 months Andrew has been observed to display “symptoms consistent with a diagnosis of Complex PTSD, the impact of the trauma has significantly impacted upon Andrews [sic] quality of life and functioning”. The letter states that notes reviewed in his mental health file note that he has been diagnosed with Bipolar Affective Disorder. (This letter does not amount to a formal diagnosis of PTSD as such.)
  2. A letter dated 2 February 2017 from a Cooma doctors’ surgery refers to Andrew’s last admission to the mental health service being in March 2015 to the Chisholm Ross Centre in Goulburn and to his diagnosis as Bipolar Affective Disorder but states that he was currently stable.
  3. In Andrew’s third affidavit, he deposes to his compulsory treatment in the mental health unit at Bega from 21 July 2017 to 30 August 2017, after a “relapse” of his schizophrenia. Following his discharge, he says he moved back to Cooma and then relocated to Berridale (see [5]-[6]). He deposes (at [7]) that he remains under a six month community treatment order whereby he attends the outpatient clinic at Cooma Community Mental Health where he has fortnightly sessions and monthly injections of Paliperidone (a drug that he says has less side effects and seems hopeful that it will lead to a more positive long term outcome than earlier medication – see below).
  4. A short report prepared by Dr Brendan Smith, VMO psychiatrist, dated 6 September 2017, is annexed to the affidavit of Richele Nelsen sworn 7 September 2017. In that report, Dr Smith confirms Andrew’s admission to the South East Regional Hospital’s Mental Health Inpatient Unit on 21 July 2017 and says that Andrew was diagnosed with a psychotic relapse of his schizophrenia. (That report was relied upon for the vacation of the September hearing dates in this matter.)
  5. Andrew submits that his medical records indicate that relapses have occurred when he has ceased taking psychiatric medication, but notes that there have been periods when his treating psychiatrists have decided not to prescribe medication. He says he is now taking medication again, and the current medication (Paliperidone) has less side effects than any previous medication and is assisting him in managing his mental health and controlling his life (see third affidavit at [11]).
  6. Annexed to his solicitor’s affidavit sworn 4 September 2017 is a copy of determination by the Mental Health Review Tribunal on 9 August 2017 that Andrew is a mentally ill person and must be detained in or admitted and detained in the Bega hospital for further observation or treatment, or both, as an involuntary patient unless discharged, until a date no later than 4 October 2017. The stated reasons of the members were that: Andrew had symptoms of mental illness, delusions and grandiose ideas such as defying gravity; that he needs care and treatment for protection of others and also of his own reputation and aggressive behaviour with others; and that he does not think he needs treatment so an order is necessary. The Tribunal decided to make no order for management of Andrew’s estate under the NSW Trustee and Guardian Act 2009 (NSW). There is nothing to indicate the basis on which it was decided to make no order for management. It can only be assumed that the Tribunal considered that Andrew was competent to manage his estate notwithstanding the mental issues that lead to his detention in or admission to Bega hospital at that time.

Education and employment prospects

  1. As noted earlier, Andrew left school halfway through year 12. He subsequently studied at TAFE when first living with the deceased and Jennifer. He completed year 12 and obtained a TAFE Certificate in 1994 in retail operations (see his first affidavit at [100]-[101]) and then had a succession of jobs. He has not worked since 2000.
  2. Andrew enrolled in a 12 month TAFE course in a certificate in animal science in 2017. In his second affidavit he deposed (at [16]) that, following this, if he completes a further diploma of animal science he would be qualified to be a veterinarian assistant. He there deposed (at [17]) that his aim was to become a fully qualified veterinarian (referring to a six year dual degree course in veterinary science and animal science at Charles Sturt University). In his third affidavit he deposes (at [14]) that he missed too much time from the course to resume his TAFE studies for the remainder of 2017 and that, while he would love to be a vet, he accepts that “it is more realistic and suitable” for him to work in other animal related areas once he has his certificate (such as working as an animal assistant in a vet hospital or helping to look after pets in a pet store).
  3. Andrew does not believe he could work full time again (see his first affidavit at [120]). However, as noted above, he says that he would like to work with animal care in a veterinary hospital or a pet shop. Andrew’s evidence was that he intended to resume his TAFE certificate III studies this year (i.e., in 2018) (see his third affidavit [13]-[14]). There was evidence from Andrew as to his development of a new form of yabby trap that he wishes to patent and then market. (There was also evidence as to his failed attempt to establish a yabby business when he first moved to Adaminaby.) Andrew was not prepared to divulge information as to the proposed patent application for fear of losing confidentiality in the subject of the application. It seems that this proposed venture is at least part of the basis on which it is submitted for Jennifer that there is a basis to suspect that any provision for Andrew is likely to be wasted at the expense of her well-being (see below). For Andrew it was submitted that the prospect that he might profit from such a venture should not operate to reduce any provision to be made for him. In my opinion, apart from explaining how Andrew spends his time and his future interests, I take nothing from the fact that he has in mind such a venture if provision were now to be made for him.

Andrew’s needs

  1. In summary, as to his needs, Andrew seeks provision to improve his quality of life; give him stable accommodation; access private psychiatric care; and to facilitate his animal care studies.

Jennifer’s needs and financial resources (s 60(2)(d))

  1. As noted earlier, Jennifer is 72 years old. She has suffered in the past from both breast cancer and lung cancer. She has high cholesterol and has been diagnosed with osteoporosis as well as anxiety and depression. She continues to receive treatment such as mammogram and ultrasound, CT scan of lungs and blood tests. Her evidence is that she has been told by her doctor that there is a 70% risk of recurrence of breast cancer and a reduced life expectancy (see Jennifer’s affidavit sworn 7 August 2017 at [24]). Her medical needs and pharmacy requirements total about $200 per month (at [9]). Jennifer has given evidence that she requires dental work; that she can expect to require hearing aids; and that she will require a reduction of the left breast (the estimated cost of those treatments totalling around $20,000 as per [25]-[27] of her affidavit sworn 7 August 2017).
  2. Jennifer is anxious not to leave the retirement village and she would like funds to provide for contingencies including worsening health. Her general practitioner’s report as at 5 May 2017 included the statement that “the greatest threat to her wellbeing at the moment and a cause of great suffering and stress related health issues is the prolonged legal matters which she is enduring” (Annexure P to Jennifer’s affidavit sworn 7 August 2017).
  3. Cross-examined as to the state of her physical health, there was the following exchange (at T 56.39-46):
Q. So, what I’m suggesting to you, madam, really is that you’re in pretty good health, aren’t you, apart from the fact that you have this stress at the moment?
A. I’m of reasonable health.
Q. And at the moment, although you have a worry about whether the cancer might come back, you've got no other actual problem at the moment that's not managed by
A. Not that - not that I’m aware of now - now - now.
  1. Jennifer’s assets (other than those which might be designated as notional estate) at the time of the hearing comprised the following:
  2. On Andrew’s calculations, Jennifer’s net assets (excluding potential notional estate) amount to $324,329 (comprising $230,000 as the present exit value of the retirement village lease and $94,329 in cash); on Jennifer’s updated figures they amount to $313,566.80 (comprising $230,000 plus $83,566.80).
  3. By way of clarification, I note that Jennifer has four sources of monthly income, totalling about $3,886.99 per month ($46,644 per annum) and essential expenditure of $3,512.37 per month ($42,148 per annum) – see Jennifer’s affidavit sworn 7 August 2017 (at [7]-[8]). Those four sources of income are: the reversionary allocated pension of $1,456.67 (which was previously the deceased’s); her own allocated pension of $321.67; a United States Defence pension of approximately $1,689.55 dependent on exchange rates; and a part Aged pension of $419.10. The $353,794.59 representing the deceased’s superannuation fund (which reverted to Jennifer on his death) is held and managed by the superannuation fund managers (though able to be drawn down by Jennifer) (see cross-examination at T 43-45).
  4. Pressed on her financial position in cross-examination, there were the following exchanges (at T 58.34ff):
Q. Well, but on that thing, I mean the financial material which I’ve been asking you questions about in your affidavits, so roughly that your income streams up to the present time are in fact 3 or $4,000 more a year than your expenses?
A. I would think so, yes, I usually have a little--
Q. That’s maintaining in your current standard of living, correct?
A. Yes.
Q. That if - on the basis of, assuming for a moment, that there is no recurrence of your cancer, for the foreseeable future, the amounts that you’ve been spending to date, are the amounts you need to maintain your current standard of living?
A. There is some changes. My recurrent charge from the village has just gone up by about $80 a month, and that goes up every year.
Q. But that’s linked to the cost of living, is it not?
A. It is, yes
...
Q. It [her bank account] has a closing balance and opening of $12,393.77 as at 3 November this year, statement number 156?
A. Yes.
Q. Is this your only bank account with cash in it, apart from the superannuation funds. Is that right?
A. Yes, that’s it.
Q. That seems to have a positive balance of around about $12,000 for quite a while. Is that right?
A. Yes, that’s right.
Q. So if you needed to pay - in order to pay for the proposed treatments you mentioned, of nearly $20,000, that would come out of one or other of those superannuation funds. Is that right?
A. No.
Q. If you decided to receive it?
A. I could now, yes. I had the money which I put in to a trust account towards legal costs earlier this year, and that’s why I haven’t had the work done.
Q. So those are you costs, in your solicitor’s trust account?
A. Yes. Just part of it is.
Q. And that’s a part payment of the – they’re your costs for acting for the - for you in these proceedings?
A. Yes, that's right.
Q. Now, I want to suggest to you that even if the court were to order that it was appropriate that Andrew Harris, the plaintiff, did receive provision, that really you are in a very solid financial position, and that you would be comfortably able to maintain your current lifestyle?
A. Well, it depends on how much you're talking about too. I don't have a lot left over each month. When I get my car rego - insurance and third party and everything.
  1. In re-examination, there was the following exchange (at T 72.31ff):
Q. Mrs Harris, you were asked some questions concerning your finances and unforeseen events.
A. Yes.
Q. Now, you’re living in a retirement village now?
A. Yes.
Q. When you get older?
A. Nursing home.
Q. You have to pay to go into one of those?
A. Yes, absolutely, and cost - not got cheap nursing homes either; nothing like Sydney.
Q. Does that give you some concern in your own mind?
A. Well, I know if I had to sell now, I'd have enough to move into a nursing home. But I don’t want to have to sell to live somewhere else. I feel so secure and so safe there, and the support I've had has been wonderful. So the thought of having to sell it

Contribution by the applicant to the deceased’s estate or welfare (s 60(2)(h))

  1. It would seem that over his life Andrew has caused the deceased not insignificant disappointment and upset, both in terms of his drug use and in relation to his conduct towards Jennifer.
  2. In this regard, it is relevant to note the allegations made by Andrew in the witness box against Jennifer. These relate to the time just after he was discharged from the psychiatric unit at Royal North Shore Hospital and he went to stay at the deceased’s house for a few weeks. The deceased was overseas at the time. In his first affidavit, as earlier noted, Andrew deposed that “Jennifer and I got into a massive fight because we were not getting along” (at [71]). Questioned about this in cross-examination, Andrew said (at T 29.16-18):
A. Yeah, well, like, there was an incident when we were eating dinner and Jenny started rubbing her leg up on mine under the table and I felt that she was making sexual advances towards me.
  1. Jennifer was not questioned directly about this and there is nothing to substantiate this allegation. (Having regard to other evidence of delusional ideas from time to time – defying gravity, or that his great-grandfather was a king – this seems likely to be no more than another wild allegation on Andrew’s part.) When it was put to Jennifer that her attitude towards Andrew had changed when she became aware of the allegation that a relative of hers had abused him, there was the following exchange (at T 65.10-19):
Q. I’m suggesting that changed the way in which you treated and regarded Andrew after that allegation was made
A. No.
Q. known to you.
A. No. No, I - my - my feelings towards Andrew changed. He accused me of some dreadful things, and also his father. It had nothing to do with - with being sexually assaulted. He also told me that he’d been sexually assaulted by other men. And when I asked “Why would they choose you” and he said because he was so cute. I mean, I don’t know, that could have been a
  1. The reference to being accused of dreadful things may well relate to allegations of the kind referred to above, but this was not explored further.
  2. Andrew’s evidence was that when his father returned from the overseas trip his father had asked him to leave the home to avoid further conflict. Whether or not this had to do with conflict over accusations of “dreadful things” made by Andrew against his stepmother, Andrew’s own evidence paints a picture of a troubled relationship between Andrew and his father and stepmother at various points in their relationship. It is not surprising that Jennifer would have been upset at allegations of this kind if any were in fact made by Andrew in relation to her at the time and no doubt the making of them would also have been upsetting to the deceased. I am not in a position to make any finding about this but simply note Andrew’s evidence in the witness box as pointing to a likely history of upsetting conduct between him and the family
  3. As already noted, Jennifer’s observation was that the relationship between the deceased and Andrew was strained and that they talked on the phone infrequently.

Provision by deceased for applicant during his life (s 60(i), (k))

  1. Although Andrew in the witness box described his father’s support or contribution to his welfare over the years as minimal, the evidence at least establishes that the deceased paid school fees and housed Andrew from 1980 until he was 14 years old; supported him from time to time when Andrew returned to Sydney to stay with the deceased and Jennifer; and provided emotional and practical support when Andrew was taken to Royal North Shore Hospital and, on at least one occasion, responded to a plea from Andrew’s mother for help locating Andrew. There is no evidence to support the accusation recorded in one of the medical notes that the deceased treated Andrew badly or was responsible in any way for the alleged sexual abuse.

Evidence of testamentary intention (s 60(2)(j))

  1. The evidence of testamentary intention is limited to that which is to be found in the will itself.

Other available support (s 60(2)(l))

  1. Andrew’s mother is still alive. There are references in various of the medical reports to suggest that she suffers from some difficulties of her own but that she has nevertheless been supportive to Andrew in the past, both financially (with the loan in relation to his car) and emotionally (see the notes of his last admission to the psychiatric unit).

Conduct of Jennifer before and after death of deceased (s 60(2)(n))

  1. I have already referred to the length of the marriage between the deceased and Jennifer. There is nothing to suggest that she was other than a support to him throughout their marriage.

Costs of the proceedings (any other matter relevant – see s 60(2)(p))

  1. Jennifer’s solicitor/client costs up until the end of the final hearing were estimated to be $63,000 (see affidavit of John Katen sworn 4 August 2017 at [3]). Given that the estimate was for a two day hearing and the matter was concluded in one day, one would expect there to be some reduction in that amount. Andrew’s party/party costs on the ordinary basis up until the end of the final hearing were estimated at a much greater amount in relative terms (namely, $91,600 inclusive of GST) (see affidavit of Richele Nelsen filed 3 November 2017 at [7]; and see also her affidavit sworn 8 December 2017, which included an increased estimate of $109,000 inclusive of GST – at [5]). Counsel for Andrew confirmed that this amount should reduce to around $80,000 by reference to the shortened hearing time (see T 80.16-19). I was informed from the bar table that the reason for the higher costs in the preparation and conduct of Andrew’s case was in part referable to the difficulties his solicitors had experienced in making contact with and obtaining instructions from him (including the need to hire private investigators to locate him at one stage) (see T 81.2-10).
  2. If some $154,600 in costs were to be ordered out of assets designated as notional estate for that purpose, on my calculations this would leave somewhere in the order of $472,707.65 (using Andrew’s figures, though in his written submissions he reached a figure of $480,730.65 – see at [10]) or $444,511.31 (on Jennifer’s calculations) as the deceased’s potential net distributable notional estate. In oral submissions at the hearing, Counsel appearing for Andrew submitted that the relevant figure should be $507,000, referable to an extra $15,000 due to an increase in the superannuation reversionary fund under management at that time (see T 80.25ff; Exhibit A.1), though accepting that insofar as the funds encompass shares the value of the fund will vary up and down from time to time.

Submissions

  1. Andrew points to statements in the authorities to the effect that the position of surviving spouse no longer attracts any primacy or paramountcy in the face of other competing claims (see Bladwell v Davis [2004] NSWCA 170 per Bryson JA at [18]; Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201 at [98]; see also the principles set out by Hallen J in relation to the determination of claims by adult children in Gray v Mather [2016] NSWSC 699 at [90]- [91] and Epov v Epov [2014] NSWSC 1086 at [153]- [156]). In particular, reliance is placed by Andrew on the statement by Hallen J in Epov, at [153(f)], that:
(f) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig, at [17].
  1. As to the discretion to designate notional estate pursuant to ss 87-89 of the Act, reference is made to Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4.
  2. Andrew acknowledges (somewhat belatedly perhaps) that his father would have wanted Jennifer to be secure during her life, but claims that he should also have been the object of his late father’s bounty. Andrew submits that it should be found that the provision made by his father’s will was inadequate, and that provision should be made in his favour, out of his father’s notional estate, in two tranches as follows:
  3. It is submitted that the “up-front” cash component of $100,000 would still leave Jennifer with other cash reserves of $245,059.65.
  4. What that fails to take into account is the impact of any reduction in capital on Jennifer’s income. Jennifer’s affidavit sworn 7 August 2017 set out her then current position in relation to her income and expenditure and assets. In Jennifer’s updating affidavit sworn 22 November 2017 she discloses that her essential monthly expenditure is now increasing. The charges at the retirement village were to increase by $64 a month from 1 January 2018 (at [5]). In practical terms there is only a small buffer after essential monthly expenditure and provision needs to be made for future expenses related to her breast cancer and for dental work.
  5. It is submitted for Jennifer that, regardless of the result of Andrew’s claim, in reality she will have to pay her own legal costs (in the absence of recovery from him) and that this will depreciate the capital she has and the income she will receive from the capital.
  6. It is submitted for Jennifer that the evidence discloses that she was a devoted wife and that she and her husband had a happy marriage of many years before his death. She is not in a position to work and, in all the circumstances, while the provision made for her from her own and her husband’s superannuation provides her with a sustainable living, she does not have significant assets. In those circumstances the matters raised by Powell J in Luciana v Rosenblum (1985) 2 NSWLR 65 and the Court of Appeal in Golsky v Golsky [1993] NSWCA 111 are said to be applicable, and the needs of Jennifer are said to be of significant importance.
  7. It is further submitted for Jennifer that Andrew still has his life ahead of him; that it is up to him as to what he does with his life; and that there does not appear to be “any solid basis” to believe that any money will actually improve his long-term life (noting that Andrew has apparently had a long history of bipolar disorder and cannabis use disorder, and a history of taking medication and then stopping taking it). It is noted that Andrew is currently able to operate on his Centrelink payments and has reasonably inexpensive rent; that he has worked as a courier and has a TAFE trade certificate; and that there is little evidence, if any, of his attempt to work or find work in recent years. There is a suspicion that any money he would receive to the detriment of Jennifer’s well-being would be wasted.
  8. Reference is made to the recognition by the Court in numerous cases that it has never been intended by the legislature that freedom of testamentary disposition should be so encroached upon that a testator’s decision expressed in his will have only prima facie effect, the real dispositive power being vested in the Court. In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19; [1962] HCA 19 Dixon CJ said:
All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result. Perhaps this Court and other Courts of Appeal have attached too much significance to the discretionary aspects of orders under appeal and have accordingly allowed orders to stand which no member of the Court of Appeal would himself have made, had he sat at first instance.
  1. Reference is also made to what was said by Young J (as his Honour then was) in Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep) that “when one is considering what a wise and just testator would have done, if one can see that the plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty” and to what Campbell JA said in Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [101]:
However, to the extent to which the wise and just testator would take it into account, the prospect of the applicant wasting the money is a legitimate matter to take into account in deciding whether the applicant has been left without adequate provision for proper maintenance, education and advancement in life.
  1. It is submitted that in all the circumstances there is not enough in the estate or notional estate to provide for what Andrew is seeking unless Jennifer (the widow of a long-standing marriage) is to be severely affected in her old age.

Determination

  1. In Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], White JA said:
In my view, respect should be given to a capable testator’s judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator’s death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant’s evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant’s maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased’s death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator’s testamentary wishes in recognition of the better position in which the deceased was placed: Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453–454 cited in Nowak v Beska [2013] NSWSC 166 at [136]. This is subject to the qualification that the court’s determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased’s death or will.
  1. In Sgro, White JA (with whom each of McColl JA and Payne JA agreed) said (at [86]):
I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family’s circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is “proper”. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court’s assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.
  1. I accept the statement of general principle in Taylor v Farrugia [2009] NSWSC 801 at [58] that:
... where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute.
  1. However, in the present case, taking into account all the circumstances referred to above, I am not persuaded that the deceased, in not making any provision for Andrew in his will, failed to make “proper” provision for his maintenance, education and advancement.
  2. When considering the exercise of his testamentary bounty, the deceased was faced with the undoubted moral obligation he owed to his long-standing wife to ensure she was secure in her retirement accommodation and protected against the vicissitudes and contingencies that might affect her in old age; to be balanced, of course, against the needs of his adult children – relevantly, here, those of Andrew. I accept that Andrew has needs arising from his long-term psychotic condition that must be taken into account. However, he is currently on medication that is having a positive effect; he has rental accommodation (though modest) in an area he finds peaceful and with ready access to the venue from which he engages in his passion for yabby trapping. He is undertaking a TAFE certificate course that gives him the prospect of working with animals and he is not, in any event, looking for full-time work lest it impact on his disability support pension. He is currently able to manage, albeit in a modest fashion on a disability support pension with at least some expectation of support from his mother.
  3. No doubt Andrew may face financial and/or health challenges as he himself grows older but it is likely that he will fall back on the disability support systems available to someone in his position, as he has to date. It cannot in my opinion seriously be suggested that community expectation would be that the deceased should put his long-standing wife in a position where she is required to vacate her villa in the retirement village (in which she feels secure and which is her home); nor does Andrew now seek this. However, to impose a charge on her leasehold interest (as is sought by way of deferred provision) would place Jennifer at risk of being unable to afford nursing home accommodation should that become necessary in due course. Moreover, any reduction in her capital (comprised of the combination of her and the deceased’s superannuation funds) will necessarily reduce her monthly income, which only just covers her essential expenditure at the present time.
  4. The example given in submissions for Jennifer is instructive. If her current assets were to be reduced by, say $100,000 (taking into account her own costs of the litigation and awarding Andrew a legacy of, say, $15,000 together with costs capped at $15,000), Jennifer’s expected monthly income would be reduced by some $340.84. Coupled with the 2018 increase in the retirement village levy of $64 a month on that calculation Jennifer would be worse off by at least $404 a month. It is submitted, and I accept, that this would have a quite significant effect on her financial circumstances.
  5. The stress placed on Jennifer by the current litigation is understandable (see her doctor’s report). She has in effect had to put “on hold” dental and other treatment as a result of the need to place her legal representatives in funds to defend this litigation. The reality is that Jennifer will have to bear her own costs of defending the proceedings. That will have an impact on her by reducing the capital otherwise available to meet her ongoing needs.
  6. Had I been persuaded that inadequate provision had been made by the deceased for the proper maintenance, education and advancement in life of Andrew, I would have ordered only the provision of a very small legacy in Andrew’s favour (in an amount of, say, $15,000 to enable him to discharge his current loans) and would have capped the costs recoverable by him in a like amount. As it is, I am not satisfied on the threshold question that must be established in order for provision to be made under s 59, so this question does not arise.
  7. Further, as I am not satisfied on the threshold question and thus will not make a family provision order, the requirements (in s 78(2)) for the making of a notional estate order as to costs, pursuant to s 78(1)(b) of the Act, are not met. In those circumstances, each party should bear his, her or its own costs of the proceedings.

Orders

  1. For the above reasons, I make the following orders:

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